Last-minute legal wrangling over an execution drug ended with a killer's last breaths Tuesday, as officials prepared to repeat the procedure next week in what will be Arizona's last use of a controversial three-drug lethal injection method.
Daniel Wayne Cook, 49, is scheduled to die April 5 in the same room at the Florence state prison where Eric John King was executed Tuesday morning. Cook's attorneys are also fighting the use of the knockout drug sodium thiopental, even though similar arguments failed to stop or delay King's execution for killing two men in a 1989 Phoenix convenience store robbery.
Cook's attorney, Michael Meehan, has appealed to the 9th U.S. Circuit Court of Appeals in San Francisco after a lower court dismissed a civil rights lawsuit over the use of the sedative.
Meehan also is asking the U.S. Supreme Court to review a lower court's decision not to review Cook's case based on recently diagnosed post-traumatic stress disorder and brain dysfunction. Cook also is scheduled for a state clemency hearing Thursday.
The civil rights lawsuit argues that the Department of Corrections listed the sodium thiopental as being for "animals (food processing)," not humans, when it was imported from Great Britain. Meehan also argues that the drug could be ineffective, which could cause his client pain.
Arizona Attorney General Tom Horne has said the mislabeling was the result of a clerical error.
King's lawyer, Michael Burke, made similar arguments to no avail before watching his 47-year-old client breathe heavily for several seconds and appear to go to sleep.
Corrections Director Charles Ryan announced that King was declared dead at 10:22 a.m., 13 minutes after a medical staff member walked into the death chamber and confirmed that King had been sedated.
Burke said later there was no way to know whether King was in pain after being injected with sodium thiopental _ the first of the three drugs. A second drug paralyzed King before potassium chloride was injected to stop his heart, so if the sedative didn't work through the entire procedure, King could have been in extreme pain without any way to show it.
"You'd have no way of knowing if he was in pain or not," Burke said. "As an observer, he closed his eyes and took some breaths, and I didn't see him move after. It doesn't really give me any solace."
The Arizona Supreme Court declined to stay King's execution based on arguments over the drugs, and the U.S. Supreme Court refused to intervene. Yet, Robin Konrad, another of Cook's attorneys, said her client has a strong case "and the courts should take a close look at this issue."
"What is important here is lack of transparency by the state," Konrad said. "For six months, we have been asking for information about how the drug was imported. As more information comes out, more questions are raised about the state's candor and the process it used to import the drug."
Department of Corrections spokesman Barrett Marson said the state has "already moved beyond" arguments over the drug. "If today goes smoothly, I wouldn't expect anything different next week," he told reporters before King's execution.
Corrections Director Charles Ryan announced Friday that Arizona will switch to using just one drug in an effort to allay any "perceived concerns" that sodium thiopental is ineffective. But that won't happen until after the executions of King and Cook, who was convicted in 1987 of strangling two men in Lake Havasu City after police say he tortured and raped them.
Assistant Attorney General Kent Cattani has said Arizona obtained the drug legally, avoiding problems in states such as Georgia, where Drug Enforcement Administration agents seized the state's supply of sodium thiopental March 15 over questions about how it was obtained.
The drug is part of the three-drug lethal injection method used by nearly all 34 death penalty states, but it became scarce last year after the sole U.S. manufacturer stopped making it.
Some states started obtaining sodium thiopental overseas, and lawyers have argued that potentially adulterated, counterfeit or ineffective doses could subject prisoners to extreme pain.
Texas and Oklahoma recently announced they are switching from sodium thiopental to pentobarbital in their three-drug protocol. Ohio has switched to using only pentobarbital for its executions, and Ryan said that's the drug Arizona might start using.
King is the 23rd death row inmate Arizona has executed with the three-drug method since it began using lethal injection in 1993. The state had previously executed 38 inmates with lethal gas since it started using that method in 1934. Another 28 inmates were executed by hanging between 1910 and 1931.
King was convicted of fatally shooting security guard Richard Butts and clerk Ron Barman two days after Christmas in 1989. Butts and Barman both were married fathers whose families have testified that their deaths in a robbery that netted just $72 devastated them.
King had maintained his innocence since his arrest, but Burke was unable to successfully argue for clemency at a hearing Thursday. Burke had argued that the two key witnesses who testified against King at his trial have changed their stories, that no physical evidence exists and surveillance video used at trial was of extremely poor quality.