PHOENIX (AP) — A federal appeals court has denied a request by lawyers for an Arizona man scheduled to be executed June 8 to be allowed to make new arguments in an effort to overturn his death sentence in the 1984 kidnapping and killing of an 8-year-old Tucson girl.
The request on behalf of Frank Atwood, convicted in the killing of Vicki Hoskinson, was denied Friday by the U.S. 9th Circuit Court of Appeals.
Atwood’s legal team wanted to make three new arguments that the aggravating factor making the crime eligible for the death penalty was invalidly applied; that authorities failed to turn over evidence that might have helped Atwood’s defense; and that the recently discovered evidence supported the theory that the girl was killed by a woman.
Atwood’s lawyers have said that last summer they discovered an FBI memo describing an anonymous caller claiming to have seen the girl in a vehicle not associated with Atwood, but which could be linked to the woman.
An Arizona assistant attorney general said during a hearing Tuesday that Atwood’s lawyers did not meet the criteria to present new evidence in federal court, and a three-judge panel of the appeals court agreed in its ruling Friday.
In light of witness testimony implicating Atwood and information about the woman that Atwood’s defense had at the time of the trial, “we cannot conclude that the disclosure of the unreported anonymous phone call would have had any effect on Atwood’s trial and conviction,” the panel’s ruling said.
The state clemency board on Tuesday rejected Atwood’s claims that he is innocent of the crimes as it declined to recommend to Gov. Doug Ducey that he reduce his death sentence to a lesser punishment.
Atwood is scheduled to be executed at the state prison in Florence with an injection of pentobarbital.
Authorities have said Atwood kidnapped the girl, whose remains were discovered in the desert northwest of Tucson nearly seven months after her disappearance. Experts could not determine the cause of death from the remains that were found, according to court records.
On May 11, Arizona executed Clarence Dixon, the first prisoner put to death by the state in nearly eight years.
The state’s hiatus in executions that ended with Dixon’s death has been attributed to the difficulty of securing lethal injection drugs as manufacturers refuse to supply them and problems encountered during the July 2014 execution of Joseph Wood.
Wood was given 15 doses of a two-drug combination over nearly two hours. Wood snorted repeatedly and gasped before he died. His attorney said the execution had been botched.