The Arizona Supreme Court on Monday declined to overturn a lower court ruling that found a man set to be executed this week is competent to be put to death.
The high court without comment declined to review last week's decision from a judge in Pinal County that rejected arguments that mental illness made Clarence Dixon unable to understand why he was being put to death.
While the judge found Dixon does suffer from schizophrenia, he said Dixon is rational and understands the proceedings in his case well enough to show he is competent.
Dixon's lawyers are now expected to ask a federal judge in Phoenix to consider his competency as part of a flurry of last-minute court action they hope will prevent Wednesday's scheduled execution.
U.S. District Court Judge Diane Humetewa has scheduled a late-morning hearing to consider Dixon's contention that the state plans to use an expired drug to put him to death. The state contends the sedative sodium pentobarbital that was compounded into a solution by a licensed pharmacist met expiration guidelines.
On Saturday, Humetewa declined to halt the execution after the Arizona attorney general's office provided documents showing test results that determined the drug would not expire until August, based on its February mix date.
Dixon attorney Jennifer Moreno disagreed with the state's conclusions regarding the retention of the drug's potency and said it actually expired in mid-April. Humetewa said that issue was not before her that day, forcing Dixon’s lawyers to file the challenge she plans to hear Monday.
Arizona and many other states have struggled to get execution drugs in recent years after drug-makers refused to sell their products for that use. Arizona obtained the pentobarbital it plans to use from an unidentified compounding pharmacy.
Dixon, now 66 and blind, is set to be the first person put to death in Arizona in nearly eight years, mainly because of problems with the previous execution. The state had to give Joseph Wood 15 doses of a two-drug combination over two hours before he died in July 2014 in an execution that his lawyers said was botched. The state now is using just one drug.
Dixon was convicted of murder in the killing of 21-year-old Arizona State University student Deana Bowdoin. He was serving life sentences for a 1985 attack on a 21-year-old Northern Arizona University student when DNA testing linked him to Bowdoin's unsolved rape and murder.
Dixon had was found “not guilty by reason of insanity” in a 1977 assault case in which the verdict was delivered by then-Maricopa County Superior Court Judge Sandra Day O’Connor, nearly four years before her appointment to the U.S. Supreme Court. Bowdoin was killed on Jan. 7, 1978, two days after that verdict, according to court records.
Bowdoin was found dead in her apartment, and had been raped, stabbed and strangled. Dixon had been charged with raping Bowdoin, but the charge was later dropped on statute-of-limitation grounds. He was convicted, though, in her death.
Defense lawyers said Dixon has been diagnosed with paranoid schizophrenia on multiple occasions, has regularly experienced hallucinations over the past 30 years and should not be executed.
On Tuesday, the Arizona Supreme Court issued a warrant for a second execution. Frank Atwood is set to die June 8 for killing an 8-year-old girl in 1984. Authorities say Atwood kidnapped the girl, whose body was found in the desert northwest of Tucson.
