A Salt Lake County judge on Tuesday agreed to dismiss a lawsuit against Utah prison officials that could have stopped death row inmate Taberon Honie’s scheduled execution next week.
Its dismissal came after Utah’s parole board last week decided against granting Honie clemency, bringing him one step closer to his planned lethal injection on Aug. 8.
It’s unclear if Honie’s legal team intends to appeal the Tuesday ruling or try to pursue other legal recourse.
“We’re going to evaluate our options,” said Eric Zuckerman, one of Honie’s defense attorneys, outside the courtroom Tuesday.
The lawsuit Honie’s attorneys filed earlier this month first took issue with the state’s initial plan to execute Honie using an untested three-drug combination of ketamine, fentanyl and potassium chloride.
Prison officials later changed their plans, announcing on July 20 that they instead planned to execute Honie using pentobarbital, a known execution drug that Honie had requested in the lawsuit.
That change led state attorneys to ask 3rd District Judge Linda Jones to toss the case out, arguing that Honie’s arguments were made “moot” by the prison’s planned acquisition of pentobarbital.
Honie’s attorneys agreed to dismiss four claims related to the three-drug cocktail. But they still had two challenges to litigate Tuesday: They contended that Honie, who has been on death row since 1999, wasn’t given enough time to research both the drug the state now intends to kill him with and the state’s plan to administer it. They also argued that the prison should have updated its execution protocol, which they argued was outdated and unclear.
The first allegation violated Honie’s rights to due process, they argued. The second, they contended, was illegal under Utah law.
Jones heard arguments on both issues, but just before 1 p.m. Tuesday ultimately granted the state’s motion to dismiss. Zuckerman afterward said he didn’t understand why the prison would not update its protocols to reflect its planned procedure to execute his client.
Attorney David Wolf, representing the Utah Department of Corrections, declined to comment on the judge’s decision. He directed The Salt Lake Tribune to the Utah attorney general’s office for comment, which also declined to release a statement.
The ruling
Jones said Tuesday that she was unable to rule in favor of the defense’s due process allegation because it didn’t fall under her jurisdiction.
Instead, she said, it fell under the jurisdiction of 5th District Court Judge Jeffrey C. Wilcox, who originally ordered that the state turn over documents about its planned lethal injection drug and how the prison intends to use it.
Despite being given some of the information, Honie’s attorneys argued that the documents were inconsistent, incomplete and conflicted with each other, and that not receiving the accurate protocol earlier violated their client’s constitutionally protected rights. But Jones disagreed, relying on precedent in other courts which found that prisoners had no rights to access to such information.
Zuckerman said that the execution protocol documents he received remain largely the same as they did in 2010. The instructions for how a Utah execution may be carried out, for instance, still mention the use of “sodium thiopental,” a fast-acting barbiturate, or other “equally or more effective” substances sufficient to cause death, despite it being illegal to import sodium thiopental. The only U.S.-based supplier also stopped production in 2011.
He noted in court Tuesday that corrections officials on Monday provided him with a revised copy of the prison’s execution protocol just before 5 p.m. Some information was updated — like street and building name changes after the prison relocated from Draper to Salt Lake City — but officials still had not updated the guidance for its planned use of pentobarbital, he said.
So far, Zuckerman also said he has received several separate protocol documents that he argued contain inconsistencies that don’t make clear which procedures in which documents take precedence.
For instance, the documents differ on how many backup doses of pentobarbital will be on hand for Honie’s planned execution, or at what point a corrections official may decide to render a backup dose if the initial dose is not successful. This, Zuckerman argued, increases the likelihood that Honie’s execution could be botched.
“This whole thing is ridiculous because the solution is so simple,” Zuckerman said, “All we’re asking for the state of Utah to do is to create an accurate protocol.”
Wolf contended that the state had provided accurate protocols.
“They’re right here,” Wolf said, grabbing a thick, three-ring binder from the desk behind him to show to the judge. He said prison officials had provided those documents to both Honie’s attorneys and the court.
As for the protocol document referencing sodium thiopental, Wolf said that wasn’t a “nefarious” choice. Prison officials wrote policy to mirror state statute, which still references the drug even though it is unlikely to ever be used again, he argued.
Jones ultimately found the Department of Corrections did not violate the law and that Honie had no legal basis to sue the department. She added that the harm Zuckerman articulated — that Honie’s execution may be botched if protocols weren’t updated — was “speculative at best.”
Execution looms
(Utah Department of Corrections) A table inside the execution chamber at the Utah State Correctional Facility. The execution of Utah death row inmate Taberon Honie is currently scheduled for Aug. 8, 2024.
This lawsuit was the last remaining legal barrier between Honie and his scheduled execution next week. Unlike in other states, Utah’s governor doesn’t have the power to grant a death row inmate commutation — only Utah’s parole board can, which denied him last week.
Jones said Tuesday that even if she ruled in favor of Honie, she would be unable to issue an order that overturned his warrant of execution. All she could do, she said, is ask the corrections department to create a document with a clear set of execution procedures by a certain date, and if the state did not comply, it could not move forward with the scheduled execution.
She opted, instead, to dismiss the lawsuit.
Honie was convicted and sentenced to death more than more than 24 years ago for the murder of Claudia Benn, his ex-girlfriend’s mother. In July 1998, Honie called his ex-girlfriend and demanded that she visit him, threatening to kill her family if she didn’t. Sometime before midnight that evening, Honie took a cab to Benn’s house, then broke in and bit, stabbed and sexually assaulted Benn as he killed her, court documents state.
Honie had asked Utah’ five-member parole board last week to commute his sentence so he could be in his 27-year-old daughter’s life, saying, “I earned my place in prison. What I’m asking you today to consider is: Would you allow me to exist?”
Honie is scheduled to be executed shortly after midnight on Aug. 8 at the Utah State Correctional Facility in Salt Lake City.
