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SALT LAKE CITY — Just over a week before Taberon Dave Honie is scheduled to be executed for killing his girlfriend's mother in front of her grandchildren, a lawsuit he filed questioning the method of execution was dismissed.
Third District Judge Linda Jones on Tuesday dismissed the lawsuit, which argued the method the Utah Department of Corrections would use to carry out the execution needed to be outlined more completely in the department's protocols, saying his attorneys failed to prove their case. The dismissal eliminates one more hurdle for the execution moving forward.
Use of pentobarbital
Honie's attorney, Eric Zuckerman, filed the lawsuit primarily to contest the combination of ketamine, fentanyl and potassium chloride — which he called an "experimental cocktail" in the lawsuit. The lawsuit suggested the state instead use pentobarbital, a drug that has been used by multiple states.
David Wolf, a Utah assistant attorney general, said obtaining pentobarbital would cost the Utah Department of Corrections $200,000, which is 25 times the cost of the three-drug method initially proposed by the department.
Wolf contested the lawsuit should be dismissed entirely based on the change, which he said "constitutes a significant concession" by the Utah Department of Corrections. He said Jones could not stay the execution, ordered by a judge with equal authority and Jones confirmed.
Jones already signed an order dismissing four of the six claims in the lawsuit, which both Zuckerman and Wolf agreed were resolved. But Zuckerman did not agree to the dismissal of the remaining claims that Honie did not receive "constitutionally sufficient notice of consistent and comprehensive protocols" and that the protocols were "conflicting and inconsistent."
Wolf argued Honie does not have a right to see the execution protocols established by the Utah Department of Corrections, but Zuckerman said he does — both because the 5th District judge who signed his execution warrant, Jeffrey Wilcox, ordered them to be handed over, and because "Mr. Honie is going to be executed by this protocol."
Jones ruled she did not have any jurisdiction to enforce a warrant from Wilcox, and that there is no constitutional right for a prisoner to have access to the protocols, as multiple federal appellate courts have ruled.
Unclear protocols?
Zuckerman also contested it is unclear when prison staff are supposed to refer to the new 2024 protocols and when they should refer to the 2010 protocols. He said there are omissions in the 2024 protocols and it is not clear if those are areas that should be filled in with the 2010 protocols or omitted entirely.
"This whole thing is ridiculous because the solution is so simple. All we're asking the state of Utah to do is create an adequate and accurate protocol," he said.
Zuckerman said the two different protocols did not match regarding how the drug is stored, the number and process for backup doses, the rate of flow for the drug and who would have custody of the drug. He argued these details are important, especially since it has been 25 years since an execution by lethal injection in Utah and prison staff don't have the institutional knowledge needed.
"Not having this stuff documented and written down can lead to issues," he said.
Wolf said there are not inconsistencies, but there were "necessary changes" made based on changes in the prison staff and location. He said the protocols still referring to sodium thiopental as the primary drug, rather than pentobarbital, makes sense because it is still the drug listed in Utah's law although it is widely unavailable.
Jones said the "potential injury" described by Zuckerman in the lawsuit and in his arguments "is speculative at best." She said there is no argument in the lawsuit that an inconsistency or deficiency in the protocols would cause Honie any injuries.
With the case dismissed, Jones said the evidentiary hearing previously scheduled for Tuesday and Wednesday will not move forward. She did order Wolf to submit an order from the hearing quickly so Honie could file "whatever he deems appropriate."
Honie's sentence
Honie was convicted of murdering his ex-girlfriend's mother, Claudia Benn, in front of her three grandchildren. He is scheduled to be executed on Aug. 8.
On July 9, 1998, Honie broke into Benn's home in Cedar City by smashing a rock into a glass door, then sexually assaulted the woman with a large knife and cut her throat, causing her to bleed to death.
After multiple appeals and rulings upholding Honie's sentence in 2002 and 2014 by the Utah Supreme Court, prosecutors filed an application for an execution warrant on May 1, asking for the state to move forward with the execution; the warrant was granted by 5th District Judge Jeffrey Wilcox on June 10.
Honie was granted a commutation hearing, but the Board of Pardons and Parole ultimately denied his request to change his sentence to life in prison without parole.
