Nevada prison officials got the go-ahead Thursday to execute the state's 1st death-row inmate in 12 years, after the state Supreme Court ruled that defense lawyers and a rights group used the wrong process to try to stop the lethal injection.
Justices sidestepped the question of whether the state should use a never-before-tried combination of drugs that prison officials drew up for the execution of Scott Raymond Dozier.
The protocol includes a powerful painkiller that is fueling much of the nation's opioid epidemic and a paralyzing drug that could mask any signs of trouble.
The American Civil Liberties Union argued the drug is not legal to use for euthanizing pets in Nevada.
"Although we recognize the importance of this matter, both to Dozier and the citizens of the State of Nevada, the fact that this case has serious implications was all the more reason to follow established rules and procedures," the court said.
The blunt and unanimous order came just 2 days after the 7 justices heard oral arguments in Carson City.
The ruling sends the case back to a state court judge in Las Vegas who blocked the execution last November and orders her to issue a new warrant for Dozier's execution.
Dozier, 47, has been on death row since 2007 for convictions in separate murders in Phoenix and Las Vegas. He has said repeatedly that he wants to be put to death as soon as possible and doesn't care what drugs are used.
However, Dozier allowed federal public defenders David Anthony and Lori Teicher in Las Vegas to challenge the 3-drug protocol developed for his execution by the state's top doctor and prison officials.
None of the drugs the state was able to obtain - the sedative diazepam, the painkiller fentanyl and the paralytic cisatracurium - has been used for lethal injections in any executions before. Diazepam is commonly known as Valium. Fentanyl is a synthetic opioid that has been blamed for overdose deaths nationwide.
Many states have struggled in recent years to find drugs that pass constitutional hurdles after pharmaceutical companies and distributors banned their use in executions.
Anthony and Teicher did not immediately respond to telephone and email messages about the court ruling.
Dozier would become the 1st person put to death in Nevada since 2006, when Daryl Mack asked to die after his conviction in a 1988 rape and murder in Reno.
The high court said Thursday that state Judge Jennifer Togliatti abused her discretion by considering a challenge of execution-protocol in the Dozier case that had not been properly lodged before the court.
Jonathan VanBoskerck, a chief deputy Clark County district attorney who argued the case for prosecutors, said additional legal challenges could still be filed in state or federal courts using different procedural grounds.
ACLU of Nevada Legal Director Amy Rose said she stands by her arguments that it would be unconstitutionally cruel and unusual punishment to use cisatracurium in Dozier's execution.
Dozier also used the name Chad Wyatt. His death would mark the 1st lethal injection since a new execution chamber was completed in 2016 at Ely State Prison, 250 miles north of Las Vegas.
Source: Associated Press, May 11, 2018
Nevada Supreme Court overturns lower court ban on using a paralytic in Scott Dozier execution, citing procedural issues
Nevada's Supreme Court has ordered a lower court to vacate its decision blocking part of the state's proposed 3-drug lethal injection combination, although 1 of the drugs it needs to carry out an impending execution has expired and it's uncertain if and when the state can replace it.
The unanimous ruling comes 2 days after oral arguments were held in the case of 47-year-old Scott Dozier, whose execution was scheduled for November 2017 but has been indefinitely delayed. Dozier, who was convicted of 2 murders in Nevada and Arizona, voluntarily gave up his appeals and says he wants to be put to death.
While a federal public defender raised the prospect that including the 3rd drug and final drug in the protocol, a paralytic, could lead to a torturous execution that would violate prohibitions on cruel and unusual punishment, the justices focused their ruling on the procedural elements of the case.
The justices rebuked both the District Court judge and federal public defenders representing Dozier, saying the challenge to the execution protocol was "procedurally improper" and led to confusion and a failure to follow the correct procedures for appealing a death penalty case.
The decision said the federal public defender didn't file a 1983 action or another appropriate mechanism to challenge the execution method, and instead raised the challenge as part of a "Motion for Determination Whether Scott Dozier's Execution Will Proceed in a Lawful Manner" in a post-conviction proceeding that had already been suspended.
Justices said they were presented with no legal authority suggesting the execution could be challenged that way, and they rejected the reasoning that Eighth District Court Judge Jennifer Togliatti had "inherent authority" to ask questions about the execution protocol because she'd signed the execution warrant and had a responsibility to ensure the procedure was carried out lawfully.
"The district court therefore exceeded its authority and manifestly abused its discretion when it considered the challenge," the justices wrote.
Togliatti ruled in November that the state's proposed drug combination to carry out the execution presented a "substantial risk of harm" to Dozier as the method had never been tested and because prison officials presented little evidence in court. The court found that the inclusion of the paralytic could mask symptoms that the first 2 drugs were not working, leading to the possibility that Dozier would be aware but unable to communicate as he suffocated.
Justices noted in a footnote that the federal public defender's actions appeared to "be at odds" with Dozier's directive that his counsel not take any actions to delay the execution.
A representative of the attorney general's office told justices this week that the state's supply of diazepam - the 1st of the 3 drugs proposed to be used in the execution - had expired on May 1, but said it might be possible to replace the drug. Pharmaceutical companies that have barred the use of their drugs for executions have made it difficult for states to carry out the killings.
Lawyers for Dozier didn't immediately respond to requests for comment Thursday on what their next steps would be.
A spokeswoman for the Nevada Department of Corrections said the agency was waiting for the issuance of a warrant of execution before they could get started setting a date for Dozier to be put to death.
Dozier's execution would be the 1st to take place in the state in more than 11 years, and would be the 1st carried out in a new execution chamber in Ely State Prison.
Source: The Nevada Independent, May 11, 2018
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