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Judge's order throws off execution timeline; state says Nov. 14 date canceled

Michelle Rindels
Michelle Rindels
Criminal JusticeGovernment

Just five days before Nevada is set to carry out its first execution in 11 years, a judge’s order means it's now unclear when the inmate will be put to death.

Clark County District Court Judge Jennifer Togliatti ordered Thursday that a paralytic called Cisatracurium should not be used in the execution of 46-year-old Scott Dozier, which is scheduled for Tuesday, Nov. 14. The Nevada Attorney General’s Office, on behalf of the Nevada Department of Corrections, objects to the change in the drug combination and sought a stay of the execution to allow the Nevada Supreme Court to weigh in.

Togliatti put a hold on the execution pending a further order from the high court.

The lead attorneys for both sides declined to say whether they think the execution could proceed on Tuesday. But Nevada Department of Corrections spokeswoman Brooke Keast said after the hearing that all plans for the execution were canceled.

"The Nevada Department of Corrections stands by the integrity of the protocol and therefore requested a stay of execution, which the court granted," the agency said in a statement.

Scott Coffee, a Clark County public defender and observer of the case, said it was “extremely unlikely” that the Nevada Supreme Court would address the matter quickly enough for the original date to stand.

Togliatti agreed with concerns underscored by the defense’s expert witness, Boston anesthesiologist David Waisel, that the paralytic drug could serve to mask signs that the other two drugs in the combination were not working. If the first two drugs — the opiate fentanyl and the drug known as Valium — don’t take full effect on Dozier and properly anesthetize him, he could still be conscious of himself suffocating to death but unable to show any signs of that pain.

Both the proposed two-drug and the three-drug combinations have not before been used in an execution.

"Although she removed the paralytic, our concerns still stand about the experimental nature of the execution," said Amy Rose of the American Civil Liberties Union of Nevada, which opposes the execution and has been spearheading an online petition against it. "Because of this delay I hope people who are deciding what to do take the time to evaluate these arguments. This is the most serious issue there can be."

Rose also said the ACLU is troubled that a redacted version of the execution protocol, which was unsealed, has not been distributed in response to the group's public records request.

The execution method was designed after the state’s previous lethal injection drugs expired and pharmaceutical companies with a moral objection to capital punishment refused to furnish replacements.

The anesthesiologist who designed the protocol, former Nevada Chief Medical Officer John DiMuro, resigned suddenly on Oct. 30. He has not responded to requests for comment on the reasons for his resignation or defended his drug cocktail in court since he left, although the state submitted an affidavit confirming that his departure did not have to do with Dozier’s execution.

A jury convicted Dozier of the 2002 murder and dismemberment of 22-year-old Jeremiah Miller in Las Vegas after the two had met up for a methamphetamine deal; he also has a conviction for another murder in Arizona. Dozier has voluntarily abandoned any further appeals in his case and was emphatic in a video appearance from Ely State Prison on Wednesday that he wanted to die on Nov. 14.

This story was updated at 5:45 p.m. on Nov. 9, 2017 to add comment from the Nevada Department of Corrections and the ACLU.


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