Nevada’s Supreme Court has ordered a lower court to vacate its decision blocking part of the state’s proposed three-drug lethal injection combination, although one 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 two 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 two 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 third 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 two 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 first of the three 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 first to take place in the state in more than 11 years, and would be the first carried out in a new execution chamber in Ely State Prison.