A video image of convicted killer Scott Dozier as seen during a hearing discussing his execution Wednesday, Nov. 8, 2017 in Las Vegas. (Jeff Scheid/The Nevada Independent)

The Nevada Supreme Court heard oral arguments Tuesday in the case of a death row inmate who wants the state to put him to death with a lethal injection method never before used in Nevada or elsewhere.

Here are some takeways from the 90-minute hearing:

Who’s involved

Scott Raymond Dozier, 47, is a death row inmate convicted in Clark County of the 2002 killing and dismemberment of Jeremiah Miller, an associate in the methamphetamine trade. Dozier was also convicted earlier of a murder in Arizona, and since October 2016 has repeatedly expressed his desire to give up his appeals and be put to death.

The state of Nevada, through the Nevada Department of Corrections, has proposed an untried, three-drug lethal injection method to kill him, but legal challenges prevented the execution from moving forward as planned the week of Nov. 13, 2017.

Federal public defenders, representing Dozier, are fighting the protocol in what amounts to a conflict with his wish to die.

The ACLU is closely watching the case and filed an amicus brief with the Supreme Court. The group and Dozier’s lawyers are particularly concerned that the execution protocol calls for a paralytic (cisatracurium) in addition to two other drugs (fentanyl and diazepam) meant to kill the defendant. The group believes the paralytic doesn’t serve a medical purpose but is only included to mask signs of distress, potentially hiding any indicators of a painful or botched killing.

How it got to the Supreme Court

Expert witness and anesthesiologist Dr. David Waisel, while stating that he was ethically bound not to take a position advocating for the death penalty, testified to the court that a two-drug combination could carry out the execution, the paralytic wasn’t necessary, and that it could increase the risk of “air hunger” or awareness of suffocation during the killing.

Eighth Judicial District Court Judge Jennifer Togliatti ruled in November that the three-drug protocol “presents a substantial risk of harm” to Dozier based on the fact the method was untested and prison officials presented limited medical evidence in court.

Togliatti enjoined the use of the paralytic. The state appealed in an effort to defend the three-drug method.

The issue the court must decide is whether the state’s use of the paralytic in the execution violates Dozier’s right, under the Nevada and U.S. constitutions, to avoid any cruel and unusual punishment.

Why it stands out

If the execution proceeds, it would be the first to take place in 11 years and would happen in a new execution chamber in Ely. It comes as drug companies are increasingly cracking down on the use of their products in lethal injection, and states must come up with new methods to stay ahead of vendor bans.

Nevada also faces the prospect that its current supply of lethal injection drugs will expire and it won’t be able to replace them, leading it to design another protocol that could face its own legal challenges.

TAKEAWAYS FROM ORAL ARGUMENTS:

One of the drugs has expired

Jordan Smith, arguing on behalf of the attorney general’s office, said the state’s supply of diazepam — the first drug in the three-drug protocol — expired on May 1. There’s still fentanyl left and some of the paralytic drug.

Asked it if the matter was moot because all the necessary drugs aren’t in the state’s possession, Smith said case was still relevant because the question at hand was the appropriateness of the paralytic in the protocol, and it may be possible to replace the expired drug.

Smith argued there’s no “substantial risk” of air hunger and pain in the three-drug protocol, and said the risk is only present if there’s a mistake. Legal precedent indicates the ever-present possibility of a human error isn’t enough to disqualify an entire execution method.

He pushed back against the idea that just because the three-drug protocol is untested, it’s “unusual” and therefore unconstitutional.

Following that logic, “scientific progress would be halted,” he said, adding that it would “outsource this state’s ability to find more humane methods to other states.”

Debate over whether paralytic is likely to cause harm

Justices went back and forth with both sides about whether there’s a “substantial risk” of harm by including the paralytic, and whether it’s “likely” to happen, as opposed to being a speculative possibility as a result of human error.

Smith said there would have to be “mistake after mistake” to result in the “parade of horrors” that Dozier’s lawyers bring up. He also noted that the Department of Corrections has not accepted the elimination of the paralytic as an acceptable alternative execution protocol.

Federal public defender David Anthony countered that including the paralytic in addition to the other two drugs “has no upside and unlimited downside. Ours is a protocol by subtraction … it’s totally inappropriate to use a paralytic.”

Waisel said first the two drugs alone can kill Dozier. Anthony said the state hasn’t offered a compelling reason for including the paralytic and that the state’s reasoning has been “evolving.”

Originally, former Nevada Chief Medical Officer John DiMuro argued that the state needed the paralytic to prevent the diaphragm from moving and initiating a breath. Dozier’s lawyer said the only thing that would lead to such a circumstance is if the two other drugs weren’t working and Dozier was moving toward awareness. Under that circumstance, he would be at risk of experiencing torture without being able to move and indicate to his executioners that he was in such pain.

“We actually have a prison official who says this is the very reason we need to use it here, is because the circumstance where it can’t be used,” Anthony said.

Even if the first two drugs work, “there’s a question of if [the paralytic is] gratuitous, because he’s already stopped breathing. And so it’s not necessary.”

There is, however, dispute between the two doctors about whether the paralytic would hasten Dozier’s death.

Anthony said the question is not whether all mistakes can be eliminated, but whether they’re foreseeable. If they’re foreseeable, he said, there’s more culpability on the part of prisons officials.

Questions about Dozier’s wishes

Justices questioned Anthony about whether Dozier actually supported the efforts of his legal team, which have been delaying the execution he’s requested.

Clark County Deputy District Attorney Jonathan Van Boskerck accused the Dozier’s lawyers of “abandoning Mr. Dozier for the sake of future clients.”

“Dozier said I don’t want the delay. We’re now doing this for the benefit of their future clients,” Van Boskerck said.

Anthony acknowledged that Dozier has said his first priority is being executed, but said his client wants it to be humane.

“He prefers that it be less, rather than more painful,” Anthony said.

And he indicated that Dozier agrees with the ongoing appeals process.

“As it sits here today, Mr. Dozier is supportive of these appeals,” Anthony said. “He has asked me to file a motion of expeditious consideration of these issues. We’re on the same page as to pursuing this appeal.”

But the issue is bigger than Dozier’s wishes and goes to the question of how the State of Nevada goes about putting people to death, Anthony said.

“When we talk about Mr. Dozier and what he wants, there’s also larger issues at stake here,” he said. “How are we going to execute people in the State of Nevada in our name? And if it’s not humane for us, shouldn’t it be the province of our courts to say whether it’s cruel or not?”

Chief Justice Michael Douglas acknowledged the gravity of the proceedings as he closed the hearing.

“It is a very important subject,” he said. “Death is different.”

From the Editor

The Nevada Independent is a 501c3 nonprofit. We have generous corporate donors, but we can’t survive on those alone. We need support from our readers. I know you have many commitments. But if you would support our work (or bump up your current donation), we would be forever grateful.
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Jon Ralston
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