By Ken Ritter
Associated Press
LAS VEGAS — One sedative will be substituted for another, and prison officials said Tuesday they plan to use two other drugs never before used in executions in any state for Nevada’s first lethal injection in 12 years. The drugs include a powerful synthetic opioid that has been blamed for overdoses nationwide.
A revised and redacted death penalty protocol for the scheduled July 11 execution of Scott Raymond Dozier calls for injecting midazolam to sedate him, then the opioid fentanyl to slow and perhaps stop his breathing followed by a muscle paralyzing drug called cisatracurium.
Dozier, 47, is a twice-convicted murderer who has been on death row since 2007.
The third drug became the focus of a court challenge that postponed Dozier’s execution last November, after a state court judge in Las Vegas told prison officials that they could not use it.
Clark County District Judge Jennifer Togliatti ruled after federal public defenders challenging the constitutionality of the execution protocol enlisted a medical expert witness who said the drug could render a person immobile while suffocating, and “mask” signs of struggle or pain.
The state Supreme Court rejected Togliatti’s ruling in May on procedural grounds. However, justices did not rule on the constitutionality of a lethal injection method that critics characterize as experimental and risky.
Seizures are a possibility at high doses of fentanyl, said Dr. Jonathan Groner, a Columbus, Ohio, surgeon and lethal injection expert who said the combination of drugs could produce unexpected results.
“In anesthesia, more is not always better,” Groner told The Associated Press. “Side effects can happen. Extreme doses may cause seizure or other problems. But if a person has enough paralyzing agent in their system, you won’t be able to tell if they’re suffering.”
The American Civil Liberties Union of Nevada filed a protest in state court in Carson City on Tuesday, complaining that the protocol hadn’t been made public sooner and that there isn’t more time to review the safety and legality of the execution plan. The organization earlier characterized the plan as less humane than the process used to put down a pet.
The court filing did not seek to delay the execution, but ACLU lawyer Amy Rose said the public deserves to know how the state plans to kill a death row inmate.
The new execution protocol appears to be an updated version of a procedural plan submitted to Togliatti last September.
The new one, dated June 11, blacks out some details, including times that family members, witnesses and media may arrive at Ely State Prison, 250 miles (402 kilometers) north of Las Vegas.
It substitutes midazolam for expired prison stocks of diazepam, a sedative commonly known as Valium. The plan doubles the number of possible injections of the sedative from four for diazepam to 10 for midazolam.
The scheduled doses and delivery of fentanyl and cisatracurium were not changed.
Attorneys for the state and the former chief state medical officer who helped draw up the protocol last year said the paralytic is to ensure that Dozier’s breathing muscles stop.
Dozier has repeatedly said he wants to die and he doesn’t really care if he suffers.
He suspended an appeal of his conviction and death sentence, but officials said he could change his mind up to the last minute, or even after the injections start.
Dozier’s defense attorney, Thomas Ericsson, said he knows of no such desire on his client’s part. But the lawyer said he would file a request to stay the execution if Dozier asks for it.
That possibility prompted Togliatti to hold a telephonic meeting with attorneys for all sides last Thursday, Ericsson said.
The judge is the only official who could stop the execution.
The last execution in Nevada was in 2006, when Daryl Linnie Mack volunteered for lethal injection for his conviction in a 1988 rape and murder in Reno.