Defense attorney David Anthony faced a dilemma Monday as he argued that his client shouldn’t be put to death with a new, untested lethal injection cocktail: As long as his client professes an unequivocal desire to die, saving him might prove difficult, if not impossible.
And time is running short, with Scott Dozier facing execution on Nov. 14.
Anthony can’t ask for a stay of execution if Dozier doesn’t want it — and Dozier has said he doesn’t want one.
“These issues pose a moral dilemma,” the lawyer said outside a Las Vegas courtroom where he argued for a delay of the execution.
Anthony said there also remain concerns about the use of a paralytic drug during the lethal injection. Testimony by an expert on Friday suggested it could lead to pain and suffering for Dozier. And Anthony argued that it was especially risky since it would be administered by out-of-practice prison personnel, under a new chief medical officer.
Dr. John DiMuro, an anesthesiologist who stepped down from his post as Nevada’s chief medical officer about a week ago, was replaced by a psychiatrist, according to Assistant Solicitor General Jordan Smith.
That change had led to uncertainty in a state that doesn’t carry out executions with regularity. The last execution in Nevada was in 2006. Anthony argued that a psychiatrist simply didn’t have the same experience for overseeing the protocols for drug-based executions.
Smith argued there would be an attending physician who oversaw Dozier’s execution and that there would be trained medical personnel present as well.
The paralytic drug cisatracurium is at the center of the controversy. According to the American Civil Liberties Union of Nevada, the state would be the first to use the paralytic during an execution in combination with fentanyl and diazepam. There are fears cisatracurium would simply act as a mask — paralyzing Dozier while his body was in pain and he experienced “air hunger” — the phenomenon of not being able to breathe.
“It’s not a shame for anyone here if we need to push the pause button,” Anthony said. “If it’s the right thing to do, it’s the right thing to do.”
The 46-year-old death row inmate was convicted in 2007 of murdering and dismembering 22-year-old Jeremiah Miller five years prior at a Las Vegas motel. He also was convicted in Arizona 12 years ago for the murder of 26-year-old Jasen Green.
A little more than a year ago, Dozier asked to waive his appeals and sought to be put to death as soon as possible. Clark County District Court Judge Jennifer Togliatti signed his death warrant, but said she wanted to proceed with “an abundance of caution.”
Anthony brought in Dr. David Waisel, a Boston-based anesthesiologist, on Friday to testify that Nevada’s desire to use a paralytic drug could mask any pain and suffering by Dozier as his body is injected with fatal doses of fentanyl and diazepam.
But Waisel also was critical of the state’s lack of practice in administering the toxic cocktail of drugs via lethal injection — noting it’s been 11 years since Nevada executed an inmate.
“Lethal injection in Nevada is ripe for error,” Waisel said in brief filed Monday. “Nearly every tenet for safety is violated. It is a dramatically unfamiliar situation and location for the individuals performing the injections. Even for experienced individuals this increases risk; it is increased even more for the inexperienced, especially without high quality practice.”
Smith said the U.S. Supreme Court has ruled that the potential for errors during an execution does not violate the cruel and unusual punishment standard. And Waisel acknowledged that if the process were carried out correctly and exactly, the risk of suffering would be minimal.
“It’s never a guarantee that an error wouldn’t happen,” Smith said.
Atty. Gen. Adam Laxalt’s office said it would not comment on pending litigation.
Togliatti didn’t rule Monday on the use of the paralytic and said she wanted Dozier present via video from his cell in Ely when the hearing resumed Wednesday.
The judge also said she wanted to give Anthony time to consult with Dozier about the risks laid out about the use of the drugs, the issue of a new medical director overseeing the state’s protocols he didn’t establish and how the drugs would be administered.
“Part of the struggle I’m having is, we’re not a regular execution state,” Togliatti said. “We don’t do this on a regular basis.”