CARSON CITY, Nev. (AP) - Government lawyers urged Nevada’s Supreme Court on Tuesday to overturn a judge’s ruling blocking the first execution of a death row inmate in 12 years, dismissing opponents’ concerns a twice-convicted killer could suffer cruel and unusual punishment in the unlikely event of a botched lethal injection.
Attorneys for Clark County and the Nevada Department of Corrections told the justices that Scott Raymond Dozier wants to die and that his public defender is really only interested in setting a precedent for future capital cases.
“The arguments made here are really an attack on the death penalty itself,” Jordan Smith said, assistant solicitor general for the Department of Corrections. “That if there’s a mere possibility of a mistake it is enough to challenge any method of execution.”
“That would halt every possible type of execution,” he said during oral arguments in Carson City. “This is a humane, safe protocol, barring some unforeseen mistake.”
Federal public defender David Anthony countered that Nevada’s plan would subject Dozier to an unacceptable risk of pain and suffering using a combination of three drugs never tried before in the United States.
Backed by the American Civil Liberties Union, Anthony said the experimental mixture includes a paralytic drug illegal to use when euthanizing animals in Nevada. It would paralyze his diaphragm and prevent him from breathing even if the first two drugs - a sedative similar to Valium and the powerful opioid pain-killer fentanyl - failed to render him fully unconscious, he said.
“Being aware and conscious and suffocating is a hellish experience,” Anthony said. “That would be torture - something that has been known in the veterinarian community since the 19th century.”
The high court’s ruling in the case isn’t expected for weeks.
Dozier’s execution was called off last November after Clark County Judge Jennifer Togliatti in Las Vegas decided prison officials could use the first two drugs, which an expert medical witness testified would probably be enough to cause death. She temporarily banned the use of the paralytic out of concerns that its effect would prevent witnesses from seeing indications of pain if Dozier suffers.
Anthony acknowledged Tuesday that Dozier likely will eventually be executed because he doesn’t want to seek a formal stay of execution. The case now appears to center on whether a combination of two or three drugs would be used - the third one in dispute being the paralytic, known as cisatracurium.
“Our sister state of Arizona, which is a very active death penalty state, just stipulated … it will not use a paralytic,” Anthony said. “Arizona would rather not do executions than use the protocol Nevada proposes.”
Nevada and several other states have struggled in recent years to find drugs after pharmaceutical companies and distributors banned their use in executions. The state’s supply of fentanyl and the sedative, diazepam, have expired so substitute drugs would have to be found unless the current proposed mixture of execution drugs is changed.
Dozier, 47, was found guilty of the 2007 murder and dismemberment of 22-year-old Jeremiah Miller, whose torso was found in a suitcase dumped into a trash bin in Las Vegas. He also was convicted in 2005 of second-degree murder of another victim, whose torso was found buried in the Arizona desert.
“My overarching and near singular desire is to get my execution done as expeditiously as possible,” Dozier wrote in a handwritten note Dec. 12 letter from Ely state prison.
Chief Clark County Deputy District Attorney Jonathan VanBoskerck said Tuesday Dozier’s position hasn’t changed throughout the proceedings.
“He said he’d rather have some pain with death than have to keep coming to court. His focus is getting the death over with,” VanBoskerck said.
Anthony said that while Dozier wants to die, he agreed to allow his lawyers to continue to fight the case so other future death row inmates would not be subject to potentially cruel or unusual punishment.
“He would prefer to have it less painful than more painful,” he said.
Nevada has executed 12 inmates since capital punishment was reinstated by the legislature in 1977. The last was Daryl Mack, who was put to death by lethal injection on April 26, 2006 for the 1988 rape and murder of a Reno woman, Betty Jane May.
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Eds: This story corrects an earlier version that indicated both sides acknowledged Dozier likely eventually will be executed. The government lawyers did not directly address that matter.
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