A state attorney asked a federal judge Friday for a quick hearing and ruling about the constitutionality of Nevada’s execution procedure, saying a drug that officials want to use for condemned killer Zane Floyd’s lethal injection will expire in late February.
But U.S. District Judge Richard Boulware II did not promise to accelerate the pace of his review.
“We need to continue to expedite this case,” Chief Deputy Nevada Attorney General Randall Gilmer told the judge, who plans at least three days of hearings this month and possibly more next month amid challenges by Floyd’s attorneys of the method, the personnel and the drugs that would be used to kill him.
Floyd, a convicted mass killer, is fighting on several fronts to avoid becoming the first Nevada inmate put to death in 15 years. Other challenges by his team of federal public defenders are pending in the Nevada Supreme Court, in state court in Las Vegas and before the 9th U.S. Circuit Court of Appeals in San Francisco.
Friday's hearing was largely about scheduling. Floyd's attorney, David Anthony noted the timeline — including requirements for a state judge to issue a death warrant — suggests that no execution could be carried out this year.
Gilmer told Boulware a window closes after the Feb. 28 expiration date for the anesthetic ketamine. Prison officials “have no reasonable belief that we’ll be able to purchase additional drugs,” the state attorney said.
Lawyers for ketamine manufacturer Hikma Pharmaceuticals have called for Nevada to return some 50 vials of the drug that it has obtained. They have threatened to sue if the state goes forward with plans to use it in an execution.
Hikma won a similar fight in 2018 over Nevada's plan to use the powerful synthetic opioid fentanyl in the execution of Scott Raymond Dozier, a twice-convicted murderer who killed himself in prison in January 2019.
Nevada’s execution procedure, or protocol, calls for using ketamine among three or four drugs, also including fentanyl, heart-stopping potassium chloride and perhaps a muscle paralytic called cisatracurium.
Gilmer acknowledged that no one involved in the current process has any experience with an execution.
“New people, using an entirely new protocol that’s never been used before,” the state attorney said. “Nevada has not executed anybody for a very long time.”
The last person put to death in Nevada was Daryl Mack in 2006 for a 1988 rape and murder in Reno. His execution was at a state prison in Carson City that has since closed. Mack asked for his sentence to be carried out.
Floyd, 46, was convicted and sentenced to die for killing four people and wounding a fifth in a 1999 shotgun attack at a Las Vegas grocery store. His execution would be at a state prison in Ely where a new lethal injection chamber has remained idle since it was completed in 2016 at a cost of $860,000.
Boulware in June put the brakes on executing Floyd to review the constitutionality of what he summarized Thursday as “the protocol itself, how it is administered, and the drugs.”
A state court judge in Las Vegas who had issued a death warrant to schedule Floyd’s lethal injection last summer followed with a formal order in July postponing the execution to allow time for appeals to be heard.
That case has been transferred to a different Clark County District Court judge, who has scheduled her first hearing in the case Nov. 12.
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