The Nevada Supreme Court issued a stay Monday calling a halt to the scheduled execution of William Castillo.
The order, signed by all seven members of the court, was served on the governor's office at 7:20 p.m. Monday by a Carson City Sheriff's Deputy, officially calling off the 8:30 p.m. execution of the man who murdered a retired school teacher in 1995.
And it calls a halt to not just Castillo's execution but all executions in Nevada until the issues raised in the petition are resolved.
American Civil Liberties Union lawyer Lee Rowland said, "We believe it's clearly the appropriate thing to do, especially since the rest of the country has decided to await the Supreme Court decision."
Rowland argued executing Castillo would flaunt the authority of the U.S. Supreme Court because the constitutionality of lethal injection is currently "in legal limbo." That court agreed Sept. 25 to hear arguments in a Kentucky case to resolve whether current protocols for lethal injection are unconstitutionally cruel.
She asked for a writ halting all executions until the federal high court rules on that case, pointing out that Arkansas, Arizona, Delaware and Texas have already done so and Florida is seriously considering the same.
But the Nevada court didn't simply turn the issue over to the U.S. Supreme Court. Instead, Monday night's order set a briefing schedule for the Nevada Attorney General's Office and ACLU to present full arguments on the issues raised.
ACLU must file its opening brief, then the attorney general will have 20 days to respond followed by another 20 days for the ACLU response.
That will set up a full hearing before the court, probably in about three months.
Rowland said her challenge at that hearing is to convince the Nevada Supreme Court to leave the stay in place until the U.S. supreme court decision.
During Monday's hearing, the court seemed split between those questioning whether the ACLU had any standing to bring the petition and those arguing there is no harm or prejudice in delaying the execution while the issues are resolved.
"What's the hurry?" asked Justice Michael Cherry. "Where's the fire?"
But Justice Michael Douglas questioned whether the court should be considering the last-minute petition at all. He received some support by questions from Justice Ron Parraguirre.
Rowland said the petition wasn't an attempt to intervene in the case of Castillo. She said it was aimed at halting all executions in Nevada until the constitutionality of the lethal-injection process is resolved.
"It's possible we would have the dubious distinction of being the last state to execute someone using an unconstitutional method, which is something I don't believe is in the interest of the state of Nevada," she said.
Deputy Attorney General Robert Wieland said the ACLU has admitted it has no standing to enter Castillo's case.
"Yet they seek to be the captain of Mr. Castillo's ship," he said.
Opponents of lethal injection say experts believe the inmate is fully aware of what's happening, not unconscious, and in agony when the final heart-stopping drug is administered.
She said that issue is compounded by the challenge from the Spanish language newspaper Ahora that using a drug which totally paralyzes the inmate before the final lethal dose is administered violates the public's right to know and see what effect the cocktail of drugs is having on the person.
The petition argues the paralyzing agent is nothing more than "a chemical veil that inhibits the First Amendment right of the press to witness and report on the effects of lethal injection."
"The use of the drug pancuronium bromide in the execution process thwarts this public watchdog function by paralyzing the inmate's muscles so that any pain or other response is masked and hidden from the witnesses."
Wieland countered saying there is no First Amendment issue since the public and press are represented at the execution and witness the entire process.
And Chief Deputy Attorney General Dan Wong said the inmate is completely unconscious when the paralyzing agent and heart-stopping drugs are administered.
Justice Jim Hardesty suggested those issues could be better explored if the execution were stayed and hearings set.
"What is the prejudice if we stay the execution so the issues can be briefed?" he asked.
Hardesty was joined by Chief Justice Bill Maupin, who said there are a number of serious issues which need to be resolved and it's not a good legal argument to say Castillo wants to be executed.
"I think we understand your argument that an inmate can't agree to an Eighth Amendment violation and be executed," he said.
When Douglas questioned why ACLU didn't file the petition until Monday morning, Rowland replied it was prompted in part by Director of Corrections Howard Skolnik's announcement the prison was responding to the U.S. Supreme Court's concerns by doubling the dosage of all three drugs in the lethal cocktail.
"That is a very cavalier attitude," she charged.
Skolnik said after the 90-minute hearing the court has the power to make the call. He just needed an answer as soon as possible so the prison could get back to normal operations.
Nevada State Prison is normally put in lockdown during an execution because tensions both among inmates and guards are high until it's over.
Castillo was sentenced to die for the 1995 beating death of Isabelle Berndt, 86, in Las Vegas after working on a roofing job at her home and finding a hidden house key. He and a female companion returned, burglarized the home, and murdered Berndt.
Castillo set the home on fire to destroy evidence, but he later admitted the murder to a co-worker and confessed to police. His companion in the burglary and murder was Michelle Platou, now serving a life term with the possibility of parole.
The court's ruling came more than two hours after Castillo was served his final meal of a double cheeseburger, three root beers and a half gallon of ice cream. The inmate had been slightly sedated as prison officials prepared to take him to the 9-by-12-foot death chamber.
Skolnik said Castillo was disappointed when he heard the news and asked for an additional sedative to calm himself.
• Contact reporter Geoff Dornan at firstname.lastname@example.org or 687-8750. Associated Press reporter Brendan Riley contributed to this report.