Doctor: Drug scarcity drove execution plan
November 29, 2017
LAS VEGAS — A scarcity of lethal injection drugs nationwide drove plans to use a never-before-tried three-drug combination for Nevada's first execution in more than 11 years, the state's former top doctor told The Associated Press.
In his first interview since resigning a month ago, Dr. John DiMuro defended the protocol he developed as Nevada's chief medical officer, saying he initially wanted to use a heart-stopping medication similar to what other states have used.
"We couldn't get the drugs. We had to work around being unable to obtain other drugs," DiMuro said this week. "There's nothing in that protocol that we developed and that we were going to implement that would be inhumane."
The anesthesiologist created a method using the sedative diazepam, the potent opioid fentanyl and the muscle paralytic cisatracurium ahead of the planned execution of convicted murderer Scott Raymond Dozier, though not specifically for his case.
None of the drugs has been used for lethal injection in the 31 states with capital punishment, according to the nonprofit Death Penalty Information Center. Many states have struggled for years to find drugs that pass constitutional hurdles after pharmaceutical companies and distributors banned their use in executions.
A judge in Las Vegas stopped Dozier's execution pending state Supreme Court review, citing concerns the paralytic could "mask" muscle movements or prevent witnesses from seeing indications of pain and suffering.
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The inmate has said repeatedly he wants his execution carried out and doesn't care if he feels pain.
DiMuro said he stands behind the protocol he created, while acknowledging that the combination is "novel."
He said the drugs are commonly used in hospitals and surgical settings and that the combination would be recognized by doctors as a modified anesthesia technique for heart surgery.
A lethal injection expert, Jonathan Groner, a Columbus, Ohio, surgeon, said combining diazepam and fentanyl could result in complications such as vomiting, while the paralytic could prevent body movements and disguise any suffering the inmate might experience.
Jen Moreno, an attorney at the Berkeley Law Death Penalty Clinic, said Wednesday that Nevada "should not be permitted to push ahead with risky, dangerous, and potentially unconstitutional procedures just because an execution is scheduled."
DiMuro, who has returned to private practice, said quitting his state job after 15 months had nothing to do with the development of the lethal injection protocol or the execution. He said he takes no position on the death penalty.
He talked with AP by conference call Monday from Reno, along with his brother and attorney, Christopher DiMuro, in New Jersey. John DiMuro referred further questions about the reason for quitting his state job to another lawyer, who didn't immediately respond to telephone and email messages.
DiMuro said he worked with Gov. Brian Sandoval, the governor's top aide, Michael Willden, and Nevada prisons chief James Dzurenda to develop the execution protocol.
It calls for the sedative diazepam, commonly known as Valium, to relax the inmate; followed by the powerful opioid painkiller fentanyl, which has been blamed for overdose deaths nationwide; and finally the paralytic cisatracurium.
DiMuro said the first two drugs might be deadly, but the paralytic would ensure the inmate would stop breathing. The doctor estimated that death could occur five to 15 minutes after loss of consciousness.
DiMuro said he might have added a fourth drug such as potassium chloride to stop the heart, or propofol, the powerful anesthetic blamed for the death of Michael Jackson, but they are not available for lethal injections.
Nevada obtained the drugs for Dozier's execution in May from its regular pharmaceutical distributor, Cardinal Health. It is not clear if the company knew their intended use. The state is refusing pharmaceutical company Pfizer's demand to return the diazepam and fentanyl it manufactured.
Dozier, 47, was convicted of separate murders in 2002 in Phoenix and Las Vegas. He would become the first person put to death in Nevada since 2006.
DiMuro said he didn't know why state prosecutors didn't bring him to court after his resignation to rebut testimony from a Harvard University anesthesiology professor who challenged the three-drug protocol.
The Nevada attorney general's office declined to comment on the case.
A judge called a hearing 11 days before the scheduled execution to hear from Dr. David Waisel, an expert witness for federal public defenders, who Dozier allowed to challenge the untried execution protocol.
Waisel testified that if diazepam and fentanyl weren't properly administered or didn't reach Dozier before the third drug, he could be left "paralyzed and awake, which would be a horrifying experience."
Public defender David Anthony argued that Dozier might be left "alive and suffocating" with ineffective anesthesia and that administrators would be powerless to stop the process.
DiMuro told AP that would be impossible to assess and there would be no way to know if movement after the drugs are administered indicates awareness or pain.
But "there is no intent to 'mask' anything," he said.