Judge leaves Nevada execution on hold
December 5, 2017
LAS VEGAS — A judge in Las Vegas kept a condemned prison inmate's execution on hold Tuesday over concerns about a never-before-tried three-drug combination planned for use during Nevada's first execution in more than 11 years.
Clark County District Court Judge Jennifer Togliatti also said Tuesday that she wants to see written filings before she decides several other key issues.
With the Nevada Supreme Court expected to review the case and decide if Scott Raymond Dozier's execution should go forward, Togliatti took no immediate action on a request by state and local prosecutors to reverse her Nov. 14 order halting the execution, which had been planned the same day.
State attorney general's office lawyers say they're drafting an appeal to the state high court of Togliatti's order that the state Department of Corrections must remove a disputed paralytic, cisatracurium, as the third drug in a protocol using high doses of the sedative diazepam and the potent opioid fentanyl.
"You could have proceeded. He could be dead today," the judge told attorney general solicitor Jordan Smith on Wednesday, noting that he said the state would appeal instead.
The judge added that she felt Supreme Court review of the three-drug cocktail will be important if the state wants to use it in future executions.
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Togliatti canceled a Dec. 7 hearing, and made it clear that Dozier will have to wait at least several months for the execution he has said repeatedly he wants carried out.
She set a Jan. 17 hearing on a bid from the attorney general and Clark County district attorney's offices to proceed using just diazepam and fentanyl. A medical expert witness called by federal public defenders challenging the case said those two drugs should be enough to kill the inmate.
She also is being asked to decide if federal public defenders should continue to represent Dozier in a review of the state's proposed execution protocol.
Dozier, appearing by videoconference from Ely State Prison, did not say he wanted attorneys David Anthony and Lori Teicher to stop representing him.
Togliatti barely contained exasperation over what she termed "manipulation of the court process," and asked the inmate if a flurry of filings in recent days meant he was asking for a "do-over" of the lengthy proceedings that began in July and required almost daily action in the run-up to the scheduled execution date.
Dozier called the months of hearings that made his case a topic of national interest "vital," noted that they led to revisions of the protocol, and said he feels now "like I had to take a less-than-ideal option because that was the only option available."
Dozier, 47, has been on death row since 2007 for convictions in separate murders in Phoenix and Las Vegas.
Jonathan VanBoskerck, a chief Clark County district attorney, has said that local prosecutors have an interest in seeing the penalty that Togliatti imposed 10 years ago carried out. He said Tuesday that other arguments are irrelevant since Dozier is not challenging his sentence or the process.
"The bottom line is it's his choice," VanBoskerck told the judge.