Nevada Department of Corrections via AP
Tuesday, Nov. 16, 2021 | 8:35 p.m.
A federal judge in Las Vegas began a series of hearings Tuesday about the constitutionality of the never-before-tried method and combination of drugs that prison officials want to use for Nevada’s first lethal injection in more than 15 years.
U.S. District Judge Richard Boulware II characterized the testimony he is receiving from experts called this week by Zane Floyd’s attorneys — and evidence he expects to hear from the state’s top prison and medical administrators in hearings scheduled into mid-December — “the most serious proceeding that can possibly be in front of this court.”
“I'm going to ask your experts the same questions,” the judge told Randall Gilmer, the chief deputy Nevada attorney general who heads the state case.
Floyd, 45, does not want to die. He was convicted and sentenced in 2000 to death for killing four people and wounding a fifth in a 1999 shotgun attack at a Las Vegas grocery store. His execution was scheduled last July but delayed pending the result of court proceedings.
In a Friday court filing, Floyd's attorneys, David Anthony and Brad Levenson, declared that Nevada Department of Corrections officials have designed an execution plan, or protocol, with "no scientific basis ... (that) risks unnecessarily inflicting pain ... and constitutes prohibited experimentation on a captive human subject.”
“The protocol is novel, employing ketamine — which has never been used in an execution — at a dosage that has no scientific basis that anyone has yet identified,” they argued.
Their first witness Tuesday was a defense-hired consultant, Dr. Mark Heath, a clinical anesthesiologist who teaches at Columbia University in New York and is an expert on the effectiveness of lethal injection drugs.
In a written court document, Heath said Nevada designed “an extremely agonizing method of causing death” with the use of drugs to sedate and paralyze the inmate before “the excruciating pain of intravenous concentrated potassium” administered as a heart-stopping agent.
Nevada’s plan is to use the anesthetic ketamine first among three or four drugs that also include the powerful synthetic opioid fentanyl, then potassium chloride and perhaps a muscle paralytic called cisatracurium. The drug alfentanil might substitute for fentanyl and potassium acetate might substitute for potassium chloride, according to the state plan.
No state has used ketamine or the fentanyl substitute in an execution, according to the nonprofit Death Penalty Information Center. Potassium acetate, also used as an aircraft deicer, was mistakenly used by Oklahoma in a 2015 lethal injection.
Heath, who described witnessing executions that have, in his words, “gone wrong," toured the Nevada execution chamber at Ely State Prison and said he was told that parts of the execution protocol have not been finalized or made public.
He spoke of requirements for medical training or qualifications of those who would administer the drugs and whether those people would be properly trained to respond if something goes wrong and a decision is made to stop the process.
“Rehearsals and training are very important,” Heath told the judge, calling an execution “a complicated, high-stakes, tense affair” where if things go wrong “it’s a terrible, disastrous thing.”
Testimony was scheduled to continue Wednesday.
Floyd's legal team also is challenging his execution in state court in Las Vegas and has several appeals pending before the Nevada Supreme Court.
An appeal also is pending before the 9th U.S. Circuit Court of Appeals in San Francisco. The U.S. Supreme Court declined to hear Floyd’s case, including claims that his mother’s use of alcohol while she was pregnant left him with diminished mental capacity.
State officials have not taken up Floyd’s request for clemency based on his claim of new evidence of brain damage and post-traumatic stress caused by childhood trauma and his military service as a Marine at Guantanamo Bay, Cuba.
The last person put to death in Nevada was Daryl Mack in 2006 for a 1988 rape and murder in Reno. He asked for his sentence to be carried out.