LAS VEGAS (AP) — Nevada's first inmate execution in 11 years was postponed Thursday after a judge ordered a paralytic drug removed from a never-before-used lethal injection plan that also includes the first use by a state of the powerful opioid fentanyl.
Prisons chief James Dzurenda called off the execution that had been set for Tuesday for twice-convicted murderer Scott Raymond Dozier after a solicitor for the state attorney general's office said the order would be appealed to the Nevada Supreme Court, prisons spokeswoman Brooke Keast said.
Dozier has given up appeals and repeatedly told Clark County District Court Judge Jennifer Togliatti he wants his death sentence carried out.
The judge said before issuing her order that she was "loath to stop" the process but was concerned the state plan to administer the three drugs could leave Dozier aware of pain and struggling with "air hunger."
The state had planned to administer the muscle paralytic cisatracurium after injecting Dozier with high doses of the sedative diazepam and with fentanyl to depress and stop his breathing,
The judge pointed to testimony last week from Dr. David Waisel, a Harvard University anesthesia professor and pediatric anesthesiologist at Boston Children's Hospital. He said the paralytic should not be needed if the other two drugs are delivered properly in the lethal amounts in the state protocol.
"It's for the Supreme Court to decide," Togliatti said Thursday. "They're going to have to be the court to make that determination that we as a state are OK with a paralytic."
Togliatti said the execution could go forward with a two-drug combination. But, "If the state of Nevada is not comfortable with the fentanyl and diazepam alone, then it supports the argument that (cisatracurium) is being used for a mask and he could suffer," she said.
Dozier's execution can still happen once the state Supreme Court rules, Togliatti said.
She set a Dec. 7 date to check the status of the case.
Waisel was hired by David Anthony, a deputy federal public defender who Dozier allowed to review the untried three-drug protocol.
Anthony contended the paralytic was being used not as a substitute for a heart-stopping drug like most death-penalty states use, but to prevent witnesses from seeing if Dozier experiences an unconstitutionally inhumane death.
Assistant state Solicitor General Jordan Smith did not present testimony from Dr. John DiMuro, an anesthesiologist and the state's chief medical officer who developed the diazepam-fentanyl-cisatracurium protocol.
DiMuro resigned last week from his position as the state's top doctor, but provided an affidavit to the court saying his departure had nothing to do with Dozier's execution.
DiMuro's brother and lawyer, Christopher DiMuro, said his brother carried out an assignment to develop an execution method using drugs that Nevada could obtain.
Invoice records show the drugs were delivered in late May to Nevada prisons from the usual pharmacy supplier, Cardinal Health, at a cost of $482.52. A Cardinal Health spokeswoman didn't directly say whether the pharmaceutical wholesaler knew the intended use for the drugs.
John DiMuro wouldn't agree to an interview, Christopher DiMuro said, but he wouldn't disagree with Waisel that the paralytic could be unnecessary if the first two drugs are properly delivered at fatal doses.
"John is not on one side or another about the death penalty," the brother said from New Jersey.
Dozier also used the name Chad Wyatt. He would become the first person put to death in Nevada since 2006, when Daryl Mack asked to be put to death for his conviction in a 1988 rape and murder in Reno.
His would be the first lethal injection in a new execution chamber at Ely State Prison, 250 miles north of Las Vegas. It was completed in November 2016 at a cost of about $854,000.