US judge keeps Nevada execution challenge alive, for now

FILE - Convicted murderer Zane Michael Floyd is shown in this March 2021 file photo provided by...
FILE - Convicted murderer Zane Michael Floyd is shown in this March 2021 file photo provided by the Nevada Department of Corrections. Nevada's chief medical officer is expected to testify Thursday, Dec. 16 as hearings resume before a federal judge in Las Vegas who is considering whether the state's lethal injection execution plan is constitutional. Defense attorneys for Floyd are arguing that a never-before-used combination of three or four drugs including the anesthetic ketamine and the powerful synthetic opioid fentanyl would subject Floyd to an agonizingly cruel and inhumane death. (Nevada Department of Corrections via AP, File)(AP)
Published: Jun. 14, 2022 at 11:03 AM PDT
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(AP) -A federal judge declined Monday to either decide or dismiss a condemned Nevada killer’s lawsuit challenging the constitutionality of the state plan for what would its first lethal injection in more than 16 years.

U.S. District Judge Richard Boulware II left open Zane Michael Floyd’s case — at least for now — and set an Oct. 11 date for attorneys representing Floyd and the state to return to court in Las Vegas.

The judge said he might still close the matter in coming weeks for what he termed “mootness,” since state prison officials testified that they do not have the drugs they would need to conduct an execution. The prison supply of the sedative ketamine expired Feb. 28, and officials said they’ve had trouble procuring more.

Nevada’s execution plan, or protocol, calls for large doses of three or four drugs also including the potent synthetic opioid fentanyl or a substitute, possibly a muscle paralytic called cisatracurium, and either potassium chloride or potassium acetate to stop the heart.

The key unanswered question remains whether the never-before-used combination of drugs would cause Floyd so much pain that it would be unconstitutionally cruel and inhumane.

“This case is not moot,” Randall Gilmer, chief deputy state attorney general, declared in a 13-page written submission filed May 16.

“Floyd raised numerous challenges to the protocol, all of which are ripe for decision without reference to the drugs (prison officials) may have,” Gilmer wrote. “Thus, there is real, concrete relief that this court can provide to the parties in this case.”

Floyd’s representatives, deputy federal public defenders David Anthony and Brad Levenson, repeatedly used the same words — “This case is not moot” — while urging the judge in their May 16 filing not to throw away the several weeks of point-counterpoint testimony he collected late last year.

They suggested that Boulware issue “an administrative closure” that would let him reopen the case if prison officials obtain the drugs needed to proceed.

Gilmer, on behalf of state Attorney General Aaron Ford, a Democrat, ended his plea with a pointed reference to the two decades since Floyd was sentenced and more than a year that both sides spent arguing over the protocol.

“During that time, three different drugs expired — fentanyl, ketamine and potassium chloride,” Gilmer wrote. “Of equal importance, Floyd’s victims, the family members of his victims, and the residents of Nevada have waited two decades for justice. Mootness does not prevent the court from providing answers to the existing questions.”

Floyd, 46, was convicted in 2000 of killing four people and wounding a fifth in a shotgun attack at a Las Vegas grocery store. He does not want to die.

Daryl Mack was the last inmate put to death in Nevada, in April 2006, for a 1988 rape and murder in Reno. Mack asked for his lethal injection to be carried out.

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