Nevada Federal judge keeps execution challenge alive, for now

By Ken Ritter
Associated Press

LAS VEGAS (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 be 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.