Nevada high court sends death penalty case back to judge

Death row inmate Scott Dozier appears before District Judge Jennifer Togliatti during a hearing at the Regional Justice Center on Monday, Sept. 11, 2017, in downtown Las Vegas. Richard Brian Las Vegas Review-Journal @vegasphotograph
Death row inmate Scott Dozier appears before Judge Jennifer Togliatti during a hearing about his execution at the Regional Justice Center on Monday, Sept. 11, 2017, in downtown Las Vegas. Richard Brian Las Vegas Review-Journal @vegasphotograph
District Judge Jennifer Togliatti gestures during the hearing of two-time killer Scott Dozier at the Regional Justice Center on Sept. 11, 2017, in downtown Las Vegas. Richard Brian Las Vegas Review-Journal @vegasphotograph
Two-time killer Scott Dozier leaves the courtroom after his hearing at the Regional Justice Center on Jan. 19, 2017, in Las Vegas. Dozier is on death row and wants to be executed. (Bizuayehu Tesfaye/Las Vegas Review-Journal)@bizutesfaye
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A Las Vegas judge should not have denied the prison system’s planned use of a paralytic drug to execute a death row inmate who says he wants to die, the Nevada Supreme Court ruled Thursday.

But that does not mean that 47-year-old Scott Dozier’s killing will go forward on whatever date District Judge Jennifer Togliatti includes in an execution warrant, even after it’s signed once again.

An attorney for the Department of Corrections told the high court earlier this week that the state’s supply of diazepam, an anxiety drug and one of the three drugs in the lethal injection cocktail, has expired.

Prison officials would await the execution order before making a decision on exactly how to proceed, a Department of Corrections spokeswoman said Thursday.

The Supreme Court stated in its ruling that federal public defenders representing Dozier did not follow the proper procedure in challenging what they called “cruel and unusual punishment.” Dozier has steadfastly maintained his death wish since writing to Togliatti two years ago.

“This case exemplifies why judicial restraint is warranted,” the seven justices stated in the high court’s unanimous decision. “Because the FPD declined to follow a recognized procedure for litigating an execution protocol challenge, and instead invoked the district court’s inherent authority, confusion reigned below.”

The justices added: “The district court manifestly abused its discretion by considering the execution protocol challenge under the circumstances presented.”

Assistant Solicitor General Jordan Smith, representing the prison system, told the Supreme Court on Tuesday that under the suggested protocol, which included the paralytic drug cisatracurium, Dozier would not suffer.

In November, Togliatti denied the use of the paralytic and in turn granted a request from the prison’s lawyers to stay the execution as the lethal injection process was reviewed by a higher court.

David Anthony, a lawyer for Dozier, argued for a two-drug cocktail that did not include the paralytic drug. Anthony could not be reached for comment Thursday.

Last year, prison officials concocted a three-drug mixture that included the paralytic, diazepam and the pain reliever fentanyl.

Should his wish be carried out, Dozier would be the first inmate executed in Nevada since 2006.

A Clark County jury convicted Dozier in September 2007 of killing 22-year-old Jeremiah Miller at the now-closed La Concha motel. In 2005, Dozier was convicted in Arizona of second-degree murder in another case.

Contact David Ferrara at dferrara@reviewjournal.com or 702-380-1039. Follow @randompoker on Twitter.

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