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DA’s pursuit of Zane Floyd execution can proceed, judge says

A judge on Friday rejected a bid to disqualify the Clark County district attorney’s office from its pursuit of a July execution for Zane Floyd, convicted of killing four people in a Las Vegas grocery store.

District Judge Michael Villani handed down the decision a day after Gov. Steve Sisolak and state Democratic leaders announced that a bill to end capital punishment in Nevada failed in the Legislature.

The judge found that the dual roles of Sens. Nicole Cannizzaro and Melanie Scheible, who work as prosecutors when not acting as legislators, did not amount to a constitutional violation of separation of powers.

“Cannizzaro and Scheible are on leave of absence from the District attorney’s office and, therefore are not performing executive branch functions under their current status as legislators,” Villani wrote in his order. “They are being compensated by the legislative branch of government opposed to the executive branch, and while serving in the legislature they are not under the control of the elected District Attorney.”

Federal public defenders representing Floyd were in court Friday to ask the judge to appoint third-party prosecutors in the case.

Villani delayed a separate decision on whether to set a July execution for Floyd, who would be the first prisoner put to death in the state since 2006.

Floyd, now 45, received the death sentence after killing four and seriously wounding another in a 1999 shooting at an Albertsons on West Sahara Avenue.

Assistant federal public defender Brad Levenson argued that Clark County District Attorney Steve Wolfson’s public opposition to repealing capital punishment influenced the lawmaking decisions of Cannizzaro and Scheible.

“There is at least a reasonable possibility that some specifically identifiable impropriety did occur and the likelihood of public suspicion outweighs keeping the district attorney on this case,” Levenson said. “It’s clear from what happened yesterday that the Senate prosecutors were involved in derailing the bill.”

Wolfson was not present at Friday’s hearing, but Chief Deputy District Attorney Alex Chen said that prosecutors were working to fulfill a decision from jurors.

A jury convicted Floyd about a year after he used a 12-gauge shotgun to fatally shoot four employees — Lucy Tarantino, 60, Thomas Darnell, 40, Chuck Leos, 40, and Dennis “Troy” Sargent, 31 — inside the grocery store. Zachary Emenegger, 21, was shot twice but survived after playing dead.

Floyd also was found guilty of repeatedly raping a woman in a guesthouse at his parents’ home before the shooting.

Assembly Bill 395, which would have banned executions and commuted the sentences of those on death row to life in prison without parole, passed in the Assembly last month. But the bill failed after Sisolak said he did not support a full repeal of the death penalty.

“DA Wolfson has made opinions regarding the death penalty, as well as AB 395, but there’s nothing that prohibits him from doing that,” Chen said. “In fact, a lot of individuals running for office probably have an opinion on something like this. It would not automatically mean that they can’t fulfill their duties.”

Chen argued that appointing special prosecutors would mean that “a warrant of execution could never be fulfilled. And to me it seems like their motivations to get the Clark County district attorney’s office off of this case are clear.”

But Levenson argued that the legislation languished without a Senate vote because of the prosecutors’ leadership roles.

He pointed specifically to Cannizzaro, the Democratic majority leader.

“It was her decision, and her decision alone, that killed the bill,” Levenson said. “There is a strong interest in disqualifying the DA’s office from this case. The citizens of this state, as well as Mr. Floyd, deserve the assurance that the lawyers representing the state who are seeking Mr. Floyd’s execution, the harshest penalty that there is in law, are doing so fairly.”

Floyd’s lawyers are also trying to stop his lethal injection through federal court, where a judge suggested this week that he could order a stay of execution.

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