A federal judge is set to decide soon if he will dismiss death row prisoner Zane Floyd’s challenge to his execution.
U.S. District Judge Richard Boulware said last month that the challenge from the quadruple convicted killer could be dismissed now that some of the drugs the state intended to use in the lethal injection cocktail have expired.
Boulware gave Floyd’s lawyers and attorneys with the Nevada Department of Corrections three weeks to submit motions arguing whether the case was moot.
But court documents filed Monday show that attorneys on both sides agree on one aspect of the case.
“While the parties have respectfully but strenuously disagreed on most everything over this case throughout the past year, on this issue they show a united front: this case is not moot,” wrote Chief Deputy Attorney General Randall Gilmer.
Attorneys for the prison system asked Boulware to rule on multiple challenges Floyd has raised regarding the Department of Corrections’ execution protocol.
Floyd has challenged aspects of the protocol including the combination of drugs, the amount of training drug administrators, medical staff and prison employees would receive prior to the execution, and the state’s position that officials do not need to reveal the identities of those involved in the execution.
Floyd was sentenced to die for fatally shooting four people and gravely wounding another at a Las Vegas grocery story more than two decades ago.
If Boulware decides not to rule on the case, then Floyd’s attorneys asked for an “administrative closure,” which would allow them to quickly reopen court proceedings if the Department of Corrections is able to obtain the drugs called for in the execution protocol.
State officials intend to combine drugs that have never been used together to carry out a death sentence. Experts called by Floyd’s lawyers to testify during an evidentiary hearing in November said the drugs could cause extreme suffering while Floyd is paralyzed and suffocating.
The drug cocktail includes the anesthetic ketamine, the painkiller fentanyl or the similar drug alfentanil, and potassium chloride or potassium acetate. The proposed protocol indicates the state could also use cisatracurium, a paralytic drug.
Officials missed their deadline to secure Floyd’s execution warrant in February when the state’s supply of ketamine expired. The state’s last batch of cisatracurium also expired on April 19, according to Monday’s motion written by Floyd’s federal public defenders, Brad Levenson and David Anthony.
Levenson and Anthony wrote that state officials have said that prison employees still have active orders to try and obtain ketamine through the state’s regular pharmaceutical distributor, Cardinal Health.
It is unclear when Boulware could issue a ruling on the case.
Last week, Arizona executed death row inmate Clarence Dixon, 66, using the sedative sodium pentobarbital. Critics argued that the execution was botched, with the medical team having difficulty finding a vein to administer the drugs.
Officials first tried Dixon’s arms, then made an incision in his groin area, the Associated Press reported.
The day of the execution, the Associated Press reported that it took about 25 minutes to insert the IV. However, Dixon’s legal team has said the process took up to 40 minutes, the Arizona Republic reported Wednesday.
Levenson told the Review-Journal that executions that don’t happen “according to plan” continue to cast doubt on how Floyd’s execution could be carried out, especially with Nevada’s untested protocol and drug combination.
“It’s an ongoing concern that the executions in other states have not gone well,” Levenson said. “And those executions aren’t necessarily with novel protocols.”