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Judge: Nevada Supreme Court will make next execution ruling

December 20, 2017

FILE - In this Aug. 17, 2017, file photo, Nevada death row inmate Scott Dozier, right, confers with Lori Teicher, a federal public defender involved in his case, during an appearance in Clark County District Court in Las Vegas. A judge left a condemned Nevada prison inmate's execution on hold over concerns about using a never-before-tried three-drug combination for Nevada's first execution in more than 11 years. With the Nevada Supreme Court expected to review the case and decide in coming months if Dozier's execution should go forward, Clark County District Court Judge Jennifer Togliatti said Tuesday, Dec. 5, 2017, she wants written filings on other issues. (AP Photo/Ken Ritter, File)

LAS VEGAS (AP) — A Nevada judge whose order blocking one of three drugs from a never-before-tried lethal injection protocol stalled the state’s first scheduled execution in 11 years said Tuesday the next ruling in the case will be by the state’s highest court.

Clark County District Court Judge Jennifer Togliatti told state and local prosecutors pushing for the execution and a team of federal public defenders representing Scott Raymond Dozier that she’s done with arguments until the Nevada Supreme Court reviews her decision not to allow the use of the muscle paralytic drug cisatracurium.

Togliatti canceled a Jan. 17 hearing that had she had set. The seven-member Supreme Court didn’t immediately schedule a hearing on a 52-page appeal filed Friday by state Attorney General Adam Laxalt’s office.

State prisons officials want to follow high intravenous doses of the sedative diazepam, commonly known as Valium, and the painkiller fentanyl, a powerful opioid blamed for overdose deaths nationwide, with the paralytic. None of the drugs has been used before in an execution in any state.

Togliatti said she knows the Nevada ruling will be closely watched. Other states have struggled in recent years to identify and obtain drugs from pharmaceutical companies that don’t want their products used for the death penalty.

Nebraska, for example, recently proposed using the same diazepam-fentanyl-cisatracurium protocol as Nevada, while adding potassium chloride to stop the heart for a yet-to-be scheduled execution next year.

“There are other executions, presumably, that will go forth in this state,” Togliatti said in Las Vegas. “This is a new protocol that seems to me may be one that may be a viable one for this state and other states in the future. I’m going to ask you to go forth to the Supreme Court ... and if they direct me to have evidentiary hearings, I will.”

Dozier, a 47-year-old twice-convicted murderer whose Nov. 14 execution was canceled, insists he wants his sentence carried out. He did not appear in person or by video from Ely State Prison for Tuesday’s procedural hearing.

“Clearly, Mr. Dozier is signing up for a medical experiment,” said Dr. Jonathan Groner, a Columbus, Ohio, surgeon and lethal injection expert. He has said combining diazepam and fentanyl could induce vomiting or other complications, while the paralytic could disguise any suffering the inmate might experience.

Cisatracurium would prevent muscle movement including the diaphragm, and ensure that breathing stops, according to Dr. John DiMuro, an anesthesiologist who developed the protocol before quitting as Nevada’s top doctor in October.

Togliatti ruled just days before Dozier’s scheduled execution that the state could go forward if officials wanted to use just the diazepam and fentanyl.

Laxalt’s office is asking the Supreme Court to allow all three drugs — and quickly, because the stock of cisatracurium on hand begins expiring April 1 and the diazepam expires May 1.

Togliatti has said she was swayed by testimony from Dr. David Waisel, a Harvard University anesthesiology professor presented as an expert witness by federal public defenders challenging Nevada’s three-drug protocol.

He testified diazepam and fentanyl should be enough to cause death, while the paralytic could leave Dozier aware of pain but unable to move while he suffocates.

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This version corrects that cisatracurium begins expiring April 1 one that diazepam expires May 1.

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