LAS VEGAS (AP) — A Nevada judge effectively put the execution of a two-time killer on hold Wednesday after a pharmaceutical company objected to the use of one of its drugs to put someone to death.
Clark County District Judge Elizabeth Gonzalez disallowed the use of the drug in a ruling that came down less than nine hours before Scott Raymond Dozier, 47, was to be executed with a three-chemical injection never before tried in the U.S.
Nevada state prisons spokeswoman Brooke Santina had no immediate comment.
New Jersey-based Alvogen had urged the judge to block the use of its sedative midazolam, saying that the state illegally obtained the product through “subterfuge” and intended to use it for unapproved purposes.
The pharmaceutical company raised concerns that the drug could lead to a botched execution, citing cases that seemingly went awry elsewhere around the country.
Todd Bice, an attorney with Alvogen, accused the state of deceptively obtaining the company’s drug by having it shipped to a pharmacy in Las Vegas rather than the state prison in Ely.
He said Alvogen had sent a letter to state officials in April telling them it opposes the use of its products in executions, particularly midazolam.
The judge ruled that based on that letter, Alvogen had a reasonable probability of winning its lawsuit, and she issued the temporary restraining order against the use of the drug.
Gonzalez set a hearing in the case for Sept. 10.
Alvogen said in a statement that it was pleased with the ruling and will continue to work through the legal system to ensure its products are not used in executions.
A second pharmaceutical company, Sandoz, also raised objections at Wednesday’s hearing to the use of one of its drugs — the muscle-paralyzing substance cisatracurium — in the execution. But the company did not immediately ask to formally join Alvogen’s lawsuit.
A third company, Pfizer, last year demanded Nevada return the third drug intended for use in the execution, the powerful opioid fentanyl.
But the state refused. Fentanyl, which has been blamed for deadly overdoses across the country, has not been used before in an execution.
Jordan T. Smith, an assistant Nevada solicitor general, countered at Wednesday’s hearing that Nevada didn’t put up a “smokescreen” or do anything wrong in getting the drugs. He said drugs ordered by the state prison system are regularly shipped to Las Vegas.
“This whole action is just PR damage control,” Smith said of Alvogen.
Pharmaceutical companies have resisted the use of their drugs in executions for 10 years, citing both legal and ethical concerns.
However, the legal challenge filed by Alvogen is only the second of its kind in the U.S, said Robert Dunham, executive director of the Death Penalty Information Center in Washington.
The previous challenge, filed last year by a different company in Arkansas, was ultimately unsuccessful in stopping that execution.
Alvogen’s midazolam was substituted in May for Nevada’s expired stock of diazepam, commonly known as Valium.
The drug is intended to render the inmate unconscious.
Nevada’s new execution protocol also calls for the use of fentanyl to slow the inmate’s breathing and cisatracurium to stop his breathing.
Bice said that Alvogen does not take a position on the death penalty itself but opposes the use of the drug in a way that is fundamentally contrary to the drug’s purpose — saving and improving patients’ lives.
In court papers, Alvogen also cited the risk of a botched execution, citing instances in Alabama, Arizona and Oklahoma in the past few years in which inmates were left gasping or snorting, appeared to regain consciousness or took an unusually long time to die.
Dozier, who attempted suicide in the past, has said he prefers execution to life behind bars.
“Life in prison isn’t a life,” the Army veteran and methamphetamine user and dealer told the Las Vegas Review-Journal recently. In court hearings and letters, he said there is a limit to how much artwork and exercise a person can do in prison.
Dozier was sentenced to death in 2007 for robbing, killing and dismembering 22-year-old Jeremiah Miller at a Las Vegas motel in 2002.
Miller had come to Nevada to buy ingredients to make meth. His decapitated torso was found in a suitcase.
In 2005, Dozier was sentenced to 22 years in prison for shooting to death another drug-trade associate, 26-year-old Jasen Greene, whose body was found in 2002 in a shallow grave outside Phoenix.
A witness testified Dozier used a sledgehammer to break Greene’s limbs so the corpse would fit in a plastic storage container.
Though Dozier dropped attempts to save his own life, he allowed federal public defenders to challenge the execution protocol. They argued that the untried three-drug combination would be less humane than putting down a pet.
Nevada’s last execution was in 2006.
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