Published: Thu, July 12, 2018
People | By Neil Grant

Judge bans drug in Nevada protocol, effectively delaying execution

Judge bans drug in Nevada protocol, effectively delaying execution

But questions have been raised about whether Nevada's department of corrections broke the law to obtain the fentanyl, and whether the multibillion-dollar distribution company that provided the drug ignored evidence it was to be used in an execution.

This is the second lawsuit of its kind in the USA from a pharmaceutical company, according to the Death Penalty Information Center, which tracks data about the death penalty and has criticized the way capital punishment is administered in America.

The pharmaceutical company urged a judge to block the use of midazolam, saying the state of Nevada obtained the product through "subterfuge" for unapproved purposes. But Dozier has waved appeals and said he wants to die so the combination of medicines to be used to kill him has not been examined in court.

The ruling effectively put the execution on hold.

Todd Bice, an attorney representing Alvogen said the company's lawsuit was not about the constitutionality of the death penalty nor whether Dozier deserved the death penalty - it had exclusively to do with business. "Nevada Department of Corrections to use our midazolam product in an execution, we are exploring all potential avenues, including legal recourse, to prevent the improper use of our product in this particular execution", Alvogen spokesman Halldór Kristmannsson said. The judge, who said she needed time to read the lengthy complaint and the accompanying application for a temporary restraining order, scheduled another hearing for 9 a.m. Wednesday. Gonzalez set another hearing for September 10.

The fact that he is not putting up a legal contest to the never-before-used method of his execution, a protocol made up of midazolam, fentanyl and cisatracurium, means that "there is nobody in the court system who is vindicating the public interest" about whether it is legal and constitutional, said Dunham.

But the company did not immediately ask to formally join Alvogen's lawsuit.

Pfizer protested a year ago, but Nevada refused the pharmaceutical company's demand to return the diazepam and fentanyl it manufactured. But the state has refused.

In a twist, Dozier himself has argued for his own execution over the past year, telling the Las Vegas Review-Journal, "Life in prison isn't a life".

Jordan T. Smith, an assistant Nevada solicitor general, countered at Wednesday's hearing that the state didn't put up a "smokescreen" or do anything wrong in getting the drugs. It also said it "does not accept direct orders from prison systems or departments of correction".

The first Nevada execution to use the synthetic opioid fentanyl could be stalled thanks to a lawsuit from a pharmaceutical company. Pharmaceutical companies have resisted the use of their drugs in executions for 10 years, citing both legal and ethical concerns.

Nebraska is also considering the use of fentanyl in combination with other drugs for executions, according to the Death Penalty Information Center.

The health care supply company McKesson filed a similar lawsuit in Arkansas past year, but that challenge was rejected.

Alvogen's midazolam was substituted in May for Nevada's expired stock of diazepam, commonly known as Valium.

Dozier did, however, let federal public defenders review and challenge the execution protocol drawn up a year ago by state medical and prison officials for Nevada's first lethal injection since 2006.

Dozier has said that he wishes to be executed and that being put to death is better than spending the rest of his life in prison.

"Life in prison isn't a life", the 47-year-old Army veteran and methamphetamine user and dealer told the Las Vegas Review-Journal recently.

There's a limit to how much artwork and physical exercise a person can do in prison, Dozier said in court hearings and letters to the Las Vegas judge who postponed his execution.

Dozier was sentenced to death over the first-degree murder in 2002 of Jeremiah Miller, whose dismembered body was found in a trash bin in Las Vegas.

Miller had come to Nevada from Phoenix to buy ingredients to make meth.

A witness said Dozier used a sledgehammer to break Mr Greene's limbs so the corpse would fit in a plastic storage container.

Midazolam has been used with inconsistent results in states including Alabama, Arkansas, Arizona, Florida and Ohio.

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