July 12

TEXAS----impending execution

Death Watch: Faith in Executions----Religious beliefs barred a potential juror from Christopher Young's trial. Did that cause his sentencing?

Possible religious discrimination might grant a Texas death row inmate another trial. Christopher Young filed an application for relief with the Texas Court of Criminal Appeals on July 2, arguing that the discrimination against a potential juror, based on her church affiliation, tainted his original trial.

Young was 21 when he shot and killed Hasmukh Patel during an attempted robbery of a gas station. Before his trial, a woman was struck from the jury based "solely" on her affiliation with a Baptist church where "some members" ministered to prisoners, because the prosecution believed this could imply that she favored the defendant. Today, Young's counsel claims the potential juror's personal beliefs were never questioned, which was allowed under Casarez v. State, where the CCA held that peremptory challenges made on the basis of a potential juror's religious affiliation do not violate the 14th Amendment's Equal Protection Clause.

The latest appeal, however, was granted in light of 2011's Devoe v. State, when the CCA ruled that Casarez should be read as only "challenges made on the basis of personal religious belief are permissible." Young's lawyer Jeff Newberry said "the whole case hinges on the 2011 decision being the new law." The Alliance Defending Freedom, a public interest organization that protects First Amendment rights, along with a group of 23 "Faith Leaders," have filed amicus briefs in support of Young's request for a new trial. According to one, if the court upholds its original decision, it will "essentially create a rule that says it is permissible for the citizens of Texas to be discriminated against in the courtroom for freely exercising their right to affiliate with a particular church."

Young's attorneys also filed a clemency petition with the Texas Board of Pardons and Paroles on June 25, referencing Thomas Whitaker, who received clemency in February ("Justice for Whom?" Feb. 16). That outcome has inspired more Texas lawyers to seek clemency for their death row clients, but Newberry believes the similarities between his client's case and Whitaker's set Young's apart. As Whitaker's father asked the state to spare his son's life, Patel's son Mitesh has asked the state to spare Young's.

The petition states Mitesh told Young's counsel that "boys who lose their fathers traumatically have a 50-50 shot of being successful despite that trauma. Mitesh was; Chris was not." (Young was a child when his own father was murdered.) Now, Mitesh wants Young's sentence commuted so that Young can be a "father to his daughters." The petition asks the board to focus on the "important facts." Aside from Mitesh's plea, it states Young "is truly remorseful," and that his life has "positive value, both as a father and as a former gang member who can counsel other inmates." Newberry expects the board to vote on Young's case on Friday, July 13.

The U.S. Supreme Court denied Young's last appeal in January. If rulings continue in the state's favor, Young will be executed on Tuesday, July 17. Already, Texas has executed 7 inmates this year, with another 6 scheduled before November.

(source: Austin Chronicle)


Man, 66, could still face death penalty if convicted in cold case murder----James Leon Jackson charged in 1984 rape and murder of 10-year-old Tammy Welch

Despite his age and infirmity, a 66-year-old man could still face the death penalty in the cold case murder of a 10-year-old girl -- if he is convicted.

James Leon Jackson is charged in the 1984 rape and murder of Tammy Welch.

Jackson was considered a suspect all along but wasn't charged until 2013.

In 2016, Jackson's lawyers filed a motion to block the state attorney's office from seeking the death penalty, per the U.S. Supreme Court's Hurst ruling.

At a hearing Tuesday, the judge denied that motion.

Other motions to preclude the death penalty are pending, and Jackson???s lawyers now want a psychiatric evaluation done.

Jackson's trial is set for the end of the month.

(source: WJXT news)


After 20 years on death row, wrongly imprisoned man starts new life in Tampa

An Ohio man found not guilty after spending 20 years on death row is relocating to Tampa through an organization that helps the recently exonerated rejoin society.

When he was exonerated and released after 20 years in prison, he struggled to rejoin society. Now, thanks to the Sunny Center, he will get the fresh start he was dreaming of.

Derek Jamison's life was stolen at just 23-years-old. He was sentenced to death for a murder he didn't commit.

"It was hell," Jamison said. "On earth."

Jamison was sentenced to death in 1985, charged with the robbery and murder of a bartender at a restaurant in Cincinnati, Ohio. Jamison says an acquaintance who carried out the robbery lied to police, telling them Jamison was his accomplice.

Now, DNA evidence has set him free.

His years behind bars, however, will be difficult to forget.

"I wasn't just suffering," Jamison said. "My family was suffering with me."

He was forced to grieve the deaths of multiple family members while in prison, including his mother's. He got the news from a prison guard.

"The only thing I could think about was my mom laying in that morgue," Jamison said. "This is the things I would think about. I know what killed my mom. The death penalty didn't kill me, but it destroyed my family."

Even though he was released in 2005, his struggles have continued. For the last 13 years, he's been struggling to find a permanent place to live and way to make a living.

Now he will be the 1st person to be part of a pilot program helping recent exonerees find a place to stay and make a living.

Thanks to the Ireland-based Sunny Center, Jamison was able to pack up his belongings and his pooch, Lucky and move into a new home in Tampa.

"We try to help them reorganize their life," Exoneree Support Coordinator Dorothy Bort said. "Learn life skills that they were never able to learn."

Bort is now spear-heading the new Exoneree Housing pilot program, exclusive to Tampa, which helps finds housing for recent exonerees.

Jamison is the program's 1st member.

He's now making it his mission to help free the wrongfully accused and help them reclaim a life once stolen.

"By them helping me, I can help other exonerees," Jamison said. "And other people because that's what I do."

Jamison is set to receive compensation from the State of Ohio for his wrongful imprisonment but this lawsuit is still pending.

He says the biggest issue for recent exonerees is having money when they first get out. He hopes to create a compensation fund for people just like him.

(source: Fox News)


Inmate Requests Derail Midazolam Litigation

A lawsuit challenging Alabama's lethal injection process took an unexpected turn yesterday. 8 of the inmate plaintiffs asked to be put to death instead by the state's newly-approved execution method - inhaling nitrogen gas.

Both the Alabama attorney general's office and lawyers for inmates submitted a joint motion to dismiss the litigation yesterday. Lawyers say the inmates' claims challenging Alabama's use of midazolam in executions as inhumane are now moot, since their pending executions will now be carried out by use of nitrogen.

Executive director of the Death Penalty Information Center Robert Dunham says it may take some time before inmates see a nitrogen-equipped death chamber in Alabama. Dunham says it will take time for the state to put an approved protocol in place and, because Alabama will likely be the first state to use the method, that will bring additional legal challenges.

Breathing nitrogen causes oxygen depletion in the blood stream. Previously, Alabama carried out its executions by lethal injection and by electrocution. Alabama is the 3rd state to authorize executions by nitrogen hypoxia, but no state has yet used nitrogen in an execution.

(source: Alabama Public Radio)


Ohio prosecutor calls for firing squad as method of execution

A county prosecutor in Ohio said the state should shoot execute condemned inmates with firing squad, since appeals over lethal injection drugs "take too damn long."

Hamilton County Prosecutor Joe Deters told WLWT he's frustrated by the appeals by inmates sentenced to death as he discussed a stay of execution request for convicted killer Robert Van Hook, which was later denied. Van Hook is scheduled to be executed next Wednesday for a 1985 murder.

Deters said Ohioans need to recognize capital punishment for what it is.

"This game that they constantly play is so frustrating," said Deters. "We had an electric chair that worked just fine. People need to understand, we are killing someone, OK? This is not supposed to be a pleasant experience. They are being executed."

The prosecutor pointed out critics - but not the courts - thought the electric chair was "too cruel," so the state moved to lethal injection, which is now said to be cruel, as well.

"So, as far as I'm concerned, bring back the firing squad. It's constitutional and just end it right now," Deters said in the interview.

Utah currently uses a firing squad as a method of carrying out capital punishment.

(source: WTHR news)

TENNESSEE----impending execution

Death penalty argument swirls as TN set to execute convicted murderer, rapist----The death penalty argument is a complicated one, and it's going on right now in Tennessee.

Tennessee's 1st execution in almost a decade is now scheduled for next month.

59-year-old Billy Ray Irick is set to die August 9th.

He raped and killed a 7-year-old girl in Knox County 33 years ago.

He is 1 of 60 people currently on death row.

The Tennessee Department of Correction says it has the necessary drugs to carry out a lethal injection.

Wednesday, a judge in Nevada delayed a lethal injection there because 1 of the drug's manufacturers says it doesn't want its product used for executions.

Tennessee uses that same drug.

To compare the 2 sides of the death penalty argument, former Tennessee Supreme Court Justice Gary Wade goes back to the Bible.

"The Bibical reference in Exodus--An eye for an eye, and a tooth for a tooth," Wade said. "And then in the new testament for Christians, the turn the other cheek in the Sermon on the Mount by Jesus."

He says it's an argument that stretches back hundreds of years, long before TN became a state.

"Many of the historical executions would not meet constitutional muster today," Wade said.

514 people have been put to death in Tennessee.

The last was Cecil Johnson in 2009.

Wade says repeated court hearings can delay an execution, and that's happened in this state.

"They begin with the trial and end with the appeal to the Tennessee Supreme Court," Wade said. "And then within a year, there's a post conviction review again beginning in the trial courts and going through the court of criminal appeals and ultimately the Supreme Court. And that simply takes some time"

Then, the whole process repeats in the federal court system.

The Death Penalty Information Center says Tennessee would use 3 drugs to execute Irick: Midazolam, Vecuronium bromide, and potassium chloride.

In theory, the 1st drug makes the person unconscious, the 2nd drug stops their lungs, and the 3rd drug stops their heart.

Wednesday, Midazolam's manufacturer, Alvogen, successfully delayed an execution in Nevada by challenging the use of the drug.

That could happen here.

Wade says if the lethal injection isn't available, the state will use the electric chair.

"Today, absent intervention by the governor or a midnight appeal with some kind of merit to it to the Tennessee Supreme Court or the United States Supreme Court, Billy Ray Irick will be executed on the date set," Wade said.

The Tennessee Department of Correction says it can't comment on the lethal injection protocol because the trial discussing the injection is going on now.

(source: WBIR news)


Execution witnesses: Condemned writhed, grimaced when lethal drugs entered their bodies

Inmates executed with a controversial cocktail of drugs opened their eyes, thrashed against their restraints and grimaced after getting a dose meant to render them unconscious before they died, according to several witnesses in a trial challenging Tennessee's lethal injection protocol.

The challenge is led by 33 inmates on Tennessee's death row, who sued the state in Davidson County Chancery Court, saying the drugs the state plan to use would lead to unconstitutional suffering. The resulting trial is moving at breakneck speed, as lawyers hope to have a decision before Billy Ray Irlick???s scheduled execution on Aug. 9.

The Tennessee inmates, who are represented by federal public defenders and other attorneys, say the reactions of the executed inmates in other states are evidence that the controversial drug midazolam, which is part of Tennessee's 3-drug lethal injection cocktail, fails to render people unconscious and subjects them to torturous pain before they die.

Several defense attorneys who had witnessed their clients executed using the drug midazolam testified Wednesday, many of them describing similar scenes.

Christine Freeman, a federal defender and director of Alabama Post-Conviction Relief Project, saw convicted killer Torrey McNabb executed in October. She described him grimacing and raising his arm up well after midazolam had been administered.

"His brow was furrowed, his lips were kind of tightened," Freeman said. "It was very sudden. It was very dramatic."

The challenge is led by 33 inmates on Tennessee's death row, who sued the state in Davidson County Chancery Court. Nashville Tennessean

Federal public defender Eric Motylinski said his client, convicted killer Kenneth Williams, moaned, writhed and made choking sounds before he died by lethal injection in 2017 in Arkansas.

"He was rising up from the gurney repeatedly, rhythmically and violently, sort of hitting up against the straps," Motylinski said. "I cared about Mr. Williams, and if the state had to kill him I would have hoped that they could have done it in a way that he didn't suffer."

State attorneys have argued Tennessee's planned lethal injection cocktail is appropriate and does not amount to torture, including "unnecessary cruelty, terror, pain or disgrace, such as being disemboweled in public, burned alive, beheaded."

Attorneys for the state said Tennessee's protocol calls for a version of the drug called a compound, which was different from the protocols described in most of the testimony Wednesday. Compounded medications are put together by special pharmacists using the drug's raw materials.

Tennessee argues compounding is the only way the state can get the drug, citing a campaign from death penalty opponents to stop companies from supplying drugs for executions. They say the compound drug will still function as intended, and that Tennessee's protocol is similar to methods that have been upheld as proper by the U.S. Supreme Court.

Attorneys for the death row inmates disagree; they note every compounded drug is slightly different, so there's no effective way to predict how the drug will perform. In a court hearing before the start of the trial, 1 attorney likened obtaining the compounded midazolam to "getting black market drugs for an execution."

The maker of midazolam, Alvogen, filed a lawsuit Tuesday against the state of Nevada in an attempt to stop officials from using the drug in an execution, according to the Las Vegas Review-Journal. In a statement to The Tennessean, Alvogen spokesman Halldor Kristmannsson said the company "objects to the use of its midazolam product being acquired fraudulently for an improper purpose."

Kristmannsson clarified obtaining the drug for use in an execution amounts to an improper purpose, in the view of Alvogen. But the company has "no position" on compounded midazolam, Kristmannsson said.

Both the Tennessee Department of Correction and attorneys for the death row inmates plan to call as witnesses physicians who have differing opinions on midazolam's efficacy.

Chancellor Ellen Hobbs Lyle is presiding over the case and is expected to make a ruling at the trial's conclusion.

(source: The Tennessean)


The state's struggle to shroud execution process in secrecy

Gov. Asa Hutchinson yesterday said he backed a law change to increase secrecy of drugs used in executions. The reason is to avoid identifying sources of drugs because manufacturers don't want their drugs used for killings.

Arkansas is having difficulties obtaining execution drugs except by illicit means. That's OK with the Arkansas Supreme Court which has found ways around 2 separate court rulings - 1 controversial because death penalty foe Judge Wendell Griffen made it, the other by Judge Alice Gray - in favor of drug distributors that objected to use of drugs in executions. The Supreme Court has ruled, however, that the law currently allows some release of manufacturer information that can lead to tracing the source of killing drugs.

Note that a court challenge is underway in Nevada similar to the one waged in Arkansas by a drug company objecting to use of its product in an execution there. Nevada follows the same 3-drug protocol that Arkansas uses.

Alvogen says it doesn't want its product used in "botched" executions. It said in court documents that Nevada prison officials illegally obtained the sedative midazolam and demanded that it be returned and not used in Dozier's execution.

"Midazolam is not approved for use in such an application," the document said, adding uses of midazolam in other states "have been extremely controversial and have led to widespread concern that prisoners have been exposed to cruel and unusual treatment."

Arkansas won't say how it obtained drugs but the drug distributor that sued them accused them of dishonest means. What's a little lying to enable state killing?

(source: Max Brantley, Arkansas Times)


Prosecutors to Seek Death Penalty in Toddler's Death

Prosecutors will seek the death penalty against a Utah couple accused of taunting their malnourished 3-year-old daughter with food before she died.

The state filed the notice Tuesday in the case of 25-year-old Miller Costello and 23-year-old Brenda Emile.

The Ogden couple is accused of recording cellphone videos of themselves taunting Angelina Costello as her condition worsened before her July 2017 death.

Both have pleaded not guilty to aggravated murder charges.

Emile's attorney Martin Gravis has also argued there was no definitive evidence to suggest she caused the girl's death. A judge, though, disagreed and pointed to an allegation that Emile used makeup to conceal the girl's burns, bruises and cuts.

If the couple is convicted, prosecutors would push for capital punishment in a separate sentencing hearing.

(source: The Associated Press)

ARIZONA----death sentence overturned

Court reduces death sentence in killing where defense 'utterly failed'----Michael Ray White was sentenced to die by lethal injection for the 1987 murder of a Bagdad man, but a federal appeals court overturned that sentence because of failings of his defense attorneys.

A federal appeals court Wednesday reversed the death sentence given to a Prescott man for the 1987 murder of his lover's husband in an alleged scheme to collect on the victim's insurance policy.

A 3-judge panel of the 9th U.S. Circuit Court of Appeals said that Michael Ray White's lawyer failed to challenge the state's claim that White shot David Johnson for monetary gain. And the court said the attorney "utterly failed" to investigate problems in White's life that could have argued against imposition of the death penalty.

The court said there was "compelling evidence" that White committed the crime "out of love" for his girlfriend, Susan, "rather than financial gain."

"This was a relatively weak case for imposition of the death penalty," said the opinion by Circuit Judge Jacqueline H. Nguyen.

"Even the trial prosecutors believed that the death penalty was inappropriate because this was a 'run-of-the-mill' case, Susan was the 'mastermind' behind the murder, and White succumbed to pressure from her to commit the crime," Nguyen wrote.

Susan Minter was living with her future husband, David Johnson, in early 1987 when she and White began their affair after the 2 met at a Prescott nursing home where they were both working. They moved to Michigan for several months before returning in October to Arizona where Minter married Johnson.

In November, Susan began contacting insurance companies about a life insurance policy on her new husband, asking one insurer about the "time frame on life insurance" and "when you can receive monies," according to court documents.

About that time, the ruling said, White confided to his estranged wife and to another friend that "Susan wants me to kill her husband. I don't know what I'm going to do."

But White bought a .357 Magnum at a pawn shop that month, and when his wife confronted him about missed child-support payments, he told her not to worry because he would be getting $100,000 from Susan.

On Dec. 12, White shot Johnson in the chin and lower back outside Johnson's house in Bagdad. Susan was in the house at the time, according to Arizona Department of Corrections documents, but locked Johnson out as he called for help.

Later testimony said the gunshot wounds were not fatal and if it weren't for medical "carelessness" at the hospital where Johnson was taken, he would not have died.

Susan first tried to blame her ex-husband, but police quickly focused on her and White. When he was arrested Dec. 18, White still had an empty box of bullets, a holster, a ski mask and a bag of potatoes - the gunman used a potato as a makeshift silencer on the gun - in his car. Susan was arrested Dec. 23.

They were tried separately and both were convicted of murder and conspiracy. But while she received 2 sentences of 25 years to life, White was sentenced to death.

Even the original prosecutor believed that the death penalty was "not appropriate" for White, testifying in a later appeal that he thought Susan was "the instigator" and "the brains" behind the murder. But he was told that it was Yavapai County Attorney's Office policy to ask for death where aggravating circumstances, such as monetary gain, were present.

That was the only aggravating factor in the case, and White's attorney presented no mitigating factors.

But the appeals court said there was ample evidence of many mitigating factors.

White suffered from Graves' disease and its psychological effects, had a troubled childhood and low intellectual functioning, and had no criminal record at the time of the murder. Afterward, he claimed repeatedly that the Department of Corrections was monitoring his brain through "listening devices," according to court documents.

His attorneys failed to investigate those factors, however, and when later attorneys tried to investigate them on appeal, their requests were often rejected by the courts. A mitigation expert in one of White's later appeals said that in his 2 decades handling death penalty mitigation, he had never before seen a case in which a mental health professional was not appointed to review the case.

"There is a reasonable likelihood that White would have received a different sentence if counsel had investigated and presented mitigating evidence," Nguyen wrote.

The appellate court ordered the state to give White a new sentencing hearing or to vacate the death sentence and impose a lesser sentence.

Attorneys in the case did not immediately respond to requests for comment.

(source: Cronkite News)


Nevada Postpones Planned Execution Using Fentanyl

Convicted murderer Scott Dozier has clearly and repeatedly stated that he wants to be executed.

The planned execution, using a 3-drug cocktail, had been set for Wednesday evening at Ely State Prison in Nevada. Experts say it would be the first time the opioid fentanyl was used in a U.S. execution.

However, a pharmaceutical company filed a lawsuit Tuesday against the Nevada State Department of Corrections over plans to use one of its drugs, midazolam, in the execution. And on Wednesday, Clark County District Judge Elizabeth Gonzalez "disallowed the use of the drug," effectively putting the execution on hold, The Associated Press reported.

Department of Corrections Public Information Officer Brooke Santina said in an emailed statement that Dozier's execution "will not take place until further notice."

Alvogen, the pharmaceutical company, said in a statement that it "does not condone the use of any of its drug products, including midazolam, for use in state sponsored executions." It also said it "does not accept direct orders from prison systems or departments of correction."

That's why it is accusing Nevada of illegitimately acquiring the midazolam it planned to use to execute Dozier. Santina said she could not comment on that accusation.

This is the 2nd lawsuit of its kind in the U.S. 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.

Many states are having difficulty obtaining the drugs for lethal injection cocktails, as manufacturers increasingly object to having their drugs used in this way. And Nevada is no exception.

"The state issued 247 requests for proposals on Sept. 2 after its stockpile of at least one drug used in executions had expired. Not one response was received," according to a 2016 report in the Las Vegas Review-Journal.

"What we're seeing from the drug companies is rather than simply protesting that the drugs have been improperly obtained, they're going into court to try to protect their corporate interests and to try to protect the integrity of their medicines," Death Penalty Information Center Executive Director Robert Dunham said in an interview.

He added: "If you're saying that the death penalty is necessary as a tool of law enforcement, what kind of message are you sending if you are breaking the law or deliberately deceiving companies and breaching contracts in order to carry out the law?"

The ACLU has also filed a lawsuit this month seeking records related to the state's execution protocol.

Dozier's execution would have been the first in Nevada since 2006, according to the AP. It's been postponed before. He had been scheduled to be executed in November 2017, then a stay of execution was issued over concerns about another drug in the protocol.

"I don't want to die," he told The Marshall Project days after the execution was stayed in 2017. "I just would rather be dead than do this."

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.

Now, Dozier is what is known as a "volunteer," or a death row inmate who has abandoned further appeals. As he told the Marshall Project: "I think it's just time for me to pay the price."

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.

The synthetic opioid fentanyl is a drug at the center of the U.S. opioid crisis.

"It's somewhat ironic that at the same time that the Justice Department and states are talking about how dangerous fentanyl is, and how it's created a national public health emergency, that states are now turning to it as a supposedly safe way of killing prisoners," Dunham added.

In an interview that aired Tuesday on VICE News Tonight on HBO, Dozier appeared enthusiastic about the prospect of being executed using fentanyl.

"I think it's awesome. I mean, it's killing people all over the place," Dozier told the program. "You guys get pharmaceutical grade fentanyl and just bang me up man."

David Juurlink, an expert in toxicology at the University of Toronto, told NPR that the role of fentanyl in this protocol is to sedate a person and stop their breathing. This 3-drug cocktail, he said, "sounds like a genuinely lethal regimen that I would imagine would be associated with very little discomfort."

"An individual with a decent intravenous line who is given a large amount of fentanyl intravenously would literally, within seconds, become unconscious and their breathing would slow," he said. And though it is part of a 3-drug protocol, Juurlink added that fentanyl could be powerful enough to work on its own. He added that the death penalty makes him uneasy.

With this execution up in the air, it's not clear what Nevada plans to do now. It's an increasingly common issue around the country.

"We've seen them look for different drugs. We've seen them look for different methods. We've seen them consider abolishing the death penalty," said Dunham.

"They've gone in all those different directions. And I think that as it becomes clearer and clearer that the use of lethal injection is going to involve breaking the law or breaking contracts and risking torturous executions, states that want to carry out executions are more likely to be looking for other options."

(source: npr.org)


Nevada Execution Is Blocked After Drugmaker Sues

Nevada's execution of a man convicted of murder was halted on Wednesday, after the manufacturer of 1 of the drugs that was to be used in the lethal injection argued that the state had obtained its product illicitly.

A district court judge issued a temporary restraining order preventing Nevada officials from using the drug in the execution. It was the 1st time that a pharmaceutical manufacturer has been able to stop an execution - at least temporarily. It is likely to intensify the battle between officials in death-penalty states and drugmakers that object to their products being used to kill inmates.

Nevada had planned to use 3 drugs in the execution of Scott Dozier, who has been on death row since 2007: 1 as a sedative, 1 to paralyze him, and the powerful synthetic opioid fentanyl to help kill him. The execution would have been the 1st to use fentanyl, which kills thousands of Americans every year and is at the forefront of the nation's overdose crisis.

The potential use of commonly abused narcotics like fentanyl in executions has alarmed human-rights organizations. They fear that prison officials in death-penalty states, facing objections from pharmaceutical companies, will turn to the black market to obtain those narcotics, bolstering trafficking networks at the same time authorities are desperately trying to curb them.

But the drug that led to the postponement of the execution on Wednesday was not fentanyl but midazolam, the sedative in the 3-drug cocktail, whose use in executions has been bitterly disputed for different reasons. Judge Elizabeth Gonzalez of the Clark County District Court issued the restraining order.

Alvogen, the drug's manufacturer, had sued to block its use, saying Nevada obtained the drug under false pretenses because the company did not want it to be acquired for use in capital punishment. Alvogen said it would suffer "immediate and irreparable harm" if the medication were used for such purposes.

State officials bought the drug from a wholesale distributor, Cardinal Health, but did so without disclosing that it was to be used in an execution and not for a therapeutic purpose, according to Alvogen's lawyers.

The plaintiffs said Nevada officials had also instructed Cardinal Health to ship the drug to a state office in Las Vegas instead of to the state prison in Ely, Nev., more than 200 miles away, where the death chamber is. This was done, they said, "to further the implication that the midazolam was for a legitimate medical purpose."

Nevada had also planned to use a paralytic drug, cisatracurium besylate, whose maker, Sandoz, also tried to stop it from being used in the execution.

The state said it would not proceed with the execution Wednesday night if officials were not allowed to use midazolam. If Nevada were permanently prevented from using the medication, it would have to find another combination of drugs to execute Mr. Dozier.

Judge Gonzalez's ruling was hailed by human rights groups and anti-death penalty activists.

"This ruling affirms that the makers of medicines have a right to decide how their products are used," said Maya Foa, the director of Reprieve, a human-rights organization based in London. "These lawsuits exposed how Nevada ignored drug-safety laws designed to protect the public and used subterfuge to undermine private contracts."

In a statement issued after the ruling, the Nevada Department of Corrections said the execution "has been postponed."

Critics had warned that Mr. Dozier could endure a prolonged and excruciating death. The midazolam, they said, was likely not to render him fully unconscious, and when the fentanyl was injected, he would have to endure the sensation of suffocation. High doses of fentanyl kill by severely depressing the respiratory system.

The 3rd drug to be injected - the paralytic agent - would have prevented Mr. Dozier from writhing on the gurney or showing any outward signs of pain, even as he suffered an agonizing death, the critics added. They argued that the paralytic could potentially mask the suffering involved in a botched execution.

But Mr. Dozier said he was fine with all of that. He has waived appeals of his death sentence and told the judge in his case that he wanted to die, even if he suffered in the process.

In an interview this week with The Las Vegas Review-Journal, Mr. Dozier, 47, said his desire to be executed hadn't waned even after learning that the state intended to use an experimental drug protocol.

"Life in prison isn't a life," Mr. Dozier told the newspaper. "This isn't living, man. It's just surviving."

He added: "If people say they're going to kill me, get to it."

(source: New York Times)
A service courtesy of Washburn University School of Law www.washburnlaw.edu

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