Zane Floyd (Photo: Nevada Department of Corrections)
RENO — A federal judge Monday postponed until at least October what was set to be Nevada's first execution in 15 years.
U.S. District Judge Richard Boulware II in Las Vegas said he would issue a formal injunction this week to prevent the state from executing four-time convicted murderer Zane Michael Floyd in July.
Boulware said after a five-hour hearing that he agreed with arguments by Floyd's public defenders that they need more time to determine the constitutionality of a never-before-used sequence of drugs that prison officials want for the execution.
His lawyers argue lethal injection would subject him to cruel and unusual pain and that Floyd prefers safer alternatives, including a firing squad or a single dose of a barbiturate.
The judge told lawyers that he based his decision on the fact that experts at Nevada's Department of Corrections had at least three months to ensure the drugs, dosages and sequence planned for the execution "will be done in a constitutional manner."
"Fundamental fairness and the due process clause means that Mr. Floyd and his counsel should be afforded at least the same amount of time," he said, emphasizing "this is an untested drug protocol" that the state kept secret until last month.
Boulware said his written order this week will prevent the state from going forward with the execution before Oct. 18. He expects at least three days of testimony from experts at a hearing he plans to schedule the week of Oct. 4.
He said his ruling will be subject to appeal in the coming weeks.
Defense lawyers also appealed to the Nevada Supreme Court last week, saying the Clark County district attorney's office should be disqualified from helping prosecute the case because of a conflict of interest for two deputy district attorneys who also serve as members of the Nevada Senate.
Meanwhile, the manufacturer of one of the execution drugs says the state obtained it illegally. Lawyers for Hikma Pharmaceuticals told Nevada's attorney general last week that the company wants the state to return 50 vials of the anesthetic ketamine.
Chief Deputy Nevada Attorney General Randall Gilmer, who argued the state's case Monday, said prosecutors expect to prevail if the company follows through on threats to sue but that the state can obtain ketamine from other sources.
Floyd, 45, was convicted of killing four people and wounding a fifth in a 1999 shotgun attack at a Las Vegas grocery store.
A death warrant for Floyd had been scheduled to be issued July 9, with an exact execution date to follow. It would have been the first execution in Nevada since 2006.
Federal public defenders representing Floyd had asked the judge to slow down the case to allow enough time to examine the effects of the lethal drugs that would be used, including the powerful opioid fentanyl, ketamine, heart-stopping potassium chloride and perhaps a muscle paralytic called cisatracurium.
Prosecutors said in recent court filings that the Nevada Department of Corrections has provided the court with undisputed medical and pharmaceutical evidence establishing the execution will not result in unconstitutional pain or suffering — "indeed, it is likely to result in very minimal to no pain."
Floyd's lawyers say the state wrongly maintains the alternatives they have suggested are not legitimate options because Nevada law provides only for lethal injection and the Department of Corrections has been unable to get a barbiturate.
But they said the Supreme Court has made it clear that an inmate seeking to identify an alternative method of execution is not limited to choosing among those presently authorized by a particular state's law. They said both of Floyd's proposed alternatives are well-established in other jurisdictions.
Mississippi, Oklahoma, South Carolina and Utah authorize execution by firing squad, they said. Texas, Georgia and the U.S. government have recently used pentobarbital in executions.
Hikma Pharmaceuticals said in its cease-and-desist letter to the state that the ketamine it produces is meant to save lives and long has opposed use of its products for capital punishment. It said the drug has never been used in an execution and notes the company won a federal court order in 2018 that concluded the Nevada Department of Corrections had resorted to "subterfuge" when it similarly illegally acquired ketamine.
"This is not Hikma's first rodeo with NDOC on this issue," its lawyer wrote Thursday. "It is nothing less than shocking and embarrassing for the state of Nevada."
