This March 2021 file photo provided by the Nevada Department of Corrections shows convicted murderer Zane Michael Floyd, 45, an inmate at Ely State Prison.
A convicted murderer facing lethal injection in late July in Nevada wants a federal judge to at least delay his execution long enough to review the constitutionality of the never-before-used procedure and sequence of drugs that state prison officials plan to use.
In a plea for a stay of execution that could be issued Friday, a team of deputy federal public defenders representing Zane Michael Floyd asked U.S. District Judge Richard Boulware II to slow the case to allow “adequate time to litigate for the first time in any court nationwide Nevada’s novel execution protocol.”
“The public has an interest in assuring executions proceed humanely and constitutionally,” they said.
One of Floyd’s defense attorneys, Brad Levenson, declined comment Monday about the 24-page court filing submitted on June 18. A spokeswoman for Nevada Attorney General Aaron Ford, representing prison officials, and the Clark County prosecutor handling the Floyd case also declined to comment.
Boulware indicated during previous hearings that he was willing to delay the execution sought by Clark County District Attorney Steve Wolfson to allow time to review the state Department of Corrections plan.
Floyd, 45, does not want to die. He was convicted in 2000 of killing four people and wounding a fifth in a shotgun attack at a Las Vegas grocery store in 1999. He also was convicted of raping a woman before the shooting.
His execution would be the first in Nevada since Daryl Mack’s lethal injection in 2006 for a 1988 rape and murder in Reno. Mack asked for his sentence to be carried out.
in 2017 and 2018, the lethal injection of twice-convicted murderer Scott Dozier, who also volunteered to die, was called off amid battles over the effects of three drugs and the procedure the state proposed to use. Dozier killed himself in prison in January 2019, after expressing frustration with delays.
Executions in Nevada must be by lethal injection. The state is one of several in the U.S. that have had trouble obtaining drugs and overcoming legal challenges to carry out sentences.
Prison officials made Floyd's execution manual public on June 10, three days after a state court judge said prosecutors in Las Vegas could aim for a date during the week beginning July 26.
An exact date would be set once a death warrant is issued July 9. The execution would be the first in Nevada in 15 years and would be carried out at the state prison in Ely.
The manual revealed the state would use three or four lethal drugs in what Floyd’s attorneys call a “novel” combination.
A three-drug procedure would start with the powerful opioid fentanyl, followed by the sedative ketamine and a heart-stopping salt, potassium chloride. A similar-acting drug, alfentanil, might be substituted for fentanyl and potassium acetate might substitute for potassium chloride “depending on availability,” the manual said.
In an alternate four-drug process, the muscle paralytic cisatracurium would be injected to stop the condemned man’s ability to breathe before he is given the potassium chloride.
Randall Gilmer, the state attorney representing the Corrections Department, has told Boulware that Nevada does not plan to make public the source of drugs that would be used.
“Only one of the six proposed drugs and alternates has an established (though contentious) history of use in executions,” Floyd’s attorneys wrote in their plea for a stay, including the parenthetical note. “The others have been used rarely, accidentally, or not at all.”
“The critical anesthetic, ketamine, has never been used before in an execution,” they said, while potassium chloride and potassium acetate “cause excruciating pain.”
“There is good reason to question the protocol’s constitutionality,” the attorneys said. “The public interest does not support an unconstitutional execution.”
Floyd lost state and federal appeals and the U.S. Supreme Court declined to hear claims including that his mother’s use of alcohol while she was pregnant left him with a diminished mental capacity.
Levenson has said he intends to appeal again to the state Supreme Court to block Floyd’s execution date.
Floyd also is seeking clemency Sept. 21 from the state Board of Pardons, made up of the governor, seven state Supreme Court justices and state attorney general.