Execution blocked after company objects to use of its drug

LAS VEGAS (AP) — A twice-convicted killer who wants to die rather than spend his life in prison was about an hour from eating his final meal Wednesday when he found out a Nevada judge had indefinitely delayed his execution after a pharmaceutical company objected to the use of one of its drugs to put someone to death.

Instead of carrying out what would have been the first execution in Nevada since 2006 and the first in the U.S. using an untried combination of three drugs, state officials must now reassess their options.

Scott Raymond Dozier, 47, was put on suicide watch as a precaution while officials planned a psychological evaluation at the state prison in the remote northeastern city of Ely before he returns to death row. Dozier was also placed on suicide watch after his execution was postponed in November.

Dozier was with family members and two close friends when he found out the execution had been postponed, said his attorney Thomas Ericsson. He wasn't shocked because he knew the drug company's last-minute lawsuit could derail things, and there was no outburst or anger, Ericsson said. They didn't immediately talk about their next steps, he said.

"I would say he and his family had prepared themselves," Ericsson said.

Dozier has attempted suicide in the past and has said repeatedly that he prefers execution to life behind bars.

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

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, whose body was found in 2002 in a shallow grave outside Phoenix. A witness testified Dozier used a sledgehammer to break the victim's limbs so the corpse would fit in a plastic storage container.

It could now be several months before his execution is scheduled again.

The state is expected to appeal the judge's order to the state Supreme Court, and the judge in Las Vegas has scheduled a Sept. 10 hearing involving drug company attorneys.

Nevada is required by law to use lethal injection for executions and some of the batches on hand are set to expire soon.

Unlike Texas, which has carried out more executions than any other state, Nevada does not have a compounding pharmacy to get its drugs.

At a hearing in Las Vegas early Wednesday that led the judge to order the delay, New Jersey-based Alvogen urged the judge to block the use of its sedative midazolam, saying the state illegally secured the product through subterfuge and intended it for unapproved purposes. The pharmaceutical company also raised fears that the drug could lead to a botched execution, citing cases that apparently went awry elsewhere around the country.

Todd Bice, an attorney for Alvogen, accused the state of deceptively obtaining the 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 midazolam in executions.

Jordan T. Smith, 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. 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 legal and ethical concerns. But 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 D.C.

The previous challenge, brought last year by a different company in Arkansas, was ultimately unsuccessful.

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

The third drug in Nevada's combination is fentanyl, the powerful opioid that is blamed for deadly overdoses across the country but has not been used before in an execution. The fentanyl for Dozier's execution was made by Akorn Inc., prisons spokeswoman Brooke Santina said.

Akorn said in a statement that it strongly objects to its drugs being used in executions. The company didn't say if it planned to intervene in the case.

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. Under Nevada's new execution protocol, the inmate is next given fentanyl and then cisatracurium, one to slow his breathing, the other to stop it.

Bice said 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 its purpose — saving and improving lives.

In court papers, Alvogen also cited instances in Alabama, Arizona and Oklahoma in the past few years in which inmates given midazolam were left gasping or snorting, appeared to regain consciousness or took an unusually long time to die.