Nevada

Nevada

Two Foreign Nationals Receive New Trials as U.S. Supreme Court Declines to Hear State Death-Penalty Appeals

Two foreign nationals who were sentenced to death in unrelated cases will receive new trials after the U.S. Supreme Court declined to hear appeals of lower court rulings overturning their convictions. Jose Echavarria (pictured, left), a Nevada prisoner originally from Cuba, and Ahmad Issa (pictured, right), an Ohio prisoner originally from Jordan, each were awarded new trials by federal appellate court decisions in 2018. The states petitioned the Supreme Court seeking review of the cases, but on May 20, 2019, the Court denied the petitions, allowing the lower court rulings to stand. Echavarria and Issa were among 130 foreign nationals from 35 countries under sentence of death across the United States.

Echavarria, who was sentenced to death in Clark County, Nevada for the 1990 killing of FBI agent John Bailey during an attempted bank robbery, was granted a new trial on his claim that his trial had been tainted by judicial bias. Echavarria fled to Mexico after the crime, and later alleged that he had been tortured and beaten by Mexican police until he confessed. He moved to suppress the confession, but the trial judge, Jack Lehman, denied the motion. Unknown to the defense, Lehman had been the subject of an FBI investigation into issues of possible corruption, fraud, and perjury and that investigation had been conducted by Agent Bailey. The FBI ultimately referred the case to state authorities in 1988, who brought no charges against the judge. Lehman met with the prosecutor and the lawyer representing Echavarria’s co-defendant prior to trial, asking whether they wanted him to recuse himself. According to the U.S. Court of Appeals for the Ninth Circuit, “Judge Lehman did not fully explain … the nature and extent of the FBI’s investigation,” and neither party requested recusal. Echavarria’s counsel did not learn about the FBI investigation until well after trial and sentencing.

The Ninth Circuit ruled that Judge Lehman’s participation in the trial created “a constitutionally intolerable risk of bias” that violated Echavarria’s right to due process. It wrote that “[a]n average judge in [Lehman’s] position would have feared that rulings favoring Echavarria, tipping the outcome towards acquittal or a sentence less than death, could cost him his reputation, his judgeship, and possibly his liberty.” The court found that “the risk of bias was extraordinary in both its nature and severity … [and] was obvious to all who had complete information about Agent Bailey’s investigation.” It upheld a federal district court ruling that vacated Echavarria’s conviction and death sentence and required the state to retry or release Echavarria. This was the second case in two years in which the Supreme Court had been asked to intervene in a Clark County case alleging judicial bias. In 2017, the Court reversed a Nevada court ruling that had upheld the capital conviction of Michael Rippo after a judge who was the subject of a federal bribery investigation in which Clark County prosecutors were playing a role refused to recuse himself from the trial.

Issa was granted a new trial by the Ohio federal courts based on Hamilton County prosecutors’ improper use of hearsay evidence. Issa was convicted of capital murder for allegedly hiring Andre Miles to kill Maher Khriss, Issa’s boss, at the behest of Khriss’ wife, Linda. Miles also killed Zaid Khriss, Maher’s brother, when he shot Maher. Miles, Issa, and Linda Khriss were all charged with aggravated murder. Linda Khriss was acquitted in a trial in which Miles—who had received a life sentence in his trial—testified against her. Miles subsequently refused to testify at Issa’s trial and the trial court allowed Cincinnati prosecutors to instead present testimony from two friends of Miles, who said Miles had told them that Issa had hired him to kill someone. The U.S. Court of Appeals for the Sixth Circuit found that this testimony violated the Confrontation Clause of the Sixth Amendment, which states, “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.”

NEW VOICES: Prosecutors in Colorado and Nevada Call for Death-Penalty Repeal

Two prosecutors with different philosophical perspectives on capital punishment have called on their respective states to abolish capital punishment. Boulder County, Colorado, District Attorney Michael Dougherty (pictured, left), who opposes capital punishment in principle, and former Washoe County, Nevada, homicide prosecutor Thomas E. Viloria (pictured, right), who has successfully obtained four death verdicts, have added their voices to support efforts to repeal the death penalty in their states. Though approaching the issue with different ideologies, both prosecutors agreed that the death penalty should be eliminated because of its high cost, its ineffectiveness as a crime deterrent, and its potentially detrimental effects on victims’ families.

In comments to legislators on March 4, Dougherty said, “I’m strongly opposed to the death penalty, and it should be abolished in Colorado. … I don't believe any state or country should put its citizens to death.” The high costs in time and resources can’t be justified, he also stated, particularly in a jurisdiction such as Boulder in which juries don’t believe it should be imposed. “I talk to victims' families about it,” Dougherty said, “and one of the things we always focus on in these conversations, is it is up to the jury to decide on a sentence, and a Boulder jury would have to reach a unanimous verdict finding the death penalty sentence is morally just. As Boulder district attorney, I will not simply ignore the law that allows for use of the death penalty, but I must weigh a prosecutor’s ethical obligation to only pursue charges that can be proven beyond a reasonable doubt. I don’t believe a Boulder jury would reach a unanimous verdict finding a death sentence is justified.” Dougherty also expressed qualms about using the threat of death to obtain plea deals. “I have significant ethical concerns if people were ever to use the death penalty to motivate a guilty plea to a lesser sentence,” he said. “I would never want any prosecutor to say that a defendant has to accept life without parole in order to avoid the death penalty.”

Viloria has also come to oppose capital punishment, but he took a very different route in reaching that conclusion. In an op-ed for the Reno Gazette Journal, Viloria wrote about his experiences prosecuting five death-penalty cases and obtaining death sentences in four. “In each of the cases I prosecuted, the victim’s family members believed the death penalty would help close their emotional wounds,” Viloria said.  “Yet because none of those inmates have been executed many years later, family members haven’t received that promised closure.” He said “[d]eath penalty cases rightfully demand greater scrutiny, so murder victim family members often suffer more trauma than murder victim families in non-death penalty cases. They must endure more media coverage, court appearances, and appeals, plus, often times, a reversal of the death sentence.” Viloria also pointed to systemic problems in the administration of capital punishment, writing that the death penalty “is often unevenly and unfairly applied, partly because it is sought at the sole discretion of a particular prosecutor or prosecutorial administration. It is extremely costly to taxpayers and, because the state has no drug supply to administer an execution, it is uncertain if Nevada can even carry out the death penalty.” Viloria urged the Nevada legislators to conduct a hearing on the abolition bill “so lawmakers can decide the very serious issue of whether to maintain our broken death penalty system.”

Legislatures in Nevada and Colorado are both considering bills that would abolish the death penalty. Colorado’s bill, SB 19-182, passed the Senate Judiciary Committee by a 3-2 vote on March 6, 2019. Nevada’s bill, AB 149, has not yet received a hearing.

Scott Dozier, Who Unsuccessfully Tried to Force Nevada to Execute Him, Dead of Apparent Suicide

Nevada death-row prisoner Scott Dozier (pictured), who unsuccessfully tried to force the state to execute him, was found dead in his prison cell on January 5, 2019 of an apparent suicide. News reports indicated that Dozier had hanged himself. Dozier had told the court and several reporters that he would rather die than spend life in prison and had attempted to speed up his execution by dropping his appeals. However, his prior suicide attempt raised questions about his mental state and his competency to waive appeals.

Dozier’s case gained national attention when Nevada proposed to execute him with an untested fentanyl-based drug combination after it was unable to replace its expired supplies of the drugs authorized under its prior execution protocol. He would have been the first person ever executed using fentanyl. Though steadfast in seeking execution, Dozier initially allowed federal public defenders to challenge the constitutionality of the new drug protocol. That challenge resulted in two stays of execution in 2017, after the trial judge found that the use of the paralytic drug cisatracurium in combination with diazepam (Valium) and fentanyl could cause Dozier to experience “air hunger” and suffocate to death, while masking signs that he was conscious and suffering during the execution. The court authorized the execution if Nevada dropped the paralytic drug, but Nevada appealed, prompting Dozier to write to the state judge who had halted his execution that “I’ve been very clear about my desire to be executed ... even if suffering is inevitable.” Court filings in a prior lawsuit challenging Dozier’s isolation in prison revealed that he had previously attempted suicide after having been denied recreation time, communication with his family, and consultation with his legal counsel. The state argued at that time that Dozier’s isolation was necessary to protect him from self-harm.

The Nevada Supreme Court later vacated the lower court’s stay order on procedural grounds, clearing the way for a second death warrant, which was issued in June 2018. Eight days before the July 11, 2018 execution, Nevada changed its drug formula again, and drug manufacturer Alvogen filed suit against the state for allegedly obtaining a supply of its sedative, midazolam, “by subterfuge” to circumvent the company’s restrictions against sales of its products for use in executions. A Clark County District Judge halted Dozier’s execution, agreeing with Alvogen that Nevada had misrepresented its intended use of the drugs and purchased them in “bad faith” through subterfuge. The court barred the state from using the drugs obtained from Alvogen in any execution. At the time of Dozier’s death, state prosecutors had not yet decided whether to appeal that order. Nevada prison officials had recently placed Dozier in solitary confinement, purportedly for self-protection.

After Mid-Term Elections, Legislators Poised to Renew Efforts at Death-Penalty Abolition in 2019

Empowered by the results of the November 2018 mid-term elections, legislatures in at least four states are poised to renew efforts to repeal their states’ death-penalty statutes or drastically reduce the circumstances in which capital punishment is available.  State legislative and gubernatorial elections in Colorado, Nevada, New Hampshire, and Oregon have redefined the local political landscape in 2019 in ways that death-penalty abolitionists say have made those bills more likely to succeed. Colorado and Oregon already have moratoria on the death penalty, but legislators in both states are expected to move forward with bills abolishing or further restricting its use. In New Hampshire, where legislators voted to repeal the death penalty in 2018 but were unable to override a gubernatorial veto, the newly-elected legislature may now have the two-thirds supermajority necessary to override. And in Nevada, where a state court found that corrections officials had engaged in “subterfuge” in attempts to obtain execution drugs, voters elected a governor who has expressed concerns about capital punishment, and legislators say they will propose an abolition bill.

In Colorado, Gov. John Hickenlooper, who imposed a moratorium on executions in May 2013, was barred by term limits from seeking reelection. Voters elected Democrat Jared Polis (pictured, left), who said during the gubernatorial campaign that he would sign a bill to abolish or phase out the state’s death penalty, and Democrats gained control of both houses of the state legislature. Fort Collins State Rep. Jeni Arndt, who plans to sponsor the repeal bill, said she is seeking bipartisan support for the measure, noting that “If [prosecutors] can’t get the death penalty for the Aurora theater shooter, then this is a waste of taxpayer time and money.” Outgoing senate minority leader Lucia Guzman, a past sponsor of repeal legislation, said “I have worked on this issue for several years but wasn’t able to get it passed. But I think this year is going to be the year.”

Mid-term changes to the composition of the New Hampshire legislature have increased the likelihood that the Granite State will repeal its death penalty in 2019, despite another promised veto by Gov. Chris Sununu. State Rep. Renny Cushing (pictured, right), whose repeal bill received bipartisan legislative support in 2018, is reintroducing the measure in 2019. Voters elected a veto-proof majority of sixteen abolitionist senators in November. In the state house, where the repeal bill received just under the two-thirds supermajority necessary to overcome a veto in 2018, backers of abolition are optimistic they will have even more support in 2019.

In Oregon, voters reelected Gov. Kate Brown, who pledged to extend the state’s moratorium on executions, and elected Democratic supermajorities in both houses of the state legislature. With the state constitution requiring a voter referendum to abolish the death penalty, legislators are instead seeking bipartisan support for a plan to limit capital punishment only to acts of terrorism. In Nevada, Governor-elect Steve Sisolak, who defeated state attorney general and death-penalty proponent Adam Laxalt, has indicated he is willing to sign a bill to abolish the death penalty. Assemblyman Ozzie Fumo, who favors repeal, said he expects the legislature to consider an abolition bill or to request that the governor impose a moratorium on executions. “There’s a social change coming,” Fumo said. “Overwhelmingly, we’re going to see people think about it, and say this is wrong.”

Finding “Bad Faith,” Judge Grants Injunction Preventing Nevada From Using Drug in Execution

Finding that the Nevada Department of Corrections acted in “bad faith” to obtain the drug midazolam through “subterfuge,” a Las Vegas trial court has issued a preliminary injunction barring the state from using its supply of that drug in carrying out any execution. The 43-page ruling issued by Judge Elizabeth Gonzalez (pictured) on September 28, 2018 effectively freezes efforts by Nevada prosecutors to execute Scott Dozier, who has waived his appeals and asked to be put to death. Judge Gonzalez found that Nevada prison officials knew when they purchased supplies of each of the drugs in the state's three-drug lethal-injection protocol from drug distributor Cardinal Health that the manufacturers of all three drugs prohibited the use of their medicines in executions. However, Judge Gonzalez limited the injunction to the midazolam produced by the generic-drug manufacturer Alvogen Inc., finding that the company’s distribution contract with Cardinal Health specifically barred sales of the sedative for use in lethal injections. While Gonzalez said she was “disturbed by the conduct of the State” in its purchase of the paralytic drug cisatracurium and its “illegitimate acquisition” of the opiate fentanyl, she said the absence of evidence that drug manufacturers Sandoz Inc. and Hikma Pharmaceuticals USA Inc. had sales controls in place with Cardinal Health at the time Nevada purchased supplies of those drugs was sufficient to deny them injunctive relief. The court issued its order after week-long hearing on a lawsuit filed by Alvogen just before Dozier’s scheduled July 11, 2018 execution. Alvogen’s suit alleged that Nevada had obtained its supply of midazolam “by subterfuge” and that Nevada had “intentionally defrauded Alvogen’s distributor” by concealing its intention to use the drugs to execute Dozier and by “implicitly ma[king] the false representation that they had legitimate therapeutic rationale” for buying the drug. Gonzalez’s order notes that even before beginning to distribute midazolam, “Alvogen put in place controls to prevent the direct sale [of the drug] to any department of corrections, or any sale that Alvogen believed could be diverted to be used in an execution.” The judge determined that both Nevada’s prison director, James Dzurenda, and its prison pharmacy director, Linda Fox, knew when they bought Alvogen’s drugs that the company “objected to their use in lethal injection and that they had controls in place to prevent sales for such use... Indeed,” Judge Gonzalez wrote, “when purchasing the Alvogen Midazolam Product, Fox’s response to Alvogen’s objections was ‘Oh shit.’ She then asked if Mr. Dzurenda if he would like her to order more [midazolam] because she was ‘certain once it’s in the press that we got it [she] will be cut off.’” Knowing “that it was not allowed to acquire this product for use in capital punishment,” Judge Gonzalez wrote, the Nevada Department of Corrections “was not a good faith purchaser” of Alvogen’s midazolam. The court also found that Nevada's use of the medicines in executions “will irreparably harm the three companies’ reputations,’ ... result[ing] in lost sales, lost licensing opportunities, weakened employee recruitment, divestitures by investors, increased financing costs, lost opportunities to enter the market for generic drugs, and lost opportunities to develop new branded drugs.” The case is the first time a court has conducted a hearing into state misconduct in acquiring execution drugs. In 2017, drug distributor McKesson Medical-Surgical sued Arkansas and multiple drug companies alleged misconduct by the state in obtaining its execution drugs. Although the Arkansas Supreme Court permitted that lawsuit to move forward, the drugs expired and the parties agreed to dismiss the action before the court could take evidence in the case. 

Drugmaker Sues Nebraska, as 15 Death-Penalty States Oppose Ruling Blocking Use of Drugs in Nevada

Less than a month after a Nevada court halted the execution of Scott Dozier in response to a lawsuit filed by generic-drug manufacturer Alvogen, another drug company has sued Nebraska, seeking to block the use of its medicines in an upcoming execution. The German-based pharmaceutical company Fresenius Kabi filed suit in Nebraska federal court on August 8, 2018 alleging that Nebraska intended to execute Carey Dean Moore on August 14 using drugs manufactured by the company that had been obtained "through improper or illegal means." The lawsuit said the company's distribution contracts with authorized wholesalers and distributors prohibit sales to departments of corrections, and it alleges that Nebraska obtained the drugs "in contradiction and contravention of the distribution contracts," most likely from an unauthorized supplier. Nebraska Attorney General Doug Peterson said the state's execution drugs “were purchased lawfully and pursuant to the State of Nebraska’s duty to carry out lawful capital sentences,” an assertion that cannot be verified because of the state's secrecy practices. The state has refused to identify the source of the drugs it intends to use in Moore's execution, but two of the drugs—the paralytic, cisatracurium, and potassium chloride, the drug used to stop the heart—are manufactured by Fresenius Kabi and only that company makes vials of potassium chloride in the size obtained by the state. 

Nebraska is one of fifteen death-penalty states that have joined in an amicus curiae ("friend of the court") brief in the Nevada Supreme Court on August 6, 2018 urging the court to overturn a restraining order that has prevented Nevada from carrying out executions using supplies of the drug, midazolam, produced by the pharmaceutical company Alvogen. Alvogen's suit alleges that Nevada had obtained the midazolam "by subterfuge" and “intentionally defrauded Alvogen’s distributor” by concealing its intention to use Alvogen’s medicine in Dozier‘s execution. The company's pleadings accused Nevada of “implicitly ma[king] the false representation that they had legitimate therapeutic rationale” for buying the drug and covering up its true intention by having the drug shipped to a state office several hundred miles away from the prison. In addition to issuing the restraining order, the Nevada trial court stayed Dozier's July 2018 execution. Like Fresenius Kabi, Alvogen alleges that the use of its products in executions would damage its corporate reputation and adversely affect investor and customer relations. The amicus brief was filed by 15 of the 30 other states that authorize capital punishment, all with Republican attorneys general—Arkansas, Alabama, Arizona, Florida, Georgia, Idaho, Indiana, Louisiana, Missouri, Nebraska, Oklahoma, South Carolina, Tennessee, Texas, and Utah. The nine death-penalty states with Democratic attorneys general did not join the pleading, nor did six other states with Republican attorneys general. The pleading claims, without providing any factual support, that Alvogen's lawsuit is the "latest front in the guerilla warfare being waged by anti-death-penalty activists and criminal defense attorneys to stop lawful executions." The state officials warn that, if the Nevada Supreme Court allows Dozier's stay of execution to stand, activists will "flood" the courts in other states with similar "meritless" challenges. In 2017, the drug distributor McKesson sued Arkansas to prevent the state from using a supply of the paralytic drug, vecuronium bromide, in executions, alleging that the state had deliberately misled the company to believe that the drug would be used for legitimate medical purposes. The brief asserts that "Alvogen’s meritless claims mirror those rejected by the Arkansas Supreme Court" in McKesson case. However, court records reflect that the Arkansas Supreme Court actually returned McKesson's case to the trial court for further evidentiary development and the case remained active until the expiration of the state's supply of vecuronium bromide rendered the case moot in the Spring of 2018.

Nevada Execution Halted On Claims State Obtained Execution Drug Through “Subterfuge”

In response to a lawsuit filed by pharmaceutical manufacturer Alvogen, Inc., a Clark County, Nevada District Judge has stayed the July 11, 2018, execution of Scott Dozier and issued a temporary restraining order barring Nevada from using drugs produced by Alvogen to execute Dozier. Saying Nevada had obtained a supply of the drug-maker's sedative midazolam “by subterfuge,” the multibillion-dollar generic drug company sued Nevada and the state Department of Corrections on July 10 to prevent the state from using its drugs in any execution. The lawsuit alleged that Nevada “intentionally defrauded Alvogen’s distributor” by concealing its intention to use Alvogen’s medicine in Dozier‘s execution and by “implicitly ma[king] the false representation that they had legitimate therapeutic rationale” for buying the drug. In granting the restraining order, District Judge Elizabeth Gonzalez wrote that the misuse of midazolam in an execution would result in “irreparable harm to [Alvogen’s] reputation as a company that produces life-enhancing and life-saving drugs” and that the damage to its business reputation could adversely affect investor and customer relations. Alvogen has a policy not to accept direct orders from prison systems or departments of correction and “does not condone the use of any of its drug products, including midazolam, for use in state sponsored executions.” Alvogen's lawyers said that the company also had sent a letter in April to the governors, attorneys general, and prison directors of all of the death-penalty states in the U.S. expressing “in the clearest possible terms that Alvogen strongly objects to use of its products in capital punishment.” After Nevada's supply of another drug expired and it decided to switch to midazolam, prison officials bought the drug from pharmaceutical distributor Cardinal Health without disclosing its intended purpose. Alvogen said Nevada officials directed Cardinal Health to ship the drug to a state office more than 200 miles from the state prison “to further the implication that the midazolam was for a legitimate medical purpose.” Alvogen's suit is the second time a pharmaceutical company has taken legal action to stop its drugs from being used in executions. In April 2017, McKesson Medical-Surgical sued the state of Arkansas over the use of the paralytic drug vecuronium bromide, but ultimately was unsuccessful in blocking the state from using the drug. The Clark County court has ordered a status conference in this case for September 10. 

Nevada Announces New Drug Protocol Eight Days Before Scheduled Execution

Eight days before the scheduled July 11, 2018 execution of Scott Dozier, the Nevada Department of Corrections issued a new lethal-injection protocol, switching the drugs the state intends to use in carrying out his execution. On July 3, the Department announced that it plans to use an untested three-drug protocol of the sedative midazolam, the opioid fentanyl, and the paralytic cisatracurium. The last-minute change prompted an emergency filing by the ACLU of Nevada seeking additional information about the drugs the state will use. In November 2017, Nevada had announced a different, but also untried execution method involving diazepam (Valium), fentanyl citrate, and cisatracurium besylate. A Nevada trial court declared that protocol unconstitutional in November after considering medical evidence that the paralytic drug, cisatracurium, could cause Dozier to experience “air hunger” and suffocate to death, while masking signs that he was conscious and suffering during the execution. Nevada prosecutors appealed, and the Nevada Supreme Court overturned the ruling on procedural grounds, allowing the execution to go forward. During the course of the state’s appeal, however, its supply of diazepam expired, leaving the Nevada with the choice of delaying the execution or changing its protocol. The ACLU was particularly critical of the protocol’s switch to midazolam, which has been involved in the botched executions of Dennis McGuire in Ohio, Clayton Lockett in Oklahoma, Joseph Wood in Arizona, and Ronald Smith in Alabama and in problematic executions in Arkansas and Virginia. “I think the state of Nevada should think very carefully about whether it wants to use it, especially because of its very concerning history and its association with botched executions,” said Amy Rose, the legal director of the ACLU of Nevada. “I don’t think Nevada wants to be known for having a botched execution.” The paralytic, they argue, could potentially mask serious pain that prisoners experience during executions. The lawsuit seeks information about the process used to arrive at the protocol, the purchase orders for the drugs, and the use of a new execution chamber. Dozier has waived his appeals, allowing his execution to proceed without completing judicial review of the constitutionality of his conviction and death sentence. He would be the first person executed in Nevada since 2006, and his execution would be the first to take place in the new execution chamber that the state built in 2016 at taxpayer expense of $860,000. The state has executed twelve prisoners since the 1970s, eleven of whom waived their appeals.

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