Nevada Execution Personnel Back Out of Participation After Judge Inquires About Credentials

At least three Nevada exe­cu­tion per­son­nel backed out of par­tic­i­pat­ing in Zane Floyd​’s (pic­tured, right) exe­cu­tion after a U.S. dis­trict judge asked about their edu­ca­tion and train­ing. The per­son­nel, includ­ing a doc­tor and two emer­gency med­ical tech­ni­cians, declined to par­tic­i­pate after U.S. District Judge Richard Boulware II asked the state to pro­vide him with their cre­den­tial infor­ma­tion. Another doc­tor was exclud­ed by the Nevada Department of Corrections (NDOC) after the agency learned of ​“addi­tion­al infor­ma­tion,” accord­ing to NDOC’s deputy direc­tor of oper­a­tions William Gittere. ​“NDOC no longer has an attend­ing physi­cian or EMTs will­ing to par­tic­i­pate in the exe­cu­tion,” he stated.

On January 26, 2022, Boulware ordered NDOC to pro­vide him with infor­ma­tion about the ​“edu­ca­tion, train­ing, [and] pro­fes­sion­al expe­ri­ence” of exe­cu­tion per­son­nel set to par­tic­i­pate in Floyd’s sched­uled exe­cu­tion. The infor­ma­tion was to be reviewed ini­tial­ly by Boulware and would be redact­ed as nec­es­sary before being shared with Floyd’s attor­neys. When the depart­ment sought the infor­ma­tion from exe­cu­tion per­son­nel, at least three backed out due to con­cerns about anonymi­ty. Gittere stat­ed in a court fil­ing that “[p]roviding infor­ma­tion such as spe­cial­ty or edu­ca­tion would be iden­ti­fi­able fac­tors in the small com­mu­ni­ty of Ely, Nevada,” where the exe­cu­tion is set to take place. ​“I will con­tin­ue to attempt to locate qual­i­fied indi­vid­u­als,” he stated. 

Floyd’s attor­neys, fed­er­al pub­lic defend­ers Brad Levenson and David Anthony, argued that NDOC unnec­es­sar­i­ly dis­closed infor­ma­tion about the loca­tion of exe­cu­tion per­son­nel in its pub­lic fil­ings and failed to seek infor­ma­tion about the ​“basic qual­i­fi­ca­tions” of exe­cu­tion per­son­nel with­out court prompt­ing. In court doc­u­ments, the attor­neys stat­ed: ​“This lit­i­ga­tion has been pend­ing for almost a year, and NDOC has insist­ed upon expe­dit­ed res­o­lu­tion of this mat­ter so it can per­form the exe­cu­tion before the end of February. Yet NDOC only made an inquiry regard­ing the qual­i­fi­ca­tions of the indi­vid­u­als one month before­hand, and only in response to this Court’s order for that information.”

At a sub­se­quent hear­ing on February 3, 2022, Boulware said he was ​“com­mit­ted to main­tain­ing the con­fi­den­tial­i­ty” of the per­son­nel, but because the NDOC’s pro­to­col was so vague, he needs addi­tion­al infor­ma­tion, like how the per­son­nel would han­dle com­pli­ca­tions that might arise with the state’s untest­ed lethal-injec­tion drug com­bi­na­tion. ​“I did expect that the NDOC would have that infor­ma­tion and they would main­tain that infor­ma­tion,” he explained.

The lack of exe­cu­tion per­son­nel is the lat­est in a series of road­blocks, includ­ing an expir­ing set of exe­cu­tion drugs, to the state’s attempts to exe­cute Floyd. Nevada has not car­ried out an exe­cu­tion since 2006, and in June 2021 announced its intent to exe­cute Floyd with an untest­ed lethal-injec­tion pro­to­col that calls for either a three- or four-drug exe­cu­tion, using six pos­si­ble drugs. Ketamine is the sec­ond drug in both pro­to­col options, but the state’s sup­ply of the drug expires on February 28, 2022. The drug’s man­u­fac­tur­er has sent a cease-and-desist let­ter to NDOC, stat­ing that the depart­ment ille­gal­ly acquired its ketamine supply.

Floyd also has cas­es pend­ing in the Nevada Supreme Court, includ­ing peti­tions about which judge can issue an exe­cu­tion order and where an exe­cu­tion can take place. Clark County Deputy District Attorney Alex Chen called these peti­tions ​“an improp­er appeal,” yet indi­cat­ed that his office would wait until the state’s supreme court issued guid­ance to seek Floyd’s death war­rant. For Floyd to be exe­cut­ed by the February 28 expi­ra­tion of the state’s ket­a­mine, state law requires that a judge must issue a death war­rant by February 13.

“It’s the­o­ret­i­cal­ly pos­si­ble but high­ly unlike­ly” that Floyd will be exe­cut­ed on February 28, Chen said dur­ing a hear­ing on February 3, 2022.