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May 11, 2018

Nevada defense attorney loses latest battle, but may still be winning war, in effort to preclude an execution defendant apparently seeks

This local article, headlined "Nevada Supreme Court overturns lower court ban on using a paralytic in Scott Dozier execution, citing procedural issues," reports on a state Supreme Court ruling that might (or might not) increase the chance of the first execution in Nevada in more than a decade.  This matter seems to have a notable (and disturbing?) backstory, and here are the basics (with a few points emphasized):

Nevada’s Supreme Court has ordered a lower court to vacate its decision blocking part of the state’s proposed three-drug lethal injection combination, although one of the drugs it needs to carry out an impending execution has expired and it’s uncertain if and when the state can replace it.

The unanimous ruling comes two days after oral arguments were held in the case of 47-year-old Scott Dozier, whose execution was scheduled for November 2017 but has been indefinitely delayed.  Dozier, who was convicted of two murders in Nevada and Arizona, voluntarily gave up his appeals and says he wants to be put to death.

While a federal public defender raised the prospect that including the third drug and final drug in the protocol, a paralytic, could lead to a torturous execution that would violate prohibitions on cruel and unusual punishment, the justices focused their ruling on the procedural elements of the case. The justices rebuked both the District Court judge and federal public defenders representing Dozier, saying the challenge to the execution protocol was “procedurally improper” and led to confusion and a failure to follow the correct procedures for appealing a death penalty case.

The decision said the federal public defender didn’t file a 1983 action or another appropriate mechanism to challenge the execution method, and instead raised the challenge as part of a “Motion for Determination Whether Scott Dozier’s Execution Will Proceed in a Lawful Manner” in a post-conviction proceeding that had already been suspended....

Togliatti ruled in November that the state’s proposed drug combination to carry out the execution presented a “substantial risk of harm” to Dozier as the method had never been tested and because prison officials presented little evidence in court. The court found that the inclusion of the paralytic could mask symptoms that the first two drugs were not working, leading to the possibility that Dozier would be aware but unable to communicate as he suffocated.   Justices noted in a footnote that the federal public defender’s actions appeared to “be at odds” with Dozier’s directive that his counsel not take any actions to delay the execution.

A representative of the attorney general’s office told justices this week that the state’s supply of diazepam — the first of the three drugs proposed to be used in the execution — had expired on May 1, but said it might be possible to replace the drug. Pharmaceutical companies that have barred the use of their drugs for executions have made it difficult for states to carry out the killings. Lawyers for Dozier didn’t immediately respond to requests for comment Thursday on what their next steps would be.

A spokeswoman for the Nevada Department of Corrections said the agency was waiting for the issuance of a warrant of execution before they could get started setting a date for Dozier to be put to death.

I am generally sympathetic to what might be called "creative" lawyering by capital defense attorneys when an execution date looms and their client requests pursuing every possible means to block an execution.  But in this case, according the Nevada Supreme Court, the death-row defendant has "consistently stated that he wanted the State to carry out the death sentence and did not want counsel to take actions that might disrupt his execution."  Under these circumstances, I am troubled by the "creative" lawyering deployed here to thwart the express wishes of the capital client.

The defendant here has not only been languishing on death row for an extra seven months while a procedurally improper motion was litigated all the way up to the Supreme Court, but now Nevada may no longer have "valid" drugs it needs to carry out the execution that the defendant presumably still wants.  I assume the defense attorney here and perhaps others may be urging Dozier to reconsider his request to have his execution go forward, and it will be interesting to watch if any further appeals are brought whenever the state can get another execution date scheduled.  But unless and until one thinks the rule of law can and should be ignored whenever the stakes are high enough, the capital litigation backstory story should be considered disconcerting.

May 11, 2018 at 10:11 AM | Permalink


I guess I can imagine circumstances where a fully rational client would wish to be put to death rather than face life in prison, but fully rational people rarely commit capital murder. It is always ethically difficult to represent those with mental illness, and never more so than when they are facing the death penalty. I would want to know a lot more about the history of this man before I judge his counsel too harshly.

Posted by: defendergirl | May 11, 2018 11:17:14 AM

Professor Berman, you don't know what conversations occured between the lawyers and their client before the filing of this motion, so you don't know whether the lawyers acted "to thwart the express wishes of the capital client." Both you and the Nevada Supreme Court base your speculation on correspondence between the defendant and the court, not based on what the defendant told his lawyers.

Plus, it's certainly not laughable that a trial court would have inherent authority to supervise the implementation of its orders, and given that they won in the trial court, it's hard to argue that the lawyers' argument was frivolous. To apply by analogy the federal habeas standard, until this decision, there was no "clearly established law" in Nevada that a trial court could not use its inherent authority to supervise the implementation of a death warrant it signed.

(And to be clear, I have zero first-hand knowedge about this case. I don't speak for Mr. Dozier or his legal team. I don't even know which lawyers are on that team. All I know about the case comes from the article you cited and the opinion.)

Posted by: Stephen Hardwick | May 11, 2018 11:34:29 AM

I very much take the position that the only motions that should be raised when the client is asking the attorney to allow him to be executed are related to competency. I think the attorney is perfectly within the scope of their duties to continue to raise those issues because they may not be capable of asking to be executed, but I don't think the other motions are appropriate. At some point, you have to realize you have a client, not a cause, and you have to advocate for the client.

Posted by: Erik M | May 11, 2018 11:37:43 AM

Shows the real purpose of the death penalty appellate business. Lawyer employment, and not the interest of the client.

I find the view of defendergirl to be quite offensive and disrespectful of the client, if not a violation of professional responsibility. She is a Commentator, and immunized by the Free Speech Clause. That lawyer in the story is not. She is also in denial about her conflict of interest. The real purpose of the criminal appellate business is lawyer employment. This conflict is brazen, in that only mistakes of law are appealed. The lawyer profession does not even care about the innocent lives they are taking. Appeals based on factual innocence are quite rare. I would be interested in the ratio of innocence appeals versus procedural game playing claims.

Posted by: David Behar | May 11, 2018 11:38:22 AM

defendergirl makes a good point. Although the court says Dozier "wants to be put to death," the question is does he want to be tortured to death? No doubt he and his lawyer have been discussing that possibility. On the other hand, if indeed, the client is saying, I don't care how awful my death is and I don't care if its amounts to torture, just let me die, and if the client is competent (whatever that means in this situation), the the lawyer should but out of itand do nothing more.

Posted by: Dave Peterson | May 11, 2018 11:59:22 AM

Just because the lawyer won in the trial court does not mean that the lawyer should not have known that the trial court lacked jurisdiction over the claim. In my state and the federal system (and I would expect in most states), courts generally lose jurisdiction over a case upon entry of judgment. There are some exceptions to this general rule contained in statutes or the rules of court that grant limited authority to raise certain challenges at a later point in time. Even though this post-judgment authority is limited, both pro se defendants and lawyers often raise claims that are clearly outside the scope of the trial court's limited post-judgment authority to grant relief. Sometimes, however, you can find a sympathetic judge willing to exceed their authority, and, if you are really lucky, a prosecutor willing to look the other way (rather than making the defendant file the claim in the proper court) or a newby prosecutor who does not know better.

Posted by: tmm | May 11, 2018 12:10:15 PM

The comments suggest the complications involved in these matters. The opinion, e.g., spoke of the defendant wanting to know the nature of the execution protocol in place. In some of these lawsuits, a matter of dispute is how exactly the execution will be carried out, including claims of arbitrary action. Even those who wish to die might have a problem in that respect.

At any rate, there is an independent concern here -- and it should be a factor in litigation with a relevant person in place to represent the interests -- that the execution is not carried out unconstitutionally. This includes the procedure used.

What "creative" lawyering means in this context is far from clear to me. I'm reminded too of the Gary Gilmore case. Justice White, a supporter of the constitutionality of the death penalty, dissented there, believing there was a procedural concern.

Posted by: Joe | May 11, 2018 12:29:33 PM

I also think it is quite possible that someone rather die than linger in death row for decades. This is separate from them being sane enough to do so and/or us letting them have their desires carried out (especially as compared to, e.g., a drug offender lingering for decades in prison .. something much fewer are willing to do).

Posted by: Joe | May 11, 2018 12:37:31 PM

"But unless and until one thinks the rule of law can and should be ignored whenever the stakes are high enough, the capital litigation backstory story should be considered disconcerting."

Ha ha ha. The question becomes whether or not anyone is disconcerted when prosecutors and law enforcement and even sometimes judges ignore the rule of law when the stakes are high enough. Two can play that game. The so called "rule of law" is mostly, if not entirely, the rule of lawyers and lawyers are just men (mostly) with a fancy credential saying they have been approved by other men who happen to like them a little bit more than others not so credentialed.

I don't put much stock in cheerful appeals to the rule of law, especially not when made by lawyers and others who directly benefit from such appeals.

Posted by: Daniel | May 11, 2018 12:41:23 PM

Excuse me, Dave. There has never been any torture. The word torture is a dramatic misrepresentation and exaggeration by pro-criminal obstructionists. They are just liars, furthering their left wing agenda.

If you want to see torture, look to most of your loved ones who have recently passed away from natural causes. Even in cases where the IV was blown, the drug went into the tissues, and killed the condemned a few minutes late.

I have proposed hiring drug addicts to start IV's and the use of carfentanyl bought from China, on the internet. That way all executions would be flawless and rapid. But, the lawyer is too stupid to do the self evident.

Posted by: David Behar | May 11, 2018 12:51:50 PM

The fact of the matter is that if the death penalty wasn't on the table, as is the case in states and countries that have abolished it, and the client wasn't on death row but in a prison environment more humane and tolerable, one giving the required treatment for any mental health issues, etc., it is unlikely he would be suggesting he wished for death in the manner prescribed - and any such wish would certainly be denied. That being the case, the public defender, or any other, is entitled to make any legal argument possible that the execution is liable to be contrary to constitutional law. As in fact it was once so declared by the US Supreme Court, then reversed after it was duped by states anxious to restate it by any means, fair or foul.

Posted by: peter | May 12, 2018 9:56:02 AM

Daniel. You are saying, it is ethical for the lawyer to call his client crazy. Why? Because the client wants to cut off the worthless lawyer job by ending the ridiculous appellate make work process. That disrespects the human dignity of the client.

Posted by: David Behar | May 12, 2018 11:26:50 AM

Doug: As nearly as I can tell from the media reporting on this, the client's directions to the lawyers have been that they
should not challenge the conviction or sentence, because he does want to die, but that they may challenge methodology, because he does not want to die painfully. It would seem that the lawyers are, appropriately, following those directions.
Eric M. Freedman
Hofstra Law School

Posted by: Eric M. Freedman | May 12, 2018 2:25:32 PM

I fully appreciate there may be facts and factors, unreported or unclear, in this case and others that might reasonably explain efforts by a lawyer to enter a court filing seemingly against the express wishes of a client. But I think it very problematic for a lawyer’s values to trump a client’s competent and informed wishes. Wouldn’t it be worrisome if a defense attorney, who believed plea bargains were immoral, especially if a client had a chance to raise a reasonable doubt about guilt, actively sought in court to prevent his client from pleading guilty?

I especially get that there is no going back on a mistaken/problematic execution. But I sense that some abolitionist defense lawyers believe that a competent client’s wish to be execution should never be respected or honored. But I may also be biased by my own libertarian belief that people (including prisoners) should have the right to choose to take their own lives in extreme circumstances.

Posted by: Doug B. | May 12, 2018 5:14:16 PM

"But I think it very problematic for a lawyer’s values to trump a client’s competent and informed wishes."

Doesn't seem clear at all that this is happening here or that people on this thread are pushing back on the overall maxim as compared in fact that it is not met (some concern, e.g., on the competency and informed part being present).

"But I sense that some abolitionist defense lawyers believe that a competent client’s wish to be execution should never be respected or honored."

Might be possible though hard to tell esp. when they question the "competent and informed" requirement.

"But I may also be biased by my own libertarian belief that people (including prisoners) should have the right to choose to take their own lives in extreme circumstances."

I don't know what "in extreme circumstances" means exactly. Prison is really horrible. I myself would not want to spend even a month in some of these places. Would be very scared to. See, e.g., the idea of someone going crazy the first night in Shawshank prison in the famous movie. I understand, e.g., the person who kept those three women prisoner and doing various horrible things killing himself.

I'm unsure though what sort of "right" he had to get support from the state.

Posted by: Joe | May 12, 2018 5:43:10 PM

What Joe is saying is true. Prison is torturous. Only a madman would want a life term and to avoid being executed.

Posted by: Dsvid Behar | May 12, 2018 6:32:43 PM

Excuse me Prof. Freedman. There has never been any evidence of pain since the resumption of the death penalty in the modern era. Even in the days of the gallows, guillotine, shots to the heart, and electrocution, 90% of us will come to envy their quick deaths. Compare them to the prolonged (over weeks, months and years) agonies, frustrations and humiliations 90% of us will experience before we are let go. This is a failure of the medical profession. In their defense, doctors do not want to be sued by lawyers for not biopsying the failing kidney of a 90 year old dementia patient.

Posted by: Dsvid Behar | May 12, 2018 6:39:22 PM

If a lawyer reasonably believes that pursuing a trial is in client’s best interest that lawyer may inform and may even try to hard sell the client as much. The decision ultimately is with the client. I have had MANY non-citizen clients who are in custody, unable to make bail, have a time served offer, on a defensible (typically DV type misdemeanor) which is nonetheless morally turpidious charge that will get them eligible for deportation. They want to plea to get themselves out ASAP on their time served offer. Hell no we fight tooth and nail to persuade them from doing so.

I don’t see how this is (apejorative type of) creative lawyering for the reasons stated by Eric Freedman

Posted by: Calif appeals lawyer | May 12, 2018 11:14:16 PM

Calif appeals lawyer: I think it is good lawyering --- even professionally required --- to aggressively advocate to your client what choice you think is in their best interest. That might even perhaps reasonably include seeking to delay accepting a plea offer or filing a certain motion desired by the client to give him/her more time to reflect on the potential pros/cons.

But if the client in you example says, after considerable reflection, I still want to take the plea and face deportation, would you think it ethical to nevertheless refuse to accept the plea offer sought by a competent client (and refuse to resign as lawyer)? Doesn't the client's view of the client's interests ultimately have to control over the lawyer's view of the client's interest?

Posted by: Doug B. | May 13, 2018 10:13:08 AM

I've seen the conflict between a client's wishes/best interests and a lawyer's view of what's best for a "cause" come up in various contexts over the years. One of them involving appeal waivers. I've seen lawyers lean heavily on clients not to take any deal involving such a waiver, even a very favorable deal, b/c of the lawyer's distaste for appeal waivers. Same thing with deals requiring cooperation. This is bad lawyering, especially in the case of court-appointed counsel, where the client has no real option to obtain a different lawyer, one whose views aren't conflicted by "cause" concerns. (I do agree with other commentators, though, that in the death penalty case here, it's different if the client in fact wants to pursue challenges to the means of, rather than the fact of, execution.)

Posted by: career AFPD | May 14, 2018 10:46:34 AM

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