Federal public defenders representing death row inmate Zane Floyd, who is facing imminent lethal injection, want the Clark County district attorney’s office removed from his case.
The defense lawyers argue that two prosecutors from the office have a conflict of interest because both serve as state senators while the Legislature is considering whether Nevada should keep capital punishment.
After prosecutors this week requested a warrant of execution for Floyd, his lawyers responded with a series of court briefs asking federal and state judges to stop Nevada from carrying out its first death penalty in 15 years.
The rush of litigation comes amid proposed state legislation that would end the practice and commute the sentences of everyone on death row to life in prison without the possibility of parole. On Tuesday, the Nevada Assembly approved such a measure.
But that bill faces another hurdle — the state Senate — where Clark County prosecutors Nicole Cannizzaro, the Democratic majority leader, and Melanie Scheible, who chairs the judiciary committee, could be instrumental in deciding whether death penalty repeal becomes law.
Lawyers for Floyd, who was convicted of fatally shooting four people inside a Las Vegas Albertsons in 1999, argued that the two prosecutors’ dual roles amounted to a violation of the state’s constitution.
“This constitutional violation creates not just the likelihood but the reality of public suspicion and obloquy, and no social interest is served by allowing the Clark County District Attorney to continue to represent the State,” wrote David Anthony, Brad Levenson and Ellesse Henderson. “This use of power creates a conflict of interest for the senate-prosecutors: they may vote in line with their boss or vote against him and risk their stature within the office. Placing the senate-prosecutors in this position violates the public trust.”
District Attorney Steve Wolfson has called the timing “purely coincidental” and said his office started working toward Floyd’s execution in the months before lawmakers gathered for this legislative session.
In court papers this week, Wolfson’s office is seeking to have Floyd killed sometime in the second week of June, or one week after the 2021 legislative session has ended.
A state judge is expected to hear arguments in Floyd’s case on May 12, just two days before the bill’s deadline in the Senate’s judiciary committee.
Arguments against execution
Meanwhile, Floyd’s lawyers also argued that he is too intellectually disabled to be executed, having suffered brain damage caused by fetal alcohol spectrum disorder. The former Marine who served in Guantanamo Bay, Cuba, from 1995 to 1996 also suffered from improperly treated post-traumatic stress disorder, the lawyers wrote.
That should make Floyd “categorically exempt” from capital punishment, his attorneys argued. Jurors who convicted Floyd and sentenced him to death never heard about those disorders.
Before dawn on June 3, 1999, a 23-year-old Floyd walked into an Albertsons on West Sahara Avenue, dressed in military fatigues and armed with a 12-gauge shotgun hidden under a robe, and shot everyone he encountered.
Four employees — Lucy Tarantino, 60, Thomas Darnell, 40, Chuck Leos, 40, and Dennis “Troy” Sargent, 31 — died that morning.
Zachar Emenegger, 21, was shot twice and survived after playing dead in the produce section.
Wolfson has said that the “death penalty was designed for” killers like Floyd.
Delayed clemency request
Floyd’s lawyers also want to ask the Nevada Board of Pardons to commute his death sentence but have been unable to do so in part because of the pandemic. They have not met with him in person since March 16, 2020, and ongoing restrictions have prevented them from conducting an investigation to support clemency.
The Board of Pardons next meets in late June, about two weeks after prosecutors want Floyd’s lethal injection to be given.
His attorneys argue that Nevada’s three-drug execution cocktail amounts to cruel and unusual punishment, and that he would “suffer a torturous death” if injected with drugs linked to previously “botched” executions.
“Floyd’s death sentence must be vacated and permanently set aside,” the lawyers wrote.