[Deathpenalty] death penalty news----OHIO, TENN, OKLA., NEB.

[Rick Halperin]

August 10



OHIO:

Cleveland man whose 2002 death sentence overturned can't have jury hear new 
sentencing, court rules


A convicted serial rapist and killer whose 2002 death sentence was overturned 
on appeal must have his re-sentencing hearing heard by a 3-judge panel and not 
a jury, the Ohio Supreme Court ruled Thursday.

The ruling overturned a March 2017 decision by Cuyahoga County Common Pleas 
Court Judge Cassandra Collier-Williams to grant Kelly Foust's request to have a 
jury, rather than a panel of judges similar to the one that originally 
sentenced him, recommend his new sentence.

Foust waived his right to a jury trial at the beginning of his case and the 
Supreme Court ruled that Ohio law bars a defendant from revoking that waiver.

The ruling comes after a protracted legal battle between lawyers representing 
Foust, Collier-Williams and the Cuyahoga County Prosecutor's Office.

Foust was convicted in the March 2001 murder of Jose Coreano and the rape of a 
17-year-old girl. A 3-judge panel sentenced Foust to death in January 2002.

Foust broke into the house looking for his estranged girlfriend. He beat the 
sleeping Coreano to death with a claw hammer and set the house on fire.

Foust waived his right to have a jury hear the guilt and sentencing phases of 
his trial.

The U.S. 6th Circuit Court of Appeals overturned Foust's death sentence in 2011 
and ordered him to be re-sentenced after justices found that Foust's lawyers 
did not present evidence of "horrific" childhood abuse.

Prosecutors and Foust's lawyers have been locked in legal battle since then 
over whether Foust could rescind his jury waiver for his new sentencing phase.

A team of Ohio Public Defenders that represents Foust filed a new request to 
have a jury recommend his sentence after a U.S. Supreme Court ruling that 
overturned Florida's death penalty statute. They argued that decision 
guarantees defendants facing the death penalty "an unequivocal right" to have a 
jury determine facts necessary to impose a sentence of death.

But the court rejected that argument, pointing to Ohio law that lays out who 
should preside over a re-sentencing of defendant whose death sentence was 
overturned.

"If the offender was tried by a jury, the trial court shall impanel a new jury 
for the hearing," the law says. "If the offender was tried by a panel of three 
judges, that panel or, if necessary, a new panel of three judges, shall conduct 
the hearing."

Collier-Williams "clearly and unambiguously" lacked authority to impanel a 
jury, the court found.

"Judge Collier Williams sought to ensure the court's compliance with Mr. 
Foust's constitutionally protected right to a jury trial in accord with law 
handed down by the US Supreme Court," Larry Zukerman, who represented 
Collier-Williams before the Supreme Court in the case, said in an emailed 
statement.

After his imprisonment, Foust was tied to 3 other sexual assaults, including 
the 1 at the heart of his initial arrest. He pleaded guilty to 3 counts of 
felony sexual battery in 2016. Collier-Williams sentenced him to 5 years in 
prison in that case.

(source: cleveland.com)






TENNESSEE----execution

Tennessee Executes Inmate With Controversial Drugs Despite Sotomayor's Powerful 
Dissent----Justice says the U.S. is "accepting barbarism" as the execution of 
Billy Ray Irick is allowed to go forward.


Justice Sonia Sotomayor issued a blistering dissent that we are "accepting 
barbarism" after the Supreme Court refused to halt Tennesee's execution 
Thursday night of Billy Ray Irick, 59, using a controversial drug combination.

Irick was put to death for the 1985 rape and murder of 7-year-old Paula Dyer. 
He coughed, choked and gasped for air after the 3-drug cocktail was 
administered, The Tennessean reported. His face turned dark purple as he died.

Before the lethal drugs were injected, Irick said, "I just want to say I'm 
really sorry and that, that's it." Blinds between the execution room and 
witnesses were opened at 7:26 p.m. Central time, and Irick was declared dead at 
7:48.

Sotomayor accused the U.S. of no longer being a civilized nation and "accepting 
barbarism" in a blistering dissent after the high court refused Thursday to 
stop the execution using drugs that had resulted in painful, botched executions 
in the past.

Irick and several other death row inmates sued early this year to halt the 
execution, arguing that the state's new death cocktail, including the 
controversial sedative midazolam, would be tantamount to torture and a 
violation of the Constitution's prohibition against "cruel and unusual 
punishment."

Supreme Court Justice Elena Kagan denied a request to stay Irick's execution.

"In refusing to grant Irick a stay, the Court today turns a blind eye to a 
proven likelihood that the State of Tennessee is on the verge of inflicting 
several minutes of torturous pain on an inmate in its custody," Sotomayor wrote 
in her moving dissent Thursday.

During a trial in state court, medical experts "explained in painstaking detail 
how the 3-drug cocktail Tennessee plans to inject into Irick's veins will cause 
him to experience sensations of drowning, suffocating and being burned alive 
from the inside out," she wrote. "The entire process will last at least 10 
minutes and perhaps as many as 18."

If the law "permits this execution to go forward in spite of the horrific final 
minutes that Irick may well experience, then we have stopped being a civilized 
nation and accepted barbarism."

Irick, who had a history of mental illness, was the 1st inmate killed by the 
state since 2009 and the 1st to be executed with the new drug cocktail.

Medical experts testified in Irick's court case that midazolam is not powerful 
enough to sedate prisoners who are experiencing deadly, caustic chemicals being 
pumped into their veins. Experts described midazolam as something given to 
hospital patients to relax them before anesthesia. The drug is not powerful 
enough to prevent inmates from feeling pain from a 2nd paralytic drug 
(vecuronium bromide), and then the death agent potassium chloride, which has 
been described by the Supreme Court as "chemically burning at the stake."

In 2014, an inmate in Oklahoma grimaced and kicked during his 2014 deadly 
injection including midazolam. Authorities called off the execution, but he 
died shortly after. One Arizona execution using the drug lasted 2 hours.

Ironically, the death row prisoners lost their case in part because they could 
offer no court-accepted alternatives for more effective drugs.

Europe, which opposes the death penalty, has refused to sell more effective 
drugs to the U.S. that have been traditionally used for executions. Domestic 
drugmakers have also objected to their drugs being used in executions, 
according to The Washington Post.

Irick was living with Paula Dyer's mother and stepfather in 1985 when he 
attacked the girl. The family reported that Irick heard voices and was "taking 
instructions from the devil," according to court records.

Irick is the 133rd person executed in Tennessee since 1916.

(source: Huffington Post)

**********

Tennessee executes Billy Ray Irick, 1st lethal injection in state since 2009


Death row inmate Billy Ray Irick died at 7:48 p.m. Thursday after Tennessee 
prison officials administered a lethal dose of toxic chemicals. He was 59.

His execution, the 1st in Tennessee since 2009, comes after his 1986 conviction 
in Knox County for the rape and murder of 7-year-old Paula Dyer.

Witnesses to the execution included members of Paula's family, Knox County 
Sheriff Jimmy "J.J." Jones, Tennessee Deputy Attorney General Scott Sutherland, 
Irick's attorney Gene Shiles and 7 members of the media.

Irick is the 133rd person put to death by Tennessee since 1916. Before Irick, 
all but 6 executions occurred before 1961.

Moments before officials began administering the fatal doses, Irick, held down 
by straps over his chest and arms, muttered his final words: "I just want to 
say I'm really sorry. And that ... that's it."

The execution began later than scheduled, the blinds to the execution room 
being lifted at 7:26 p.m., 16 minutes later than the expected time of 7:10 p.m.

Irick, dressed in a white prison jumpsuit and black socks, was coughing, 
choking and gasping for air. His face turned dark purple as the lethal drugs 
took over, media witnesses reported.

"I never thought for one moment that it would come to this," Shiles said inside 
the prison before the execution began. "I never did."

Witnesses entered the execution viewing chamber at 6:43 p.m., where prison 
officials turned out the lights until the blinds to the glass were lifted.

Shiles and Deputy Attorney General Scott Sutherland left the viewing room at 
7:12 p.m., presumably to go into the execution chamber and observe Irick's IV 
being adminsitered.

When the 2 men returned into the observation room around 7:25 p.m., Shiles told 
witnesses that he kissed Irick and touched him.

Moments later the blinds lifted and Irick made his statement, the 
administration of a combination of powerful and deadly medications commenced.

First the executioner injected Irick with midazolam, a drug intended to render 
Irick unconscious.

After Riverbend Warden Tony Mays determined Irick was unconscious, the 
executioner injected vecuronium bromide and potassium chloride. The drugs are 
intended to stop Irick's lungs and heart.

Around the country, death row offenders have writhed, screamed, groaned and 
gasped as lethal injection drugs take longer than expected to work - or don't 
work at all.

At least twice in Ohio, the state had to call off executions after prison staff 
could not find a viable vein for the intravenous injection of the drugs.

Irick was a heavy-set man. Tennessee does not change its execution protocol 
depending on the body type of the condemned. But midazolam has a different 
effect on different people.

Before his death, Irick ate his last meal. Shiles said earlier Thursday that 
Irick was in good spirits and understood he would be executed.

Irick lived with Paula's mother and stepfather, Kathy and Kenny Jeffers, in 
1985. Although the family allowed the then-26-year-old Irick to live with them 
for some time, years after the crime they reported he exhibited signs of mental 
illness.

Kathy Jeffers was among the small group of Dyer's family members seen quietly 
coming and going from Riverbend Maximum Security Institute Thursday evening, 
walking out after the execution with a tissue in her left hand.

She chose not to speak at a news conference being held afterward outside the 
prison.

Jeffers had warned her husband she didn't want to leave the children with Irick 
the night of Paula's killing, that she'd seen him muttering to himself in a 
half-drunk rage on the porch before she left for work.

Court records show the family reported Irick heard voices and was "taking 
instructions from the devil." He also reportedly, while carrying a machete, 
chased after a young girl in Knoxville in the days proceeding Paula's death.

On April 15, 1985, Irick called Kenny Jeffers to say Paula would not wake up.

Her parents found Paula dead on their bed. An autopsy showed she died of 
asphyxiation. Irick initially tried to hitchhike out of town, but was caught by 
police the day after Paula's death.

Before and during his 32 years on death row, Irick repeatedly attempted to 
convince courts he was too mentally ill to be executed or that the drugs set 
for use in a lethal injection would violate his constitutional right not to be 
tortured to death.

While courts did delay his execution several times, most recently in 2014, no 
court decided to weigh in to prevent his death this time.

People came out to the site of the execution of Billy Ray Irick Andrew Nelles 
and Holly Meyer

"I thought somebody would actually look at the facts," Shiles said Thursday 
just before the execution, referring to evidence supporting Irick's mental 
illness. "I was wrong."

Roughly 5 hours before Irick's death, U.S. Supreme Court Justice Elena Kagan 
denied his request to delay his execution. However, fellow Supreme Court 
Justice Sonia Sotomayor blasted the decision not to delay the execution while 
the state reviewed its lethal injection method.

"In refusing to grant Irick a stay, the Court today turns a blind eye to a 
proven likelihood that the state of Tennessee is on the verge of inflicting 
several minutes of torturous pain on an inmate in its custody, while shrouding 
his suffering behind a veneer of paralysis," Sotomayor wrote in her dissent.

"I cannot in good conscience join in this 'rush to execute' without first 
seeking every assurance that our precedent permits such results ... if the law 
permits this execution to go forward in spite of the horrific final minutes 
that Irick may well experience, then we stopped being a civilized nation and 
accepted barbarism."

Thursday afternoon, Catholic bishops in Nashville and Knoxville noted Pope 
Francis' recent rebuke of the death penalty to condemn Irick's execution.

"The state has the obligation to protect all people and to impose just 
punishment for crimes, but in the modern world the death penalty is not 
required for either of these ends," wrote Bishop Richard F. Stika of Knoxville 
and J. Mark Spalding of Nashville.

Appeal continues against Tennessee's lethal injection protocol

It's unclear what impact Irick's execution will have on a pending legal 
challenge to the state's lethal injection protocol.

Irick joined 32 other death row inmates in a lawsuit arguing the 3 drugs 
Tennessee uses for lethal injections would violate their constitutional right 
to not be tortured to death. Experts at a trial in Davidson County argued the 
1st drug, midazolam, does not always work as intended to render an offender 
unconscious and unable to feel pain.

If the midazolam does not work, then the second and third drugs will cause pain 
similar to being burned alive and drowned, argued experts and attorneys for the 
death row offenders.

Davidson County Chancellor Ellen Hobbs Lyle agreed the condemned may feel pain 
as he or she dies, but noted there is no legal right to a painless death.

She rejected the inmates' lawsuit, prompting an appeal to the Tennessee Supreme 
Court. Citing a procedural bar for the first time, a majority of the state's 
high court determined the inmates had a low chance at succeeding and therefore 
Irick's execution should not be delayed.

"By applying the law and requiring satisfaction of this legal standard, we are 
not 'rush(ing) to execute' Mr. Irick. In fact, this suggestion is astonishing, 
actually, given that Mr. Irick was convicted and sentenced 32 years ago and has 
obtained multiple stays over the years," the 4-member majority wrote in a 
footnote of their opinion.

In a relatively unusual move, Justice Sharon Lee dissented.

"The harm to Mr. Irick of an unconstitutional execution is irreparable," Lee 
wrote in a forceful break with the majority. "Yet the harm to the State from 
briefly delaying the execution until after appellate review is minimal, if 
any."

Immediately after the state Supreme Court's decision, Gov. Bill Haslam also 
announced he would not intervene.

"My role is not to be the 13th juror or the judge or to impose my personal 
views, but to carefully review the judicial process to make sure it was full 
and fair," Haslam said in a news release earlier this week. "Because of the 
extremely thorough judicial review of all of the evidence and arguments at 
every stage in this case, clemency is not appropriate."

In January, the Tennessee Supreme Court scheduled an Oct. 11 execution for 
Edmond Zagorski and a Dec. 11 death date for David Earl Miller.

Irick becomes the 7th condemned inmate to be put to death in Tennessee since 
the state resumed capital punishment in 2000.

Irick becomes the 15th condemned inmate to be put to death in the USA this year 
and the 1480th overall since the nation resumed executions on January 17, 1977.

(source: The Tennessean & Rick Halperin)






OKLAHOMA:

Execution protocol misses deadline; no date to resume


Despite promises to have a new execution protocol drafted by July, officials 
said this week that implementation remains unfinished with no planned date for 
executions to resume.

Officials with the Attorney General's Office and the Department of Corrections, 
meanwhile, now say there is no estimated completion date for the state's new 
nitrogen hypoxia protocol.

"I don't know that there's necessarily been a holdup," said Matt Elliott, a 
corrections spokesman. "We're still working with the AG's Office in developing 
a protocol that is effective and humane."

In March, Attorney General Mike Hunter and Department of Corrections Director 
Joe Allbaugh announced Oklahoma would stop using lethal injection because the 
execution drugs were increasingly difficult to obtain.

The officials said they planned to implement a 2015 law that allows executions 
using nitrogen hypoxia. If successfully implemented, Oklahoma would become the 
first state to execute inmates using the untried method of inert gases.

At the time, the men said they hoped to have the new gas protocols drafted 
within 120 days. Executions would resume as soon as possible after that. State 
law also allows for executions by firing squad or electric chair.

Executions have been on hold since 2015 following several mishaps. A bungled 
procedure in 2014 left an inmate writhing on the gurney. In 2015, an execution 
was reportedly carried out with the wrong drug, and a 2nd halted after a 
similar issue was discovered.

Meanwhile, 16 death row inmates have exhausted all appeals and are awaiting 
execution dates, according to state records. A 17th inmate, who also had 
exhausted all appeals, committed suicide earlier this year.

"It's really just about getting it right," said Alex Gerszewski, a spokesman 
for the AG's Office. "It's important to get it right. And (the Department of 
Corrections) is still working on the protocol."

Hunter's office will review the protocol after it's completed.

Typically, officials don't tell anyone when states start working on new 
execution protocols, said Robert Dunham, executive director of the Death 
Penalty Information Center. The nonprofit provides information and analysis on 
death penalty issues.

Oklahoma officials had to reveal their plans because the state remains under 
court order not to conduct any executions until it has a new protocol in place 
that can survive legal challenges, he said.

"It reached the point that it had to say something to show it was doing 
something to move forward," Dunham said.

Still, it's not unusual for states to spend at least a year developing 
protocols, he said.

What is unusual is that Oklahoma publicly said it could develop a protocol for 
new execution method within 120 days, he said.

"I think that they did not appreciate the difficulty in ironing out all the 
details, and I think that's in large measure because the Legislature acted 
first and left it to the department to investigate what was really necessary to 
bring it to reality," Dunham said.

He said Oklahoma officials may be grappling with concerns about how to safety 
administer the deadly, odorless gas without poisoning prison employees and 
execution bystanders as well as design and cost questions.

"It did not appear that the Oklahoma (Legislature) had taken into consideration 
all of the difficulties in using nitrogen hypoxia in carrying out executions," 
Dunham said. "The bill rocketed through the Legislature without much critical 
thought."

(source: Tahlequah Daily Press)






NEBRASKA----impending execution

Nebraska Plans 1st Execution in 21 Years. Not So Fast, Drug Company Says.


Carey Dean Moore, who faces the death penalty next week for killing 2 taxi 
drivers in Omaha in 1979, has stopped fighting his looming execution. But his 
life may be extended by a German drugmaker that says it produced 2 of the drugs 
that are to be injected into Mr. Moore's veins.

Fresenius Kabi, one of Germany's largest companies, has asked a judge to block 
the use of its drugs in Nebraska's 1st execution in 21 years and its 1st-ever 
lethal injection. Use of the drugs, the company says, will cause grave harm to 
its reputation if products intended to help treat people are used to kill.

A hearing is planned for Friday afternoon in Federal District Court in Lincoln, 
and if the judge grants the company's request for an injunction it could delay 
the execution, scheduled for Tuesday.

2 drugs Fresenius says it manufactured, along with 2 other drugs, are set to be 
used in Mr. Moore's execution.

Fresenius says it takes no position on capital punishment, but that it has 
strict contracts with distributors that ban sales to prisons for executions or 
to anyone other than hospitals and other medical users. It says Nebraska 
illegally obtained both a muscle relaxant and a drug that, when given at 
extremely high doses, can stop a beating heart.

In Nebraska, any delay could further complicate matters because the state's 
supply of 1 of the drugs, potassium chloride, expires in 3 weeks, and its 
supply of the other, cisatracurium, expires on Oct. 31, according to Scott R. 
Frakes, the state corrections director. The drugs used in lethal injection have 
become increasingly difficult to obtain as pharmaceutical companies try to 
clamp down on their use and death penalty opponents argue that new drug 
protocols are unproven or inhumane.

On Thursday night, Tennessee carried out its 1st execution since 2009, putting 
Billy Ray Irick to death for the rape and murder of a 7-year-old girl in 1985. 
The state used a combination of drugs that Mr. Irick's lawyers had argued could 
make the condemned feel like they were burning alive and drowning.

According to The Tennessean newspaper, Mr. Irick "was coughing, choking and 
gasping for air" and "his face turned dark purple as the lethal drugs took 
over."

In its lawsuit, Fresenius has raised the specter that use of the drugs could 
lead to a botched execution, saying that its drugs, when obtained improperly, 
are at risk of being handled or transported in ways that leave them adulterated 
and chemically altered. For example, it says cisatracurium, the muscle 
relaxant, loses effectiveness when not refrigerated in the carton between 36 
and 46 degrees Fahrenheit, but that Nebraska's execution protocols call for the 
drugs to be stored at "room temperature storage conditions."

The company says it determined it was the maker of the potassium chloride 
because an inventory of drugs kept by the state showed that its stockpile came 
in vials of 30 milliliters. Fresenius says it is the only manufacturer that 
packages the drug in vials of that size.

"We made no sales to the Department of Correctional Services, nor have any of 
our authorized distributors," Fresenius Kabi wrote in a statement. "So we can 
only conclude Nebraska may have acquired this product from an unauthorized 
seller."

Nebraska is fighting separate legal efforts to force it to disclose where it 
got the drugs. A statement issued by Attorney General Doug Peterson said the 
drugs "were purchased lawfully and pursuant to the state of Nebraska's duty to 
carry out lawful capital sentences."

But neither the statement, nor state officials on Thursday, said which company 
manufactured the drugs, what temperature they are being stored at or whether an 
injunction would delay the execution. The offices of Mr. Peterson and the 
Nebraska governor, Pete Ricketts, did not respond to messages on Thursday.

The planned execution of Mr. Moore, 60, is also notable because it would be the 
first-ever lethal injection in the United States that uses fentanyl, a powerful 
opioid that is at the heart of the nation's overdose crisis. Mr. Moore has 
ceased efforts to prevent his execution.

It is also the 2nd time in a month that pharmaceutical manufacturers have 
sought to block a state from using their drugs in an execution.

In July, the execution of Scott Dozier in Nevada was delayed after a drug 
maker, Alvogen, said 1 of the drugs in the state's execution protocol had been 
obtained illicitly. 2 other companies that also make drugs that Nevada wants to 
use in the execution, Sandoz and Hikma Pharmaceuticals, have also sought to 
block the state from using their products.

Maya Foa, the director of Reprieve, a human rights organization in London, said 
there is now consensus in the pharmaceutical industry that it should fight to 
prevent its products from being used in executions.

"We've come to a tipping point in terms of the industry's desire to see their 
contracts and rights respected and enforced," Ms. Foa said.

On top of that, she said, state governments are undermining public health by 
using murky or illegal drug distribution channels to traffic in powerful 
narcotics and other drugs.

"That's scandalizing in a climate where we're seeing a hundred people dying 
every day from the opioid epidemic," she said.

The drug companies' aggressive maneuvers have put officials in some death 
penalty states on the defensive. In a friend-of-the-court brief filed with the 
Nevada Supreme Court in the Dozier case, 15 other states contend that the drug 
companies' arguments are groundless.

Their lawsuits "do not even need to succeed on the merits in order to achieve 
the desired outcome and prevent an execution," their brief states. "Instead, 
they merely have to obtain an injunction preventing a state from carrying out 
an execution on the scheduled date. And that alone might delay an execution 
long enough that a state's drugs could expire."

Leslie Rutledge, the attorney general of Arkansas, one of the 15 states, argued 
that the companies "are being pressured by anti-death-penalty advocates to stop 
supplying the drug to carry out lawful executions," adding: "The families of 
these victims deserve justice."

The other states supporting Nevada's effort to execute Mr. Dozier over the drug 
companies' objections are Alabama, Arizona, Florida, Georgia, Idaho, Indiana, 
Louisiana, Missouri, Nebraska, Oklahoma, South Carolina, Tennessee, Texas and 
Utah.

(source: New York Times)

*****************************

With no other drug source, execution window closes Aug. 31, Nebraska prisons 
director says


Nebraska's prisons director said Thursday the window to execute Carey Dean 
Moore closes Aug. 31 because the state has no other source for the lethal 
injection drug that expires on that date.

So granting a restraining order to block next week's execution would have the 
effect of changing the death sentence "into a de facto sentence of life in 
prison for Carey Dean Moore," said Scott Frakes, director of the Nebraska 
Department of Correctional Services.

Frakes filed an affidavit Thursday in response to allegations raised in a 
federal lawsuit filed this week by drug manufacturer Fresenius Kabi. The 
German-based corporation has asked a court to block Nebraska from using 
potassium chloride it manufactured in Tuesday's execution of Moore.

In the lawsuit filed Tuesday, the company alleged the state obtained the drug 
improperly or illegally.

A federal judge will hold a hearing at 3 p.m. Friday in Lincoln to rule on a 
temporary restraining order sought by the drug company.

Frakes said in his affidavit that the state legally purchased its four death 
penalty drugs from a licensed pharmacy. Frakes said he found the pharmacy after 
contacting at least 40 suppliers and 6 states in an unsuccessful search for 
drugs.

"That supplier is unwilling to provide additional substances," Frakes stated. 
"I do not, at present nor at any time in the future, have an alternative 
supplier for any of the four substances to be administered for execution by 
lethal injection."

Moore, who has spent 38 years on death row, says he's ready to die in a lethal 
injection scheduled for 10 a.m. Tuesday. He has not participated in the drug 
lawsuit or other legal challenges to prevent his execution.

One of the longest serving death row inmates in the nation, Moore, 60, was 
sentenced to death for the 1979 slayings of Omaha cabdrivers Reuel Van Ness and 
Maynard Helgeland in Omaha.

(source: Omaha World-Herald)

*****************

Nebraska prisons director says state can't buy execution drugs again


Nebraska prisons Director Scott Frakes has told a federal court it did not 
obtain any drugs to be used in Carey Dean Moore's execution by fraud, deceit or 
misrepresentation, as an Illinois-based drug manufacturer says.

Furthermore, Frakes said, if the court prevents the state from carrying out 
Tuesday's scheduled execution, it would likely change the death sentence into a 
de facto life sentence for Moore.

The state doesn't have any other way to buy the drugs that comply with Nebraska 
law and the department's protocol, Frakes said.

The Nebraska Department of Correctional Services responded Thursday to a legal 
request by drug manufacturer Fresenius Kabi to stop the use of 2 drugs in 
Tuesday's execution.

A hearing on the matter is set for 3 p.m. Friday to decide whether to grant a 
temporary restraining order.

Manufacturer Fresenius Kabi filed a federal lawsuit Tuesday saying the 
cisatracurium and potassium chloride the state plans to use next week are 
manufactured by the company.

State inventories of the drug show the potassium chloride, which could be used 
to stop Moore's heart, are in 30-milliliter vials. The company alleges it is 
the only one with vials of the drug distributed in that size.

The department has not revealed the sources of its lethal injection drugs, 
despite a district court order, which it has appealed.

In his affidavit filed Thursday with the U.S. District Court of Nebraska, 
Frakes said the drugs were obtained from a licensed pharmacy in the United 
States, and it did not circumvent Fresenius Kabi's distribution controls.

The department's supply of potassium chloride will expire Aug. 31. Frakes said 
he has no other source or supplier for the drugs to be used next week or any 
time in the future.

The people of Nebraska have waited more than 20 years to carry out Moore's 
sentence, Frakes said. Moore has raised no objections to the sentence or tried 
to stop or delay it, he said.

"Lethal substances used in a lethal injection execution are difficult, if 
nearly impossible, to obtain," Frakes said in the affidavit.

It's a problem not only here but in other death penalty states, he said.

Frakes said he has tried to purchase additional execution drugs from the 
supplier of the current substances and that supplier is unwilling to provide 
them. He has no alternative supplier for any of the four drugs, he said.

Fresenius Kabi contends the department obtained the drugs improperly or 
illegally, and allowing their use would injure the company's reputation and 
damage business and investor relationships.

(source: Lincoln Journal Star)