[Deathpenalty] death penalty news----NEBRASKA

[Rick Halperin]

August 13



NEBRASKA----impending execution

Appeals court refuses to halt Nebraska execution


A federal appeals court has rejected a German pharmaceutical manufacturer's 
attempt to prevent Nebraska from executing a death-row inmate using drugs that 
the company says it produced.

The 8th U.S. Circuit Court of Appeals on Monday upheld a federal judge's ruling 
to let the execution of inmate Carey Dean Moore proceed as planned Tuesday.

The drug company, Fresenius Kabi, contends in a lawsuit that using the drugs 
for a lethal injection would harm its reputation.

But the appeals court agreed with U.S. District Court Judge Richard Kopf's 
conclusion that postponing the execution would frustrate the state's interest 
in carrying out the execution. Kopf said granting the drug company’s request 
would “frustrate the will of the people,” referring to the 61 percent of 
Nebraska voters who chose to reinstate capital punishment in 2016 after 
lawmakers abolished it.

Moore, who was convicted of killing two cab drivers five days apart in 1979, 
has stopped fighting the state’s efforts to execute him.

“I will not allow the plaintiff to frustrate the wishes of Mr. Moore and the 
laws of the state of Nebraska,” Kopf said during the hearing.

Attorneys for the drug company, Fresenius Kabi, filed a lawsuit last week 
arguing that state officials improperly obtained at least one of the company’s 
drugs.

In Nevada, a judge indefinitely postponed an execution last month after 
drugmaker Alvogen filed a similar lawsuit over one of its products.

Moore is scheduled to be executed with a combination of four drugs: the 
sedative diazepam, commonly known as Valium, to render him unconscious; 
fentanyl citrate, a powerful synthetic opioid; cisatracurium besylate to induce 
paralysis and halt his breathing; and potassium chloride to stop his heart.

Fresenius Kabi argues that it manufactured the state’s supply of potassium 
chloride and possibly the cisatracurium.

Nebraska state officials have refused to identify the source of their execution 
drugs, but Fresenius Kabi alleges the state’s supply of potassium chloride is 
stored in 30 milliliter bottles. Fresenius Kabi said it’s the only company that 
packages the drug in vials of that size.

Fresenius Kabi said Nebraska’s use of its drugs would damage its reputation and 
business relationships. The company said it takes no position on capital 
punishment, but strongly opposes the use of its products for use in executions.

No other public evidence has surfaced to confirm the supplier’s identity. A 
state judge in Nebraska ordered prison officials in June to release documents 
that might reveal the source of the drugs, but the state has appealed that 
ruling.

State attorneys deny Fresenius Kabi’s allegation that prison officials obtained 
the drugs illicitly.

Assistant Attorney General Ryan Post said in court Friday that the state’s 
interest in carrying out the execution outweighs the company’s desire to 
protect its reputation. Post noted that the state still has not revealed its 
supplier, arguing that Fresenius Kabi could have remained anonymous by not 
filing the lawsuit.

“The plaintiff stepped right into the spotlight, and they’re complaining about 
it,” he said.

The state also notes that one of its protocol drugs expires on Aug. 31, which 
will leave the state with no way to carry out future executions.

In an affidavit filed Thursday, Department of Correctional Services Director 
Scott Frakes said he contacted at least 40 suppliers in six states and found 
only one that agreed to provide his agency with the necessary drugs. But that 
supplier is unwilling to sell them any more of its drugs, Frakes said.

(source: WOWT news)


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Nebraska set for execution after about-face on death penalty


3 years after Nebraska lawmakers voted to abolish capital punishment, the state 
is preparing to carry out its first execution since 1997 on Tuesday in a 
bewildering about-face driven largely by the state's Republican governor.

Gov. Pete Ricketts, a wealthy former businessman, helped finance a ballot drive 
to reinstate capital punishment after lawmakers overrode his veto in 2015. His 
administration then changed Nebraska's lethal injection protocol to overcome 
challenges in purchasing the necessary drugs and withheld records previously 
considered public that would identify the state's supplier.

"It wouldn't even have made it to the ballot without him," said Matt Maly, an 
anti-death penalty activist who has joined daily protests outside the 
governor's residence. "To get something on the ballot takes a lot of money and 
resources. Nobody else would have cared enough."

Ricketts argued last week that he was fulfilling the wishes of voters who opted 
to overturn the Legislature's decision in the 2016 general election. He said he 
views capital punishment as a matter of protecting public safety and an 
important tool for law enforcement, despite his Catholic faith and the recent 
statements by Pope Francis that the death penalty is unacceptable in all cases.

"The people of Nebraska spoke loud and clear that they wanted to retain capital 
punishment as part of our overall state laws to protect public safety," he 
said. "Our job is to carry that out."

Nebraska prison officials are preparing to execute Carey Dean Moore, one of the 
nation's longest-serving inmates, for the 1979 shooting deaths of Omaha cab 
drivers Maynard Helgeland and Reuel Van Ness Jr.

The 60-year-old Moore, who has had execution dates set seven previous times, 
has stopped fighting the state's efforts to execute him, but two drug companies 
have filed legal challenges to prevent the state from using what they say may 
be their drugs.

On Friday, a federal judge denied the request of German pharmaceutical company 
Fresenius Kabi to temporarily postpone the execution. Fresenius Kabi filed an 
immediate appeal to the 8th U.S. Circuit Court of Appeals, which upheld the 
judge's ruling Monday. The company later said it wouldn't pursue an additional 
review with the U.S. Supreme Court.

Drugmaker Sandoz Inc. also filed a motion to intervene on Saturday, but that 
won't prevent the execution from moving forward.

The Nebraska Attorney General's Office is fighting the companies' efforts 
because one of the four drugs used in the state's execution protocol, potassium 
chloride, expires on Aug. 31. The state corrections director said last week 
that prison officials won't be able to purchase more supplies of the drug 
because no companies are willing to sell to the department, including its 
previous supplier.

Nebraska last carried out an execution in 1997, using the electric chair. The 
state has never conducted a lethal injection. And on Tuesday, it plans to use a 
combination of four drugs that has never been tried.

Lawmakers abolished capital punishment in 2015, when they voted by the 
narrowest margin possible, 30-19, to override the then-first-year governor's 
veto.

Some legislators expressed doubt at the time that Nebraska would carry out an 
execution ever again because of costly legal challenges, prompting Ricketts to 
ask for more time to set one in motion. His administration went so far as to 
pay an India-based middleman $54,000 for drugs — that the state never received 
— because they couldn't be legally imported. The state money was never repaid.

After lawmakers overrode his veto, Ricketts contributed $300,000 of his own 
money to a petition drive organized by several close associates to place the 
issue on the November 2016 general election ballot. The governor's father, TD 
Ameritrade founder Joe Ricketts, also donated $100,000 to the Nebraskans for 
the Death Penalty campaign.

Nebraskans for the Death Penalty raised a total of $1.3 million for the effort, 
but was outspent by a death penalty opposition group that received nearly $2.7 
million. Even so, the reinstatement measure won support from 61 percent of 
voters.

Death penalty supporters said the Legislature's vote was a fluke that didn't 
represent the will of voters in the overwhelmingly conservative state. Some 
moderate, Republican lawmakers who previously voiced support for capital 
punishment but then voted to repeal it lost their seats in the 2016 election 
after Ricketts endorsed their opponents.

"The public (in Nebraska) has always agreed with the death penalty — always," 
said state Sen. Mike Groene, an outspoken supporter of capital punishment. "I'm 
not the outlier here, and neither is the governor."

Groene said the vote to reinstate capital punishment amounted to "a direct 
mandate from the public" to resume executions. He noted that Ricketts has now 
appointed a majority of the state's Supreme Court justices, which could help 
clear the way for future executions.

Nebraska uses the death penalty sparingly and only for crimes considered to be 
the most heinous, said Bob Evnen, a Lincoln attorney who co-founded the 
Nebraskans for the Death Penalty petition group.

Evnen said many of the previous delays in carrying out executions were driven 
by a 2008 Nebraska Supreme Court case that declared the electric chair 
unconstitutional, forcing the state to switch to a lethal injection protocol 
with drugs that are increasingly difficult to obtain for executions.

The original protocol called for three drugs to render the inmate unconscious, 
induce paralysis and stop the heart. After years of struggling to acquire one 
of the drugs, sodium thiopental, Nebraska prison officials changed their rules 
last year to let the state corrections director choose which chemicals to use.

"Policymakers are actually taking the voters seriously on this," Evnen said.

(source: Associated Press)