Nebraska

Nebraska

Nebraska Supreme Court Hears Challenge to Three-Judge Death Sentencing

The Nebraska Supreme Court heard oral argument on August 30, 2018 in a case challenging the constitutionality of the state's capital sentencing procedure, which requires a three-judge panel to decide whether to impose a death sentence. Attorneys for death-row prisoner John Lotter said the state's three-judge sentencing violates the Sixth and Fourteenth Amendments as applied to Florida's capital sentencing law in Hurst v. Florida. In that case, the U.S. Supreme Court found that the Sixth Amendment required “a jury, not a judge, to find each fact necessary to impose a sentence of death.” “Nebraska is the only active death penalty state without a sentencing structure that allows a jury to make the central findings of fact to impose a death sentence,” said Rebecca Woodman, an attorney representing Lotter. Under Nebraska law, a jury determines whether aggravating factors are present, deciding if a defendant is eligible for the death penalty, but judges weigh those factors against mitigating factors and decide whether the defendant receives a death sentence or a sentence of life in prison. James Smith, solicitor general for Nebraska Attorney General's Office, argued that the sentencing scheme is constitutional, saying, “Finding aggravating factors is the fact that’s significant, the fact that juries must decide. The aggravating factors are what makes the defendant death-eligible.” Woodman disagreed: “Nebraska’s statutory scheme is unconstitutional because it bases a death sentence not on a jury’s verdict, but on judge-only findings of critical facts necessary to impose a sentence of death.” She also argued that the ruling should be applied retroactively, granting new sentencing hearings to everyone on Nebraska's death row. 

Nebraska Executes Carey Dean Moore in First Execution in 21 Years

On August 14, 2018, more than two decades after last putting a prisoner to death, Nebraska executed Carey Dean Moore (pictured). The execution—which used an untested drug formula of diazepam (the sedative Valium), fentanyl citrate (an opioid painkiller), cisatracurium besylate (a paralytic), and potassium chloride to stop the heart—took 23 minutes. It was the state's first execution ever by lethal injection. The first drug, diazepam, was administered at 10:24 am, and Moore, who had spent 38 years on death row, was pronounced dead at 10:47. Associated Press reporter Grant Schulte, a media witness who kept a timeline of events during the execution, reported that on three occasions prison officials dropped a curtain that prevented the witnesses from seeing portions of the execution, and that towards the end of the procedure Moore's face turned reddish, then purple. Joe Duggan, a journalist for the Omaha World-Herald, said the media witnesses could see the IV-line connected to Moore's arm, but could not see into the room where prison personnel controlled the flow of the drugs. "[I]t was not possible for us to know exactly when each drug was administered," he said. Brent Martin, reporting for Nebraska Radio Network, compared Moore's executions to the 13 executions he had previously witnessed in Missouri, saying "this was much longer." He also noted that the Nebraska team "approached it a bit differently" than had corrections officials in Missouri, where executions had "become routine." But, he said, "I didn't get any sense that it did not go other than how they planned it to go." Later, prison officials acknowledged the curtain had been lowered after the last drug was administered, preventing the reporters from witnessing Moore's reaction to that drug. Before the execution, Moore gave a written final statement in which he apologized to his younger brother, Don, for "bringing him down," and asked opponents of the death penalty to work on behalf of four men on Nebraska's death row who he said are innocent. Capital punishment has been a contentious issue in Nebraska. In 2015, the state legislature repealed the death penalty over the veto of Governor Pete Ricketts. Ricketts then sponsored a voter referendum to reinstate the death penalty, which succeeded in 2016. The state's last execution had been in December 1997, when Robert Williams was executed in the state's electric chair. The nearly 21-year period between executions in the longest time any state has gone between executions in modern U.S. history.

Drugmaker Sues Nebraska, as 15 Death-Penalty States Oppose Ruling Blocking Use of Drugs in Nevada

Less than a month after a Nevada court halted the execution of Scott Dozier in response to a lawsuit filed by generic-drug manufacturer Alvogen, another drug company has sued Nebraska, seeking to block the use of its medicines in an upcoming execution. The German-based pharmaceutical company Fresenius Kabi filed suit in Nebraska federal court on August 8, 2018 alleging that Nebraska intended to execute Carey Dean Moore on August 14 using drugs manufactured by the company that had been obtained "through improper or illegal means." The lawsuit said the company's distribution contracts with authorized wholesalers and distributors prohibit sales to departments of corrections, and it alleges that Nebraska obtained the drugs "in contradiction and contravention of the distribution contracts," most likely from an unauthorized supplier. Nebraska Attorney General Doug Peterson said the state's execution drugs “were purchased lawfully and pursuant to the State of Nebraska’s duty to carry out lawful capital sentences,” an assertion that cannot be verified because of the state's secrecy practices. The state has refused to identify the source of the drugs it intends to use in Moore's execution, but two of the drugs—the paralytic, cisatracurium, and potassium chloride, the drug used to stop the heart—are manufactured by Fresenius Kabi and only that company makes vials of potassium chloride in the size obtained by the state. 

Nebraska is one of fifteen death-penalty states that have joined in an amicus curiae ("friend of the court") brief in the Nevada Supreme Court on August 6, 2018 urging the court to overturn a restraining order that has prevented Nevada from carrying out executions using supplies of the drug, midazolam, produced by the pharmaceutical company Alvogen. Alvogen's suit alleges that Nevada had obtained the midazolam "by subterfuge" and “intentionally defrauded Alvogen’s distributor” by concealing its intention to use Alvogen’s medicine in Dozier‘s execution. The company's pleadings accused Nevada of “implicitly ma[king] the false representation that they had legitimate therapeutic rationale” for buying the drug and covering up its true intention by having the drug shipped to a state office several hundred miles away from the prison. In addition to issuing the restraining order, the Nevada trial court stayed Dozier's July 2018 execution. Like Fresenius Kabi, Alvogen alleges that the use of its products in executions would damage its corporate reputation and adversely affect investor and customer relations. The amicus brief was filed by 15 of the 30 other states that authorize capital punishment, all with Republican attorneys general—Arkansas, Alabama, Arizona, Florida, Georgia, Idaho, Indiana, Louisiana, Missouri, Nebraska, Oklahoma, South Carolina, Tennessee, Texas, and Utah. The nine death-penalty states with Democratic attorneys general did not join the pleading, nor did six other states with Republican attorneys general. The pleading claims, without providing any factual support, that Alvogen's lawsuit is the "latest front in the guerilla warfare being waged by anti-death-penalty activists and criminal defense attorneys to stop lawful executions." The state officials warn that, if the Nevada Supreme Court allows Dozier's stay of execution to stand, activists will "flood" the courts in other states with similar "meritless" challenges. In 2017, the drug distributor McKesson sued Arkansas to prevent the state from using a supply of the paralytic drug, vecuronium bromide, in executions, alleging that the state had deliberately misled the company to believe that the drug would be used for legitimate medical purposes. The brief asserts that "Alvogen’s meritless claims mirror those rejected by the Arkansas Supreme Court" in McKesson case. However, court records reflect that the Arkansas Supreme Court actually returned McKesson's case to the trial court for further evidentiary development and the case remained active until the expiration of the state's supply of vecuronium bromide rendered the case moot in the Spring of 2018.

With Drugs Expiring and Lawsuits Pending, Nebraska Prosecutors Seek to Expedite Execution

Facing an August 2018 expiration date for two of the drugs in Nebraska's experimental execution protocol, state Attorney General Douglas Peterson (pictured) has asked the Nebraska Supreme Court to expedite consideration of the prosecutor's request to set a July execution date for condemned prisoner Carey Dean Moore. The attorney general has petitioned the court to schedule Moore's execution for July 10 "or alternatively for a date in mid-July," despite the pendency of several lawsuits, which will not be resolved before August, that challenge various aspects of the state's authority and ability to carry out executions. Nebraska intends to use a four-drug execution protocol featuring three drugs—the opiod pain medication fentanyl, the sedative valium, and the paralytic drug cisatracurium—that have never before been used in an execution, followed by the heart-stopping drug potassium chloride. Potassium chloride has been described as feeling like liquid fire if administered to a person who has not been adequately anesthetized. Several challenges to the state's administration of the death penalty that have been filed by the ACLU of Nebraska are currently before the courts. These include a case on appeal before the Nebraska Supreme Court arguing that Governor Pete Ricketts and other state officials "improperly seized and exercised legislative power" when they allegedly "proposed, initiated, funded, organized, operated, and controlled the referendum campaign against" the death-penalty repeal law enacted by the state legislature over the governor's veto in 2015; and a second lawsuit challenging the state's lack of transparency surrounding execution drugs and team members, which is currently awaiting a trial-court ruling. The state Department of Corrections recently released some documents regarding execution team training in response to a public records request by the ACLU, but refused to provide documents indicating whether and to what extent execution team members had specialized experience or training in intravenous-access procedures or any documents relating to correspondence with doctors or experts regarding lethal injection. ACLU of Nebraska Legal Director Amy Miller said that the documents released by the state provide "no adequate assurance that we would be looking at a smooth, well-conducted execution," and remarked that "[t]he veil of secrecy that has dropped on all matters relating to the death penalty is very concerning." Nebraska has never carried out an execution using lethal injection. Moore, who was sentenced to death in 1980, is Nebraska's longest incarcerated death-row prisoner. At trial, he waived his right to a jury and presented no evidence in his defense. He recently fired his current appointed counsel and has asked to be executed. In a statement released in April, ACLU of Nebraska's Executive Director Danielle Conrad said, "it is precisely because [Moore] is not fighting that our institutions bear extra responsibility to check themselves by ensuring that the laws are followed and that an unlawful and potentially cruel and unusual execution does not take place." 

Pressed on Execution Practices, Nebraska Obstructs Release of Information

As legislators and the media have pressed Nebraska for information on its secretive execution practices, the executive branch has responded—the state's leading newspapers say—with obfuscation and with a lawsuit that has created a state constitutional crisis. After adopting a new execution policy that the Lincoln Journal Star reported "was written in a single draft without input from the governor, attorney general, Corrections director, outside experts or other state officials," the state Department of Correctional Services has drawn harsh criticism and multiple lawsuits for refusing to disclose information about its execution process to lawmakers, the media, advocacy groups, and prisoners. And after the state legislature issued a subpoena that would require Director Scott Frakes (pictured) to testify about the Department's latest efforts to obtain execution drugs and to respond to allegations that it has not complied with federal drug laws on the handling of controlled substances, state Attorney General Doug Peterson sued the legislature to block Frakes from testifying. The Department's most recent refusals to release information—after having lost $54,400 in taxpayer money in a failed attempt to illegally import execution drugs from India—prompted lawsuits from legal advocacy groups, lawmakers, and prisoners demanding protocol transparency. Senator Ernie Chambers, a long-time opponent of capital punishment, filed a formal complaint with the legislature's Executive Board alleging, among other things, that the state's execution protocol violates federal requirements for handling controlled substances and that its refusal to provide information on the lethal-injection drugs violates the Nebraska Public Records Act. In an editorial, the Omaha World-Herald wrote: "The Nebraska news media and members of the Legislature have raised legitimate questions on that score. They’ve asked the state Department of Correctional Services for information involving its purchase of death penalty drugs and its planned procedure for carrying out an execution, to ensure the applicable laws and procedures were all followed. So far, the department has refused to provide answers. Its message, instead, has been: Just trust us. That’s not good enough." A Journal Star editorial criticized executive branch officials for "hypocritically refus[ing]" to subject themselves to public scrutiny. "We don’t know where the state obtained its lethal injection drugs," the editors wrote."We don’t know how the four-drug cocktail was tested. All we have ... is Corrections’ word that they were done in accordance with the law. Given the state’s costly failed attempts to illegally buy execution drugs overseas, that alone is not good enough." The editorial board said accountability means more than just punishing those convicted of murder. "Accountability must also extend to the state officials responsible for implementing and carrying out capital punishment. ... Before Nebraska can hold convicted killers accountable, it first must do so for itself – something it’s shown more interest in obfuscating than pursuing." The Omaha World-Herald encapsulated the issue as follows: "Is the state following the law in all respects regarding the death penalty, or isn’t it? State officials should stop trying to sidestep this central issue. For the sake of the public interest and respect for the law, they need to answer that question in full."

Nevada Says Fentanyl Was Easy to Obtain, But Execution Protocol Draws Criticism from Doctors, Legal Experts

As U.S. pharmaceutical companies have strengthened distribution controls on their medicines to prevent their use in executions, states have been changing their execution protocols in search of new or more readily available drugs. That search has led Nebraska and Nevada to build their execution protocols around fentanyl—the drug known for its role in the current opioid crisis in America—and the paralytic cisatracurium, which have never been used in executions before. According to a report in the Washington Post, Nevada's former chief medical officer, Dr. John DiMuro, quickly chose a never-before-used combination of drugs for the state's execution protocol based upon “the few drugs available to the prison system.” In an e-mail to the Post, the Nevada corrections department said the drug was easy to obtain. “We simply ordered it through our pharmaceutical distributor, just like every other medication we purchase, and it was delivered,” wrote corrections spokeperson Brooke Keast. “Nothing out of the ordinary at all.” In April, drug distributor McKesson Medical-Surgical sued Arkansas after learning that the state was using one of the medicines it obtained from the distributor as an execution drug, alleging the state had deliberately misled McKesson to believe that the purchase was for legitimate medical purposes. That lawsuit is still pending in the Arkansas courts. Dr. DiMuro said he created the untried execution protocol “based it on procedures common in open-heart surgery.” However, the protocol has spawned a new round of criticism from doctors and lethal-injection experts. Mark Heath, a professor of anesthesiology at Columbia University, told the Post that if the fentanyl or the sedative Valium—which Nevada would also administer before the paralytic—“don’t work as planned, or if they are administered incorrectly,” then the prisoner would be awake and conscious during the execution. “It would be an agonizing way to die, but the people witnessing wouldn’t know anything had gone wrong because you wouldn’t be able to move” because of the paralytic drug, he said. Emory University Professor of Anesthesiology Joel Zivot said the protocol is the latest in a series of attempts by states to “obtain certain drugs, try them out on prisoners, and see if and how they die.” The states, he said, have “no medical or scientific basis” for selecting the execution drugs. Fordham University law professor Deborah Denno, a leading scholar on methods of execution, criticized the states for continuing to adopt experimental drug protocols. The reason for the change in protocols, she said, is “not really for the prisoner. It’s for the people who have to watch it happen. We don’t want to feel squeamish or uncomfortable. We don’t want executions to look like what they really are: killing someone.”  On November 27, a Nevada state trial court issued an inunction barring the state from using a paralytic in conjunction with fentanyl in the execution of Scott Dozier.  The state has appealed the order. 

Lawsuit: Nebraska Vote to Restore Death Penalty Does Not Apply to Those Previously Sentenced to Death

The ALCU of Nebraska, the ACLU Capital Punishment Project, and the law firm O’Melveny & Myers, LLP, have filed a lawsuit on behalf of the state's eleven death-sentenced prisoners seeking to bar Nebraska "from carrying out any executions or taking steps toward carrying out any executions" under the November 2016 voter referendum that restored that state's death-penalty law. The lawsuit, filed in Lancaster County District Court on December 4, argues that the voter referendum amounted to an "unlawful exercise of legislative power by the executive branch," in violation of the separation of powers clauses of the Nebraska constitution, because Governor Pete Ricketts (pictured), his staff, and other members of the Nebraska executive branch "improperly seized and exercised legislative power" when they allegedly "proposed, initiated, funded, organized, operated, and controlled the referendum campaign against" the death-penalty repeal law. It also alleges that the May 2015 legislative repeal of the death penalty went into effect on August 30, 2015, and converted the prisoners' death sentences to life sentences before the petition drive suspended the repeal statute. While proponents of the referendum submitted their petitions to place the referendum on the ballot on August 25, the signatures were not validated by the Secretary of State and, according to the lawsuit, did not suspend the statute until October 2015. The Governor's office characterized the lawsuit as "frivolous litigation" by a "liberal advocacy group ... work[ing] to overturn the clear voice of the Nebraska people." The Nebraska legislature voted three separate times in 2015 in favor of abolishing the death penalty, with a majority of the legislature's 30 Republicans joined by 12 Democrats and an Independent supporting repeal. After two preliminary votes in April and early May, the unicameral legislature on May 20 voted 32-15 to repeal its death penalty and replace it with a sentence of life without possibility of parole. Governor Ricketts vetoed the bill, but a supermajority of the legislature, led by conservative Republicans, voted 30-19 on May 28 to override the veto. Four days later, a committee called Nebraskans for the Death Penalty filed sponsorship documents with the Nebraska Secretary of State seeking a referendum to suspend and overturn the repeal. The complaint alleges that the Governor was the actual sponsor of the referendum campaign and that, in violation of Nebraska law, none of the ostensible "sponsors" of the referendum submitted statements "sw[earing] to the truth and accuracy of their sponsorship." It says that Ricketts and his parents provided 80% of the funding for the petition drive in its first month and 30% of the total funding for the campaign to overturn the repeal, used state facilities to raise funds for the referendum campaign, and mailed a fundraising letter with the letterhead “Governor Pete Ricketts, State of Nebraska,” and that members of Rickett's executive branch served as campaign managers or otherwise worked for the referendum campaign. “[I]n Nebraska, our state Constitution ... establishes a strong tradition with a clear separation of powers," ACLU Executive Director Danielle Conrad said. ""This is way beyond what the governor can do in his personal capacity. This is about blurring the lines and overstepping the bounds.”

Nebraska Proposes Untried Lethal-Injection Combination as Nevada Court Halts Execution With Similar Drugs

As Nebraska announced its intention to use a never-before-tried four-drug execution combination featuring the opiod pain medication fentanyl and the paralytic drug cisatracurium, a Nevada judge issued a stay of execution that put off the nation's first attempted execution using those drugs. On November 9, the Nebraska Department of Correctional Services provided notice to death-row prisoner Jose Sandoval that it intends to execute him using a combination of the drugs diazepam (Valium), fentanyl citrate, cisatracurium besylate, and potassium chloride. Later that day, Clark County (Las Vegas) District Judge Jennifer Togliatti granted a request by lawyers for the Nevada Department of Corrections to stay the scheduled November 14 execution of Scott Dozier to permit them to appeal her order directing the state to remove cisatracurium from its also untried execution protocol of diazepam, fentanyl, and the paralytic. Dozier, who has waived his appeals and asked to be executed, is only contesting the state's method of execution. The judge issued her order after considering medical evidence that the cisatracurium could cause Dozier to experience "air hunger" and suffocate to death, while masking signs that he was conscious and suffering during the execution. Doctors testified that a paralytic drug would be unnecessary if the other two drugs, fentanyl and diazepam, were administered properly. In staying the execution to permit Nevada to appeal to the state supreme court, Judge Togliatti said: "They're going to have to be the court to make that determination that we as a state are OK with a paralytic." Nebraska law requires the state to give a prison notice of the drugs to be used in the execution at least sixty days in advance of issuing a death warrant. The state attorney general's office has indicated it will ask the Nebraska Supreme Court to issue a warrant after that time has passed. State Senator Ernie Chambers, one of the leaders of the Nebraska legislature's repeal of the state's death-penalty statute and its override of Governor Pete Ricketts's veto of the measure, criticized the notice as politically motivated and called the timing of its issuance "suspicious." The notice was issued almost a year to the day after the voters brought back the death-penalty law in a voter iniative bankrolled by Rickett, and as the governor gears up for a re-election campaign in 2018. Sandoval is currently unrepresented. The Nebraska Commission on Public Advocacy, which typically represents death-row prisoners, cannot represent Sandoval because it represented other defendants in the case. But the commission's executive director, Jeffery Pickens, said Sandoval "has to be given some sort of opportunity to challenge [the drug protocol]."

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