'Changing legal landscape' surrounds electric chair

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By OSKAR GARCIA / The Associated Press

The Nebraska Supreme Court’s split decision to halt Carey Dean Moore’s execution could present the strongest chance to eliminate electrocution in the last state where the chair is the sole means of capital punishment.

In its Wednesday order the court said it must reconsider whether the electric chair amounts to cruel and unusual punishment given a “changing legal landscape.”

“The U.S. Supreme Court has made it clear that the Eighth Amendment ... is based on an evolving standard of decency,” said Richard Dieter of the Death Penalty Information Center, a national group that analyzes the death penalty and has been critical of how it is applied.

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The electric chair at the Nebraska State Penitentiary. (LJS file)

The electric chair at the Nebraska State Penitentiary. (LJS file)

“The fact that it was the main method of execution in the United States for much of the 1900s and now is almost completely eradicated speaks to this evolving standard,” Dieter said Thursday.

Efforts to replace the electric chair with lethal injection have stalled in the Nebraska Legislature.

A bill to repeal the death penalty altogether lost by one vote in the Legislature in March. Even more votes would have been needed had it passed, because Gov. Dave Heineman said he would have vetoed it.

“This unprecedented judicial activism leaves me speechless,” Heineman said Thursday of the court’s halting Moore’s execution.

James Mowbray, chief counsel for the Nebraska Commission on Public Advocacy, said that because of other death penalty cases, including that of Raymond Mata Jr., the Nebraska court now has more testimony to consider regarding the electric chair than ever before.

Alan Peterson, Moore’s lawyer, said: “The landscape he’s talking about is Nebraska and America and what’s not being tolerated as being cruel and unusual is changed. That’s why Judge (John) Gerrard, I’m sure, will be looking at the question of evolution of decency as the court makes its decision in the Mata case.”

Neither Mowbray nor Peterson would speculate about whether the court’s order telegraphed a future ruling against electrocution.

“I just think the issue is to me more ripe than 15 years ago,” Mowbray said.

Another factor in a possible decision would be whether Judge John Wright, who excused himself from deliberations on the Moore order, considers the Mata case. His substitute, appellate court Judge William Cassel, dissented from Wednesday’s order along with Chief Justice Mike Heavican and Judge Lindsey Miller-Lerman.

Death penalty supporters have been concerned that without another means of electrocution — such as lethal injection — Nebraska would not be able to administer capital punishment if electrocution were ruled cruel and unusual.

“We’re always going to challenge any means of executing someone as a violation of the Eighth Amendment,” Mowbray said. “In our opinion, there is not a way to actually execute someone that would comport with the Eighth Amendment and not be cruel and unusual.”

State Sen. Ernie Chambers of Omaha has tried to rid the state of the death penalty every legislative term for more than 30 years. He came close in 1979, when his bill passed on a 26-22 vote. But it was vetoed by then-Gov. Charley Thone.

Debate on the bill this year was the first time in nearly 20 years the full Legislature discussed a repeal.

“I had done everything that I could think of to reach that result,” said Chambers, who sent a letter to the Supreme Court last week asking the judges to review the state’s new electrocution protocol.

Chambers said the Supreme Court’s decision Wednesday mirrored arguments in his letter.

As legal challenges were mounted against the electric chair’s use in recent years, other states adopted alternative methods.

According to the Death Penalty Information Center, nine states allow some or all condemned inmates to choose between lethal injection and another method. Ten states have electric chairs, but only Nebraska uses it exclusively.

In 2003, U.S. District Judge Joseph Bataillon of Omaha stopped short of declaring electrocution unconstitutional in vacating the death sentence of Charles Jess Palmer for a 1979 murder in Grand Island. Bataillon said he had been prepared to rule the use of the electric chair was cruel and unusual punishment. Palmer died in prison in August.

Nine men remain on Nebraska’s death row. Three people — Harold Otey, John Joubert and Robert Williams — have been put to death in Nebraska since executions were resumed in 1994.

Palmer’s lawyer presented evidence and post-mortem photographs of the three in arguing his case.

Coroner reports show Joubert suffered a 4-inch blistering burn on the top of his head and blistering on both sides of his head above his ears. Williams had a “bubble blister” the size of a baseball on his left calf. Williams had pronounced “charring” on both sides of a knee and the top of the head. An execution witness reported seeing smoke emanating from Williams’ knee and head.

Associated Press Writer Anna Jo Bratton contributed to this report.