Nebraska Attorney General Jon Bruning is expected to formally respond Monday to a state senator’s argument that the state Department of Correctional Services failed to follow Nebraska law when it adopted a new death penalty protocol.
How Bruning answers the argument made by Omaha Sen. Ernie Chambers in a memorandum last week could determine whether Carey Dean Moore’s execution will occur as scheduled on May 8.
Chambers said in the memorandum the department failed to hold a required public hearing on the new protocol before adopting it in 2004.
Moore, set to die in the electric chair for the 1979 murders of two Omaha taxi drivers, would become the first person executed under the new protocol, which sets the amount of volts to be applied and for how long.
The protocol calls for the application of 2,450 volts of electricity for 15 seconds. The application is repeated if the inmate has a pulse or heart sounds 15 minutes later.
The Corrections Department adopted the protocol after a state judge ruled the old procedure was inconsistent with state law.
Under the earlier protocol, used in three previous executions, condemned inmates received 2,450 volts for eight seconds, followed by 480 volts for 22 seconds. The sequence was repeated after a 20-second pause.
Judge Robert Hippe of Gering said in a 2000 order that the protocol created the “potential for the inmate to regain consciousness and experience substantial and unnecessary pain.”
He also said the protocol didn’t jibe with state law, which called for the uninterrupted flow of electricity until the inmate’s death.
Some of Hippe’s findings were echoed in a 2003 order by U.S. District Judge Joseph Bataillon of Omaha in an appeal by then-death row inmate Charles Jess Palmer.
Bataillon made the ruling after Nebraska contacted a Miami forensic pathologist about the protocol.
In his order, Bataillon referred to coroner’s reports on John Joubert and Robert Williams that both had blisters on their bodies after being executed in Nebraska’s electric chair. Williams’ body reportedly was charred on both sides of a knee and the top of his head, the judge said, and a witness to the 1994 execution of Harold Otey said Otey was still breathing after the first two jolts.
Other testimony suggested a person could still be conscious even if his heart stopped, said Bataillon, who wrote that “the pause in application of the current is likely more painful than a continuous jolt would be.”
The state, in consultation with Miami forensic pathologist Dr. Ronald Wright, adopted the new protocol after the rulings.
Wright said in an interview last week that the new protocol was used in the United States as long ago as the 1890s.
According to Wright, who has researched the effects of electricity on the body, the current shuts down the brain so a person cannot feel pain. In the report he submitted to the Corrections Department, Wright said that even 125 volts have been shown to “produce instant loss of electrical function” in the brain.
He said the 2,450 volts used by Nebraska is “somewhat higher” than the voltage used in the first seven electrocutions in the country.
“Thus,” he wrote, “the effectiveness of the 2,450 voltage in producing death cannot be doubted.”
Wright, who said he reviewed about 1,200 articles in preparing the report, said the application of 15 seconds of electricity, first proposed by a researcher in 1890, should be sufficient to cause death.
But he cautioned against applying the voltage for more than 30 seconds, saying it could cause burning or start a body on fire.
He also said the human heart can continue to beat even if it’s removed from the chest — Wright said he knew of one that beat for 18 minutes — and thus recommended the department wait that length of time to determine death.
Jerry Soucie, an attorney at the Nebraska Commission on Public Advocacy, criticized Wright for focusing on brain death.
Contrary to Wright’s claim that electricity will cook the brain, Soucie said there’s scientific evidence that 2,000 volts raises brain temperature 2 degrees or less.
And, he said, there is simply no way to know “whether (a person in the electric chair) is actually unconscious or feels pain.”
Richard Moran, a professor of sociology at Mount Holyoke College in Massachusetts, agreed. Moran’s 2002 book, “Executioner’s Current,” includes an examination of the early use of the electric chair in the United States.
“A person could be brain dead before the pain impulse” registers, he said. “That may be true, if everything is done properly.”
But much, he said, can go wrong.
Even if electrodes are attached properly and voltage is calibrated to a person’s weight, resistance to electricity varies from person to person, he said. And, like blood pressure, the same person’s resistance to electricity can fluctuate as well.
Perspiration is another variable, Moran said. If there’s a lot of perspiration, the electricity “stays on the salty skin,” he said.
Ten states have electrocution as a method of execution, but only Nebraska relies on it exclusively.
Moran said the electric chair was once viewed as a humane alternative to such other methods as hanging, but problems have always plagued the chair.
“(States) have always fooled around with protocols,” he said.
“It’s not that they need to simply kill the guy. They have to do it in a way that it’ll be OK for the witnesses to see.”
Reach Clarence Mabin at 473-7234 or email@example.com .