Death-row inmate Michael Ryan lost his latest appeal Friday, opening the door for Attorney General Jon Bruning to again seek a death warrant for the man convicted of one of the most heinous murders in Nebraska history.
Richardson County District Judge Daniel Bryan Jr. rejected Ryan's appeal, which had resulted in the Nebraska Supreme Court issuing a stay of his March 6 execution.
Ryan's lawyer, Jerry Soucie of the Nebraska Commission of Public Advocacy, argued that Ryan was sentenced to die in the electric chair, which the state no longer uses. Nebraska switched to lethal injection after a 2008 state Supreme Court ruling that said the chair was unconstitutional and cruel and unusual punishment. At the time, Nebraska was the only state with electrocution as its sole means of execution.
Soucie asked that Ryan's death sentence be reduced to life without parole.
He was convicted in the cult-related 1985 killings of James Thimm, 26, and Luke Stice, 5, near Rulo and was sentenced to death for Thimm's murder.
"More than 25 years ago, Michael Ryan was found guilty and sentenced to death for brutally torturing and murdering another man," Bruning said. "We're pleased with this ruling -- it's time for defense counsel to stop wasting the court's time and money with frivolous, meritless motions."
In his order, Judge Bryan said courts have jurisdiction in such cases only if "a prisoner under sentence asserts facts that claim a right to be released on grounds that there was a denial or infringement of state or federal constitutional rights that would render the judgment or conviction void or voidable.
"Here, Ryan … is asking that his death sentence be vacated for constitutional infringements and that he be sentenced to life in prison without parole. The grounds he alleges occurred well after the final judgment in the criminal matter and do not deal with the judgments of the death sentence ordered by the court, but deal with the method of inflicting the death penalty."
That issue, the judge said, already has been decided by the Nebraska Supreme Court in death-row cases in 2006 and 2008.
Soucie said Friday he has to consult with Ryan on what their next course of action might be. They can ask Judge Bryan to reconsider his ruling, or they can appeal the decision to the Nebraska Supreme Court.
Bryan did not specifically address Soucie's challenge of how the state got one of three lethal-injection drugs it has on hand.
Late last year, Nebraska prison officials said they bought sodium thiopental made by Naari, a pharmaceutical company headquartered in Switzerland. In fact, they bought the drug from a middleman named Chris Harris, who bought it from Naari and then sold it to the state.
Soucie said Harris and his company, Harris Pharma LLP, were not authorized to sell the drug. The shipping manifest from Naari to Harris Pharma, dated Sept. 30, 2011, says: "Samples have no commercial value. Samples not for sale. Free trade sample." Further, it says the drug is "for test and evaluation purpose." That, Soucie contends, means Harris misappropriated the thiopental from Naari, and Nebraska prison officials are in possession of stolen property.
Sodium thiopental has been in short supply since 2010, when the only U.S. manufacturer, Hospira Inc., ended production because of death-penalty opposition from overseas customers.
Nebraska is among 10 states that have purchased the drug from foreign sources, but the U.S. Drug Enforcement Administration has seized supplies from several of them because they were imported illegally or because of questions over how they were manufactured. Nebraska twice has bought sodium thiopental made overseas. The DEA did not seize the first batch but told the state it could not use it because it was imported illegally. Nebraska then got a proper import license and recently bought a supply from the middleman.
Sodium thiopental recently became even harder to get after the European Union instituted a new rule prohibiting the export of some barbituric acids, including sodium thiopental.
Nebraska's three-drug protocol calls for a dose of sodium thiopental to render the inmate unconscious, followed by pancuronium bromide to paralyze him or her, then potassium chloride to stop the heart.