A defense lawyer asked the Nebraska Supreme Court on Wednesday to forbid Attorney General Jon Bruning's office from further handling the case of death-row inmate Michael Ryan.
"The circumstances presented in this case are unprecedented," said Jerry Soucie, an attorney with the Nebraska Commission on Public Advocacy, in the filing.
Soucie said in the motion that Bruning's office has twice advised the state Department of Correctional Services on buying supplies of the lethal-injection drug sodium thiopental. The first batch was ruled to have been illegally imported. How the state acquired the most recent supply also has come under scrutiny.
The filing comes as the pharmaceutical company that made the sodium thiopental Nebraska recently bought has asked the state to return it, saying it was obtained by deception.
Corrections officials announced Nov. 3 they had purchased sodium thiopental made by Naari, a pharmaceutical company headquartered in Switzerland. But the news release did not mention that the drug, while made by Naari, was purchased from the company by a middleman named Chris Harris, who in turn sold it to the state.
The CEO of Naari recently wrote the state stating the company wants its drug returned.
"Naari did not supply these medicines directly to the Nebraska Department of Correctional Services and is deeply opposed to the use of the medications in executions," CEO Prithi Kochhar wrote in a letter addressed to Nebraska Supreme Court Chief Justice Mikel Heavican and also sent to Bruning.
According to Kochhar's letter and an article published recently in an Indian weekly news magazine, Harris, who is based in Calcutta, agreed to provide the 485 grams of sodium thiopental to drug officials in Zambia, where it would be used as an anesthetic. Naari gave Harris the vials of the drug toward the end of September, according to the article published in the December edition of Outlook.
Rather than provide it to Zambian officials, Harris sold the drugs to Nebraska officials for $5,411, according to the letter.
"He was not authorised (sic) to sell the product to the Nebraska Department of Corrections or to anyone else in the USA," Kochhar wrote in the letter.
That, Soucie said, amounts to "retaining misappropriated (stolen) property."
"The issue in the ... motion is not whether members of the Attorney General's Office or employees of NDCS are 'guilty' or 'innocent' of criminal conduct under state or federal law," Soucie said. "The issue is whether that determination and how to proceed with a death warrant under these circumstances should be left with the Attorney General's Office or assigned to an independent counsel."
Bruning spokeswoman Shannon Kingery said: "There is no legitimate reason for the Attorney General's Office to be recused from this case, and Mr. Soucie knows that."
The Department of Correctional Services had been without an approved supply of sodium thiopental since the Drug Enforcement Administration declared earlier this year that Nebraska illegally had imported the drug from an Indian company.
Corrections officials said in January they had paid $2,056 to Kayem Pharmaceutical Pvt. Ltd. of India for 500 grams of sodium thiopental. The drug has been in short supply since last year, when the only U.S. manufacturer, Hospira Inc., said it was ending production because of death-penalty opposition overseas.
Harris also helped broker that purchase.
The Journal Star reported earlier that court documents show a lawyer with correctional services was told via an email message from the DEA that Nebraska's DEA registration did not allow it to import controlled substances. The state then obtained an import license from the DEA on May 25.
When the news about the acquisition of the Naari-manufactured sodium thiopental was released earlier this month, Bruning asked the Nebraska Supreme Court to set an execution date for Ryan. That request is pending.
Ryan was sentenced to death for killing James Thimm during ritualistic torture at a farm near Rulo in 1985.