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Two longtime death penalty supporters showed up at a hearing Friday morning to support a newly proposed execution protocol developed by the Nebraska Department of Correctional Services. 

Nineteen people, most of whom identified themselves as anti-death penalty, pointed out flaws and what they called potentially unconstitutional content and law violations. 

"I ask ... that this protocol be dumped. And start over," said Lincoln attorney Alan Peterson. "And don't try to hide this horrible procedure from the public. And from me. And from the people remaining on death row."

Omaha Sen. Ernie Chambers, former state medical director Gregg Wright and Nebraska Pharmacist Association Director Joni Cover objected to the many ways the protocol errs by shrouding the process in mystery. 

"I see difficulties (with the protocol) of a constitutional proportion, so the governor will be out of office before anybody would be executed in this state," Chambers said. 

But Bob Evnen, co-founder of Nebraskans For the Death Penalty, said the protocol is sound and should be adopted.

There is much hue and cry from death penalty opponents about the transparency of the protocol, he said. But there are good policy reasons for protecting the identity of the execution team appointed by the Corrections Department, Evnen said. 

"Your proposed regulations properly implement that protection, as they should. As they must by law," he told Corrections attorney Mark Boyer, who presided over the public hearing.

Death penalty supporter Rick Eberhardt, sheriff of Pierce County, said the protocol should be workable and asked that the state model its process after other states that successfully use the death penalty. He also asked that Nebraska carry out death sentences as quickly and humanely as possible. 

The public hearing was necessary to comply with the state's administrative procedures act, but Corrections Director Scott Frakes can send it on as is for review of Attorney General Doug Peterson and approval by Gov. Pete Ricketts. 

In late November, the Corrections Department released proposed revisions to the state's execution protocol that would keep secret the drugs and method of administration until 60 days before request for a death warrant.

Concerned citizen Eleanor Rogan of Omaha said that when the state compromises its principles for the sake of expediency, messy, corrupt government can creep in.

Unknown drugs, unknown dosages and unknown providers are a recipe for medical disaster, she said. 

It's clear the protocol was politically motivated, said Chambers. It is not scholarly, and it is not based on medical or professional consultation or assistance.

"It is what I would describe as a slap-dash, loosey-goosey affair," he said. 

About 494,000 Nebraskans voted to do away with the Legislature's 2015 repeal of the death penalty, and nearly 321,000 voted to retain the law that would have replaced it with life in prison. 

Chambers said the vote didn't surprise him.

"When the people are allowed to vote, it's not always based on intelligence, knowledge, information, but usually emotion," he said. 

ACLU of Nebraska attorney Spike Eickholt called the protocol a step backward for the Corrections Department, which seemed to be progressing after scandals and problems in recent years.

"Even people who support the death penalty don't agree with hiding the process and the means and the death penalty itself from the public," he said.

Those attending Friday hearing were allowed five minutes each to testify. A number of them said the protocol conflicts with state law.

Attorney Shawn Renner, representing Media of Nebraska, said authority claimed by the department to keep confidential the name of any person or company supplying the lethal injection drugs is directly contrary to the Nebraska public records law. 

"It's illegal and it will not be enforced by courts," he said. 

Alan Peterson said that to adopt a protocol that allows a director, who is an administrative officer in the executive branch, to decide which records are public and which are an exception is "amazing."

"There's no authority for that," he said. "None.

"Any changes have to be legislative changes. You can't just write an administrative reg like this and expect it not to be challenged." 

Peterson appeared incredulous the state would try to shroud the procurement of drugs so that dealing with people as shady as Chris Harris of Harris Pharma could be hidden from everyone except the Corrections director. Nebraska paid tens of thousands of dollars to Harris in its last failed attempt to buy death penalty drugs.

"Come on. This state is better than that," he said. 

Former state medical director Wright objected to the section of the protocol that would allow the director to designate a health professional qualified to determine whether an inmate is dead once the lethal drugs are injected.

"I can say pretty clearly there is no health professional who, by their license, is qualified to determine death in this setting," he said.

It would be unethical for a physician to do so, he said.  

Corrections attorney Julie Smith has said no written documents, correspondence or records exist to show if she consulted with anyone, including pharmacists or medical personnel, in writing the new protocol.

"The watchfulness of the state requires the state to keep some records," said Wright. 

At one point, Courtney Lawton went to the microphone in the hearing room at the State Office Building and prayed for the intercession of St. Maximillian Kolbe, the patron saint of prisoners, who was executed at Auschwitz by lethal injection with carbolic acid. 

Corrections Director Frakes has said he'll keep an open mind about any comments or testimony on the proposed protocol. 

Dawn-Renee Smith, the Corrections Department's communications director, said the testimony will be transcribed, compiled with submitted written testimony and reviewed. A summary will be included in the final draft of the protocol before it is filed with Secretary of State John Gale.

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On Twitter @LJSLegislature.


State government reporter

JoAnne Young covers state government, including the Legislature and state agencies, and the people they serve.

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