Condemned Nebraska prisoner Carey Dean Moore has made it clear he prefers not to stay on death row the rest of his life. He's ready to die.
Saying the time had come, after seven prior dates with death imposed but not carried out by the state, a federal judge on Friday accommodated Moore, ruling against a drug company that asked for a delay.
It's been 39 years since Moore took his little brother with him to rob a cabbie and kill his first victim, Reuel Van Ness Jr., then kill a second man, Maynard Helgeland, by himself.
Although the drug company has appealed Friday's court ruling, Moore is not fighting his execution.
He has named his witnesses: His brother David Moore; a friend, Gary Cross; a niece, Taylor Brouillette; his spiritual adviser and friend, Bob Bryan. He has asked for the state to pay for his cremation, according to prison documents, and would like his ashes given to his brother David.
He is scheduled to die Tuesday morning, and the state appears ready to proceed, even with an untested combination of four drugs, three of which — fentanyl, diazepam and cisatracurium — have not been used in capital punishment. The protocol was put in place by the Nebraska Department of Correctional Services.
Outside of a short list of people with the need-to-know, no one else has been told details of how Director Scott Frakes and prisons staff came up with the protocol. Frakes said in an affidavit last week he relied upon "expert opinions of qualified pharmacological and medical anesthesiology experts." He also got legal advice from Nebraska assistant attorneys general.
The combination is an unusual one, in which there is no experience as to how the dosages and drugs will work together to cause death. The drugs actually are meant not to cause death, but to relieve pain, reduce anxiety, facilitate surgery or treat medical conditions.
* Diazepam, first marketed as Valium, acts as an anti-anxiety medication and has a sedative effect.
* Fentanyl citrate, a potent narcotic painkiller, is an opioid said to be 30-50 times more potent than heroin and 50-100 times more potent than morphine. It can cause respiratory depression, stop a person's breathing and render them unconscious.
* Cisatracurium besylate is a muscle relaxant and in high enough doses can paralyze the muscles, including those used for breathing.
* Potassium chloride is used to treat or prevent low potassium levels in the body. Too much can cause heart failure.
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Attorney Eric Berger, associate dean and professor of the Nebraska College of Law, is concerned about the concoction of drugs. It's not clear, he said, that the initial drugs in the protocol can sufficiently prevent the pain — he called it excruciating pain — that the last two, cisatracurium and potassium chloride, could cause.
"I'm not saying that the execution will necessarily be painful, but I am saying that the state has thrown together an especially novel and problematic protocol that raises serious questions," he said.
The paralytic to be used, Berger said, could conceal the pain an inmate might feel.
Compounding that, Berger said, it's not certain how competently the protocol will be carried out. The qualifications, training and procedures of those administering the drugs are unknown, he said. And prison officials have not revealed where they got the drugs, how they were manufactured and what testing assures they are what they purport to be.
Frakes has said only that the drugs were purchased legally from a pharmacy in the U.S.
Because Moore hasn't allowed his attorneys to challenge the protocol, the state thus far hasn't had to defend it in court, Berger said.
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Omaha Sen. Ernie Chambers, the state's highest profile opponent of the death penalty, has diligently worked behind the scenes to derail the execution, staying up late at night, getting up early in the morning.
He contacted manufacturers of drugs he thought might be used in Moore's execution to persuade them to attempt, through the courts, to stop the use of any of their drugs.
Companies have made successful arguments elsewhere defending their reputations and missions, and the fact that their medicines are meant to cure or enhance health and not to kill.
"Anything that can contribute to derailing this execution ought to be done," he said. "And that's a self-imposed obligation on me."
It's not enough to request any drugs to be used in an execution be returned, Chambers said. The companies have to go all the way to the mat with the state if they really mean to defend their reputations, integrity and mission, he said.
He was pleased Fresenius Kabi stepped in with a lawsuit, even if it was, so far, unsuccessful.
Fresenius Kabi sought to stop the use of what it believes are two of the drugs, cisatracurium besylate and potassium chloride, it makes and supplies to wholesalers and distributors.
U.S. District Court Judge Richard Kopf denied a temporary restraining order. The company has appealed.
On Saturday, Sandoz Inc. filed a brief with the federal court to intervene in the lawsuit, saying a Sandoz product, cisatracurium, could be used by the state in an unauthorized manner, and seeking an order to immediately force the state to identify the manufacturer of the drug.
Chambers, too, has been in close contact with Jeff Pickens, chief counsel of the Nebraska Commission on Public Advocacy, who represents Moore, to the extent Moore would allow.
And he wrote a letter to Chief Justice Mike Heavican, pointing out what he believed was the fatal flaw in the request from Attorney General Doug Peterson to set an execution date for Moore. The court would not read the letter, considered an ex parte communication, he said, but communication from the court said it would put it into the record.
"I didn't want to leave any stone unturned," Chambers said. "And if this bad thing had happened, I wouldn't want to look at it after the fact and say this I could have done. And if I could have done it, I should have done it. But that would be too late."
You never know when you might strike the right chord, he said.
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Brent Martin, news director with Nebraska Radio Network, observed 13 lethal injection executions in Missouri between 1996 and 2005. He was selected by the Corrections Department to represent radio media for Moore's death.
All of the executions he witnessed were carried out with a three-drug protocol: Sodium thiopental, which rendered the inmate unconscious; pancuronium bromide, which stopped breathing; and potassium chloride, which stopped the heart. Missouri has since moved to a one-drug protocol, using pentobarbital.
Martin said every witness he has talked to says the same thing about lethal injection executions.
"You go into it the first time you ever witness one with so much foreboding. It is such a solemn, sober responsibility. ... It has a certain emotional weight that just is unlike anything you ever do as a reporter," he said.
But then to actually see it, lethal injection is so almost antiseptic, it becomes anticlimactic, he said.
In Missouri, condemned inmates could choose to have midazolam, marketed under the trade name Versed, before the execution as a sedative or to decrease anxiety. Midazolam has become controversial when used as part of an execution protocol.
The first drug, sodium thiopental, a fast-acting anesthetic, usually elicited the only response from the inmate, Martin said, a cough or a slight rising up from the gurney. After that, there was no movement until prison officials announced the execution was complete.
Normally, it took five minutes from the time the first drug was administered, Martin said. Frequently, however, there were delays before the start — sometimes minutes, sometimes hours.
If witnesses felt anxious about witnessing someone die, he said, they were told to review the case file of what the inmate did to get there.
"We always believed it was a solemn responsibility, when the state decided to exact the ultimate punishment, that we be there to view it for the public, and to ensure it was done correctly, humanely if that's applicable," he said.
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The next condemned killer who has been notified of the drugs the state plans to use in his execution is Jose Sandoval, convicted of killing five people at a bank branch in Norfolk. But Sandoval, unlike Moore, could present a legal challenge against the execution protocol and tie the state up in litigation, Berger said.
The state has the upper hand in that kind of lawsuit, because both the U.S. Supreme Court and the 8th Circuit Court of Appeals have shown hostility to inmates' legal challenges of lethal injection protocols, he said.
But the Nebraska protocol is so unusual, a judge might conduct a trial to get more information, he said.
"It is becoming increasingly unlikely that states can get their drugs from what might be called 'big pharma,' from major pharmaceutical companies," Berger said.
Those companies, like Alvogen, Hikma, Lundbeck, APP Pharmaceutical, Fresenius Kabi, Sandoz, are more and more unwilling to sell their drugs for a state's use in executions.
Frakes told the federal court last week in an affidavit that one of the department's drugs, potassium chloride, is set to expire this month, and the state doesn't have any way to buy more to comply with state law and protocol.
Some states started using just one drug, and Nebraska could try changing its protocol, which would require a public administrative hearing and approval by the governor and attorney general.
Three states have made available alternative methods for carrying out the death penalty. One of those is nitrogen hypoxia, a method available in Missouri, Oklahoma and Alabama.
Nitrogen hypoxia would cause death by the inmate breathing in pure nitrogen, which keeps the brain from getting enough oxygen. It would be a new method, never before used in executions.
If the state would move away from lethal injection as a method of enforcing the death penalty, it would require the Legislature to write a bill, hold a hearing, get it out of committee, debate it and pass it with at least 25 votes, or more than likely 33 to break a filibuster.