An autopsy of executed Nebraska prisoner Carey Dean Moore, presented as evidence to a grand jury and released Thursday, confirmed as expected the toxicity of multiple lethal injection drugs as the cause of death.
Some of the testimony during the Dec. 7 grand jury appeared aimed at showing the lethal injection drugs performed as expected, that Moore's responses to the drugs as observed by witnesses were common and that he experienced no pain or suffering.
Department of Correctional Services Director Scott Frakes' testimony also attempted to explain what was happening behind the scenes during the 14 minutes witnesses were blocked from viewing the execution proceedings.
The autopsy and subsequent drug testing showed Moore had a lethal blood level of fentanyl and the presence of diazepam and cisatracurium, three of the four drugs administered by the state to carry out Moore's execution.
Potassium chloride, the fourth drug used in the lethal injection but that did not show up in the toxicology report, was explained. Pathologist Dr. Robert Bowen said potassium is a normal electrolyte that's found in the body and so the drug could not be measured accurately.
The drug tests also showed the presence of the drug topiramate, used to prevent and control seizures, and also used for migraine headaches. Frakes testified Moore had been on the medication since September 2017 for migraines.
Moore was the first condemned prisoner in Nebraska to be put to death by lethal injection, and the first after a 21-year lull in executions in the state. He was also the first U.S. prisoner executed with the use of fentanyl. He was pronounced dead at the Nebraska State Penitentiary on Aug. 14 at 10:47 a.m.
As part of the Lancaster County grand jury investigation, which is held whenever a prisoner dies in custody, Frakes answered questions about the processes and protocols leading up to Moore's execution, including the training of the execution team.
Frakes described the talks he had with the execution team about the need for professionalism and the highest level of respect needed for members of the team, for Moore, his family members, victims' family members, the media and everyone involved.
"… My staff fully embraced that and practiced that throughout," Frakes told the grand jury. "I mean, as I talk about it now, I start to get a little lump in my throat, because this is — it's not like anything else you could really imagine."
Frakes said the first intravenous dose of diazepam, meant to render Moore unconscious, worked, and no more was needed.
The most noticeable thing with Moore at the time was he began to breathe more heavily and then to snore, which is common, Frakes said, with Valium, or diazepam.
The remaining three drugs were administered one by one. During that time Moore showed signs of labored breathing and his skin color changed, with reddening and darkening in his extremities and face.
Frakes told the grand jury that after the fourth drug was given, the curtains that block the view of the witnesses were closed. Then he described those 14 minutes that witnesses were't allowed to view and that have been questioned by death penalty observers and opponents as hindering transparency and true reporting of the effects of the drugs.
"We do that out of respect," Frakes said. "We do that because we are then preparing for another phase where we'll be bringing in people that are connected to the execution team, and so, again, ensure that we don't disclose the identity of anyone that's on the team."
It also gave the coroner, Lancaster County Attorney Pat Condon, and his team time to examine Moore privately, which you would want for anyone, Frakes said.
During that time Frakes and Acting Warden Robert Madsen waited five minutes to ensure there was no question the drugs had the chance to circulate in Moore's body and take the expected effect.
"There was no — no signs of movement, nothing that was occurring," he said.
Frakes said he and the warden had no conversation, just stood and looked at the floor.
Condon, State Patrol Investigator Stacie Lundgren, Bowen and Lancaster County Sheriff's Capt. Thomas Brookhouser then were brought into the execution room. A short examination of Moore was done and he was declared dead. That took 11 minutes, Frakes said.
"I think that last few minutes was just that transition as the coroner and team left," Frakes said, "and then we prepared to — the last phase of it is, we raise the curtain for 30 seconds to allow the family members to have one last observation, to allow the others that were witnesses to see what it is they need to see."
In regard to the period of time the curtain was closed, Bowen testified state law defines death as irreversible stopping of the heart or breathing, or irreversible function of the brain. Since the effects of the drugs given to Moore that day were reversible if someone had acted appropriately to do that, it was important to wait five minutes from the time they were notified his heart had stopped. And then another three minutes later, they determined he wasn't breathing, his heart had stopped and he could not be resuscitated.
That five-minute standard to ensure death, Bowen said, is also commonly used to ensure death for organ retrieval.
On the effects of the drugs, Bowen said, 10 times the normal dosage of Valium and fentanyl given and the dose of cisatracurium could have stopped his breathing and potassium chloride would have stopped his heart.
Bowen said Moore would not have been in any pain during the execution. And the autopsy showed no trauma to Moore's body or evidence of his struggling to breathe.
The state gave notice in November 2017 to death row inmate Jose Sandoval of the lethal injection drugs that would be administered if his execution takes place. But as of December 28, no execution warrant had been requested by Attorney General Doug Peterson.
Corrections Chief of Staff Laura Strimple verified in December that the state's supply of potassium chloride had expired in August and the cisatracurium in October.
She said it was the department's responsibility to carry out the court's order, which includes continuing to pursue the drugs necessary to do that.