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Judge: Nebraska officials must release some death penalty records
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Judge: Nebraska officials must release some death penalty records

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Nebraska Death Row

Nebraska's lethal injection chamber at the State Penitentiary in Lincoln.

A Lincoln judge has ordered the state to release records of communications with its lethal injection drug supplier, as well as several other documents related to Nebraska's efforts to carry out the death penalty.

In a decision Monday, Lancaster County District Judge Jodi Nelson said the state Department of Correctional Services is to disclose the documents to the Lincoln Journal Star, Omaha World-Herald and the ACLU of Nebraska within seven days of the order.

But she found certain other documents are exempt from disclosure under a state law protecting the identities of members of the state's execution team. Those documents include purchase orders and chemical analysis reports.

Either side could appeal, given that neither got everything it sought, and the state says it will — a move that likely will delay release of the records.

In separate lawsuits, the newspapers and the ACLU had asked the judge to force Nebraska officials to release the records after Scott Frakes, the state's prisons director, refused public-records requests.

Their attorneys had argued the documents — which include photos of drug packaging, purchase orders, emails between a prison employee and the drug supplier and between the Drug Enforcement Administration and the prison, and an invoice related to the drugs — all are public records and should be released.

At a hearing last month, the Nebraska Attorney General's Office argued against it, saying that identifying the state's lethal injection drug supplier might compromise the team members' names.

Frakes testified that he was concerned simply redacting the names wouldn't prevent identities of execution team members from becoming public. Those names are confidential under state law.

If their names became public, Frakes said, he fears execution team members or their families could be threatened or harassed.

In her order Monday, Nelson broke the withheld records into two categories: those that show the names and those that do not.

Those that identify execution team members were exempt, she ruled. Those that didn't were not.

"The evidence is speculative at best that disclosure of these documents would be reasonably calculated to lead to such identification," Nelson wrote.

And she rejected the state's argument that photos of packaging were protected under the attorney-work product doctrine.

Suzanne Gage, a spokeswoman for the Attorney General's office, said the state was pleased the court agreed that the Corrections Department is not required to disclose records that identify execution team members.

"We respectfully disagree with the court's analysis on the remaining records and plan to appeal," she said in an email.

On the other side, Dave Bundy, editor of the Journal Star, said: "The legal wrangling probably isn't over, but we view Judge Nelson's decision as a victory for the people of Nebraska, not just the media."

Attorney General Doug Peterson filed a motion in May asking the state Supreme Court to speed up its consideration of an execution warrant for condemned prisoner Carey Dean Moore, and to set the execution date for July 10.

Peterson cited several reasons. One of the execution drugs to be used — potassium chloride — is set to expire by the end of August.

Danielle Conrad, executive director of the ACLU of Nebraska, said overall, the ACLU was "pleased with the court's decision reaffirming Nebraska's proud tradition of open government."

She said ACLU officials look forward to reviewing documents about the source of the state's execution drugs to learn more about the legal and policy issues involved in their acquisition.

"We appreciate that Nebraskans of goodwill hold divergent viewpoints on the death penalty, but the citizens' referendum did not grant permission to state officials to cloak the death penalty in secrecy. The court's decision today ensures transparency and accountability as the state seeks to carry out its most grave function," Conrad said.

Death row inmates

Reach the writer at 402-473-7237 or lpilger@journalstar.com.

On Twitter @LJSpilger.

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