The execution of Carey Dean Moore will go forward Tuesday after the decision of a federal judge on Friday afternoon.
Anti-death penalty supporters had hope, but U.S. District Judge Richard Kopf dashed that hope by rejecting drug manufacturer Fresenius Kabi's request to at least temporarily stop the use of two drugs the company believes the state intends to use Tuesday.
The company immediately appealed Kopf's decision to the U.S. 8th Circuit Court of Appeals. That court is standing by and will not be surprised by the appeal, said attorney Mark Christensen, of the law firm Cline Williams and representing Fresenius Kabi.
Kopf said although Moore was not a party to the lawsuit, filed this week, he was at the center of it, and common decency required that he not be forgotten. He has made his wishes to go ahead with the execution known by no longer fighting it and asking his attorneys not to interfere.
He also took into account the public interest, the judge said, saying that weighed heavily in favor of the state.
"Many people of good faith object to the death penalty," Kopf said. "However, the electoral processes of Nebraska have worked as they were intended."
Assistant Attorney General Ryan Post had argued Fresenius Kabi failed to show irreparable harm to its company, its reputation and business relationships.
The judge said he did not believe the company's reputation would be irreparably harmed if the execution proceeds using the drugs cisatracurium and potassium chloride, which the company believes is from its supplies. Kopf called the harm to Fresenius Kabi if he rejected the temporary restraining order "vanishingly small to none at all."
But the state of Nebraska would be "greatly and irreparably harmed," he said, if he stopped the execution.
"Sure, the plaintiff just might, although it is very doubtful, suffer harm to its reputation," he said. "But the public interest is far broader than corporate self-interest. In this case, it has everything to do with the functioning of a democracy."
He concluded there was no evidence that the cisatracurium to be used was manufactured or distributed by the company, although the state has not denied it.
Department of Corrections Director Scott Frakes said in an affidavit the drugs were obtained from a licensed pharmacy in the United States, and the department did not circumvent Fresenius Kabi's distribution controls. They were not obtained through fraud, deceit or misrepresentation, he said.
He also said the state has no other way to buy lethal injection drugs that comply with state law and the department's execution protocol.
Frakes said he had tried to purchase additional execution drugs from the supplier of the current substances and that supplier is unwilling to provide them.
The department's supply of potassium chloride will expire Aug. 31. Frakes said he has no other source or supplier for the drugs to be used next week or any time in the future.
It is unknown how that would affect any potential execution of Jose Sandoval, convicted of killing five people inside a Norfolk U.S. Bank branch, and who has also been notified the same drugs would be used to put him to death. No execution date has been set in his case.
The drug company said in court documents that stopping the use of its drugs would not negate the state's death penalty. Alternative methods do exist.
Fresenius Kabi also argued Frakes' authority to procure drugs for lethal injection does not give him a license to violate the rights of others.
The department has not revealed the sources of its lethal injection drugs, despite a district court order, which it has appealed.
State inventories of the drug show the potassium chloride, which could be used to stop Moore's heart, are in 30-milliliter vials. The company alleged it is the only one with vials of the drug distributed in that size.
Christensen said it should be no surprise, after multiple communications, that Fresenius Kabi objected to the use of its drugs and was ready to take legal action to prevent the use of its drugs.
"If the (state) had been upfront and honest about their intentions, this lawsuit would have been filed months ago and the case decided without a pending execution that makes everything more dire and urgent," Christensen said.
Steve Helgeland, the youngest son of Maynard Helgeland, one of Moore's victims, lauded the judge's decision.
"We are grateful the judge ruled the way he did," he said. "We are hopeful it will allow us to move on and close this chapter."
Helgeland and his older brother Kenny, both of whom live in South Dakota, will be in Lincoln on Tuesday. Kenny said he plans to be a witness and will be wearing a T-shirt that says, "Happy Cab 63," on the front. That was the company their father worked for and the number of the cab he was driving when Moore killed him.
Meanwhile, the ACLU of Nebraska commended Fresenius Kabi for taking action to ensure its products were not obtained illegally or used for illicit purposes.
"Had the Nebraska Department of Corrections conducted their grave business in compliance with our strong tradition of open government, this action may have been avoided," said Executive Director Danielle Conrad.
She said the organization will continue its work to oppose the death penalty on all fronts, including "defending Nebraska’s proud tradition of open government as the state seeks to carry out its ... grave and irrevocable function."