Nebraska prisons Director Scott Frakes has told a federal court it did not obtain any drugs to be used in Carey Dean Moore's execution by fraud, deceit or misrepresentation, as an Illinois-based drug manufacturer says.
Furthermore, Frakes said, if the court prevents the state from carrying out Tuesday's scheduled execution, it would likely change the death sentence into a de facto life sentence for Moore.
The state doesn't have any other way to buy the drugs that comply with Nebraska law and the department's protocol, Frakes said.
The Nebraska Department of Correctional Services responded Thursday to a legal request by drug manufacturer Fresenius Kabi to stop the use of two drugs in Tuesday's execution.
A hearing on the matter is set for 3 p.m. Friday to decide whether to grant a temporary restraining order.
Manufacturer Fresenius Kabi filed a federal lawsuit Tuesday saying the cisatracurium and potassium chloride the state plans to use next week are manufactured by the company.
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 alleges it is the only one with vials of the drug distributed in that size.
The department has not revealed the sources of its lethal injection drugs, despite a district court order, which it has appealed.
In his affidavit filed Thursday with the U.S. District Court of Nebraska, Frakes said the drugs were obtained from a licensed pharmacy in the United States, and it did not circumvent Fresenius Kabi's distribution controls.
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.
The people of Nebraska have waited more than 20 years to carry out Moore's sentence, Frakes said. Moore has raised no objections to the sentence or tried to stop or delay it, he said.
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"Lethal substances used in a lethal injection execution are difficult, if nearly impossible, to obtain," Frakes said in the affidavit.
It's a problem not only here but in other death penalty states, he said.
Frakes said he has tried to purchase additional execution drugs from the supplier of the current substances and that supplier is unwilling to provide them. He has no alternative supplier for any of the four drugs, he said.
Fresenius Kabi contends the department obtained the drugs improperly or illegally, and allowing their use would injure the company's reputation and damage business and investor relationships.