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8th Circuit denies motion; Nebraska must provide information to attorneys for Arkansas death-row inmates
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8th Circuit denies motion; Nebraska must provide information to attorneys for Arkansas death-row inmates

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A federal appellate court Tuesday denied a motion to stay, which would've given Nebraska a reprieve in turning over documents to attorneys for Arkansas death-row inmates detailing how it got the fentanyl it used to carry out an execution last summer.

The one-line denial was entered by the clerk at the direction of the U.S. Court of Appeals for the 8th Circuit.

Quinn Eaton, an attorney for the Arkansas inmates, on Monday told the court in a letter that the information a federal judge in Nebraska ordered the state to turn over was central to a federal civil rights trial starting Tuesday in Arkansas.

He said the documents were relevant to the inmates' challenge of Arkansas' use of midazolam in executions, which he calls inhumane.

To prevail in the case, attorneys for the inmates have to establish that there is a known and available alternative that significantly reduces a substantial risk of severe pain.

When the Nebraska prison system and state Attorney General's office refused to provide the documents to attorneys last year, they sought an order compelling Nebraska officials to comply under a subpoena issued in the Eastern District of Arkansas.

At stake, the attorneys said, is the right of at least 17 men to not be subjected to cruel and unusual punishment during their executions.

Last month, Senior U.S. District Judge Laurie Smith Camp ruled that Nebraska must turn over documents about how it got the fentanyl it used to carry out Carey Dean Moore's execution in August.

The order included communications regarding the pharmacy's decision to supply fentanyl to Nebraska for use in executions and documents about how the prison identified and persuaded the pharmacy to supply it.

But Smith Camp said the prison didn't have to identify the name of the pharmacy that supplied the drug because the company has said it won't sell the chemicals again to any state, including Nebraska, for executions.

Last week, Assistant Nebraska Attorney General David Lopez filed a motion to stay Smith Camp's decision while the state's appeal is pending.

"If the State is forced to produce the records now but is later successful on its Eleventh Amendment argument, its victory would be hollow since the immunity would already have been eviscerated upon the production of the records," he wrote.

Lopez argued a stay was warranted so the 8th Circuit could clarify whether the state should be immune from third-party subpoenas such as this one.

Tuesday, the court denied his motion.

Within hours, Smith Camp had approved an agreement between the attorneys to a protective order that limits who is allowed to see the materials, deemed "highly confidential."

Among the conditions, filings containing or referencing the material provided by the Nebraska Department of Correctional Services shall be filed under seal, subject to redaction, and must be returned or permanently destroyed within 60 days of the termination of the litigation and appeals.

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

On Twitter @LJSpilger.

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