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Judge allows inmate's attorney to amend execution challenge

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A judge on Wednesday cleared the way for the lawyer for Nebraska death-row inmate Carey Dean Moore to ask that his client's death sentence be vacated because state officials withheld information about problems with the lethal injection drug they bought from India.

Douglas County District Judge Thomas Otepka gave attorney Jerry Soucie of the Nebraska Commission on Public Advocacy until Aug. 15 to amend a motion he originally had filed challenging the purchase of the drug.

That original filing is now partially moot because the U.S. Drug Enforcement Administration said in April that the Nebraska Department of Correctional Services did not have a license to import the drug and could not use it to execute Moore.

But state Attorney General Jon Bruning's office continued to push for an execution date for Moore even though it knew -- but did not publicize -- that it could not use the drug that the Department of Correctional Services bought late last year from Kayem Pharmaceutical Pvt. Ltd. of India, Soucie said.

Soucie contended that the actions of Bruning's office might serve as "a new and independent grounds to challenge Moore's death sentences under the Eighth and/or Fourteenth Amendments."

Moore had been scheduled to be executed June 14, but the state Supreme Court issued a stay while Soucie challenged the drug purchase by the state.

It appears that Moore was subjected to cruel and unusual punishment by being allowed to believe he might die on June 14, Soucie said. He also said Moore might have been denied his right of due process.

But Dave Cookson, chief deputy attorney general, said earlier that his office contacted officials in the U.S. Department of Justice after the admonition letter and both sides agreed the state would apply for the proper import license and seek a new supply of the drug.

He also said the state could have had a supply of the needed drug by June 14.

Sodium thiopental -- one of three drugs in Nebraska's lethal-injection protocol -- has been in short supply since last year, when the only U.S. manufacturer, Hospira Inc., said it was ending production because of death-penalty opposition overseas.

"The facts regarding the DCS purchase of thiopental from Kayem and the subsequent actions involving DEA are solely within the control of the Nebraska Attorney General's Office and DCS," Soucie said in a court filing Wednesday. "The more the state representatives withhold information in the hope that the Nebraska courts will decide the constitutional issues on incomplete and inaccurate information, the more Moore will take all necessary efforts in obtaining discovery.

"I am fully willing to litigate the current postconviction motion based on a complete and accurate understanding of the facts," he said.

Corrections officials since have obtained an import license but have not purchased a new supply of the drug.

Corrections Department spokeswoman Dawn Renee Smith said Wednesday the supply from India has not yet been destroyed and that the department still is trying to find a new supply.

Aside from the now-moot challenge to the India drug purchase, other parts of Soucie's original challenge are still alive. He is challenging Nebraska's lethal injection law, passed in 2009 after the state's high court ruled death in the electric chair amounted to cruel and unusual punishment.

He said lawmakers unconstitutionally allowed the Corrections Department to set a lethal injection protocol and exceeded their authority by passing a law that changed Moore's sentence from death by electrocution to lethal injection.

Moore, 53, has been on death row since 1980, sentenced to die for killing Omaha cab drivers Maynard D. Helgeland and Reuel Eugene Van Ness during botched robberies in 1979.

The state has not executed an inmate since Robert Williams died in the electric chair in 1997.

Reach Kevin O'Hanlon at 402-473-2682 or kohanlon@journalstar.com

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