Rick Halperin
2018-08-13 18:07:51 UTC
August 13
NEBRASKA----impending execution
Appeals court refuses to halt Nebraska execution
A federal appeals court has rejected a German pharmaceutical manufacturer's
attempt to prevent Nebraska from executing a death-row inmate using drugs that
the company says it produced.
The 8th U.S. Circuit Court of Appeals on Monday upheld a federal judge's ruling
to let the execution of inmate Carey Dean Moore proceed as planned Tuesday.
The drug company, Fresenius Kabi, contends in a lawsuit that using the drugs
for a lethal injection would harm its reputation.
But the appeals court agreed with U.S. District Court Judge Richard Kopf's
conclusion that postponing the execution would frustrate the state's interest
in carrying out the execution. Kopf said granting the drug company’s request
would “frustrate the will of the people,” referring to the 61 percent of
Nebraska voters who chose to reinstate capital punishment in 2016 after
lawmakers abolished it.
Moore, who was convicted of killing two cab drivers five days apart in 1979,
has stopped fighting the state’s efforts to execute him.
“I will not allow the plaintiff to frustrate the wishes of Mr. Moore and the
laws of the state of Nebraska,” Kopf said during the hearing.
Attorneys for the drug company, Fresenius Kabi, filed a lawsuit last week
arguing that state officials improperly obtained at least one of the company’s
drugs.
In Nevada, a judge indefinitely postponed an execution last month after
drugmaker Alvogen filed a similar lawsuit over one of its products.
Moore is scheduled to be executed with a combination of four drugs: the
sedative diazepam, commonly known as Valium, to render him unconscious;
fentanyl citrate, a powerful synthetic opioid; cisatracurium besylate to induce
paralysis and halt his breathing; and potassium chloride to stop his heart.
Fresenius Kabi argues that it manufactured the state’s supply of potassium
chloride and possibly the cisatracurium.
Nebraska state officials have refused to identify the source of their execution
drugs, but Fresenius Kabi alleges the state’s supply of potassium chloride is
stored in 30 milliliter bottles. Fresenius Kabi said it’s the only company that
packages the drug in vials of that size.
Fresenius Kabi said Nebraska’s use of its drugs would damage its reputation and
business relationships. The company said it takes no position on capital
punishment, but strongly opposes the use of its products for use in executions.
No other public evidence has surfaced to confirm the supplier’s identity. A
state judge in Nebraska ordered prison officials in June to release documents
that might reveal the source of the drugs, but the state has appealed that
ruling.
State attorneys deny Fresenius Kabi’s allegation that prison officials obtained
the drugs illicitly.
Assistant Attorney General Ryan Post said in court Friday that the state’s
interest in carrying out the execution outweighs the company’s desire to
protect its reputation. Post noted that the state still has not revealed its
supplier, arguing that Fresenius Kabi could have remained anonymous by not
filing the lawsuit.
“The plaintiff stepped right into the spotlight, and they’re complaining about
it,” he said.
The state also notes that one of its protocol drugs expires on Aug. 31, which
will leave the state with no way to carry out future executions.
In an affidavit filed Thursday, Department of Correctional Services Director
Scott Frakes said he contacted at least 40 suppliers in six states and found
only one that agreed to provide his agency with the necessary drugs. But that
supplier is unwilling to sell them any more of its drugs, Frakes said.
(source: WOWT news)
*****************
Nebraska set for execution after about-face on death penalty
3 years after Nebraska lawmakers voted to abolish capital punishment, the state
is preparing to carry out its first execution since 1997 on Tuesday in a
bewildering about-face driven largely by the state's Republican governor.
Gov. Pete Ricketts, a wealthy former businessman, helped finance a ballot drive
to reinstate capital punishment after lawmakers overrode his veto in 2015. His
administration then changed Nebraska's lethal injection protocol to overcome
challenges in purchasing the necessary drugs and withheld records previously
considered public that would identify the state's supplier.
"It wouldn't even have made it to the ballot without him," said Matt Maly, an
anti-death penalty activist who has joined daily protests outside the
governor's residence. "To get something on the ballot takes a lot of money and
resources. Nobody else would have cared enough."
Ricketts argued last week that he was fulfilling the wishes of voters who opted
to overturn the Legislature's decision in the 2016 general election. He said he
views capital punishment as a matter of protecting public safety and an
important tool for law enforcement, despite his Catholic faith and the recent
statements by Pope Francis that the death penalty is unacceptable in all cases.
"The people of Nebraska spoke loud and clear that they wanted to retain capital
punishment as part of our overall state laws to protect public safety," he
said. "Our job is to carry that out."
Nebraska prison officials are preparing to execute Carey Dean Moore, one of the
nation's longest-serving inmates, for the 1979 shooting deaths of Omaha cab
drivers Maynard Helgeland and Reuel Van Ness Jr.
The 60-year-old Moore, who has had execution dates set seven previous times,
has stopped fighting the state's efforts to execute him, but two drug companies
have filed legal challenges to prevent the state from using what they say may
be their drugs.
On Friday, a federal judge denied the request of German pharmaceutical company
Fresenius Kabi to temporarily postpone the execution. Fresenius Kabi filed an
immediate appeal to the 8th U.S. Circuit Court of Appeals, which upheld the
judge's ruling Monday. The company later said it wouldn't pursue an additional
review with the U.S. Supreme Court.
Drugmaker Sandoz Inc. also filed a motion to intervene on Saturday, but that
won't prevent the execution from moving forward.
The Nebraska Attorney General's Office is fighting the companies' efforts
because one of the four drugs used in the state's execution protocol, potassium
chloride, expires on Aug. 31. The state corrections director said last week
that prison officials won't be able to purchase more supplies of the drug
because no companies are willing to sell to the department, including its
previous supplier.
Nebraska last carried out an execution in 1997, using the electric chair. The
state has never conducted a lethal injection. And on Tuesday, it plans to use a
combination of four drugs that has never been tried.
Lawmakers abolished capital punishment in 2015, when they voted by the
narrowest margin possible, 30-19, to override the then-first-year governor's
veto.
Some legislators expressed doubt at the time that Nebraska would carry out an
execution ever again because of costly legal challenges, prompting Ricketts to
ask for more time to set one in motion. His administration went so far as to
pay an India-based middleman $54,000 for drugs — that the state never received
— because they couldn't be legally imported. The state money was never repaid.
After lawmakers overrode his veto, Ricketts contributed $300,000 of his own
money to a petition drive organized by several close associates to place the
issue on the November 2016 general election ballot. The governor's father, TD
Ameritrade founder Joe Ricketts, also donated $100,000 to the Nebraskans for
the Death Penalty campaign.
Nebraskans for the Death Penalty raised a total of $1.3 million for the effort,
but was outspent by a death penalty opposition group that received nearly $2.7
million. Even so, the reinstatement measure won support from 61 percent of
voters.
Death penalty supporters said the Legislature's vote was a fluke that didn't
represent the will of voters in the overwhelmingly conservative state. Some
moderate, Republican lawmakers who previously voiced support for capital
punishment but then voted to repeal it lost their seats in the 2016 election
after Ricketts endorsed their opponents.
"The public (in Nebraska) has always agreed with the death penalty — always,"
said state Sen. Mike Groene, an outspoken supporter of capital punishment. "I'm
not the outlier here, and neither is the governor."
Groene said the vote to reinstate capital punishment amounted to "a direct
mandate from the public" to resume executions. He noted that Ricketts has now
appointed a majority of the state's Supreme Court justices, which could help
clear the way for future executions.
Nebraska uses the death penalty sparingly and only for crimes considered to be
the most heinous, said Bob Evnen, a Lincoln attorney who co-founded the
Nebraskans for the Death Penalty petition group.
Evnen said many of the previous delays in carrying out executions were driven
by a 2008 Nebraska Supreme Court case that declared the electric chair
unconstitutional, forcing the state to switch to a lethal injection protocol
with drugs that are increasingly difficult to obtain for executions.
The original protocol called for three drugs to render the inmate unconscious,
induce paralysis and stop the heart. After years of struggling to acquire one
of the drugs, sodium thiopental, Nebraska prison officials changed their rules
last year to let the state corrections director choose which chemicals to use.
"Policymakers are actually taking the voters seriously on this," Evnen said.
(source: Associated Press)
_______________________________________________
A service courtesy of Washburn University School of Law www.washburnlaw.edu
DeathPenalty mailing list
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NEBRASKA----impending execution
Appeals court refuses to halt Nebraska execution
A federal appeals court has rejected a German pharmaceutical manufacturer's
attempt to prevent Nebraska from executing a death-row inmate using drugs that
the company says it produced.
The 8th U.S. Circuit Court of Appeals on Monday upheld a federal judge's ruling
to let the execution of inmate Carey Dean Moore proceed as planned Tuesday.
The drug company, Fresenius Kabi, contends in a lawsuit that using the drugs
for a lethal injection would harm its reputation.
But the appeals court agreed with U.S. District Court Judge Richard Kopf's
conclusion that postponing the execution would frustrate the state's interest
in carrying out the execution. Kopf said granting the drug company’s request
would “frustrate the will of the people,” referring to the 61 percent of
Nebraska voters who chose to reinstate capital punishment in 2016 after
lawmakers abolished it.
Moore, who was convicted of killing two cab drivers five days apart in 1979,
has stopped fighting the state’s efforts to execute him.
“I will not allow the plaintiff to frustrate the wishes of Mr. Moore and the
laws of the state of Nebraska,” Kopf said during the hearing.
Attorneys for the drug company, Fresenius Kabi, filed a lawsuit last week
arguing that state officials improperly obtained at least one of the company’s
drugs.
In Nevada, a judge indefinitely postponed an execution last month after
drugmaker Alvogen filed a similar lawsuit over one of its products.
Moore is scheduled to be executed with a combination of four drugs: the
sedative diazepam, commonly known as Valium, to render him unconscious;
fentanyl citrate, a powerful synthetic opioid; cisatracurium besylate to induce
paralysis and halt his breathing; and potassium chloride to stop his heart.
Fresenius Kabi argues that it manufactured the state’s supply of potassium
chloride and possibly the cisatracurium.
Nebraska state officials have refused to identify the source of their execution
drugs, but Fresenius Kabi alleges the state’s supply of potassium chloride is
stored in 30 milliliter bottles. Fresenius Kabi said it’s the only company that
packages the drug in vials of that size.
Fresenius Kabi said Nebraska’s use of its drugs would damage its reputation and
business relationships. The company said it takes no position on capital
punishment, but strongly opposes the use of its products for use in executions.
No other public evidence has surfaced to confirm the supplier’s identity. A
state judge in Nebraska ordered prison officials in June to release documents
that might reveal the source of the drugs, but the state has appealed that
ruling.
State attorneys deny Fresenius Kabi’s allegation that prison officials obtained
the drugs illicitly.
Assistant Attorney General Ryan Post said in court Friday that the state’s
interest in carrying out the execution outweighs the company’s desire to
protect its reputation. Post noted that the state still has not revealed its
supplier, arguing that Fresenius Kabi could have remained anonymous by not
filing the lawsuit.
“The plaintiff stepped right into the spotlight, and they’re complaining about
it,” he said.
The state also notes that one of its protocol drugs expires on Aug. 31, which
will leave the state with no way to carry out future executions.
In an affidavit filed Thursday, Department of Correctional Services Director
Scott Frakes said he contacted at least 40 suppliers in six states and found
only one that agreed to provide his agency with the necessary drugs. But that
supplier is unwilling to sell them any more of its drugs, Frakes said.
(source: WOWT news)
*****************
Nebraska set for execution after about-face on death penalty
3 years after Nebraska lawmakers voted to abolish capital punishment, the state
is preparing to carry out its first execution since 1997 on Tuesday in a
bewildering about-face driven largely by the state's Republican governor.
Gov. Pete Ricketts, a wealthy former businessman, helped finance a ballot drive
to reinstate capital punishment after lawmakers overrode his veto in 2015. His
administration then changed Nebraska's lethal injection protocol to overcome
challenges in purchasing the necessary drugs and withheld records previously
considered public that would identify the state's supplier.
"It wouldn't even have made it to the ballot without him," said Matt Maly, an
anti-death penalty activist who has joined daily protests outside the
governor's residence. "To get something on the ballot takes a lot of money and
resources. Nobody else would have cared enough."
Ricketts argued last week that he was fulfilling the wishes of voters who opted
to overturn the Legislature's decision in the 2016 general election. He said he
views capital punishment as a matter of protecting public safety and an
important tool for law enforcement, despite his Catholic faith and the recent
statements by Pope Francis that the death penalty is unacceptable in all cases.
"The people of Nebraska spoke loud and clear that they wanted to retain capital
punishment as part of our overall state laws to protect public safety," he
said. "Our job is to carry that out."
Nebraska prison officials are preparing to execute Carey Dean Moore, one of the
nation's longest-serving inmates, for the 1979 shooting deaths of Omaha cab
drivers Maynard Helgeland and Reuel Van Ness Jr.
The 60-year-old Moore, who has had execution dates set seven previous times,
has stopped fighting the state's efforts to execute him, but two drug companies
have filed legal challenges to prevent the state from using what they say may
be their drugs.
On Friday, a federal judge denied the request of German pharmaceutical company
Fresenius Kabi to temporarily postpone the execution. Fresenius Kabi filed an
immediate appeal to the 8th U.S. Circuit Court of Appeals, which upheld the
judge's ruling Monday. The company later said it wouldn't pursue an additional
review with the U.S. Supreme Court.
Drugmaker Sandoz Inc. also filed a motion to intervene on Saturday, but that
won't prevent the execution from moving forward.
The Nebraska Attorney General's Office is fighting the companies' efforts
because one of the four drugs used in the state's execution protocol, potassium
chloride, expires on Aug. 31. The state corrections director said last week
that prison officials won't be able to purchase more supplies of the drug
because no companies are willing to sell to the department, including its
previous supplier.
Nebraska last carried out an execution in 1997, using the electric chair. The
state has never conducted a lethal injection. And on Tuesday, it plans to use a
combination of four drugs that has never been tried.
Lawmakers abolished capital punishment in 2015, when they voted by the
narrowest margin possible, 30-19, to override the then-first-year governor's
veto.
Some legislators expressed doubt at the time that Nebraska would carry out an
execution ever again because of costly legal challenges, prompting Ricketts to
ask for more time to set one in motion. His administration went so far as to
pay an India-based middleman $54,000 for drugs — that the state never received
— because they couldn't be legally imported. The state money was never repaid.
After lawmakers overrode his veto, Ricketts contributed $300,000 of his own
money to a petition drive organized by several close associates to place the
issue on the November 2016 general election ballot. The governor's father, TD
Ameritrade founder Joe Ricketts, also donated $100,000 to the Nebraskans for
the Death Penalty campaign.
Nebraskans for the Death Penalty raised a total of $1.3 million for the effort,
but was outspent by a death penalty opposition group that received nearly $2.7
million. Even so, the reinstatement measure won support from 61 percent of
voters.
Death penalty supporters said the Legislature's vote was a fluke that didn't
represent the will of voters in the overwhelmingly conservative state. Some
moderate, Republican lawmakers who previously voiced support for capital
punishment but then voted to repeal it lost their seats in the 2016 election
after Ricketts endorsed their opponents.
"The public (in Nebraska) has always agreed with the death penalty — always,"
said state Sen. Mike Groene, an outspoken supporter of capital punishment. "I'm
not the outlier here, and neither is the governor."
Groene said the vote to reinstate capital punishment amounted to "a direct
mandate from the public" to resume executions. He noted that Ricketts has now
appointed a majority of the state's Supreme Court justices, which could help
clear the way for future executions.
Nebraska uses the death penalty sparingly and only for crimes considered to be
the most heinous, said Bob Evnen, a Lincoln attorney who co-founded the
Nebraskans for the Death Penalty petition group.
Evnen said many of the previous delays in carrying out executions were driven
by a 2008 Nebraska Supreme Court case that declared the electric chair
unconstitutional, forcing the state to switch to a lethal injection protocol
with drugs that are increasingly difficult to obtain for executions.
The original protocol called for three drugs to render the inmate unconscious,
induce paralysis and stop the heart. After years of struggling to acquire one
of the drugs, sodium thiopental, Nebraska prison officials changed their rules
last year to let the state corrections director choose which chemicals to use.
"Policymakers are actually taking the voters seriously on this," Evnen said.
(source: Associated Press)
_______________________________________________
A service courtesy of Washburn University School of Law www.washburnlaw.edu
DeathPenalty mailing list
***@lists.washlaw.edu
http://lists.washlaw.edu/mailman/listinfo/deathpenalty
Unsubscribe: http://lists.washlaw.edu/mailman