Lawyer for condemned inmate Carey Dean Moore wants off the case just days before execution

August 7, 2018

LINCOLN — Carey Dean Moore has made it clear he doesn’t want an attorney to fight Nebraska’s efforts to execute him next week.

Now the lawyer ordered to represent Moore says he wants off the case.

Jeff Pickens, director of the Nebraska Commission on Public Advocacy, cited a conflict of interest Monday in asking the Nebraska Supreme Court to remove him as Moore’s lawyer.

It’s now up to the seven judges on the high court to decide whether to deny the motion or grant it and assign a different lawyer. Trying to assign a different lawyer to the case may not be possible without delaying the execution.

The court also could allow Moore to be executed without a lawyer representing him.

Attorney General Doug Peterson, who has argued that Moore’s death sentence should be carried out before one of the state’s lethal drugs expires at the end of August, declined to comment Monday.

Pickens argued in the nine-page motion that the court has put him in a legal double bind.

On one hand, Pickens said he is professionally obligated to represent the wishes of a client who wants to die in the Aug. 14 execution. On the other, the attorney said he would file multiple legal challenges to fight the lethal injection if only Moore would sign the necessary legal papers.

“Doing nothing in a death penalty case is not competent legal representation,” Pickens said Monday after filing the motion with the court.

Moore, 60, has spent 38 years on death row for the 1979 slayings of Omaha cabdrivers Reuel Van Ness and Maynard Helgeland. Nebraska’s last execution took place in 1997, when the method was the electric chair.

The State Supreme Court last month issued a death warrant for Moore and set the Aug. 14 execution date.

Before issuing the death warrant, however, the court ordered the commission to represent Moore. The court also denied Moore’s motion to dismiss the commission as his legal counsel.

“This court’s order denying Moore’s motion to dismiss counsel with his execution looming seemingly means the court believes Moore must have counsel. The commission takes this court’s order seriously, but now finds itself unable to fulfill the court’s order and its ethical obligations in a consistent manner,” Pickens stated in the motion.

Pickens said competent representation for Moore would include challenging the untried four-drug protocol that the state intends to use next week. In addition, he would have Moore join pending legal challenges over how the execution protocol was devised and whether the Nebraska Legislature’s 2015 repeal of capital punishment vacated the sentences of Moore and the other men on death row before voters overturned the repeal a year later.

In addition, Pickens said there is precedent for the Supreme Court to stay an execution without a request from the condemned inmate.

He cited a 2007 majority ruling that recalled a death warrant for Moore six days before he was to be executed. In that case, Moore was not fighting the execution, but the judges acted on their own authority because they knew they would soon decide the constitutionality of the electric chair in another death penalty case.

The next year, the court struck down the electric chair as cruel and unusual punishment.

The 2007 ruling in Moore’s case said the court had the authority to act “whenever it is necessary to accomplish the ends of justice and prevent injustice,” Pickens said in his motion.

Pickens argued that now is the time for the court to again use its inherent authority.

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