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Judge orders state to pay nearly $60,000 in attorney fees in lawsuit over lethal injection drugs

January 6, 2019

LINCOLN — The State of Nebraska must pay almost $60,000 in attorney fees to two newspapers and a civil rights group in connection with their efforts to find out the source of the drugs used in the state’s first execution using lethal injection.

The ACLU of Nebraska, The Omaha World-Herald and the Lincoln Journal Star sued the state in December 2017 to force the disclosure of records that might reveal the source of the four drugs that were eventually used in the August execution of double-murderer Carey Dean Moore.

It was the first time in the nation that the four-drug combination was used in an execution chamber.

Nebraska’s past efforts to obtain lethal injection drugs raised controversy, including objections from drug manufacturers and the Food and Drug Administration.

After the Nebraska Department of Correctional Services withheld many of the documents sought via a public records request, a lawsuit was filed.

In June, Lancaster County District Judge Jodi Nelson ruled that most of the records should be turned over, except those that directly identify members of the execution team, who, by state law, are to remain confidential. The Nebraska Attorney General’s Office appealed the ruling, which awaits a decision by the Nebraska Supreme Court.

On Wednesday, Nelson ruled that because the newspapers and the civil rights organization had “substantially prevailed” in their request for the records, the state should pay their legal fees. She awarded $20,140 to the ACLU of Nebraska and $19,518.50 each to The World-Herald and the Journal Star.

Prison officials have released such records in the past.

But Gov. Pete Ricketts has said he believes that the law allows the records to be withheld.

Obtaining lethal injection drugs has become increasingly difficult because many drug manufacturers prohibit the use of their products for executions. Nebraska has had past difficulties obtaining lethal drugs.

In 2010, federal authorities destroyed a batch of drugs delivered by a broker from India after determining that the Nebraska Corrections Department lacked the proper importer’s license.

A second shipment expired amid claims by the drug’s Swiss manufacturer that the broker obtained the drug under false pretenses.

In 2015, the state paid $54,000 to the same broker, Chris Harris, but never received any drugs.

In that case, the FDA blocked the importation of one of the drugs, sodium thiopental, because it was no longer manufactured or approved for general use in the U.S.

Nebraska carried out the execution of Carey Dean Moore on Aug. 14, 2018. Moore, 60, had served 38 years on death row for the 1979 killings of Omaha cabdrivers Van Ness and Helgeland.

paul.hammel@owh.com, 402-473-9584

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