Lawyers for death-row inmate Moore ask to withdraw, saying ‘competent representation cannot include doing nothing’

August 7, 2018

Lawyers for death-row inmate Carey Dean Moore are asking the Nebraska Supreme Court to allow them to withdraw from his case because they can’t provide competent representation while respecting his wishes to do nothing.

“Competent representation cannot include doing nothing while the client’s execution is looming,” Jeff Pickens, chief counsel of the Nebraska Commission on Public Advocacy, wrote in the motion filed Monday.

Moore is set to be executed by lethal injection at 10 a.m. on Aug. 14 for the murders of Reuel Van Ness Jr. and Maynard Helgeland in Omaha in 1979.

If it happens, his execution will be the first in Nebraska since Robert Williams’ in 1997 and the first in Nebraska using lethal injection.

In an eight-page motion, Pickens said circumstances in the last three years have given rise to multiple claims that could be available to Moore to challenge his sentence. Among them, he cited the state’s planned four-drug protocol “never attempted in any state in this country.”

“This experimental protocol would be subject to serious challenge over whether it would violate Moore’s constitutional rights to be free from cruel and unusual punishment, if he were to elect to challenge it,” the defense attorney said.

The viability of that challenge also could be affected by public-records lawsuits on appeal seeking the source of the state’s drugs, he said. A Lincoln judge ordered the state to provide many of the records. But that decision is on hold pending an appeal by the state.

Pickens said the Commission on Public Advocacy took the Supreme Court’s order earlier this year seriously denying Moore’s motion to dismiss counsel, “but now finds itself unable to fulfill the court’s order and its ethical obligations in a consistent manner.”

He said the commission’s duty to abide by Moore’s decisions regarding the objectives of his representation are at odds with its duty to provide competent representation.

Pickens outlined a number of steps attorneys could take on Moore’s behalf, including a civil rights lawsuit regarding the experimental four-drug protocol, or a challenge to the nearly 38-year “unconstitutional delay” in executing him.

“Moore has directed the commission to do nothing. Thus, the commission is conflicted between its duty to abide by Moore’s directives and its duty to provide competent representation,” he said.

The Supreme Court hasn’t yet ruled on the motion.

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