Drugmaker will appeal decision to let Nebraska execution proceed, but ruling may not come in time

August 11, 2018

LINCOLN — A federal judge in Nebraska has refused to block next week’s execution of Carey Dean Moore, rejecting a pharmaceutical company’s claims that using its drugs in a lethal injection will harm its business interests.

An attorney for the drug company said Friday that his client will file an expedited appeal with the Eighth U.S. Circuit Court of Appeals in St. Louis. It’s unknown whether the appellate court will rule before Moore’s execution at 10 a.m. Tuesday.

Senior U.S. District Judge Richard Kopf sided with attorneys for the state, who insisted that prison officials legally obtained the drugs from a licensed pharmacy and are almost out of time to carry out the execution before one of the drugs expires.

The judge also said he did not want to “frustrate the wishes of Carey Dean Moore,” who has said he wants to die after spending 38 years on death row. And he discussed at length how 61 percent of Nebraska voters reinstated the death penalty in 2016, after it had been repealed by state lawmakers a year earlier.

“Decades have slipped by since Mr. Moore was sentenced to death,” Kopf said. “The people of Nebraska have spoken. Any delay now is tantamount to nullifying Nebraska law.”

Unless the decision is quickly overturned on appeal, Moore will become the first inmate put to death by lethal injection in Nebraska. He is scheduled to be executed for the slayings of Omaha cabdrivers Reuel Van Ness and Maynard Helgeland five days apart in 1979.

Nebraska’s last execution took place in 1997, when the state used the electric chair. Lethal injection was adopted as the execution method in 2009.

David Moore of Lincoln, the condemned inmate’s twin , said Friday his brother will be pleased with the ruling. Moore, 60, did not join the drug company’s lawsuit and has not allowed his lawyer to fight the execution.

“I’m very relieved. I want what Dean does,” said David Moore, referring to his brother by his middle name.

Steve Helgeland, one of Maynard Helgeland’s sons, said he hopes his family and the Van Ness family won’t have to endure another stay in Moore’s execution. There have been seven previous stays in 38 years.

“We’re ready to close this chapter and move on,” he said.

Asked for a reaction to the ruling from Gov. Pete Ricketts, his spokesman called it “the next step in carrying out the sentence ordered by the court.”

State Sen. Ernie Chambers of Omaha, Nebraska’s leading death penalty opponent, called the ruling more political than judicial. The senator was particularly critical of the judge’s deference to the public vote to restore capital punishment in 2016.

“That vote could not excuse the courts from following the requirement to comport with constitutional and legal principles as they apply to capital punishment,” he said.

The judge announced his decision from the bench at the federal courthouse in Lincoln after attorneys for the drug company and state argued their cases.

Fresenius Kabi, the Germany-based pharmaceutical company, contended in a lawsuit filed this week that it would suffer losses in sales and business reputation if its products were used to kill an inmate. The company also alleged that prison officials either improperly or illegally obtained a drug that should have never been sold for an execution.

Mark Christensen, the lawyer for the company, told the court that his client’s pharmaceutical products are “meant to be life-saving and life-sustaining, not agents of execution.” The company, he stressed, otherwise takes no position on the death penalty.

The attorney recounted years of letters sent by the company to Nebraska officials, making it clear that it didn’t want its products used in a judicial execution. The company would have filed its lawsuit months ago had the state acknowledged that it had the drugs.

Nebraska prison officials have withheld the identity of both the makers of the drugs and the state’s supplier. A state judge has ruled that those records are public and must be released, but the state has refused pending an appeal.

Because the company imposes contractual obligations on its distributors not to sell its drugs for lethal injections, Christensen said Nebraska officials had to have illegitimately obtained the drugs.

“The hands of the state are unclean, Your Honor,” he said, asking the judge to impose a restraining order blocking the execution until the legal issues could be sorted out.

He also argued that documents submitted by the state indicate that one of the drugs that needs to be refrigerated has been stored at room temperature. That increases the chance for a botched execution, he said.

Assistant Attorney General Ryan Post argued that the state’s interest in enforcing a legally imposed sentence of death against Moore far outweighs the company’s claims of potential damages. He also said the pharmacy that sold the drugs to the state has said it won’t sell again, which means the window to execute Moore shuts on Aug. 31, when one of the drugs expires.

The judge strongly agreed with the state’s argument.

Post also pointed out that until the company filed its lawsuit this week, prison officials had not publicly disclosed the identity of the drug manufacturer.

“The plaintiff stepped right into the spotlight, and now they’re complaining about it,” he said.

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