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Questions about Nebraska execution drugs may go unanswered

By GRANT SCHULTEJuly 12, 2019

LINCOLN, Neb. (AP) — Nebraska’s corrections director won’t have to testify before lawmakers about the state’s lethal injection protocol or how prison officials obtained the drugs used in an execution last year, the state’s top court ruled Friday.

The Nebraska Supreme Court sided with the state corrections department, which sought to block a subpoena from the Legislature’s Judiciary Committee that would have required corrections director Scott Frakes to answer questions about his department’s lethal injection practices.

The Judiciary Committee ordered Frakes to appear at a public hearing last year, months before Nebraska executed its first inmate by lethal injection. Committee members issued the subpoena in response to a complaint from state Sen. Ernie Chambers, a death penalty opponent who wanted to question Frakes under oath.

The court declared the issue moot because the committee’s membership has since changed. Most of the senators on the original committee aren’t in office now because they declined to seek re-election, lost their seat to challengers or were forced out by term limits.

“Even if we were to agree with the senators’ legal position, we could not grant the relief they seek,” the court wrote in its collective opinion. “This prevents this court from reaching the substantive issues raised by the parties.”

A spokeswoman for Nebraska Attorney General Doug Peterson said state attorneys were pleased with the ruling and will continue to review it to see if any further steps are necessary. Peterson, a Republican, supports capital punishment, and officials in his office have said lawmakers didn’t consult them before they issued the subpoena to Frakes.

Chambers said he hadn’t yet read the opinion and wanted time to review it before commenting on it.

Peterson filed the lawsuit on the corrections department’s behalf, setting up a rare legal battle between the state’s legislative and executive branches. Frakes is an appointee of Republican Gov. Pete Ricketts.

A Lancaster County district judge struck down the subpoena after the attorney general’s office challenged it in court, prompting an attorney for the senators to appeal the case to the Nebraska Supreme Court. A phone message left with the senators’ attorney, Patrick Guinan, was not immediately returned. Guinan argued that the subpoena should have remained in force even though the committee’s membership changed.

In a separate, concurring opinion Friday, Justice Lindsey Miller-Lerman said many questions about Nebraska’s execution protocol remain unanswered, including whether the department’s lethal injection protocol and the way it was adopted are constitutional. She said courts “would be obligated” to consider the case again if lawmakers issued another subpoena earlier in their legislative session.

Critics have alleged that state officials operated in secrecy when creating their new protocol in 2017. The protocol made it much easier for Nebraska to obtain lethal injection drugs and to move forward with executions after a 21-year hiatus.

Nebraska and other states have found it increasingly difficult to carry out executions because many drug companies don’t want their products used to kill inmates and are refusing to sell them to correctional departments.

Last year, German pharmaceutical manufacturer Fresenius Kabi sued Nebraska to try to halt the execution of condemned inmate Carey Dean Moore. State officials refused to identify their supplier or disclose how they obtained the drugs, but company officials alleged that Nebraska’s supply of potassium chloride was stored in 30 millimeter bottles that only their company makes. Fresenius Kabi said Nebraska’s use of its drugs would damage its reputation and business relationships, but a federal judge allowed the execution to proceed.

Chambers and other lawmakers have also raised questions about how the department selected the drugs it used on Moore, who was executed in August for the 1979 murders of two Omaha taxi drivers.

The state’s refusal to release records identifying its supplier also prompted lawsuits from Nebraska’s two largest newspapers and the American Civil Liberties Union of Nebraska. Prison officials have disclosed such information in past years with no objections. The state Supreme Court has yet to rule on the lawsuits.

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