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Transparency concerns surface after Nebraska’s first lethal injection execution

August 19, 2018

LINCOLN — Two Nebraska state senators criticized prison officials this week for shielding key parts of the state’s first-ever lethal injection from the view of news media witnesses.

Sen. Patty Pansing Brooks of Lincoln said she will push for a new law requiring future Nebraska executions to be visible from start to finish after curtains were closed on portions of Tuesday’s execution of Carey Dean Moore.

“If we’re going to as a state kill people, you don’t get to do any part of it in private,” said the senator, who opposes the death penalty. “This is something where the state has the highest duty to be transparent.”

A corrections official responded by saying reporters were allowed to watch as all four lethal drugs were given to Moore. Curtains were lowered to protect the identities of members of the execution team, as the law requires, added Dawn-Renee Smith, chief of staff for the state Department of Correctional Services.

Curtains also were closed during portions of executions conducted in the 1990s, when the state used the electric chair, Smith said in an email.

“Every effort was made to ensure transparency while protecting the identities of the execution team members,” she said.

Corrections officials allowed four news media representatives to watch as four lethal substances were injected into Moore’s veins. Curtains covered the observation windows while the IV lines were set and later, during a 14-minute span when Moore was declared dead.

Sen. Ernie Chambers of Omaha said Friday that he will demand that corrections director Scott Frakes account for what happened behind the curtains.

Frakes, who was in the execution chamber throughout Tuesday’s lethal injection, has declined requests for interviews this week.

The intense scrutiny stems from accounts of botched lethal injections in other states in recent years, including inmates who appeared to be inadequately sedated, took more than 90 minutes to die or were stuck by needles repeatedly in failed efforts to find veins for IV lines. The Eighth Amendment prohibits the infliction of cruel and unusual punishment on prisoners.

State officials say Moore’s execution took 23 minutes, from the time the first drug was given until death was declared.

The media witnesses in Nebraska reported that Moore’s eyes shut and remained closed shortly after he received the first sedative drug in the lethal sequence. They also reported that Moore underwent a period of labored breathing and he coughed several times. In addition, they said his face and hands started turning purple about seven minutes after the first drug was given.

The witnesses did not report seeing writhing, facial grimaces or other signs of obvious pain that have surfaced in reports of botched executions. Two family members who witnessed the Moore execution said afterward that they did not believe he suffered.

But Deborah Denno, a law professor at Fordham University in New York who has studied lethal injection for more than 25 years, said the “lack of transparency” in Tuesday’s execution was “disturbing.” Problems with botched executions have surfaced at the beginning when the IV lines are set and again after the final drug is administered, times when the inmate is most likely to experience pain.

“The parts of the execution that would be most problematic would be the portions you didn’t see,” said Denno, who said she doesn’t oppose the death penalty in theory, but opposes it in the manner it currently exists.

Some death penalty states allow witnesses to observe the setting of IV lines; others do not. Showing such preparations to an execution is not essential, said Kent Scheidegger, legal director at the Criminal Justice Legal Foundation, an organization in Sacramento, California, that supports capital punishment.

But states should allow witnesses to see the entire execution itself, he said.

The Nebraska Supreme Court ordered Moore to be executed at 10 a.m. Tuesday.

The curtains in the observation room connected to the execution chamber were raised at 10:24 a.m. By then, Moore had been strapped to the table and two IV lines had been established.

When asked about the IV lines, Smith said Friday they both were inserted “on the first attempt, without issue.”

The execution protocol called for the state to inject Moore with a combination of four drugs never before used in an execution. It was unclear to the witnesses during Tuesday’s procedure when each drug was given.

But corrections officials later released records that showed the times and dosages of drugs given to Moore:

10:24 a.m.: 37 cc of diazepam, a sedative.10:30 a.m.: 46 cc of fentanyl, an opioid painkiller.10:32 a.m.: 15 cc of cisatracurium, a paralyzing agent.10:33 a.m.: 120 cc of potassium chloride, which causes massive heart failure in large doses.A 50 cc saline flush followed each drug.

Prison officials closed the curtains at 10:39 a.m., which Smith said was after the final saline flush was completed. Moore was declared dead by the coroner eight minutes later, at 10:47 a.m.

That would mean the witnesses were able to observe Moore for about six minutes after the potassium chloride was given to him. The drug can cause intense burning pain, so being able to see if the inmate reacts to it is important.

The media witnesses on Tuesday reported seeing very little movement by Moore after about 10:31 a.m., when he showed signs of labored breathing.

But doctors with training in anesthesia have testified in court that an inmate under the effect of paralyzing drugs such as the one Moore was given would not be able to move, even if they were in pain, said Eric Berger, a professor at the University of Nebraska College of Law who also has studied lethal injection.

“It was not, as far as I can tell, gruesomely and visibly botched,” Berger said. “But I don’t think we know enough to say either way whether Moore felt excruciating pain.”

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