Drugmaker: No more appeals in Nebraska execution
A German pharmaceutical company says it won’t ask the U.S. Supreme Court to
intervene after losing an appeal in a case that threatened to block Nebraska
from carrying out its first execution since 1997.
Drug company Fresenius Kabi recently filed a lawsuit accusing Nebraska prison
officials of improperly obtaining its drugs for lethal injections.
The company
said it doesn’t want its drugs used in executions and asked a federal judge to
prevent the state from doing so Tuesday.
The judge refused, and the 8th Circuit Court of Appeals upheld that decision
Monday.
An attorney for Fresenius Kabi said later Monday that the company won’t pursue
an additional review with the nation’s highest court.
That means Carey Dean Moore is still scheduled to be executed Tuesday for the
1979 shooting deaths of two Omaha cab drivers.
Source: Associated Press, August 13
Appeals court refuses to halt Nebraska execution
A federal appeals court has rejected a German pharmaceutical manufacturer's attempt to prevent Nebraska from executing a death-row inmate using drugs that the company says it produced.
The 8th U.S. Circuit Court of Appeals on Monday upheld a federal judge's ruling to let the execution of inmate Carey Dean Moore proceed as planned Tuesday.
The drug company, Fresenius Kabi, contends in a lawsuit that using the drugs for a lethal injection would harm its reputation.
But the appeals court agreed with U.S. District Court Judge Richard Kopf's conclusion that postponing the execution would frustrate the state's interest in carrying out the execution.
Kopf said granting the drug company’s request would “frustrate the will of the people,” referring to the 61 percent of Nebraska voters who chose to reinstate capital punishment in 2016 after lawmakers abolished it.
Moore, who was convicted of killing two cab drivers five days apart in 1979, has stopped fighting the state’s efforts to execute him.
“I will not allow the plaintiff to frustrate the wishes of Mr. Moore and the laws of the state of Nebraska,” Kopf said during the hearing.
Attorneys for the drug company, Fresenius Kabi, filed a lawsuit last week arguing that state officials improperly obtained at least one of the company’s drugs.
In Nevada, a judge indefinitely postponed an execution last month after drugmaker Alvogen filed a similar lawsuit over one of its products.
Moore is scheduled to be executed with a combination of four drugs: the sedative diazepam, commonly known as Valium, to render him unconscious; fentanyl citrate, a powerful synthetic opioid; cisatracurium besylate to induce paralysis and halt his breathing; and potassium chloride to stop his heart.
Fresenius Kabi argues that it manufactured the state’s supply of potassium chloride and possibly the cisatracurium.
Nebraska state officials have refused to identify the source of their execution drugs, but Fresenius Kabi alleges the state’s supply of potassium chloride is stored in 30 milliliter bottles. Fresenius Kabi said it’s the only company that packages the drug in vials of that size.
Fresenius Kabi said Nebraska’s use of its drugs would damage its reputation and business relationships. The company said it takes no position on capital punishment, but strongly opposes the use of its products for use in executions.
No other public evidence has surfaced to confirm the supplier’s identity. A state judge in Nebraska ordered prison officials in June to release documents that might reveal the source of the drugs, but the state has appealed that ruling.
State attorneys deny Fresenius Kabi’s allegation that prison officials obtained the drugs illicitly.
Assistant Attorney General Ryan Post said in court Friday that the state’s interest in carrying out the execution outweighs the company’s desire to protect its reputation. Post noted that the state still has not revealed its supplier, arguing that Fresenius Kabi could have remained anonymous by not filing the lawsuit.
“The plaintiff stepped right into the spotlight, and they’re complaining about it,” he said.
The state also notes that one of its protocol drugs expires on Aug. 31, which will leave the state with no way to carry out future executions.
In an affidavit filed Thursday, Department of Correctional Services Director Scott Frakes said he contacted at least 40 suppliers in six states and found only one that agreed to provide his agency with the necessary drugs. But that supplier is unwilling to sell them any more of its drugs, Frakes said.
Source: WOWT news, August 13, 2018
Nebraska set for execution after about-face on death penalty
3 years after Nebraska lawmakers voted to abolish capital punishment, the state is preparing to carry out its first execution since 1997 on Tuesday in a bewildering about-face driven largely by the state's Republican governor.
Gov. Pete Ricketts, a wealthy former businessman, helped finance a ballot drive to reinstate capital punishment after lawmakers overrode his veto in 2015. His administration then changed Nebraska's lethal injection protocol to overcome challenges in purchasing the necessary drugs and withheld records previously considered public that would identify the state's supplier.
"It wouldn't even have made it to the ballot without him," said Matt Maly, an anti-death penalty activist who has joined daily protests outside the governor's residence. "To get something on the ballot takes a lot of money and resources. Nobody else would have cared enough."
Ricketts argued last week that he was fulfilling the wishes of voters who opted to overturn the Legislature's decision in the 2016 general election. He said he views capital punishment as a matter of protecting public safety and an important tool for law enforcement, despite his Catholic faith and the recent statements by Pope Francis that the death penalty is unacceptable in all cases.
"The people of Nebraska spoke loud and clear that they wanted to retain capital punishment as part of our overall state laws to protect public safety," he said. "Our job is to carry that out."
Nebraska prison officials are preparing to execute Carey Dean Moore, one of the nation's longest-serving inmates, for the 1979 shooting deaths of Omaha cab drivers Maynard Helgeland and Reuel Van Ness Jr.
The 60-year-old Moore, who has had execution dates set seven previous times, has stopped fighting the state's efforts to execute him, but two drug companies have filed legal challenges to prevent the state from using what they say may be their drugs.
On Friday, a federal judge denied the request of German pharmaceutical company Fresenius Kabi to temporarily postpone the execution. Fresenius Kabi filed an immediate appeal to the 8th U.S. Circuit Court of Appeals, which upheld the judge's ruling Monday. The company later said it wouldn't pursue an additional review with the U.S. Supreme Court.
Drugmaker Sandoz Inc. also filed a motion to intervene on Saturday, but that won't prevent the execution from moving forward.
The Nebraska Attorney General's Office is fighting the companies' efforts because one of the four drugs used in the state's execution protocol, potassium chloride, expires on Aug. 31. The state corrections director said last week that prison officials won't be able to purchase more supplies of the drug because no companies are willing to sell to the department, including its previous supplier.
Nebraska last carried out an execution in 1997, using the electric chair. The state has never conducted a lethal injection. And on Tuesday, it plans to use a combination of four drugs that has never been tried.
Lawmakers abolished capital punishment in 2015, when they voted by the narrowest margin possible, 30-19, to override the then-first-year governor's veto.
Some legislators expressed doubt at the time that Nebraska would carry out an execution ever again because of costly legal challenges, prompting Ricketts to ask for more time to set one in motion. His administration went so far as to pay an India-based middleman $54,000 for drugs — that the state never received — because they couldn't be legally imported. The state money was never repaid.
After lawmakers overrode his veto, Ricketts contributed $300,000 of his own money to a petition drive organized by several close associates to place the issue on the November 2016 general election ballot. The governor's father, TD Ameritrade founder Joe Ricketts, also donated $100,000 to the Nebraskans for the Death Penalty campaign.
Nebraskans for the Death Penalty raised a total of $1.3 million for the effort, but was outspent by a death penalty opposition group that received nearly $2.7 million. Even so, the reinstatement measure won support from 61 percent of voters.
Death penalty supporters said the Legislature's vote was a fluke that didn't represent the will of voters in the overwhelmingly conservative state. Some moderate, Republican lawmakers who previously voiced support for capital punishment but then voted to repeal it lost their seats in the 2016 election after Ricketts endorsed their opponents.
"The public (in Nebraska) has always agreed with the death penalty — always," said state Sen. Mike Groene, an outspoken supporter of capital punishment. "I'm not the outlier here, and neither is the governor."
Groene said the vote to reinstate capital punishment amounted to "a direct mandate from the public" to resume executions. He noted that Ricketts has now appointed a majority of the state's Supreme Court justices, which could help clear the way for future executions.
Nebraska uses the death penalty sparingly and only for crimes considered to be the most heinous, said Bob Evnen, a Lincoln attorney who co-founded the Nebraskans for the Death Penalty petition group.
Evnen said many of the previous delays in carrying out executions were driven by a 2008 Nebraska Supreme Court case that declared the electric chair unconstitutional, forcing the state to switch to a lethal injection protocol with drugs that are increasingly difficult to obtain for executions.
The original protocol called for three drugs to render the inmate unconscious, induce paralysis and stop the heart. After years of struggling to acquire one of the drugs, sodium thiopental, Nebraska prison officials changed their rules last year to let the state corrections director choose which chemicals to use.
"Policymakers are actually taking the voters seriously on this," Evnen said.
Source: Associated Press, August 13, 2018
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"One is absolutely sickened, not by the crimes that the wicked have committed,
but by the punishments that the good have inflicted." -- Oscar Wilde
but by the punishments that the good have inflicted." -- Oscar Wilde