Federal lethal injection lawsuit becomes a showdown over future Nebraska executions
By Bill Kelly 
, Senior Reporter/Producer Nebraska Public Media
Aug. 10, 2018, 6:45 a.m. ·
There is only one supplier left which will sell lethal injection drugs to Nebraska.
The admission by the head of Nebraska’s prison system that the state does not have “any other source or supplier for the drugs to be used in the lethal injection execution” of Carey Dean Moore raises questions about the state’s ability to obtain the necessary drugs for future executions.
Nebraska's Four Drug Execution Protocol
The Nebraska Department of Correctional Services selected a four drug sequence to end the life of inmates charged with a capital crime. As of August, 2018 it has never been used for legal executions.
All of the drugs are reported in the state's possession, but they must be used by the expiration date listed.
Diazepam (expires 9/30/19)
Sedative used to calm the recipient
Fentanyl Citrate (expires 7/31/19)
An anesthetic; blocks pain
Cisatracurium Besylate (expires 10/31/18)
Paralyzes muscles
Potassium Chloride (expires 08/31/18)
Stops the heart
The statement was part of a 25-page affidavit presented to the federal judge deciding if Nebraska should proceed with the execution of Moore over the objections of the company that manufactured the drugs.
Director of Correctional Services Scott Frakes states in the document a court order to seize the drugs until the matter is settled is “likely have the effect of changing Nebraska's final death sentence into a de facto sentence of life in prison due to the lack of drugs.” One of the four drugs, the solution which stops the inmate’s heart, will expire on August 31 and must be disposed of under federal law.
Fresenius Kabi, a German pharmaceutical company with a subsidiary in the U.S., went to court late Tuesday asking the court to impound drugs manufactured by the company in the possession of the prison system. The state’s execution protocol specifies four drugs to be used in sequence, two of which are manufactured by Fresenius.
The company claims it will suffer financial losses, harm to its reputation, and possible consequences from European Union regulators, which restricts making drugs available for capital punishment.
In court documents the state did not deny the substances in the state’s possession were made by the company.
State officials had been aware for months that similar challenges had been filed in other states and such a challenge was possible prior to next week’s execution. Letters from company officials to Governor Pete Ricketts and the attorney general went unanswered.
In its request for a temporary injunction, Fresenius asks the federal court judge to prevent the use of the drugs in Moore’s execution. In the short term, they are asking the government to “impound” the drugs in the possession of the state “until such time the merits of this dispute are finally resolved.”
Moore is not part of this lawsuit. In interviews and in not taking on any additional appeals, he made clear his wish is for the execution to proceed. (Read more about the arrest and trial of Carey Dean Moore. CLICK HERE)
CAREY DEAN MOORE
Date of Birth:10/26/57
Crime: Two counts first-degree murder
Sentenced to Death: June 20, 1980
Victims:
Maynard Helgeland, 47.
Reuel Eugene Van Ness, 47.
Summary: In August 1979 Moore, aged 22, robbed and killed two Omaha cab drivers within a week. The crimes had been planned in advance. Moore waived trial by jury and was convicted by the judge following a bench trial. His 14-year-old brother Don was convicted of second-degree murder. He was paroled in 2008. Read more about the case. CLICK HERE)
From the first appeal before the Supreme Court Nebraska v. Moore, 1982:
“The defendant (Moore) did not introduce any evidence during the trial of the case. Therefore, there is no significant conflict on the issue of guilt. The defendant confessed commission of the two killings in taped interrogations by the police, which were introduced in evidence. It is not claimed that these confessions were involuntary.”
Company officials who filed affidavits supporting the lawsuit state they suspect the Nebraska State Penitentiary pharmacy is in possession of two of the company’s drugs, potassium chloride and cisatracurium. They question whether the drugs were obtained through appropriate, legal channels.
European pharmaceutical companies and distributors are banned from marketing and distributing drugs to anyone making use of them for capital punishment. Contractors distributing drugs for Fresenius are not allowed to sell them to prisons and related institutions. How the Fresenius drugs made it into the supply room at the Nebraska penitentiary is not yet clear.
In court filings opposing the restraining order the Nebraska attorney general claims transactions were above board and “the substances at issue here were obtained from a licensed pharmacy in the United States and were not obtained by any fraud, deceit or misrepresentation.”
The state’s brief calls the company’s claim it would suffer harm to its sales and reputation “speculative.”
A number of drug companies have become increasingly adamant about attempting to block the use of their products for lethal injection executions.
A brief filed in support of allowing Nebraska to use the drugs filed by 14 states employing lethal injection claims the “lawsuit is part of a “nationwide campaign being waged by anti-death penalty activists to deny States access to drugs necessary to carry out lawful executions.” It goes on to list several recent examples, most unsuccessful, of companies asking their drugs not be used for the purpose of ending human life.
Judge Richard Kopf expects to act quickly. In a conference call Wednesday Kopf assured attorneys for the company and the state he would issue a ruling from the bench at the hearing so as to allow either side time to move the case to the Eighth Circuit of the U.S. Court of Appeals before Tuesday, August 14 at 10:00 am when the execution is scheduled to take place.