LINCOLN — The attorney for condemned double-murderer Carey Dean Moore alleged Thursday that state officials were seeking to psychologically “torture” his client by pursuing a “sham” execution they could not carry out.
The allegation comes a day after state officials revealed they don't have a usable supply of a controversial lethal-injection drug, sodium thiopental.
Moore, sentenced to die for the execution-style murders of two Omaha cabdrivers in 1979, had been scheduled to be executed June 14. The execution was postponed after Moore's attorney raised legal questions about the quality of sodium thiopental the state had imported from a pharmaceutical outlet in India in January.
It was learned Wednesday that the U.S. Drug Enforcement Administration informed state corrections officials April 11 that Nebraska lacked authority to import controlled substances such as sodium thiopental, a powerful sedative that is the first of three drugs administered in lethal injection executions.
Despite that notice, the Nebraska Attorney General's Office sought and obtained a death warrant for Moore 10 days later.
Moore's attorney, Jerry Soucie, stated in a legal motion Thursday that seeking an execution when you know you don't have the ability to carry it out is a “sham” execution prohibited by the Eighth Amendment, which bars cruel and unusual punishment.
“It could have no other effect than to subject Moore to unnecessary uncertainty, suffering and psychological torture regarding his fate,” Soucie wrote.
He stated that the matter could provide new grounds for halting Moore's execution.
The Attorney General's Office did not respond to phone messages left Thursday. But an official said Wednesday that the office did not think it was necessary to inform the Nebraska Supreme Court about the problem.
Chief Deputy Attorney General David Cookson said the office was confident the state would either obtain a new supply of sodium thiopental or be able to rectify the problem with the drugs already purchased.
“As a result, we had nothing to inform the court,” he said. “We felt we were in a position to have the drugs.”
He said that by Wednesday, the state had determined it could not use the Indian drugs and was in the process of buying a new supply of sodium thiopental from a foreign source.
If Moore's execution is carried out, he will be the first in Nebraska to die by lethal injection.
The Legislature adopted lethal injection in 2009 following a Nebraska Supreme Court ruling that declared the electric chair unconstitutional.
Moore, 53, was sentenced to die in 1979 but has won several stays of that sentence.
A spokeswoman for the Nebraska Department of Corrections said the agency was approved for a federal drug import permit May 25.
Dawn Renee Smith, the spokeswoman, said the agency was “on track” to obtain a new supply of sodium thiopental by the scheduled June 14 execution.
After the execution was delayed, officials decided to “take additional time to carefully weigh all the options” and be “more selective” about potential suppliers.
Smith said no decision has been made about what to do with the drugs purchased in January from India. She said the DEA has said they could be destroyed by the state crime lab if necessary.
Moore's attorney, in court papers filed Thursday, indicated that the DEA had informed correction officials May 26 that it would be receiving a “letter of admonition” for failing to obtain the proper permits to import the drug from India.
The DEA also asked the state to confirm that it had turned over its Indian sodium thiopental to the Nebraska State Patrol crime lab to be destroyed.
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