LINCOLN — Two defeats in two days for two death-row inmates did little to quell the ongoing legal dispute over how the state obtained one of its execution drugs.
Douglas County District Judge Thomas Otepka denied Carey Dean Moore's appeal Thursday, a day after the Nebraska Supreme Court rejected Michael Ryan's request to halt the setting of an execution date.
But that didn't stop the lawyer who represents both inmates from filing a new motion Thursday in Ryan's case asking the Supreme Court to order the state to prove it obtained the latest supply of execution drug legally.
"For whatever reason, the Attorney General's Office does not want to provide the documents that can answer all these questions," said Jerry Soucie, an attorney with the Nebraska Commission on Public Advocacy.
Soucie pointed to language in Otepka's ruling that questioned the "disturbing conduct of the AG's office."
Attorney General Jon Bruning's top assistant brushed off the judge's terse language, saying the Supreme Court delivered a more important ruling Wednesday when it called Soucie's allegations about how the execution drug was obtained "unpersuasive and without merit."
"Otepka's comment is irrelevant in light of the Supreme Court ruling," said Chief Deputy Attorney General Dave Cookson, adding that Bruning will wait for Moore's next move before seeking to lift the stay of execution.
Most of the legal skirmishing in both cases has been over how Bruning's office advised the Nebraska Department of Correctional Services to acquire sodium thiopental, the first of three drugs given in the state's execution protocol.
In Moore's case, corrections officials obtained the drug from a supplier in India — despite the fact that neither the supplier nor corrections had proper federal permits.
A new supply came into question after an executive for the Swiss manufacturer of the drug asked Nebraska officials to return it. The executive said the company did not know the sodium thiopental would be sold by a third-party supplier for use in a death chamber.
The supplier, Chris Harris of Calcutta, arranged both drug sales to Nebraska. He has told an Indian newspaper he did nothing illegal in his transaction with the Swiss company.
Referring to the state's first supply of sodium thiopental, Judge Otepka pointed to "fairly persuasive proof" that the state corrections department "obtained controlled substances of unknown efficacy of a foreign distributor and manufacturer not inspected, registered or approved by the FDA or DEA."
The judge also bristled at "a lack of transparency and candor, even with the Nebraska Supreme Court and the Douglas County Attorney's Office, by the AG's office."
"Such acts and conduct require accountability," Otepka said.
The judge ruled, however, that Moore's motion for postconviction relief is not the forum for challenging the method of execution. Such motions are to be confined to whether Moore received a fair trial or fair sentencing hearing, the judge said.
Moore was sentenced to death in 1980 after the 1979 killings of Omaha cabdrivers Reuel Van Ness and Maynard Helgeland.
Moore's lawyer said Thursday he had not had a chance to discuss the ruling with his client. Moore will have 30 days to decide whether or not to appeal the ruling to the Nebraska Supreme Court.
The lawyer didn't wait to act in Ryan's case. Soucie filed a nine-page motion seeking to have the corrections department and the Attorney General's Office turn over documentation proving that the drug broker obtained the sodium thiopental legally.
Soucie argued his attempt to get the documentation has been "stonewalled by the state as manifested by a pattern of delay, obfuscation and nonsensical and incomplete claims of attorney client and work product privilege."
Cookson, the deputy attorney general, said similar claims already have been made to the Supreme Court in Ryan's case and they were rejected. The high court also refused to remove Bruning from the case, as Soucie had requested.
"The time has come for Mr. Soucie to stop wasting the court's time in filing frivolous motions and making unfounded and unsubstantiated allegations," he said.
Ryan, 63, the former leader of a religious cult encampment near Rulo, Neb., is on death row for the 1985 sadistic torture and murder of one of his followers, James Thimm.
The high court has not set a date for what would be the first execution in Nebraska since 1997.
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