LINCOLN — Barring an unforeseen court action in the final hour, Carey Dean Moore will be put to death at 10 a.m. Tuesday in Nebraska’s first lethal injection execution.
Furious legal maneuvering over the weekend by two pharmaceutical companies to prevent the state from using what they suspect are their products came up short Monday in the federal courts.
Meanwhile, the Nebraska Supreme Court did not act on a notice filed in a different appeal that argued that Moore’s death sentence is no longer valid because the 2015 repeal of capital punishment was briefly in effect before voters restored the death penalty in 2016.
So the state remained on schedule to resurrect capital punishment for the first time in more than two decades. The state’s efforts have been made easier by the fact that Moore, 60, has said he’s ready to die after spending 38 years on death row.
The most significant development Monday came about 10 a.m., when the 8th U.S. Circuit Court of Appeals denied an appeal by Fresenius Kabi, a Germany-based pharmaceutical company that accused Nebraska of illegitimately obtaining at least one of its drugs. Nebraska officials denied the allegation, saying the drugs were legally purchased from an unidentified pharmacy.
Prison officials have refused to identify the manufacturers of any of the four drugs the state intends to use to execute Moore.
The 8th Circuit’s decision upheld a Friday ruling by Senior U.S. District Judge Richard Kopf in Lincoln, who called the drug lawsuit “a calculated abolitionist ploy” to block the execution in a state where 61 percent of voters restored the death penalty in 2016.
“While we recognize that Fresenius Kabi takes no stand on capital punishment, we find nothing inappropriate in the district court’s recognition that a preliminary injunction would frustrate Nebraska’s plans to execute Mr. Moore,” the appeals court stated.
Mark Christensen of Lincoln, the attorney for Fresenius Kabi, said the company decided against appealing the ruling to the U.S. Supreme Court. He offered no other comment.
Shortly after the appeals court ruled, it became clear that a lawsuit filed by a second drug manufacturer, Sandoz Inc., would not delay Moore’s execution either.
Christensen, also the lawyer for Sandoz, said during a Monday hearing before Kopf that his client was not seeking an expedited ruling on the matter. As a result, the judge gave attorneys for the state the standard 14 days to file legal briefs.
While those developments closed off two possible roadblocks to Moore’s execution, the legal maneuvering continued with a new filing by the American Civil Liberties Union of Nebraska. The organization, which opposes the death penalty, asked the Nebraska Supreme Court to delay Moore’s execution on the grounds that he is actually under a sentence of life in prison.
Lawyers for the organization filed a lawsuit late last year arguing that the Legislature’s 2015 repeal of capital punishment briefly took effect before organizers of a petition drive filed the signatures to put the issue on the 2016 general election ballot. As a result, the 11 men on death row at the time had their sentences changed to life in prison before voters restored the death penalty in 2016, the lawsuit contended.
A state judge has dismissed the lawsuit, which the ACLU has appealed to the Supreme Court.
On Monday, ACLU attorneys told the Supreme Court that although they don’t represent Moore, he is listed as an indispensable third party in their lawsuit because a decision in the case could affect him. The group asked the court to use its own authority to delay the execution so it can decide the question on appeal.
As of Monday night, the court had not responded to the ACLU notice.
Drug companies have long argued that it’s bad for business when state prison officials use their products in executions. The companies have increasingly shown a willingness to ask the courts to stop the practice.
Last month a state judge in Nevada indefinitely delayed an execution over a similar drug dispute. In that case, the inmate also wants to be executed.
Both Fresenius Kabi and Sandoz said that while they take no position on capital punishment, they argued that allowing Nebraska officials to execute Moore with their drugs would cause them financial harm. They also claimed possible immeasurable damage to their reputations in the health care industry.
But Sandoz asked to join the lawsuit only Saturday, a day after Kopf had already ruled against the other drug company. The move raised the ire of the judge, who questioned whether the timing was intended to distract the state’s lawyers from their work on the appeal in the Fresenius Kabi case.
Christensen said that was not his intention or the intention of his clients. Sandoz wanted to submit a request to join the Fresenius Kabi lawsuit earlier, but the documents could not be prepared in time for Friday’s 3 p.m. hearing.
The judge said he appreciated the explanation and backed off from imposing sanctions over the matter.
Meanwhile Monday, State Sen. Ernie Chambers of Omaha said he delivered a letter to Kopf chastising him for the Friday ruling. The longtime death penalty opponent mentioned how the prisons director has said he has no way to replace the two disputed drugs once they expire. The pharmacy that sold the drugs to the state has refused to do so again.
“The very fact that it can and will occur only this once ... renders it ‘cruel and unusual punishment’ in violation of the U.S. and Nebraska Constitutions,” Chambers said in his letter.
Nebraska plans to use an untried combination of four drugs in Tuesday’s execution: diazepam, fentanyl, cisatracurium and potassium chloride.
Both Sandoz and Fresenius Kabi manufacture cisatracurium, a muscle relaxant intended to stop the inmate’s breathing. In addition, Fresenius Kabi pointed to evidence they believe shows that the state has their potassium chloride, a drug that can trigger a massive heart attack in high doses.
One of the longest-serving death row inmates in the nation, Moore was sentenced to death for the 1979 slayings of Omaha cabdrivers Reuel Van Ness and Maynard Helgeland. He has not participated in the drug company lawsuits.