LINCOLN — The longest-serving member of Nebraska’s death row recently declined to join a lawsuit filed by other condemned inmates challenging the validity of their sentences.
A check of Carey Dean Moore’s court files Friday also showed no active appeals or motions challenging his sentence.
“He refuses to litigate further, the last I knew,” said Alan Peterson, Moore’s longtime attorney, referring to a conversation he had with the 60-year-old inmate in early December.
Scott Frakes, Nebraska’s prisons director, took the formal step Friday of notifying Moore that the state has obtained the drugs necessary to carry out his lethal injection. The notice means that after 60 days, the Attorney General’s Office could ask the Nebraska Supreme Court to set an execution date for an inmate who was sentenced to die 38 years ago.
It’s unclear whether the state will move that quickly to carry out its first execution in 21 years. But Attorney General Doug Peterson has not yet sought an execution date for Jose Sandoval, who received a similar notice from the state on Nov. 9.
The executive director of the ACLU of Nebraska said Friday that the state’s latest step to resume executions is pointless considering the legal uncertainty surrounding the death penalty.
“Issuing a notice of execution in the wake of ongoing litigation is a waste of taxpayer dollars,” Danielle Conrad said in an email. “All individuals sentenced to death in Nebraska are currently involved in multiple legal challenges about the nature of Nebraska’s execution protocols.”
The ACLU has two death penalty lawsuits pending. One challenges the refusal by the Corrections Department to turn over all public records related to the purchase of the drugs.
The other argues that the Legislature’s 2015 repeal of the death penalty was on the books long enough to vacate the sentences of the 11 men on death row. The same lawsuit also alleges that Gov. Pete Ricketts overstepped his executive branch authority by helping to lead and fund the petition drive that resulted in voters overturning the repeal in 2016.
J. Kirk Brown, a retired attorney who handled death penalty litigation for the state for years, said the Supreme Court could use the pending litigation as a reason to refuse to set execution dates. Usually, however, the court requires the litigation to challenge the sentence for a specific condemned inmate.
Further complicating the matter is the fact that not all of the 11 men on death row joined in the lawsuits. At a recent court hearing, Moore and fellow death row inmates Jeffrey Hessler and Arthur Gales declined to participate. Unlike the others, the three are listed in court filings not as plaintiffs but as “indispensable party defendants.”
The notice provided Friday to Moore said the state intends to use a series of four drugs — in order: diazepam, fentanyl citrate, cisatracurium besylate and potassium chloride — to carry out the execution. The combination has never been used for a lethal injection before, which could provide another legal avenue for the inmates.
Corrections spokeswoman Dawn-Renee Smith said the state received fresh supplies of two of the drugs Friday. She declined to identify the manufacturer, but said they were made in the United States.
Moore shot and killed Omaha cab drivers Reuel Van Ness and Maynard Helgeland in the summer of 1979. Execution dates have been set six times in his case over the decades, but the Supreme Court stayed his execution. At times in the past Moore also has said he did not want to keep fighting, but then changed his mind.
World-Herald staff writer Paul Hammel contributed to this report.