As Nebraska death penalty case advances, pace of appeals may increase

The 11 men on Nebraska's Death Row. (Graphic by NET)
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January 11, 2018 - 6:45am

2018 will be a busy year for everyone involved in advancing and opposing Nebraska’s death penalty.


After months of quiet following the 2015 referendum vote reinstating capital punishment, new developments have kept attorneys busy.

Here’s a rundown of current developments.

Death Row vs. Governor Ricketts

TIMELINE:

Nebraska & Lethal Injection  


December 3, 1997: Robert Williams is the last person to be executed in Nebraska using the electric chair.

February 8, 2008: Nebraska Supreme Court rules death by electrocution is “cruel and unusual” and thus unconstitutional.

May 28, 2009: Governor David Heineman signs bill replacing the electric chair with lethal injection.

January 24, 2010: Pharmaceutical company Hospira, the only U.S. based maker of sodium pentathol, announces it will no longer sell the drug for use as a lethal injection drug.

February 10, 2010:  Governor Heineman approves lethal-injection protocol.

July 7, 2010: New facility to be used for lethal injection executions is completed.

January 7, 2011:  Corrections officials obtain sodium thiopental from India-based supplier.

January 21, 2011: Corrections announces it is “prepared to carry out…executions.”

April 21, 2011: Nebraska Supreme Court sets execution date for Carey Dean Moore.

April 2011: U.S. Drug Enforcement Administration informs corrections officials they did not have a license to import drug and it can not be used in executions.

May 25, 2011: Moore execution postponed as Nebraska Supreme Court considers whether the source of lethal injection drugs should be considered.

June 29, 2011: Nebraska gets a proper import license from DEA.

October 25, 2011: Nebraska obtains fresh supply of sodium thiopental.

January 11, 2012: Nebraska Supreme Court issues execution warrant for Michael Ryan.

February 22, 2012: Nebraska Supreme Court grants Ryan a stay of execution while issues over drug acquisition are reviewed in Richardson County District Court. Judge later rejects argument.

August 2012: First batch of sodium thiopental expires.

October 4, 2013: Attorney General Jon Bruning says Nebraska needs a new lethal injection protocol.

December 2013: Last of lethal injection drugs expire. State unable to carry out executions.

April 18, 2014: Nebraska Supreme Court denies all of Ryan’s requests to delay execution.

May 25, 2015: Ryan dies of cancer before new protocol is set and supplies of execution drugs located.

May 27, 2015: The Nebraska Legislature overrides a veto of Governor Pete Ricketts, removing the death penalty from state law.

November 8, 2016: In a referendum supported by Ricketts, 60 percent of Nebraska voters elect to keep the death penalty and lethal injection as state law.

January 26, 2017: Ricketts signs new, more flexible execution protocol, allowing acquisition of necessary drugs to resume.

November 9, 2017: Attorney General informs Jose Sandoval the state is prepared to use a four-drug protocol, signaling a death warrant could be issued in 2018. Legal challenges begin.


 

In the first week of 2018 attorneys for both sides of the issue faced off in court. A judge will decide whether to delay or even halt the executions of all 11 men currently sentenced to die by lethal injection in Nebraska.

The lawsuit, filed by the Nebraska Chapter of the American Civil Liberties Union (ACLU) on behalf of the death row inmates, challenges the legality of the 2016 petition drive and ballot referendum reinstituting the death penalty.

In that election sixty percent of Nebraskans voted to overturn the Legislature’s decision to end capital punishment. 

Attorneys from the ACLU claim the governor improperly put the petition drive in motion and then spent hundreds of thousands of dollars to finance the campaign, stating in the original complaint the petition drive was “an unlawful exercise of power by the executive branch.” State Treasurer Don Stenberg also played an active role in the initiative.

The ACLU claims elected officials, while in office, should not have the power to campaign against laws passed by the legislative branch, that it should have been organized by citizens outside of government. They claim the governor and treasurer in the executive branch violated a separation of powers.

Stenberg’s attorney, J.L. Spray, labeled the argument “ridiculous.”

Ricketts had previously dismissed the latest legal challenge as “frivolous” and “a waste of taxpayer dollars.”

At the hearing attorneys representing those who administered the pro-death penalty campaign argued to have the case thrown out immediately.

They claim, in part, if anyone had objections to how the petition drive was organized it should have been done so before the election

The ACLU responded the timing is appropriate for its clients, those facing the death penalty. The lawsuit was filed after the state gave notice to Jose Sandoval he was the next person to be issued a death warrant.

Jose Sandoval awaits a death warrant

Near the end of 2017 the Nebraska attorney general sent Sandoval a letter listing the four drugs the state intends to use to kill him by way of lethal injection. The notice is the first step in the process the state must follow to advance the execution of a person convicted of capital murder.

He is one of three men on death row convicted of murdering five people during a 2002 bank robbery in Norfolk.

The state could take the next step, filing a death warrant with the Nebraska Supreme Court, at any time.

The state apparently selected Sandoval, in part, because he did not have any appeals pending as the end of the year approached. After the state gave notice of its intent, he filed a separate appeal late last year.

The appeal, filed in Madison County District Court, claims in 2015 the state legislature altered the death sentences at the time of its historic vote to end capital punishment. Although voters later elected to stick with capital punishment, the lawsuit argues those inmates on death row got a life sentence.

The court filing argues “the State has ping-ponged Mr. Sandoval from death to life and to death again. His individual fate became hostage to an ongoing political contest between the Legislature, the governor, and the voters.”

The same argument appears in the later lawsuit filed in Lancaster County on behalf of the others sentenced to die.

Judge John Colburn must decide if the state obligated to hold hearings to resentence those inmates back to a death sentence or if the case is without merit.

Pro-death penalty attorneys argued at the January hearing it represented a big stretch in the intent in laws governing sentencing.

Is Nebraska ready for lethal injection?

The state claims to be prepared, having obtained the needed drugs for the execution of Sandoval. There are four drugs planned for use in the sequence.

The protocol revealed by the Nebraska Department of Correctional Services (NDCS) in November uses a sequence of four drugs in the specially-designed room at the Nebraska State Penitentiary.

Two are muscle relaxants in regular use by doctors.

Diazepam, commonly known as Valium, induces drowsiness and reduces muscle spasms and Fentanyl Citrate is employed by anesthesiologists for surgery. A third drug, Cisatracurium induces paralysis in the body. The fourth and fatal drug is potassium chloride.

It appears no executions have ever been carried out using this combination of drugs.

The prison system in state of Nevada developed this drug cocktail. There are objections from the convicted man scheduled to be the first to die using the procedure. There have been concerns raised by death penalty opponents about the drug that brings on paralysis, fearing if something was amiss and the earlier drugs brought on tortuous pain, the paralysis would make the subject unable to respond.

A judge has delayed its use indefinitely.

The company who manufactures and sells two of those drugs…Pfizer… demanded Nebraska return the drugs they sold to the state, claiming they were never intended to be used to cause the death of a person. According to the Omaha World Herald, neither NDCS or the drug company would say if the drugs were returned.

The state has provided limited information about the origin of the drugs and the process used to obtain them. The ACLU and the state’s two largest newspapers have sued, believing there are files and data being withheld which should be available to the public.

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