August 10
OHIO:
Cleveland man whose 2002 death sentence overturned can't have jury hear new
sentencing, court rules
A convicted serial rapist and killer whose 2002 death sentence was overturned
on appeal must have his re-sentencing hearing heard by a 3-judge panel and not
a jury, the Ohio Supreme Court ruled Thursday.
The ruling overturned a March 2017 decision by Cuyahoga County Common Pleas
Court Judge Cassandra Collier-Williams to grant Kelly Foust's request to have a
jury, rather than a panel of judges similar to the one that originally
sentenced him, recommend his new sentence.
Foust waived his right to a jury trial at the beginning of his case and the
Supreme Court ruled that Ohio law bars a defendant from revoking that waiver.
The ruling comes after a protracted legal battle between lawyers representing
Foust, Collier-Williams and the Cuyahoga County Prosecutor's Office.
Foust was convicted in the March 2001 murder of Jose Coreano and the rape of a
17-year-old girl. A 3-judge panel sentenced Foust to death in January 2002.
Foust broke into the house looking for his estranged girlfriend. He beat the
sleeping Coreano to death with a claw hammer and set the house on fire.
Foust waived his right to have a jury hear the guilt and sentencing phases of
his trial.
The U.S. 6th Circuit Court of Appeals overturned Foust's death sentence in 2011
and ordered him to be re-sentenced after justices found that Foust's lawyers
did not present evidence of "horrific" childhood abuse.
Prosecutors and Foust's lawyers have been locked in legal battle since then
over whether Foust could rescind his jury waiver for his new sentencing phase.
A team of Ohio Public Defenders that represents Foust filed a new request to
have a jury recommend his sentence after a U.S. Supreme Court ruling that
overturned Florida's death penalty statute. They argued that decision
guarantees defendants facing the death penalty "an unequivocal right" to have a
jury determine facts necessary to impose a sentence of death.
But the court rejected that argument, pointing to Ohio law that lays out who
should preside over a re-sentencing of defendant whose death sentence was
overturned.
"If the offender was tried by a jury, the trial court shall impanel a new jury
for the hearing," the law says. "If the offender was tried by a panel of three
judges, that panel or, if necessary, a new panel of three judges, shall conduct
the hearing."
Collier-Williams "clearly and unambiguously" lacked authority to impanel a
jury, the court found.
"Judge Collier Williams sought to ensure the court's compliance with Mr.
Foust's constitutionally protected right to a jury trial in accord with law
handed down by the US Supreme Court," Larry Zukerman, who represented
Collier-Williams before the Supreme Court in the case, said in an emailed
statement.
After his imprisonment, Foust was tied to 3 other sexual assaults, including
the 1 at the heart of his initial arrest. He pleaded guilty to 3 counts of
felony sexual battery in 2016. Collier-Williams sentenced him to 5 years in
prison in that case.
(source: cleveland.com)
TENNESSEE----execution
Tennessee Executes Inmate With Controversial Drugs Despite Sotomayor's Powerful
Dissent----Justice says the U.S. is "accepting barbarism" as the execution of
Billy Ray Irick is allowed to go forward.
Justice Sonia Sotomayor issued a blistering dissent that we are "accepting
barbarism" after the Supreme Court refused to halt Tennesee's execution
Thursday night of Billy Ray Irick, 59, using a controversial drug combination.
Irick was put to death for the 1985 rape and murder of 7-year-old Paula Dyer.
He coughed, choked and gasped for air after the 3-drug cocktail was
administered, The Tennessean reported. His face turned dark purple as he died.
Before the lethal drugs were injected, Irick said, "I just want to say I'm
really sorry and that, that's it." Blinds between the execution room and
witnesses were opened at 7:26 p.m. Central time, and Irick was declared dead at
7:48.
Sotomayor accused the U.S. of no longer being a civilized nation and "accepting
barbarism" in a blistering dissent after the high court refused Thursday to
stop the execution using drugs that had resulted in painful, botched executions
in the past.
Irick and several other death row inmates sued early this year to halt the
execution, arguing that the state's new death cocktail, including the
controversial sedative midazolam, would be tantamount to torture and a
violation of the Constitution's prohibition against "cruel and unusual
punishment."
Supreme Court Justice Elena Kagan denied a request to stay Irick's execution.
"In refusing to grant Irick a stay, the Court today turns a blind eye to a
proven likelihood that the State of Tennessee is on the verge of inflicting
several minutes of torturous pain on an inmate in its custody," Sotomayor wrote
in her moving dissent Thursday.
During a trial in state court, medical experts "explained in painstaking detail
how the 3-drug cocktail Tennessee plans to inject into Irick's veins will cause
him to experience sensations of drowning, suffocating and being burned alive
from the inside out," she wrote. "The entire process will last at least 10
minutes and perhaps as many as 18."
If the law "permits this execution to go forward in spite of the horrific final
minutes that Irick may well experience, then we have stopped being a civilized
nation and accepted barbarism."
Irick, who had a history of mental illness, was the 1st inmate killed by the
state since 2009 and the 1st to be executed with the new drug cocktail.
Medical experts testified in Irick's court case that midazolam is not powerful
enough to sedate prisoners who are experiencing deadly, caustic chemicals being
pumped into their veins. Experts described midazolam as something given to
hospital patients to relax them before anesthesia. The drug is not powerful
enough to prevent inmates from feeling pain from a 2nd paralytic drug
(vecuronium bromide), and then the death agent potassium chloride, which has
been described by the Supreme Court as "chemically burning at the stake."
In 2014, an inmate in Oklahoma grimaced and kicked during his 2014 deadly
injection including midazolam. Authorities called off the execution, but he
died shortly after. One Arizona execution using the drug lasted 2 hours.
Ironically, the death row prisoners lost their case in part because they could
offer no court-accepted alternatives for more effective drugs.
Europe, which opposes the death penalty, has refused to sell more effective
drugs to the U.S. that have been traditionally used for executions. Domestic
drugmakers have also objected to their drugs being used in executions,
according to The Washington Post.
Irick was living with Paula Dyer's mother and stepfather in 1985 when he
attacked the girl. The family reported that Irick heard voices and was "taking
instructions from the devil," according to court records.
Irick is the 133rd person executed in Tennessee since 1916.
(source: Huffington Post)
**********
Tennessee executes Billy Ray Irick, 1st lethal injection in state since 2009
Death row inmate Billy Ray Irick died at 7:48 p.m. Thursday after Tennessee
prison officials administered a lethal dose of toxic chemicals. He was 59.
His execution, the 1st in Tennessee since 2009, comes after his 1986 conviction
in Knox County for the rape and murder of 7-year-old Paula Dyer.
Witnesses to the execution included members of Paula's family, Knox County
Sheriff Jimmy "J.J." Jones, Tennessee Deputy Attorney General Scott Sutherland,
Irick's attorney Gene Shiles and 7 members of the media.
Irick is the 133rd person put to death by Tennessee since 1916. Before Irick,
all but 6 executions occurred before 1961.
Moments before officials began administering the fatal doses, Irick, held down
by straps over his chest and arms, muttered his final words: "I just want to
say I'm really sorry. And that ... that's it."
The execution began later than scheduled, the blinds to the execution room
being lifted at 7:26 p.m., 16 minutes later than the expected time of 7:10 p.m.
Irick, dressed in a white prison jumpsuit and black socks, was coughing,
choking and gasping for air. His face turned dark purple as the lethal drugs
took over, media witnesses reported.
"I never thought for one moment that it would come to this," Shiles said inside
the prison before the execution began. "I never did."
Witnesses entered the execution viewing chamber at 6:43 p.m., where prison
officials turned out the lights until the blinds to the glass were lifted.
Shiles and Deputy Attorney General Scott Sutherland left the viewing room at
7:12 p.m., presumably to go into the execution chamber and observe Irick's IV
being adminsitered.
When the 2 men returned into the observation room around 7:25 p.m., Shiles told
witnesses that he kissed Irick and touched him.
Moments later the blinds lifted and Irick made his statement, the
administration of a combination of powerful and deadly medications commenced.
First the executioner injected Irick with midazolam, a drug intended to render
Irick unconscious.
After Riverbend Warden Tony Mays determined Irick was unconscious, the
executioner injected vecuronium bromide and potassium chloride. The drugs are
intended to stop Irick's lungs and heart.
Around the country, death row offenders have writhed, screamed, groaned and
gasped as lethal injection drugs take longer than expected to work - or don't
work at all.
At least twice in Ohio, the state had to call off executions after prison staff
could not find a viable vein for the intravenous injection of the drugs.
Irick was a heavy-set man. Tennessee does not change its execution protocol
depending on the body type of the condemned. But midazolam has a different
effect on different people.
Before his death, Irick ate his last meal. Shiles said earlier Thursday that
Irick was in good spirits and understood he would be executed.
Irick lived with Paula's mother and stepfather, Kathy and Kenny Jeffers, in
1985. Although the family allowed the then-26-year-old Irick to live with them
for some time, years after the crime they reported he exhibited signs of mental
illness.
Kathy Jeffers was among the small group of Dyer's family members seen quietly
coming and going from Riverbend Maximum Security Institute Thursday evening,
walking out after the execution with a tissue in her left hand.
She chose not to speak at a news conference being held afterward outside the
prison.
Jeffers had warned her husband she didn't want to leave the children with Irick
the night of Paula's killing, that she'd seen him muttering to himself in a
half-drunk rage on the porch before she left for work.
Court records show the family reported Irick heard voices and was "taking
instructions from the devil." He also reportedly, while carrying a machete,
chased after a young girl in Knoxville in the days proceeding Paula's death.
On April 15, 1985, Irick called Kenny Jeffers to say Paula would not wake up.
Her parents found Paula dead on their bed. An autopsy showed she died of
asphyxiation. Irick initially tried to hitchhike out of town, but was caught by
police the day after Paula's death.
Before and during his 32 years on death row, Irick repeatedly attempted to
convince courts he was too mentally ill to be executed or that the drugs set
for use in a lethal injection would violate his constitutional right not to be
tortured to death.
While courts did delay his execution several times, most recently in 2014, no
court decided to weigh in to prevent his death this time.
People came out to the site of the execution of Billy Ray Irick Andrew Nelles
and Holly Meyer
"I thought somebody would actually look at the facts," Shiles said Thursday
just before the execution, referring to evidence supporting Irick's mental
illness. "I was wrong."
Roughly 5 hours before Irick's death, U.S. Supreme Court Justice Elena Kagan
denied his request to delay his execution. However, fellow Supreme Court
Justice Sonia Sotomayor blasted the decision not to delay the execution while
the state reviewed its lethal injection method.
"In refusing to grant Irick a stay, the Court today turns a blind eye to a
proven likelihood that the state of Tennessee is on the verge of inflicting
several minutes of torturous pain on an inmate in its custody, while shrouding
his suffering behind a veneer of paralysis," Sotomayor wrote in her dissent.
"I cannot in good conscience join in this 'rush to execute' without first
seeking every assurance that our precedent permits such results ... if the law
permits this execution to go forward in spite of the horrific final minutes
that Irick may well experience, then we stopped being a civilized nation and
accepted barbarism."
Thursday afternoon, Catholic bishops in Nashville and Knoxville noted Pope
Francis' recent rebuke of the death penalty to condemn Irick's execution.
"The state has the obligation to protect all people and to impose just
punishment for crimes, but in the modern world the death penalty is not
required for either of these ends," wrote Bishop Richard F. Stika of Knoxville
and J. Mark Spalding of Nashville.
Appeal continues against Tennessee's lethal injection protocol
It's unclear what impact Irick's execution will have on a pending legal
challenge to the state's lethal injection protocol.
Irick joined 32 other death row inmates in a lawsuit arguing the 3 drugs
Tennessee uses for lethal injections would violate their constitutional right
to not be tortured to death. Experts at a trial in Davidson County argued the
1st drug, midazolam, does not always work as intended to render an offender
unconscious and unable to feel pain.
If the midazolam does not work, then the second and third drugs will cause pain
similar to being burned alive and drowned, argued experts and attorneys for the
death row offenders.
Davidson County Chancellor Ellen Hobbs Lyle agreed the condemned may feel pain
as he or she dies, but noted there is no legal right to a painless death.
She rejected the inmates' lawsuit, prompting an appeal to the Tennessee Supreme
Court. Citing a procedural bar for the first time, a majority of the state's
high court determined the inmates had a low chance at succeeding and therefore
Irick's execution should not be delayed.
"By applying the law and requiring satisfaction of this legal standard, we are
not 'rush(ing) to execute' Mr. Irick. In fact, this suggestion is astonishing,
actually, given that Mr. Irick was convicted and sentenced 32 years ago and has
obtained multiple stays over the years," the 4-member majority wrote in a
footnote of their opinion.
In a relatively unusual move, Justice Sharon Lee dissented.
"The harm to Mr. Irick of an unconstitutional execution is irreparable," Lee
wrote in a forceful break with the majority. "Yet the harm to the State from
briefly delaying the execution until after appellate review is minimal, if
any."
Immediately after the state Supreme Court's decision, Gov. Bill Haslam also
announced he would not intervene.
"My role is not to be the 13th juror or the judge or to impose my personal
views, but to carefully review the judicial process to make sure it was full
and fair," Haslam said in a news release earlier this week. "Because of the
extremely thorough judicial review of all of the evidence and arguments at
every stage in this case, clemency is not appropriate."
In January, the Tennessee Supreme Court scheduled an Oct. 11 execution for
Edmond Zagorski and a Dec. 11 death date for David Earl Miller.
Irick becomes the 7th condemned inmate to be put to death in Tennessee since
the state resumed capital punishment in 2000.
Irick becomes the 15th condemned inmate to be put to death in the USA this year
and the 1480th overall since the nation resumed executions on January 17, 1977.
(source: The Tennessean & Rick Halperin)
OKLAHOMA:
Execution protocol misses deadline; no date to resume
Despite promises to have a new execution protocol drafted by July, officials
said this week that implementation remains unfinished with no planned date for
executions to resume.
Officials with the Attorney General's Office and the Department of Corrections,
meanwhile, now say there is no estimated completion date for the state's new
nitrogen hypoxia protocol.
"I don't know that there's necessarily been a holdup," said Matt Elliott, a
corrections spokesman. "We're still working with the AG's Office in developing
a protocol that is effective and humane."
In March, Attorney General Mike Hunter and Department of Corrections Director
Joe Allbaugh announced Oklahoma would stop using lethal injection because the
execution drugs were increasingly difficult to obtain.
The officials said they planned to implement a 2015 law that allows executions
using nitrogen hypoxia. If successfully implemented, Oklahoma would become the
first state to execute inmates using the untried method of inert gases.
At the time, the men said they hoped to have the new gas protocols drafted
within 120 days. Executions would resume as soon as possible after that. State
law also allows for executions by firing squad or electric chair.
Executions have been on hold since 2015 following several mishaps. A bungled
procedure in 2014 left an inmate writhing on the gurney. In 2015, an execution
was reportedly carried out with the wrong drug, and a 2nd halted after a
similar issue was discovered.
Meanwhile, 16 death row inmates have exhausted all appeals and are awaiting
execution dates, according to state records. A 17th inmate, who also had
exhausted all appeals, committed suicide earlier this year.
"It's really just about getting it right," said Alex Gerszewski, a spokesman
for the AG's Office. "It's important to get it right. And (the Department of
Corrections) is still working on the protocol."
Hunter's office will review the protocol after it's completed.
Typically, officials don't tell anyone when states start working on new
execution protocols, said Robert Dunham, executive director of the Death
Penalty Information Center. The nonprofit provides information and analysis on
death penalty issues.
Oklahoma officials had to reveal their plans because the state remains under
court order not to conduct any executions until it has a new protocol in place
that can survive legal challenges, he said.
"It reached the point that it had to say something to show it was doing
something to move forward," Dunham said.
Still, it's not unusual for states to spend at least a year developing
protocols, he said.
What is unusual is that Oklahoma publicly said it could develop a protocol for
new execution method within 120 days, he said.
"I think that they did not appreciate the difficulty in ironing out all the
details, and I think that's in large measure because the Legislature acted
first and left it to the department to investigate what was really necessary to
bring it to reality," Dunham said.
He said Oklahoma officials may be grappling with concerns about how to safety
administer the deadly, odorless gas without poisoning prison employees and
execution bystanders as well as design and cost questions.
"It did not appear that the Oklahoma (Legislature) had taken into consideration
all of the difficulties in using nitrogen hypoxia in carrying out executions,"
Dunham said. "The bill rocketed through the Legislature without much critical
thought."
(source: Tahlequah Daily Press)
NEBRASKA----impending execution
Nebraska Plans 1st Execution in 21 Years. Not So Fast, Drug Company Says.
Carey Dean Moore, who faces the death penalty next week for killing 2 taxi
drivers in Omaha in 1979, has stopped fighting his looming execution. But his
life may be extended by a German drugmaker that says it produced 2 of the drugs
that are to be injected into Mr. Moore's veins.
Fresenius Kabi, one of Germany's largest companies, has asked a judge to block
the use of its drugs in Nebraska's 1st execution in 21 years and its 1st-ever
lethal injection. Use of the drugs, the company says, will cause grave harm to
its reputation if products intended to help treat people are used to kill.
A hearing is planned for Friday afternoon in Federal District Court in Lincoln,
and if the judge grants the company's request for an injunction it could delay
the execution, scheduled for Tuesday.
2 drugs Fresenius says it manufactured, along with 2 other drugs, are set to be
used in Mr. Moore's execution.
Fresenius says it takes no position on capital punishment, but that it has
strict contracts with distributors that ban sales to prisons for executions or
to anyone other than hospitals and other medical users. It says Nebraska
illegally obtained both a muscle relaxant and a drug that, when given at
extremely high doses, can stop a beating heart.
In Nebraska, any delay could further complicate matters because the state's
supply of 1 of the drugs, potassium chloride, expires in 3 weeks, and its
supply of the other, cisatracurium, expires on Oct. 31, according to Scott R.
Frakes, the state corrections director. The drugs used in lethal injection have
become increasingly difficult to obtain as pharmaceutical companies try to
clamp down on their use and death penalty opponents argue that new drug
protocols are unproven or inhumane.
On Thursday night, Tennessee carried out its 1st execution since 2009, putting
Billy Ray Irick to death for the rape and murder of a 7-year-old girl in 1985.
The state used a combination of drugs that Mr. Irick's lawyers had argued could
make the condemned feel like they were burning alive and drowning.
According to The Tennessean newspaper, Mr. Irick "was coughing, choking and
gasping for air" and "his face turned dark purple as the lethal drugs took
over."
In its lawsuit, Fresenius has raised the specter that use of the drugs could
lead to a botched execution, saying that its drugs, when obtained improperly,
are at risk of being handled or transported in ways that leave them adulterated
and chemically altered. For example, it says cisatracurium, the muscle
relaxant, loses effectiveness when not refrigerated in the carton between 36
and 46 degrees Fahrenheit, but that Nebraska's execution protocols call for the
drugs to be stored at "room temperature storage conditions."
The company says it determined it was the maker of the potassium chloride
because an inventory of drugs kept by the state showed that its stockpile came
in vials of 30 milliliters. Fresenius says it is the only manufacturer that
packages the drug in vials of that size.
"We made no sales to the Department of Correctional Services, nor have any of
our authorized distributors," Fresenius Kabi wrote in a statement. "So we can
only conclude Nebraska may have acquired this product from an unauthorized
seller."
Nebraska is fighting separate legal efforts to force it to disclose where it
got the drugs. A statement issued by Attorney General Doug Peterson said the
drugs "were purchased lawfully and pursuant to the state of Nebraska's duty to
carry out lawful capital sentences."
But neither the statement, nor state officials on Thursday, said which company
manufactured the drugs, what temperature they are being stored at or whether an
injunction would delay the execution. The offices of Mr. Peterson and the
Nebraska governor, Pete Ricketts, did not respond to messages on Thursday.
The planned execution of Mr. Moore, 60, is also notable because it would be the
first-ever lethal injection in the United States that uses fentanyl, a powerful
opioid that is at the heart of the nation's overdose crisis. Mr. Moore has
ceased efforts to prevent his execution.
It is also the 2nd time in a month that pharmaceutical manufacturers have
sought to block a state from using their drugs in an execution.
In July, the execution of Scott Dozier in Nevada was delayed after a drug
maker, Alvogen, said 1 of the drugs in the state's execution protocol had been
obtained illicitly. 2 other companies that also make drugs that Nevada wants to
use in the execution, Sandoz and Hikma Pharmaceuticals, have also sought to
block the state from using their products.
Maya Foa, the director of Reprieve, a human rights organization in London, said
there is now consensus in the pharmaceutical industry that it should fight to
prevent its products from being used in executions.
"We've come to a tipping point in terms of the industry's desire to see their
contracts and rights respected and enforced," Ms. Foa said.
On top of that, she said, state governments are undermining public health by
using murky or illegal drug distribution channels to traffic in powerful
narcotics and other drugs.
"That's scandalizing in a climate where we're seeing a hundred people dying
every day from the opioid epidemic," she said.
The drug companies' aggressive maneuvers have put officials in some death
penalty states on the defensive. In a friend-of-the-court brief filed with the
Nevada Supreme Court in the Dozier case, 15 other states contend that the drug
companies' arguments are groundless.
Their lawsuits "do not even need to succeed on the merits in order to achieve
the desired outcome and prevent an execution," their brief states. "Instead,
they merely have to obtain an injunction preventing a state from carrying out
an execution on the scheduled date. And that alone might delay an execution
long enough that a state's drugs could expire."
Leslie Rutledge, the attorney general of Arkansas, one of the 15 states, argued
that the companies "are being pressured by anti-death-penalty advocates to stop
supplying the drug to carry out lawful executions," adding: "The families of
these victims deserve justice."
The other states supporting Nevada's effort to execute Mr. Dozier over the drug
companies' objections are Alabama, Arizona, Florida, Georgia, Idaho, Indiana,
Louisiana, Missouri, Nebraska, Oklahoma, South Carolina, Tennessee, Texas and
Utah.
(source: New York Times)
*****************************
With no other drug source, execution window closes Aug. 31, Nebraska prisons
director says
Nebraska's prisons director said Thursday the window to execute Carey Dean
Moore closes Aug. 31 because the state has no other source for the lethal
injection drug that expires on that date.
So granting a restraining order to block next week's execution would have the
effect of changing the death sentence "into a de facto sentence of life in
prison for Carey Dean Moore," said Scott Frakes, director of the Nebraska
Department of Correctional Services.
Frakes filed an affidavit Thursday in response to allegations raised in a
federal lawsuit filed this week by drug manufacturer Fresenius Kabi. The
German-based corporation has asked a court to block Nebraska from using
potassium chloride it manufactured in Tuesday's execution of Moore.
In the lawsuit filed Tuesday, the company alleged the state obtained the drug
improperly or illegally.
A federal judge will hold a hearing at 3 p.m. Friday in Lincoln to rule on a
temporary restraining order sought by the drug company.
Frakes said in his affidavit that the state legally purchased its four death
penalty drugs from a licensed pharmacy. Frakes said he found the pharmacy after
contacting at least 40 suppliers and 6 states in an unsuccessful search for
drugs.
"That supplier is unwilling to provide additional substances," Frakes stated.
"I do not, at present nor at any time in the future, have an alternative
supplier for any of the four substances to be administered for execution by
lethal injection."
Moore, who has spent 38 years on death row, says he's ready to die in a lethal
injection scheduled for 10 a.m. Tuesday. He has not participated in the drug
lawsuit or other legal challenges to prevent his execution.
One of the longest serving death row inmates in the nation, Moore, 60, was
sentenced to death for the 1979 slayings of Omaha cabdrivers Reuel Van Ness and
Maynard Helgeland in Omaha.
(source: Omaha World-Herald)
*****************
Nebraska prisons director says state can't buy execution drugs again
Nebraska prisons Director Scott Frakes has told a federal court it did not
obtain any drugs to be used in Carey Dean Moore's execution by fraud, deceit or
misrepresentation, as an Illinois-based drug manufacturer says.
Furthermore, Frakes said, if the court prevents the state from carrying out
Tuesday's scheduled execution, it would likely change the death sentence into a
de facto life sentence for Moore.
The state doesn't have any other way to buy the drugs that comply with Nebraska
law and the department's protocol, Frakes said.
The Nebraska Department of Correctional Services responded Thursday to a legal
request by drug manufacturer Fresenius Kabi to stop the use of 2 drugs in
Tuesday's execution.
A hearing on the matter is set for 3 p.m. Friday to decide whether to grant a
temporary restraining order.
Manufacturer Fresenius Kabi filed a federal lawsuit Tuesday saying the
cisatracurium and potassium chloride the state plans to use next week are
manufactured by the company.
State inventories of the drug show the potassium chloride, which could be used
to stop Moore's heart, are in 30-milliliter vials. The company alleges it is
the only one with vials of the drug distributed in that size.
The department has not revealed the sources of its lethal injection drugs,
despite a district court order, which it has appealed.
In his affidavit filed Thursday with the U.S. District Court of Nebraska,
Frakes said the drugs were obtained from a licensed pharmacy in the United
States, and it did not circumvent Fresenius Kabi's distribution controls.
The department's supply of potassium chloride will expire Aug. 31. Frakes said
he has no other source or supplier for the drugs to be used next week or any
time in the future.
The people of Nebraska have waited more than 20 years to carry out Moore's
sentence, Frakes said. Moore has raised no objections to the sentence or tried
to stop or delay it, he said.
"Lethal substances used in a lethal injection execution are difficult, if
nearly impossible, to obtain," Frakes said in the affidavit.
It's a problem not only here but in other death penalty states, he said.
Frakes said he has tried to purchase additional execution drugs from the
supplier of the current substances and that supplier is unwilling to provide
them. He has no alternative supplier for any of the four drugs, he said.
Fresenius Kabi contends the department obtained the drugs improperly or
illegally, and allowing their use would injure the company's reputation and
damage business and investor relationships.
(source: Lincoln Journal Star)
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