State lawyer asks judge to dismiss ACLU lawsuit challenging Nebraska’s death penalty

LINCOLN — A state lawyer asked a judge Wednesday to toss out a lawsuit claiming that prison officials violated the law when they established a new lethal injection protocol last year. The American Civil Liberties Union of Nebraska recently filed the legal challenge on behalf of two death penalty opponents who argue that prison administrators produced the execution protocol "hastily, secretly and without following required procedures." They have asked Lancaster County District Judge Lori Maret to halt any executions and direct officials to draft a new protocol in compliance with the state's Administrative Procedures Act. Assistant Attorney General Ryan Post argued that the case should be dismissed because only death row inmates have the legal standing to claim that they would be injured by potential errors in the protocol. The judge took the matter under advisement, saying she will issue a decision later. That decision could have the most immediate impact on death row inmate Carey Dean Moore, who is waiting to see if the Nebraska Supreme Court will set a date for his execution. Late Wednesday, Chief Justice Mike Heavican ordered the Attorney General's Office to show why it did not notify Moore's last attorney about its intent to carry out the execution. Heavican said records show that Moore was represented by the Nebraska Commission on Public Advocacy in 2011, and the commission had not subsequently withdrawn as his lawyer. Suzanne Gage, spokeswoman for Attorney General Doug Peterson, said the office did notify the commission the same day it asked the court to issue a death warrant for Moore. The attorney general plans to explain that to the court in a filing Thursday, she added. Moore has told The World-Herald that he is not fighting legal proceedings intended to result in his execution. Public advocacy director Jeff Pickens said Wednesday that his office last represented Moore in a 2011 post-conviction action that the inmate lost in district court. The case was not appealed, so Pickens said he does not consider Moore a current client of the office. Pickens declined to comment when asked if he has had recent conversations with Moore about legal representation. Meanwhile, the ACLU's lawsuit names as defendants Scott Frakes, director of the Department of Correctional Services; Gov. Pete Ricketts; and Attorney General Doug Peterson. The plaintiffs are State Sen. Ernie Chambers of Omaha and Stephen Griffith, a Methodist minister and former director of Nebraskans for Alternatives to the Death Penalty. The protocol adopted by the state last year gives the prisons director greater flexibility in selecting the types of lethal drugs than the protocol that had been in place since 2009. Under the new protocol, Frakes has notified Moore and Jose Sandoval, two of the 11 inmates on death row, that the state intends to use a combination of four drugs to put them to death. Nebraska has not carried out an execution since 1997, when the method was the electric chair.