Experimental drug protocol for execution worked, but likely to inspire death penalty appeals

Experimental drug protocol for execution worked, but likely to inspire death penalty appeals
The Nebraska Department of Correctional Services' execution room. (MATT MILLER/THE WORLD-HERALD)

LINCOLN — A grand jury has found that convicted double-murderer Carey Dean Moore died of respiratory failure during the state’s first execution in 21 years.

But a national authority on the death penalty says that finding will lead to more questions, and likely more legal challenges, to the “experimental” four-drug protocol used by Nebraska in the lethal injection execution in August.

“Prisoners will use any uncertainly to challenge the efficacy of the execution process,” said Robert Dunham of the Washington, D.C.-based Death Penalty Information Center.

On Friday, a Lancaster County grand jury issued a two-page report after reviewing the death of Moore, who was executed Aug. 14. By state law, all deaths that occur while in the custody of law enforcement, jails or prisons require a grand jury examination. Four officials testified before the grand jury, including Dr. Robert Bowen and Scott Frakes, the state corrections director.

The jury found that the cause of death of Moore, 60, was “multi-drug toxicity which resulted in respiratory failure.”

Due to the difficulty in obtaining drugs previously used in executions, the State of Nebraska used a four-drug protocol in August that had never been used.

The drugs and their sequence were: diazepam, a sedative intended to knock out the condemned inmate; fentanyl, a powerful opioid painkiller designed to slow breathing; cisatracurium, a muscle relaxant intended to paralyze and halt breathing; and potassium chloride, intended to stop the heart.

Dunham said that it was hard to tell from the grand jury’s finding whether Moore died from a side effect of the four drugs, or whether the drugs did “what they are supposed to do,” which is shut down his heart. The transcript of the grand jury’s deliberations may shine some light on that, but that record is not expected to be available for a couple of weeks, according to Troy Hawk, the clerk of the Lancaster County District Court.

The difficulty in obtaining drugs for executions, and questions about new combinations of drugs used in execution chambers, have been key points in recent controversies over the death penalty. Nebraska, along with several other death penalty states, has declined to reveal the source of its drugs, which has prompted questions about their purity and effectiveness.

Among the questions raised at the Moore execution was why curtains were closed to witnesses both while the IV lines were set and later, during a 14-minute span when Moore was declared dead.

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