This is speculation–but it seems plausible enough that I want to float it ahead of the execution of Carey Dean Moore. It’s possible that the Ricketts administration is rushing the execution of Moore in order to eliminate a grounds to stop the execution of Jose Sandoval, whom Ricketts would also like to execute in advance of the November election. In short, it may be that Ricketts is using Moore as the guinea pig needed to kill Sandoval.
Let’s walk through how this has played out and how it may go over the next couple of months.
In November 2017, Nebraska notified an inmate, Jose Sandoval, that they would be executing him with an untested four-drug cocktail of 1) Diazepam, an anti-anxiety drug, 2) Fentanyl Citrate, an opiod painkiller, 3) Cisatracurium Besylate, a muscle relaxant, and 4) Potassium Chloride, which stops the heart.
An execution ahead of the 2018 gubernatorial election would be good for Ricketts, as the death penalty is his signature accomplishment as governor. Sandoval would be a strategic choice for Ricketts: he is well-known to Nebraskans, having murdered five people in a bank robbery in Norfolk in 2002—and Sandoval is Latino, so publicizing his execution and the details of his crimes would feed the anti-immigrant white supremacist base that Ricketts relies on. Sandoval also missed a deadline to file for habeus corpus, which is one of the main ways that death row inmates challenge their sentences. So the path to execution was clearer than typical with Sandoval and the potential political payoff was high.
There was a problem, though—the ACLU got involved and Sandoval objected to the untested nature of the four-drug cocktail. This could easily have ended up blocking the execution.
So two months later, Nebraska abruptly notified a different inmate, Carey Dean Moore, that he was next on the gurney. Moore is not quite as advantageous for Ricketts, being white and having killed two men in Omaha almost 40 years ago. But Moore has something Sandoval does not have: a willingness to die. Moore did not object to his own execution. He has refused to put up a fight.
What this means is that if Nebraska could execute Moore first—and quickly—that four-drug cocktail would no longer be untested. It would have been used on Moore, and thereby nullify Sandoval’s most viable argument against his own execution.
But for Ricketts to get the sweet political points of killing a Latino villain with his signature legislation before the election, Moore would need to be executed fast so Sandoval can get on the gurney before November 6.
So Nebraska filed suit saying that they needed an expedited execution of Moore before one of the drugs—the potassium chloride—expires on August 31. They wanted July, but had to settle for August 14.
With Moore being compliant, what would be the major hurdles to accomplishing this at such a rapid pace? Few other parties could have possible standing to try to block the execution. But the drug manufacturers might, and indeed drug manufacturers had been actively trying to block the use of their products in other states and making noises to that effect already in Nebraska. How could Nebraska keep the drug manufacturers from interfering with this tight timeline? Refuse to name them. By withholding the names of the drugmakers, no company can have a clear path to a lawsuit. Indeed, at the hearings Friday and Monday, Judge Kopf pointed specifically to the fact that the identities have been withheld by the state as one reason why the companies can’t claim harm.
Once Moore is executed, Sandoval can be next, so long as Nebraska has all four drugs on hand. Department of Corrections Director Scott Frakes claims in his affidavit that the potassium chloride expires on August 31 and that he has contacted 40 potential suppliers and six states for more—only one supplier, the current one, was willing to let the state have potassium chloride, and will not give it to the state again. He says he does not have an alternative source. But what if he “suddenly” learns of one next week? A lawyer representing the drug companies raised the possibility in court today that a pharmaceutical compounder could replicate Fresenius Kabi’s potassium chloride, thus allowing an October execution to proceed, and they said that they did not interpret Frakes’s affidavit as precluding that possibility.
The state’s attorneys responded that Frakes knows of no potential supplier, including compounding pharmacies. Maybe. Maybe not. Frakes’s affidavit claims: “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.” I notice the present tense: “I do not have an alternative “at any time in the future”—he does not say he “will not have.” And of course how could Frakes swear that he will never have an alternative? He can’t know that no such supplier will ever again step forward. It only makes sense that the present tense was intentional—he does not have a future supplier right now—and leaves a little wiggle room for a miraculous new source of potassium chloride to arise any time after Moore is declared dead.
When Frakes suddenly finds a way to materialize potassium chloride, the state can announce the mandatory 60-day clock has started, and with diminishing legal avenues available to stop or delay his execution, Sandoval could provide Ricketts with the high-profile, race-baiting execution the “pro-life” “Catholic” governor wants as soon as mid-October. Look out for Frakes discovering an unexpected source of potassium chloride in coming days. I hope I’m wrong.