Nebraska Supreme Court

NEBRASKA – Unsafe for execution ? The state of Nebraska hopes to execute a man with a drug that has been recalled by its manufacturer

June 7, 2012  Source : http://www.salon.com

On the farm they called him King. He was the Archangel Michael incarnate, they believed, and he spoke directly to Yahweh. In his name, they stockpiled more than $120,000 worth of stolen ammunition and prepared for the Battle of Armageddon, which their King decreed would be fought in the windswept wheat fields of Rulo, Neb. If anyone left, the King said, he would “hunt down and kill” them, and they would “burn in hell.”

The King was an unemployed truck driver named Michael Ryan — and he wasn’t bluffing. He’s been sitting on death row since 1986 for the murder and ritualistic torture – razor blades and chains, sodomization and forced bestiality – of fellow cult member James Thimm. Save for those ideologically opposed to the death penalty, few would argue he deserves anything else.

And yet Ryan survives in a prison cell today, despite the state of Nebraska’s best efforts to kill him. His execution has been sidelined by the continuing fallout from a shortage in the execution drug sodium thiopental, which began in August 2009 — a shortage that has quietly remodeled the death penalty in the United States. As states run out of sodium thiopental, they’re turning to new and questionable supplies of execution drugs. Prisoners, meanwhile, are fighting these changes at every turn: Their sentences were clear, they argue, and this wasn’t part of them.

“It has nothing to do with whether Michael Ryan or any other death row inmate deserves to die,” says Jerry Soucie, Ryan’s attorney and employee of the Nebraska Commission for Public Advocacy. “The issue is whether those people who decide they want to exercise the power to execute somebody are in compliance with the law. And if they’re not, there’s a problem. You don’t enforce the law by engaging in lawless conduct.”

In Nebraska, the effects of the shortage have been particularly acute. Nebraska has twice purchased sodium thiopental made overseas by non-FDA approved companies. (The shortage began when Hospira, the sole FDA-approved manufacturer of sodium thiopental, ceased production.) The first time, the DEA barred Nebraska from using its new thiopental for importing the drug without a proper license.

Then last November, the Nebraska Department of Correctional Services announced it had purchased another new supply of sodium thiopental from a Swiss company called NAARI AG. Immediately following the announcement, the state attorney general’s office asked the Nebraska Supreme Court to set a new execution date for Michael Ryan. But 15 days later, NAARI CEO Prithi Kochhar sent a letter to the Nebraska Supreme Court asking for the drug’s return. In his letter, Kochhar explained that the NDCS had not purchased the sodium thiopental directly from NAARI. It had, in fact, been purchased from a Calcutta, India-based middleman named Chris Harris who was not authorized to resell the drug to Nebraska.

“I knew of Chris Harris, certainly his reputation for doing business,” says Jerry Soucie, Ryan’s attorney. “No question about it, he had a shady reputation. … I was just kind of shocked the NDCS would be dealing with him.”

According to Kochhar’s letter, NAARI supplied Harris with the drug in order to have it registered in Zambia, where they hoped to extend their coverage. Instead, Harris sold all 489 grams to the NDCS for $5,411, roughly 142 times its worth.

On May 9, after discovering the breach in its supply chain, NAARI issued a voluntary recall of the drug, noting that it was illegally diverted and could therefore be potentially unsafe. Nebraska officials have chosen not to comply with the recall, and Soucie contends they are in possession of stolen goods.

“The fact that NDCS would not honor our company recall…is a little shocking to us,” says Kochhar. “It seems that NDCS is not concerned about the effect of using an unsafe drug in any operation, not least one which might be used to end someone’s life in a potentially painful way.”

And Nebraska isn’t only refusing to comply with NAARI. Last March, U.S. District Court Judge Richard Leon ruled the Food and Drug Administration was wrong to allow foreign-made sodium thiopental into the country. Furthermore, Leon ordered the FDA to notify all state correctional departments with supplies of the drug to relinquish them to the FDA. Rather than comply with that order, the Nebraska attorney general’s office asked the FDA to appeal Judge Leon’s ruling and is currently still in possession of the drug. Fourteen other states have since called for the same appeal.

“The states that are positioned better are the states looking further down the road for alternatives rather than holding on to something because they don’t want to change,” says Richard Deiter, executive director of the Death Penalty Information Center.

These states have given up on thiopental completely. As recently as May 18, Idaho announced it had switched to a lethal dose of the surgical sedative pentobarbital. Missouri recently became the first state to formally adopt the anesthetic propofol, the same drug that killed Michael Jackson. According to Deiter, Nebraska and other states resisting a change to their lethal injection protocol are only delaying the inevitable. Domestic suppliers of sodium thiopental have run dry and the drugs carry an expiration date.

“States know that as soon as they make a change, the change will be challenged in court,” Deiter says, “but not making a change is also being challenged. I think states are going to have to find a source of drugs within the United States if they’re going to carry out lethal injections in a reliable, predictable manner.”

Yet despite all of this – despite a federal ruling and company recall, despite the fact that Nebraska’s current batch of sodium thiopental was illegally imported, despite the fact that change is the only way forward – State Attorney General Jon Bruning said Ryan’s challenge is merely “a circus sideshow,” according to the Lincoln Journal Star, and Governor Dave Heineman maintains it’s simply the latest tactic employed by death penalty opponents. Both Bruning and Gov. Heineman, who continue to steer the conversation towards Ryan’s execution rather than the efficacy of the drug, declined to be interviewed.

“When the powers that be in Nebraska or wherever decide they’re going to kill someone using either stolen drugs or without the proper licensing, then why do we have a legal system at all?” Soucie says. “Why don’t we take the guy out behind the building and shoot him once in the back of the head with a 9 mm? It would be just as lawless for them to do that as it is for them to violate federal law in carrying out an execution.”

The Fallibility of Forensic Evidence Argues Against the Death Penalty

May 12, 2012 Source : http://journalstar.com

A recent editorial in the Lincoln Journal Star of Nebraska concluded that experience with inaccurate evidence from crime labs shows that the death penalty cannot be trusted in the taking of life.  The paper called for the repeal of the death penalty based on a case in which the state’s CSI director tampered with evidence in a murder case. Recently, the Nebraska Supreme Court upheld the conviction of former CSI chief David Kofoed for planting evidence in a double murder. Kofoed placed a speck of blood in a car belonging to a suspect, which resulted in two innocent men being held in jail for several months. The editorial said such crime-lab error has also been found elsewhere: “You will be – or should be – appalled at the number of times that crime labs turn out to be providing inaccurate and phony evidence. The problems crop up in New York, San Francisco, Houston and many points in between. Sometimes the problem is sloppiness. Sometimes technicians are manufacturing evidence deliberately. Sometimes the science itself turns out to be untrustworthy.” The editorial cited a 2009 report by the National Academy of Sciences that criticized some of the science behind crime lab testimony. The report found that, other than DNA technology, “no forensic method has been rigorously shown to have the capacity to consistently, and with a high degree of certainty, demonstrate a connection between evidence and a specific individual or source,” and that, “Substantive information and testimony based on faulty forensic science analyses may have contributed to wrongful convictions of innocent people.”  The editorial concluded, “The fallibility of the criminal justice system has been demonstrated again and again. Innocent people have been executed in the past and will be in the future,” and thus people should “support repeal of the death penalty.”  Read full editorial below.

Editorial: Too fallible for death penalty

The case of the crooked crime scene investigator in Douglas County provides another glaring example of why the criminal justice system cannot be trusted to apply the death penalty.

Humans not only make honest mistakes, sometimes they plant evidence and lie.

The conviction of former CSI chief David Kofoed for tampering with the evidence in a double murder case was upheld earlier this month by the Nebraska Supreme Court.

Kofoed was convicted for planting a speck of blood in a car belonging to a suspect in the case. His bogus evidence resulted in two innocent men being held in jail for several months. Police even wrung a false confession out of one of them.

Fortunately for the two men, the case against them unraveled before they were tried. DNA evidence found on a ring and marijuana pipe found in the home belonged to a pair of Wisconsin teens. They later pleaded guilty to killing a Murdock couple while looking for money during a road trip.

If you think the Kofoed case is one of a kind, think again.

Just do an Internet search for “crime lab scandal.”

You will be — or should be — appalled at the number of times that crime labs turn out to be providing inaccurate and phony evidence.

The problems crop up in New York, San Francisco, Houston and many points in between. Sometimes the problem is sloppiness. Sometimes technicians are manufacturing evidence deliberately. Sometimes the science itself turns out to be untrustworthy.

Even the vaunted crime lab operated by the Federal Bureau of Investigation has come under criticism on more than one occasion. In 2004 FBI lab technician Jacqueline Blake admitted to submitting false DNA evidence in 100 cases. FBI metallurgist Kathleen Lundy admitted to lying on the witness stand. To her credit, she admitted her testimony was false before the murder trial was over.

A 2009 report by the National Academy of Sciences was harshly critical of some of the science behind crime lab testimony, such as using marks on a bullet to determine whether a bullet came from a certain gun. Other than DNA technology, “no forensic method has been rigorously shown to have the capacity to consistently, and with a high degree of certainty, demonstrate a connection between evidence and a specific individual or source,” the report stated.

The report concluded: “Substantive information and testimony based on faulty forensic science analyses may have contributed to wrongful convictions of innocent people.”

The fallibility of the criminal justice system has been demonstrated again and again. Innocent people have been executed in the past and will be in the future. If you don’t want blood on your hands, support repeal of the death penalty.