Questions surround what happened in 14 minutes witnesses were blocked from seeing Nebraska execution

Scott Frakes (left), director of Nebraska Department of Corrections, delivers a statement after the execution of Carey Dean Moore on Tuesday at the Nebraska State Penitentiary. In the background are three of the four media witnesses: Chip Matthews (from left) of News Channel Nebraska, Joe Duggan of the Omaha World-Herald and Brent Martin of Nebraska Radio Network.

Aug 19, 2018

Whether the execution of Carey Dean Moore in Nebraska with a unique set of drugs went smoothly or not has been left to speculation, not only in the state but around the country — subject to the spin of opponents and supporters alike.

Members of the media who witnessed Moore’s death Tuesday by lethal injection described reactions of Moore to the drugs that included rapid and heaving breaths, coughing, gradual reddening of the face and hands, and then a purple cast to the skin.

But about 15 minutes into the procedure, about a minute after Moore’s eyelids appeared to open slightly, Corrections Director Scott Frakes, who was in the room with the condemned prisoner, said something into his radio and the curtains closed for the media witnesses.

The curtains did not open again for 14 minutes, six minutes after Lancaster County Attorney Pat Condon pronounced Moore dead at 10:47 a.m., and 29 minutes after the first drug, diazepam, was administered at 10:24.

The curtain that shielded the four media witnesses from what happened during that time is significant, as they were not allowed to view everything that happened in the room. That hindered transparency and true reporting of the effects of the drugs, observers have said.

It’s also significant because other states are observing Nebraska’s procedure and its results, and how it might apply to their own executions.

Nevada, which recently postponed the execution of Scott Raymond Dozier, gave what appears to be an incomplete report of the effects of the drugs on Moore to a court this week, saying that witnesses “reported no complications, only some coughing before Moore stopped moving,” according to an Associated Press article.

The Nevada Supreme Court has scheduled oral arguments on that execution, which was postponed after three drug companies challenged the use of their drugs in the execution protocol.

Nebraska witnesses actually reported Moore coughed, his diaphragm and abdomen heaved, he went still, then his face and fingers gradually turned red and then purple, and his eyes cracked open slightly. One witness described his breathing as shallow, then deeper, then labored.

But it’s the 14 minutes when the curtain was closed that people have been wondering about since the execution was completed.

One of the media witnesses, Brent Martin of Nebraska Radio Network, said in Missouri, where he witnessed 13 executions, the curtain was open the entire time of the execution until the declaration of death. It was announced to witnesses when each of three drugs were administered and when the inmate was declared dead.

Longtime death penalty opponent Sen. Ernie Chambers sent a letter to Frakes on Friday telling him those missing 14 minutes behind the curtain are, in the coming days and weeks, “going to assume as much significance and generate as much speculation as has the problematic 18.5 missing minutes from the White House secret tapes.”

Those tapes were of a conversation between President Richard Nixon and Chief of Staff H.R. Haldeman regarding the Watergate break-in.

“Speculation cannot help but be rife,” Chambers said in the letter. “What was reported by witnesses only tantalized and served to stoke the fire of speculation.”

After the execution, Frakes read a short statement and took no questions from the media.

Robert Dunham, executive director of the national Death Penalty Information Center, said what happened in Nebraska was the least transparent of any execution in recent times.

“Nobody drops the curtain so that you cannot see the moments when the prisoner dies,” he said. “That’s why you have witnesses, so they can see and report what happens.”

The questions raised over Moore’s execution are entirely a product of Nebraska’s lack of transparency, Dunham said. If it would have been done in an open and accountable way, people wouldn’t have these questions.

After the execution and elaborating later in the week, Nebraska Department of Correctional Services spokeswoman Dawn-Renee Smith did answer questions about those 14 minutes.

The closing of the curtain wasn’t spontaneous, she said. It was planned to be lowered following the administration of the last substances, the potassium chloride and a saline flush of the IV line. The plan called for the director to wait approximately five minutes and then call for the coroner. Once the coroner completed the examination and determined death had occurred, the curtain would be opened again.

The coroner, she said, indicated it would take approximately five minutes, including waiting time built into the coroner’s plan, to complete the determination of death. Condon told the Journal Star he was in the room about four minutes.

“The lowering and raising again is consistent with past practice,” Smith said.

During the waiting time of five minutes built into Moore’s execution, no one entered the chamber and no one left the chamber, she said. No one touched the body or the IV lines. Once the coroner was called in, the body may have been touched during the examination, but the IV lines were not removed, she said.

The Journal Star, through a Freedom of Information Act request, has received more information from the department about administration of the drugs that killed Moore. The newspaper also consulted a pharmacist, recommended by the University of Nebraska Medical Center, to describe how a person might react to the drugs in the doses given.

Pharmacist Ally Dering-Anderson had no connection to the execution and was responding to descriptions of drug amounts, when they were administered and how witnesses said Moore reacted at coinciding times.

The four-drug combination is unique, and three of the drugs — diazepam, fentanyl and cisatracurium besylate — had never before been used in the execution of a condemned prisoner.

Diazepam: This is the first drug Moore received at 10:24 a.m., and he was given 37 cubic centimeters. According to pharmacist Dering-Anderson, a clinical associate professor at the University of Nebraska Medical Center, the drug slows cognition and the entire brain process, and can affect the ability to voluntarily move muscles. It could also affect the ability to feel fear.

The dose was a big one, she said, and could have made him semi-unresponsive.

The normal dose of diazepam for alcohol withdrawal, for example, in which the patient is agitated and may have a seizure, is 10 milligrams. Moore got 185 milligrams.

“Probably, given the circumstances, it’s a very charitable and humane thing to do,” she said. “Regardless of whether or not this man has accepted what’s coming, (he) had to be scared.”

At 10:29 a.m., according to witnesses, the warden did a consciousness check of Moore.

Fentanyl: This is a potent opiate pain reliever, and Moore was given 46 cc at 10:30 a.m. Dering-Anderson said it was her opinion that with the combination of diazepam and fentanyl, Moore would probably feel no pain. Opiates work so that when the body feels pain, the brain ignores the message, she said, and pain isn’t felt.

His dose equaled 2.3 mg, she said. Two milligrams is generally considered fatal.

According to witnesses, at 10:30, when Moore got the fentanyl dose, he appeared to cough, his diaphragm and abdomen moved rapidly up and down with heaving breaths. At 10:31, his chest stopped moving and he went still. His face gradually turned red and then purple.

Dering-Anderson said at that time he was having trouble breathing and there may have been gasping, what appeared to be coughing, as the brain realized it wasn’t getting enough oxygen. Reddening can be caused by tiny blood vessels getting wider. And when they start transmitting bluish blood that has inadequate amounts of oxygen, it can look purple.

Cisatracurium:  According to the state’s timeline, this paralytic, was administered at 10:32 a.m. It is used medically to stop muscle contraction and spasms for procedures and surgeries. Moore got 15 cc. Depending on the dosage form, he got between 30 mg and 150 mg.

With the large dosage he received, he would have been unable to breathe, the pharmacist said.

Potassium chloride: Thisis a mineral supplement used to treat low amounts of potassium in the blood. Moore received 120 cc of the drug at 10:33 a.m., meant to stop his heart. That amount would be more than the heart could sustain, Dering-Anderson said. The effect on the heart would have hurt, except for the huge dose of fentanyl minutes before, she said.

Dering-Anderson speculated Moore was probably dead two to three minutes after he got the high dose of fentanyl. He would not have had enough oxygen to sustain life, she said.

Condon pronounced Moore dead at 10:47, 23 minutes after the first drug was said to be started and 17 minutes after fentanyl was administered.

An autopsy will be done and after it is complete, Condon said, there will be a grand jury proceeding, as there must be when an inmate dies in custody. Drug tests for the autopsy would take at least four to six weeks to complete, and potentially longer because of the types of drugs, he said.

Originally published by the Lincoln Journal Star, August 19, 2018