By Joanne Young
Lincoln Journal Star
Attorneys for five death row inmates asked Tuesday to join in a petition filed by state Sen. Ernie Chambers challenging how the death penalty protocol in Nebraska was developed.
Briefs to be filed with Lancaster District Judge Earl Witthoff will address three issues:
* Whether Chambers has standing to bring the case to the court;
* Whether representatives of death row inmates Erick Vela, Raymond Mata, Carey Dean Moore, Jose Sandoval and David Dunster can join the challenge;
* And whether the Department of Correctional Services should have followed the Administrative Procedure Act when it changed the execution protocol in 2004.
Chambers contends the prison system failed to comply with state law when it adopted a new death penalty procedure that called for a single sustained application of electrical current for 15 seconds at 2,450 volts.
In 2007, the procedure changed again to administer the current for 20 seconds, he said.
The protocol changes are “null and void,” Chambers said, because the state did not follow the review procedure set forth by the Administrative Procedure Act. That includes giving notice of the change to the Executive Board of the Legislative Council, of which Chambers is a member, having the protocol reviewed by the Judiciary Committee, holding a hearing for public input, and having Gov. Dave Heineman and Attorney General Jon Bruning sign off on the rule.
There was no opportunity for individual senators or the Legislature to get involved in a review of the protocol and a discussion of whether it complied with the intent of state law.
State officials adopted the new protocol after two district judges ruled unconstitutional the former protocol of 2,450 volts for eight seconds, followed by 480 volts for 22 seconds and then repeated after a 20-second pause.
Chambers has said the new protocol could result in setting the inmate on fire.
Chambers told the court he originally filed the petition to stop the execution of Moore, who was scheduled to die May 8. The state Supreme Court stayed the execution, saying it should have withheld the death warrant until it resolved another death row inmate’s constitutional challenge of the electric chair. That challenge, raised by Mata, will be heard by the court in September.
Lawyers, including J. Kirk Brown of the Nebraska Attorney General’s office, will have until the middle of August to file briefs and responses with the court.
Copyright 2007 Lincoln Journal Star