Nebraska high court stays execution over concerns about electrocution protocol

State Supreme Court Judge John Gerrard wrote that recent U.S. Supreme Court decisions "at least raised the question whether electrocution is constitutional.”

"Our constitutional responsibility to decide whether electrocution is lawful requires us to consider whether any convicted person should be electrocuted before that question is answered,” Gerrard wrote in the 4-3 decision.

Nebraska’s last execution was in 1997. The state decided to use a single 20-second, 2,450-volt jolt instead of several shorter ones of varying voltage after a judge rejected the old practice. But backers and foes of the new method agree that it could leave the condemned’s heart beating well after the shock.

Under the protocol announced Wednesday, officials would wait 18 minutes to determine whether an inmate is dead and administer a second jolt if the heart is still beating.

Critics say the new protocol is slipshod, pieced together with the advice of a Florida doctor as the state scrambled to comply with a court decision several years ago.

Moore’s lawyer Alan E. Peterson said he visited Moore in the Nebraska State Penitentiary after learning of the court’s decision.

"I think his first reaction is sort of numbness,” Peterson said. "He was planning to die and so now, he’s planning to live.”

Chambers, a longtime opponent of capital punishment, said the state corrections department didn’t follow a law that requires public hearings and state oversight when devising the new protocol.

Dr. Ronald Wright of Florida, whose advice the state relied upon when devising the new protocol, said in a 2002 report there was a "high probability” of the heart restarting after a single jolt of electricity.

Among the concerns about the new protocol is that the condemned could be set on fire during a continuous application of electricity. Chambers noted that Wright recommended that a fire extinguisher be nearby during the execution.

Moore’s case, along with a pending appeal by death row inmate Raymond Mata Jr., "squarely presents us with the question whether electrocution is consistent with the prohibitions on cruel and unusual punishment proposed by the U.S. and Nebraska constitutions,” Gerrard said.

Dissenters on the court said Moore’s challenge should be barred because he did not raise the issue earlier.

Moore was sentenced to death for murdering cab drivers Maynard D. Helgeland and Reuel Eugene Van Ness in 1979. He notified the Supreme Court in March that he was ending the legal challenges to his execution.