State v. Moore

• Decision Date: 02 May 2007
• Docket Number: No. S-95-485.,S-95-485.
• Citation: 273 Neb. 495,730 N.W.2d 563
• Parties: STATE of Nebraska, Appellee, v. Carey Dean MOORE, Appellant.
• Court: Nebraska Supreme Court

730 N.W.2d 563

273 Neb. 495

STATE of Nebraska, Appellee, v. Carey Dean MOORE, Appellant.

No. S-95-485.

Supreme Court of Nebraska.

May 2, 2007.

Alan E. Peterson, of Cline, Williams, Wright, Johnson & Oldfather, Lincoln, for appellant.

Jon Bruning, Attorney General, J. Kirk Brown, and Kimberly A. Klein, Lincoln, for appellee.

HEAVICAN, C.J., CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ., and CASSEL, Judge.

GERRARD, J.

The court, on its own motion, has reconsidered its order for the issuance of a death warrant for Carey Dean Moore. Under Nebraska law, the mode of inflicting the punishment of death, in all cases, is "by causing to pass through the body of the convicted person a current of electricity of sufficient intensity to cause death."¹ In another case on our docket,² we have been asked to determine whether electrocution is cruel and unusual punishment.³ And we have repeatedly noted that recent decisions of the U.S. Supreme Court at least raised the question whether electrocution is constitutional.⁴ 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. We conclude that we acted prematurely in ordering a death warrant before resolving that constitutional question in State v. Mata.⁵ For the following reasons, we stay Moore's execution, and withdraw the order of our clerk directing the Warden of the Nebraska State Penitentiary to electrocute him.

In the context of capital sentencing, we have explained that it is "long-settled" that our jurisdiction "is not exhausted by the rendition of its judgment, but continues until that judgment shall be satisfied."⁶ Notwithstanding the issuance of a mandate to a trial court or death warrant to the warden, we retain jurisdiction to set an execution date or suspend the execution of a death sentence.⁷ And every court has the inherent power to control the execution of its orders or processes, to the end of preventing an abuse of them.⁸

Such power is not derived from legislative grant or specific constitutional provision, but from the very fact that this court has been created and charged by the Constitution with certain duties and responsibilities.⁹ Through this court's inherent judicial power, which is that power essential to the court's existence, dignity, and functions, we have authority to do all things that are reasonably necessary for the proper administration of justice.¹⁰ And this includes supervisory power over the courts and the power to temporarily stay execution on judgments rendered by them whenever it is reasonably necessary to accomplish the ends of justice and prevent injustice.¹¹ Obviously, that inherent power extends to our own judgments and orders, including the death warrant in this case.

In deciding whether to exercise our inherent power, we are mindful of the "especial concern" that "is a natural consequence of the knowledge that execution is the most irremediable and unfathomable of penalties; that death is different."¹² Our unique constitutional responsibilities impose a heightened standard of vigilance as we administer and supervise implementation of the death penalty. Moore's electrocution has been ordered by this court, and there can be no bureaucracy that discharges us from that responsibility.

There can be little question that Moore has received due process of law, and has sought refuge in the courts before.¹³ We recently declined to consider, on postconviction review, Moore's challenge to both the mode and protocol of execution in Nebraska.¹⁴ Given the procedural posture of that case, and the uniquely limited scope of a postconviction proceeding, we correctly concluded that Moore's claims were barred.¹⁵ But issuing a warrant ordering Moore to be electrocuted implicates different responsibilities for this court, and places the case in a different procedural posture.

Had we properly considered those responsibilities at the time, we would not have ordered the issuance of a death warrant. As already noted, another case on our docket,¹⁶ on a complete briefing and fully developed record, squarely presents us with the question whether electrocution is consistent with the prohibitions on cruel and unusual punishment imposed by the U.S. and Nebraska Constitutions. That case is scheduled for submission to this court in September. While we have previously concluded that electrocution is constitutional, we have also noted a changing legal landscape that raises a question regarding the continuing vitality of that conclusion.¹⁷ Were we to conclude that electrocution is no longer constitutional, then we would have undeniably permitted a cruel and unusual punishment only a few months earlier. The damage to Moore, and to the integrity of the judicial process, would be irreparable. It would be premature to permit this electrocution to proceed without the benefit of deciding, on a developed record, whether electrocution is a lawful punishment. And if we were to conclude that electrocution was cruel and unusual after Moore had been electrocuted, "our citizens' confidence in this court and the rest of the judicial branch as a bastion of civil rights might suffer irreparable harm."¹⁸

The purpose of a stay is to prevent a state from doing an act which is challenged and may be declared unlawful in a pending proceeding.¹⁹ The unique problem presented by this case is that Moore has not asked for a stay. But "[w]e simply are not permitted to avert our eyes from the fairness of a proceeding in which a defendant has received the death sentence."²⁰ It is a natural reaction for some to wish to be rid of an admitted murderer who asks to be executed.²¹ We are nonetheless required to ensure the integrity of death sentences in Nebraska. In this case, that requires Moore to cede control of his defense to protect the public's interest in the integrity and fairness of capital proceedings.²² Although we respect the defendant's autonomy, the solemn business of executing a human being cannot be subordinated to the caprice of the accused.²³ We must adhere to our heightened obligation to ensure the lawful and constitutional administration of the death penalty, regardless of the wishes of the defendant in any one case.²⁴ Concerns for finality to a state's judgments do not outweigh the absolute need to protect against the deprivation of an individual's constitutional rights which might invalidate his capital sentence.²⁵

Finally, we observe that should Nebraska's mode of execution be found lawful, the State's interest in executing Moore's sentence would only have been delayed. When a stay of execution is granted, it is also within the inherent power of this court to terminate that stay and set a date when the sentence shall be carried into execution. We have the power to set successive execution dates and issue death warrants as the circumstances may dictate.²⁶ If Nebraska's method of execution is constitutional, a new warrant is not precluded and will issue.

For the foregoing reasons, we order, adjudge, and decree that the execution of the defendant be, and hereby is, stayed; and the warrant of our clerk dated March 21, 2007, directing the Warden of the Nebraska State Penitentiary to execute the defendant be, and the same hereby is, withdrawn.

EXECUTION STAYED AND WARRANT WITHDRAWN.

WRIGHT, J., not participating.

HEAVICAN, C.J., dissenting.

Initially, we note that state and federal courts have considered numerous cases concerning Moore's conviction, sentencing, and resentencing.¹ In his second postconviction action following his resentencing to death, Moore raised an Eighth Amendment challenge to execution by electrocution generally and to the electrocution procedure in the then-newly adopted 15-second protocol. Moore requested an order declaring electrocution unconstitutional.

On appeal from the denial of his request, this court determined that Moore's constitutional challenge to electrocution as the state-mandated method of execution was procedurally barred because in his direct appeal following resentencing he did not appeal the district court's overruling of his motion challenging the constitutionality of the death penalty.² We further concluded that we could not reach Moore's challenge to the protocol because "Moore's electrocution procedure challenge would not constitute grounds for setting aside his sentence of death and would not `render the judgment void or voidable,'" a requirement for relief under Nebraska's postconviction statutes.³

However, we specifically distinguished civil rights actions under 42 U.S.C. § 1983 (2000) from actions for postconviction relief and indicated that a challenge to the protocol may be available under § 1983. We discussed cases in which the U.S. Supreme Court held that a § 1983 action was an appropriate vehicle for a prisoner's Eighth Amendment challenge to a state's method of execution, seeking temporary and permanent injunctive relief against application of its procedures.⁴ "A [civil rights] suit seeking to enjoin a particular means of effectuating a sentence of death does not directly call into question the `fact' or `validity' of the sentence itself-by simply altering the method of execution, the State can go forward with the sentence."⁵ This type of action is not procedurally barred as the functional equivalent of a successive application for habeas corpus relief.

Despite our clarification of the proper method for challenging the means of execution, Moore has not filed a § 1983 action seeking to enjoin his execution until the State alters its protocol or adopts another means of execution. Moreover, Moore has recently filed a pleading in this court stating that he no longer wishes to challenge his sentence and further stating that "no filings are to be accepted by this court which are not prepared and filed by myself." Moore's statements and lack of action show that he has...