Reuel Van Ness Jr.
August 1979
Omaha, Nebraska

Omaha World-Herald
(Omaha, Nebraska)
March 23, 2007

Execution date of May 8 set for Carey Dean Moore

BY LESLIE REED
WORLD-HERALD BUREAU

LINCOLN - Unless he changes his mind, Carey Dean Moore 
appears almost certain to go to the electric chair on May 8, after 
spending nearly 27 years on Nebraska's death row.

Moore, now 49, was sentenced to death in June 1980 for the 
murders of Omaha cabdrivers Reuel Van Ness Jr. and Maynard 
Helgeland in robberies five days apart in August 1979. He was 
21 at the time; his victims each were 47.

Moore's younger brother, Donald, then 14, was sentenced to 10 
years to life for participating in Van Ness' murder, the first 
slaying. He has been paroled repeatedly but returned to prison 
each time.

In a document filed earlier this month with the Nebraska 
Supreme Court, Carey Moore said he was finished appealing his 
death sentence.

He said he did not object to the attorney general's request to 
schedule his execution and would make no further attempt to 
delay it. He described his request for an early May date as his 
"last wish."

On Wednesday, the Supreme Court scheduled Moore's 
execution for May 8 and issued his death warrant.

Moore's attorney, Alan Peterson of Lincoln, filed a document 
acknowledging Moore's wishes.

He wrote that he believes Moore has grounds for a civil rights 
lawsuit challenging Nebraska's electric chair procedures, but 
Moore has chosen not to pursue that lawsuit.

In an interview Thursday, Peterson said attorney-client privilege 
prevented him from further discussing Moore's decision.

Peterson, who has handled Moore's federal and state appeals 
since 1988, said he could not answer when asked if he would try 
to persuade Moore to change his mind.

The Supreme Court's order setting the execution date came one 
day after the Legislature voted 25-24 against repealing the death 
penalty. Lawmakers rejected a bill by State Sen. Ernie 
Chambers of Omaha that would have replaced Nebraska's death 
penalty with a sentence of life in prison without possibility of 
parole.

The court's order prompted an angry outburst from Chambers 
during debate on another issue Thursday.

"The court didn't even have the decency to give repeal a decent 
burial," he said. "They knew this man is suffering depression. . . . 
They were so eager. What this Supreme Court has done is 
indecent, it is cruel, and it is a slap in the face at me."

Chambers said the execution date comes "thanks to my 
colleagues."

Moore has been housed with other death row inmates at the 
Tecumseh State Prison since that facility opened in 2002.

It is unknown whether someone outside Moore's case could try to 
prevent his execution.

Eric Aspengren, executive director of Nebraskans Against the 
Death Penalty, said his group is pondering that question. But he 
said it appears unlikely that it could stop an execution if that is 
what Moore wishes.

"We're looking into it, of course, but I don't believe we can 
interfere because he has an attorney," Aspengren said. "He 
(Moore) pretty much decides what happens with his case. I'd like 
to do what I can to stop it, but I don't think we can."

Terry Werner, a volunteer with Nebraskans Against the Death 
Penalty who makes regular visits to death row, said he does not 
think Moore's mind can be changed. Werner said he saw Moore 
last month.

"I don't think there's much persuading," he said. "He's pretty 
depressed. He's been in there since he was 22 years old, and 
he's had enough."

No one has been executed in Nebraska since Robert Williams, 
who died Dec. 2, 1997, for the murders of two Lincoln women.

+++++++++++++++++++++++++++++++++++++

Undated newsclip, apparently from the Omaha World-Herald

The U.S. Supreme Court has rejected a Nebraska death row inmate's claim that his 19 years awaiting execution amounts to cruel and unusual punishment.

In an 8-1 ruling Monday, the Supreme Court refused to take up the cases of Nebraska's Carey Dean Moore and Florida's Askari Abdullah Muhammad, who both argued that long delays before carrying out executions violate the Eighth Amendment to the U.S. Constitution.

Moore's attorney said death-penalty lawyers across the nation will continue to press the issue.

"This is not a dead issue," said Omaha attorney Ed Fogarty on Monday. "It's one whose time has not come."

Assistant Attorney General J. Kirk Brown, who says the lengthy-delay argument is "absolute silliness," said Monday's ruling will enable the lower courts to give it short shrift in future cases.

"There's not a court in this country that has ever given any credence to this argument, but it keeps coming up," he said. "I suspect it will keep coming up, but maybe this case can be used for the courts to give it summary review. Heaven forbid we consume more time by looking at this issue."

Moore was sentenced to death for the 1979 robbery slayings of cab drivers Reuel Van Ness Jr. and Maynard Helgeland. In the Florida case, Muhammad has been on death row 24 years for the 1974 abductions and slayings of Sydney and Lilian Ganz in Miami. He also was convicted of killing prison guard Richard Berke in 1980.

Moore is scheduled for execution on Jan. 19. However, he has a pending appeal before the U.S. District Court in Lincoln. His attorney on that case, Alan Peterson of Lincoln, said he would promptly file a request for a stay of execution. It is expected that the court will grant that delay.

Justice Stephen G. Breyer was the only Supreme Court justice voting to hear arguments in the case. 4 votes are necessary to grant review.

"Where a delay, measured in decades, reflects the state's constitutionally own failure to comply with the Constitution's demands, the claim that time has rendered the execution inhuman is a particularly strong one," he wrote in a dissent.

Justice Clarence Thomas took the extraordinary step of writing an opinion concurring in the court's denial of review.

"I am unaware of any support in the American constitutional tradition or in this court's precedent for the proposition that a defendant can avail himself of the panoply of appellate and collateral procedures and then complain when his execution is delayed," Thomas said.

Brown said it's ludicrous for death row inmates to argue that delay makes their sentences unconstitutional.

"The position that a system that affords an inordinate amount of review in these cases should be turned on and criticized for taking an inordinate amount of time to go through these levels of review frankly strikes me as ludicrous," he said.

But Fogarty said it wasn't Moore who slowed down his case - it was the state, with repeated appeals of adverse rulings over one of Nebraska's sentencing factors. He said Moore's case would have been ideal to address the questions of delay.

"The lower courts won't give a serious issue serious consideration," he said. "The only court with enough horsepower is the Supreme Court. If they won't do it, nobody will do it. The lower courts won't handle this hot potato."

But he predicted the issue will arise again in Moore's case.

"What will the Supreme Court say in 2005, when Carey Moore is back saying the government still hasn't gotten it right?," he asked. "Then we'll have a man on death row for 25 years, with the State of Nebraska still failing to adopt a constitutional standard."

Brown rejected Fogarty's contention that state appeals have delayed Moore's case.

"I think the people of the State of Nebraska have as much right to obtain a correct answer from the courts as Carey Dean Moore does," he said.

+++++++++++++++++++++++++++++++++++++++

The Atlantic Monthly
November 2005

What Would Zimbabwe Do?

"Comparativism"—using foreign legal rulings to help interpret the Constitution—is startlingly on the rise in the U.S. Supreme Court

by Emily Bazelon

[these two paragraphs are extracts from a longer article]

In 1999 one of the scores of death-row appeals that land at the Supreme Court each year caught the eye of Justice Stephen Breyer. Thomas Knight, who had been sentenced to death by the State of Florida in 1975 for killing a married couple, argued in the appeal that he had been living in anguished anticipation of execution for so long that his sentence had become a form of cruel and unusual punishment. Knight's case was joined with that of Carey Moore, who'd been on Nebraska's death row for nineteen years for killing two cabdrivers.

No court in the United States had ever lifted a death sentence for this reason. But Breyer had a hunch that courts in other countries might have done so, and he asked his clerks to investigate. He had issued a similar directive earlier that term, when he wanted to know more about other countries' approaches to campaign-finance law. "I remember his exact words," says one of Breyer's clerks from that year. "He said, 'We're not the only court in the world. See what they have to say.'" Breyer has come to refer to proponents of this approach—namely, judges who use international legal precedents for context as they interpret the U.S. Constitution—as "comparativists."

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