Judge denies appeal over injection drug

Omaha World-Herald, Nebraska/March 3, 2012

Lincoln -- Condemned inmate Michael Ryan failed to persuade a judge to overturn his death sentence by alleging that Nebraska had acquired a stolen lethal injection drug.

District Court Judge Daniel Bryan dismissed Ryan's appeal late Thursday in Richardson County District Court in Falls City, Neb. The judge also rejected Ryan's request for an evidentiary hearing.

"We're pleased with this ruling," Nebraska Attorney General Jon Bruning said Friday. "It's time for defense counsel to stop wasting the court's time and money with frivolous, meritless motions."

Ryan, 63, had been scheduled Tuesday to be Nebraska's first death-row inmate to die of lethal injection. Last week, however, the Nebraska Supreme Court stayed the execution.

The lower court ruling paves the way for the attorney general to request a new execution warrant for Ryan.

Jerry Soucie, an attorney with the Nebraska Commission on Public Advocacy who represents Ryan, said he will meet with his client next week and they will plan their next step. They could appeal the ruling or perhaps file a motion in federal court.

Ryan, the former leader of a religious cult, was sentenced to death for the gruesome torture and murder of one of his followers, 25-year-old James Thimm. He also was convicted of killing Luke Stice, the 5-year-old son of another cult member.

The murders took place at a remote farm outside of Rulo, Neb.

Ryan filed an appeal Feb. 13 asking the judge to replace his death sentence with life in prison without parole. His 116-page motion alleged that Nebraska did business with an Indian drug broker who deceptively obtained a lethal injection drug from a Swiss manufacturer.

An executive for the Swiss company has since asked Nebraska to return the sodium thiopental because he never intended it to be used in an execution.

The anesthetic, the first drug administered in the state's three-drug execution protocol, is no longer made in the United States and must be purchased abroad.

Ryan also challenged his 1986 sentence on the grounds that he was ordered to die in the electric chair, not by lethal injection. Nebraska switched methods in 2009, a year after the State Supreme Court ruled electrocution was cruel and unusual punishment.

In his ruling, Judge Bryan said he could vacate Ryan's sentence only if he determined the conviction violated the Nebraska or U.S. Constitutions. Ryan's appeal centers on the method of execution and therefore involves events that have occurred well after the conviction and sentence.

"Our Supreme Court has already rejected the use of the post-conviction procedure to challenge the actual method of carrying out the death penalty as separate from the actual sentence imposed," Bryan wrote in his ruling.

Nebraska has not used capital punishment since 1997, when Robert Williams was executed in the electric chair.

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