Carey Dean Moore was executed in Lincoln, Nebraska, on August 14, 2018, for killing two men in Omaha within five days of each other in August 1979. He was 60 and had been on death row for nearly 40 years. The sentence carried out was the one a three-judge panel first imposed in June 1980, a federal court set aside, and a second panel imposed again in April 1995. Between the first sentencing and the execution came repeated rulings from the Nebraska Supreme Court, decisions from the federal district court and the Eighth Circuit Court of Appeals, a rehearing by the full Eighth Circuit, and execution dates in 2007 and 2011 that were stayed.
The case has a particular shape. Moore was convicted at a trial before judges alone, not a jury. He had filed no appeal in more than ten years when the state asked for an execution date in 2018, and he moved to dismiss his own attorneys. His death was the first execution in Nebraska since 1997.
Reuel Eugene Van Ness, Jr. and Maynard D. Helgeland were both 47 years old and both were fathers. Beyond their ages and the fact that each left children, little of their lives is on record. Helgeland had three children. One of them, a son, said in 2018 that his family was tired of hearing about Moore, that the passage of time had softened his anger, and that he would go to the prison to honor his father but would not watch the execution.
Moore was 21 in the summer of 1979, and his age is also given as 22. Where he was born, how he grew up and what he did before 1979 are not on record.
The first killing, of Van Ness, was on August 22, 1979, and the second, of Helgeland, on August 27, 1979 (also given as August 26). Both were in Omaha, five days apart. They were two separate events.
Moore was arrested about a week after the second killing. His younger brother was also charged and was convicted of second-degree murder. Moore's own case went to trial in Douglas County District Court.
Moore did not ask for a jury. He waived that right, and the Douglas County District Court tried the case itself. Moore's taped statements to the police were admitted, and he presented no evidence. The court found him guilty on both counts of first degree murder.
Under Nebraska law in 1980 a death sentence was decided by a panel of three judges, which included the trial judge. A sentencing hearing before that panel was held on May 22, 1980. On June 20, 1980, the panel sentenced Moore to death on each count. The date of the guilty finding itself is not on record.
Because Nebraska required review of every death sentence, the case went directly to the Nebraska Supreme Court. Moore raised ten assignments of error, including constitutional challenges to the state's death penalty statutes. On January 29, 1982, in State v. Moore, 210 Neb. 457, 316 N.W.2d 33, the court affirmed both convictions and both death sentences. Chief Justice Krivosha and Justice White agreed that the convictions should stand but dissented from the death sentences; they would have imposed life imprisonment. The United States Supreme Court denied review.
Moore then sought postconviction relief in the state courts. He filed a motion on June 29, 1982. The district court denied it on May 6, 1983, and the Nebraska Supreme Court affirmed on June 8, 1984, in State v. Moore, 217 Neb. 609, 350 N.W.2d 14.
On November 14, 1984, Moore filed a petition for a writ of habeas corpus in the United States District Court for the District of Nebraska. On September 20, 1988, that court granted relief. The ground was the wording of one of Nebraska's statutory aggravating circumstances, which allowed a death sentence where a murder involved "exceptional depravity" (Neb. Rev. Stat. section 29-2523(1)(d)). The court held that this language was unconstitutionally vague.
On May 25, 1990, the Eighth Circuit Court of Appeals affirmed, in Moore v. Clarke, 904 F.2d 1226. A rehearing was denied in 1991, reported at 951 F.2d 895, and the United States Supreme Court denied review in 1992. On July 1, 1992, the federal district court ordered that the death sentences be reduced to life imprisonment unless the State of Nebraska started a capital resentencing within 60 days.
The state moved in time. On July 23, 1992, the State asked the Nebraska Supreme Court to define the "exceptional depravity" language, to reweigh the aggravating and mitigating circumstances and to set the sentences itself. On July 9, 1993, in State v. Moore, 243 Neb. 679, 502 N.W.2d 227, the court declined. It said that it had authority to resentence by reweighing, but that doing so would probably be reversed under a recent Eighth Circuit decision, which made the exercise futile, and it remanded the case to the Douglas County District Court for resentencing "in the interest of judicial economy."
A new three-judge panel of the district court resentenced Moore on April 21, 1995. It drew up a narrower definition of the "exceptional depravity" circumstance, built on "cold, calculated planning," applied it and concluded that Moore "should therefore be sentenced to death for each of the murders." It imposed a death sentence for each murder.
The Nebraska Supreme Court reviewed the new sentences in State v. Moore, No. S-95-485, decided September 27, 1996 and modified on the overruling of a rehearing on November 22, 1996 (250 Neb. 805, modified at 257 Neb. 762; 553 N.W.2d 120). In a per curiam opinion it rejected all eight of Moore's claims. They covered whether the state's motion for resentencing was timely, whether the aggravating circumstance based on concealment was vague or overbroad, whether the narrowed definition of "exceptional depravity" could constitutionally be adopted by the sentencing panel, whether the death penalty was applied inconsistently, whether his police statements could be challenged again, whether the proportionality review was sufficient, and whether the aggravating circumstances had been proved beyond a reasonable doubt and outweighed the mitigating ones. The court's closing words were: "All of the appellate claims being without merit, we affirm the sentences of death imposed by the resentencing panel." The United States Supreme Court denied review in 1997.
Between 1997 and 1999 Moore sought further postconviction relief in the state courts. The Douglas County court denied it without a hearing, and the Nebraska Supreme Court affirmed in 1999.
On October 5, 1999, Moore filed a second federal habeas petition. In September 2000 a magistrate judge recommended that it be granted, but the district judge rejected that recommendation and denied the petition (119 F. Supp. 2d 1022).
On January 25, 2002, a divided Eighth Circuit panel reversed, in Moore v. Kinney, 278 F.3d 774. The majority held that the "exceptional depravity" circumstance, including its component about the age of the victim, was still unconstitutionally vague, that the court was bound by its own 1990 decision, and that a trial-level sentencing panel did not have the authority to narrow the circumstance itself. Judge Beam dissented. On March 29, 2002, the court granted rehearing by the full court and vacated the panel opinion.
The full court heard argument on September 11, 2002, and on February 10, 2003, it affirmed the denial of habeas relief, in Moore v. Kinney, 320 F.3d 767. Judge Beam wrote for the majority. Under the federal statute that limits habeas review of state decisions, the majority held that the Nebraska courts had not acted contrary to, or unreasonably applied, clearly established Supreme Court law. It found the narrowed circumstance sufficiently definite, said Moore had adequate notice of how it would be read, and said the court was not bound by its 1990 decision. Judge Heaney dissented, joined by three other judges, and two further judges joined the part of the dissent on due process. The dissent would have returned the case for resentencing without the circumstance. The 1995 death sentences stood.
On July 26, 2004, Moore filed a second state postconviction petition, which raised the execution protocol. The Douglas County court denied it without a hearing on August 31, 2004. On July 28, 2006, in State v. Moore, 272 Neb. 71, 718 N.W.2d 537, the Nebraska Supreme Court affirmed, holding that his broad challenge was procedurally barred and that his challenge to the newer protocol could not be heard under the state's postconviction statute. Judge Wright did not participate.
A date followed. The court's clerk issued a warrant dated March 21, 2007, and Moore was due to be executed on May 8, 2007. He was 49, had given up his appeals, and Nebraska had carried out no execution for ten years.
On May 2, 2007, the Nebraska Supreme Court stayed the execution on its own motion and withdrew the warrant, in State v. Moore, 273 Neb. 495, 730 N.W.2d 563. The vote was four to three. Justice Gerrard wrote for the majority that the court had "acted prematurely in ordering a death warrant before resolving that constitutional question in State v. Mata," a related case then awaiting submission, and said a new warrant could issue once that question was resolved. Chief Justice Heavican, joined by Justices Miller-Lerman and Cassel, dissented, writing that the court had no immediate basis to act and that it was unprecedented to do so when Moore had made no pending request for relief. State Senator Ernie Chambers had asked that the state's process be reviewed before another person was put to death.
A later date, set for 2011, was also stayed by the courts.
Nebraska abolished the death penalty in 2015, and a citizen ballot drive restored it in 2016. On April 3, 2018, Attorney General Doug Peterson filed a motion asking the Nebraska Supreme Court to issue an execution warrant for Moore, saying that the Attorney General had "a legal duty to enforce death sentences ordered by Nebraska's courts." Moore had no pending appeals or stays.
On May 24, 2018, Moore moved to dismiss his attorneys. He had filed no appeal in more than ten years and had made clear that he would not obstruct his execution. The next day, May 25, Peterson asked the court to set a date of July 10 or in mid-July.
The court considered the matter on June 27, 2018. It found that no federal stay was in place and that no state action challenging the conviction or sentence was pending. On July 5, 2018, in case No. S-95-0485, Chief Justice Michael Heavican signed an order directing that Moore be executed on Tuesday, August 14, 2018, and directed Scott Frakes, the Director of the Nebraska Department of Correctional Services, to carry it out. On July 27 Frakes announced that the execution would take place at the Nebraska State Penitentiary.
Efforts by other parties to stop the execution failed. A petition with more than 60,000 signatures asked Governor Pete Ricketts to halt it, and the American Civil Liberties Union of Nebraska asked the state Supreme Court for a delay while it heard a separate case. The Nebraska Supreme Court denied the recent attempts to postpone the execution. On August 13, U.S. District Judge Richard Kopf refused to block it in a lawsuit brought by a party other than Moore, and the Eighth Circuit upheld that refusal the same day. The ACLU did not represent Moore. Moore did not seek clemency and had abandoned his appeals.
Moore was executed at the Nebraska State Penitentiary in Lincoln on Tuesday, August 14, 2018. He was 60 and had been on death row for nearly 40 years. The department said the execution was carried out under the Nebraska Supreme Court's order of July 5, 2018.
It was the first execution in Nebraska since 1997, a gap of 21 years.
Moore's execution came in a state that had abolished the death penalty in 2015 and restored it by a ballot drive in 2016. Helgeland's son had said before the execution that time had softened his anger and that he would not watch.
The litigation produced a body of Nebraska law on the meaning of the "exceptional depravity" aggravating circumstance and on the power of a sentencing panel to narrow it, set out in the 1993 and 1996 decisions and tested in the federal courts in 1990 and 2003.
Both killings were charged and found on separate dates, and no other killing was charged to Moore. The date of the second killing is also given as August 26, and his age at the time as 22. His date of birth is not on record.
August 22, 1979: Reuel Eugene Van Ness, Jr. killed in Omaha.
August 27, 1979: Maynard D. Helgeland killed in Omaha (also given as August 26).
About a week later, 1979: Moore arrested.
May 22, 1980: Sentencing hearing before a three-judge panel.
June 20, 1980: Death sentence on each count of first degree murder.
January 29, 1982: Nebraska Supreme Court affirms convictions and sentences.
June 29, 1982: First postconviction motion filed; denied May 6, 1983; affirmed June 8, 1984.
November 14, 1984: First federal habeas petition filed.
September 20, 1988: Federal district court grants habeas relief.
May 25, 1990: Eighth Circuit affirms.
July 1, 1992: Federal district court orders resentencing within 60 days or life terms.
July 9, 1993: Nebraska Supreme Court remands for resentencing.
April 21, 1995: Three-judge panel again imposes death on each murder.
September 27, 1996: Nebraska Supreme Court affirms (modified November 22, 1996).
October 5, 1999: Second federal habeas petition filed.
January 25, 2002: Divided Eighth Circuit panel rules for Moore; vacated March 29, 2002.
February 10, 2003: Eighth Circuit, sitting as a full court, affirms denial of habeas relief.
July 28, 2006: Nebraska Supreme Court affirms denial of second postconviction relief.
May 2, 2007: Nebraska Supreme Court stays the execution, 4 to 3, and withdraws the warrant.
2011: Execution date stayed by the courts.
April 3, 2018: Attorney General moves for an execution warrant.
May 24, 2018: Moore moves to dismiss his attorneys.
July 5, 2018: Nebraska Supreme Court order sets August 14, 2018.
August 13, 2018: Federal courts refuse to block the execution.
August 14, 2018: Moore executed at the Nebraska State Penitentiary in Lincoln.