Condemned murderer Carey Dean Moore’s execution was stayed Wednesday by a divided Nebraska Supreme Court, whose majority said the court had acted prematurely when it issued a death warrant in the case.

Supreme Court Judge John Gerrard, writing for the 4-3 majority, said the court should have withheld the death warrant until it resolved another death row inmate’s constitutional challenge of the electric chair. That challenge, raised by inmate Raymond Mata, will be heard by the court in September.

The stay was unusual because it was issued on the court’s own motion — that is, the order Wednesday did not come in response to a legal filing by Moore, who said in March that he would no longer fight to stay alive.

Gerrard, citing a U.S. Supreme Court ruling, said the Nebraska court exercised its “inherent power” to act on its own in the Moore case — one of life and death.

“In deciding whether to exercise our inherent power,” he wrote, “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.’”

Gerrard was joined by Judges William Connolly, Kenneth Stephan and Michael McCormack.

Chief Justice Mike Heavican, Judge Lindsey Miller-Lerman and Judge William Cassel of the Nebraska Court of Appeals dissented. Cassel sat in for Supreme Court Judge John Wright, who has recused himself in the Moore case.

Heavican, who noted Moore’s earlier indications that he wanted the execution to go forward, called the majority’s action Wednesday unprecedented.

“Since this court has issued the death warrant, there have been no requests for relief by Moore, nor has he rescinded his earlier request that no action be taken by this court in his case,” Heavican wrote. “In the absence of any such action, this court has no immediate basis to act and it is unprecedented to do so.“

Moore’s attorney, Alan Peterson of Lincoln, said Wednesday Moore was “numb with surprise with this … change of course.”

Peterson met with Moore at the Nebraska State Penitentiary on Wednesday after the stay was issued. Moore was moved to the penitentiary from the Tecumseh State Correctional Institution earlier this week as is called for in the state’s execution protocol.

Moore has been on death row since 1980 for the murders of two Omaha taxi cab drivers.

Peterson said Wednesday that Moore’s attitude about dying had begun to change recently, but he was prepared to die May 8.

“Between us, we decided it doesn’t look like he’s supposed to offer himself up to die like this,” Peterson said. “He’s better off rejoining those who fight for life, including his own.”

Nebraska Attorney General Jon Bruning could not be reached for comment Wednesday.

Omaha Sen. Ernie Chambers, an opponent of the death penalty, applauded the stay. In a letter last week, Chambers asked the Supreme Court to suspend all executions until it has determined the electrocution procedure used by the Corrections Department is constitutional and consistent with state law.

Chambers said Wednesday he did not know what role, if any, his letter had on the court’s decision to issue the stay. But, he said, what’s important is the stay itself.

Jerry Soucie, the attorney for death row inmate Raymond Mata, said the court “did the right thing” in rescinding Moore’s death warrant.

“I was surprised they set (an execution date) anyway” since Mata’s appeal, which challenges the constitutionality of the electric chair, is pending.

Gerrard referred to the Mata appeal several times in the order Wednesday.

The appeal, he wrote, “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.”

And, he continued, while the Nebraska court has said before that electrocution is constitutional, “we have also noted a changing legal landscape that raises a question regarding the continuing vitality of that conclusion.”

He wrote: “It would be premature to permit this electrocution to proceed without the benefit of deciding, on a developed record, whether electrocution is lawful punishment.”

Miller-Lerman, in a separate dissent, did not mention Mata specifically, but she said she doubted future cases should act as a bar on Moore’s execution.

“I am not persuaded that the pendency of other unrelated cases which will be heard and decided in a future term stand as a barrier to proceeding with sentence in this case at this time,” she wrote.

Peterson, Moore’s attorney, said the court majority may have been prompted to act for a variety of reasons, including Chambers’ letter, a narrow vote in the Legislature in March to retain the death penalty and growing concerns about the constitutionality of the electric chair.

“I think it’s probably the court’s being concerned about the inherent unfairness of killing someone in the chair when it might be decided a few months later that nobody should be killed,” he said.

Reach Clarence Mabin at 473-7234 or cmabin@journalstar.com.