Attorneys hope to argue SD execution protocol case

October 5, 2012 - 5:34 PM

SIOUX FALLS, S.D. (AP) — Arkansas attorneys who stand ready to challenge the constitutionality of South Dakota's new one-drug execution method face an unexpected obstacle: their own client.

Donald Moeller, convicted of the 1990 slaying of 9-year-old Becky O'Connell, says he's ready to die for the crime and wants the federal case bearing his name dismissed. The attorneys say Moeller is incompetent and incapable of making voluntary and rational decisions.

Like many other states faced with dwindling supplies of sodium thiopental, South Dakota has turned to pentobarbital, a barbiturate used to treat anxiety and convulsive disorders such as epilepsy.

The attorneys contend pentobarbital would inflict cruel and unusual punishment. He says the lawyers "are working for their own agenda."

What happens next is in the hands of U.S. District Court Judge Lawrence Piersol, who must quickly decide whether to let Moeller clear the last roadblock to his execution or dive into the nuts and bolts of the drug, where it's coming from and how it would be administered. Moeller, 60, is scheduled to be executed between Oct. 28 and Nov. 3, with the exact date and time up to prison officials.

"There may indeed be grounds for arguing that out and hearing some experts," said Richard Dieter, executive director of the Washington-based Death Penalty Information Center. "But if the defendant doesn't want it, then the courts have to say, 'Why are we doing this?'"

Piersol has upheld the constitutionality of Moeller's conviction and sentence, but he hasn't ruled on the constitutionality of a South Dakota Department of Corrections execution policy that was changed last year.

South Dakota previously just had a three-drug protocol for executions. The change added one- and two-drug procedures as options. The two-drug protocol calls for sodium thiopental or pentobarbital to be used before pancuronium bromide is injected to stop the inmate's breathing. The three-drug procedure includes sodium thiopental or pentobarbital, followed by pancuronium bromide to stop the breathing and potassium chloride to stop the heart.

South Dakota's supply of sodium thiopental expired last month, so it's planning to use pentobarbital on Moeller.

Megan McCracken with the University of California Berkeley School of Law's Death Penalty Clinic said a one-drug method can lessen the risk of pain and suffering by removing the paralytic agent and potassium chloride from the mix. "On the other hand," she said, "in a one-drug procedure, needless to say, the one drug matters."

McCracken also wonders where some states are getting the drug. Prison supplies of the only form of pentobarbital approved by the Food and Drug Administration for use in humans have shrunk after the manufacturer said it would prevent its use in executions.

A July court filing suggests South Dakota will obtain its pentobarbital through a compounding pharmacy. Such pharmacies custom-mix solutions, creams and other medications in doses or forms that generally aren't commercially available. The pharmacy's identity and location have been sealed by the court.

The FDA considers compounding pharmacy products unapproved drugs and does not verify their safety or effectiveness.

McCracken said she'd be concerned about the source of the active pharmaceutical ingredient, how it will be compounded, by whom, in what form, and whether the pharmacy would do a good job. "All of that comes together to say, 'Will the final product be what it purports to be: a pure, effective and safe form of this anesthetic drug?'" she said.

Dieter said pentobarbital acts more slowly than sodium thiopental, and staffers running the IVs need to be trained on what dosage is needed, how long it's going to take and what adverse reactions might occur depending on an inmate's medical history.

"It is sort of an off-the-shelf use. So we're into a realm where few people know the answers to these kinds of questions like how long will it take and what's the inmate feeling and when," he said.

Authorities say Moeller kidnapped O'Connell from a Sioux Falls convenience store, drove her to a secluded area near the Big Sioux River, then raped and killed her. Her naked body was found the next day. She had been stabbed and her throat was slashed.

McCracken said the questions surrounding Moeller's execution deal with constitutionality issues, and such a legal challenge cannot simply be waived.

"It does seem to be a bigger question than about just one prisoner," she said.