Judge's ruling paves way for S. Dakota execution

October 10, 2012 - 1:34 PM
Execution Obstacle Dismissal

FILE - This July 18, 2012, file frame grab provided by KELO-TV shows Donald Moeller during a court appearance in Sioux Falls, S.D. A judge on Tuesday, Oct. 9, 2012, paved the way for the execution of the convicted killer whose attorneys wanted to challenge the constitutionality of South Dakota’s execution protocol over their client’s objections. Moeller is set to die later this month for the 1990 slaying of 9-year-old Becky O'Connell. (AP Photo/Courtesy KELO-TV, File)

SIOUX FALLS, S.D. (AP) — A federal judge has paved the way for the execution of a convicted killer whose attorneys wanted to challenge the constitutionality of South Dakota's execution method over his objections.

Donald Moeller, 60, is scheduled for lethal injection later this month for the 1990 slaying of 9-year-old Becky O'Connell. Moeller has said he's ready to die for the crime and asked that the challenge to the execution protocol be dismissed.

U.S. District Court Judge Lawrence Piersol accepted Moeller's dismissal request this week despite objections from the Arkansas attorneys who had been representing him, according to a ruling filed Wednesday.

The attorneys wanted to press forward with arguments in their challenge, which focused on whether South Dakota's use of the drug pentobarbital in a one-drug method would inflict cruel and unusual punishment.

They argued that Moeller is incompetent and incapable of making voluntary and rational decisions. An affidavit from a psychology professor said Moeller's abusive upbringing and time in solitary confinement have undermined his will to live.

Judge Piersol, after questioning Moeller at length during a hearing last week, said Moeller has the capacity to appreciate his position and make a rational choice.

"During the Court's extensive questioning of Moeller, he was at all times articulate and coherent with regard to the nature of his civil rights action and the consequences of abandoning the action," the judge wrote.

Attorney Scott Braden, who had argued to have a guardian appointed for Moeller, said Wednesday that he couldn't comment on the ruling.

South Dakota Attorney General Marty Jackley said dismissal of the constitutional challenge does not change the state's plans for Moeller's execution.

"The state is committed to performing an execution according to constitutional standards," Jackley said in a statement. "We have safeguards in place to assure a humane and dignified execution process for every inmate on South Dakota's death row."

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.

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

South Dakota previously used 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.

A July court filing by the state 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. Compounding pharmacies have come under scrutiny in the wake a deadly meningitis outbreak linked to contaminated injections made by a Massachusetts specialty pharmacy.