Execution set for Donald MoellerSIOUX FALLS (AP) — In the 22 years since the kidnapping, rape and killing of a 9-year-old Sioux Falls girl, Donald Moeller has repeatedly fought his conviction and sentence of death.
By: Dirk Lammers, The Associated Press
SIOUX FALLS (AP) — In the 22 years since the kidnapping, rape and killing of a 9-year-old Sioux Falls girl, Donald Moeller has repeatedly fought his conviction and sentence of death.
On Wednesday, Moeller indicated he's ready to accept execution.
Ruling on a request by Attorney General Marty Jackley, circuit court Presiding Judge Kathleen Caldwell on Wednesday set Moeller's execution for between Oct. 28 and Nov. 3, with the exact date and time up to prison officials.
Moeller, through attorney Mark Marshall, had asked to be executed on Aug. 6.
"Mr. Moeller specifically told me that he accepts the execution as the consequences of his actions," Marshall told the judge.
Moeller, who was convicted in 1997 for the rape and killing of 9-year-old Becky O'Connell, has exhausted his available state and federal remedies, and the U.S. Supreme Court last month refused to hear an appeal, Jackley said.
"The time has come where we believe the jury's ultimate sentence needs to be carried out," Jackley said after the hearing.
Moeller, balding with a long gray beard and hair and wearing an orange prison jumper and shackles, said few words during the hearing.
Before setting the date, Judge Caldwell asked him, 'Anything you want to say, Mr. Moeller?"
"No, thank you," he replied.
The warrant for execution comes despite Moeller's pending 2004 federal lawsuit arguing the state did not follow procedures in setting its execution method.
In that case, Moeller's Little Rock, Ark.-based attorney contends the execution method violates the constitutional ban on cruel and unusual punishment, partly because drugs obtained from foreign sources not approved by federal agencies could be flawed and cause pain during the execution.
In an order issued last Thursday, federal Judge Lawrence Piersol said state officials now say Moeller will be executed using the one-drug pentobarbital protocol, so he will limit the court's focus on discovery to that drug.
An attorney for Moeller challenged that limitation Monday, citing a comment Jackley made to The Associated Press that the state had both sodium thiopental and pentobarbital in its inventory.
"The fact that the State has so zealously resisted the Department of Justice and Food & Drug Administration's admonition to not use its supply of sodium thiopental and to destroy the drug is also evidence to support Mr. Moeller's assertion that the State will use sodium thiopental in his execution," wrote Arkansas-based federal defender Jenniffer Horan. "The Defendants' representation that Mr. Moeller will be executed using pentobarbital alone is a material fact in genuine dispute."
Jackley in his motion to set the execution date cited a U.S. Supreme Court case that says a warrant of execution may be issued from state court independent of a pending action in federal court. He said there's no stay of execution pending in any court, and if Moeller wishes to seek a federal stay, he must show a significant possibility of success on the merits.
Moeller initially was convicted in 1992, but the state Supreme Court overturned it, ruling that improper evidence was used at trial.
Moeller was convicted and sentenced to die in 1997. The state Supreme Court affirmed the sentence, and Moeller has lost appeals on both the state and federal levels.
Authorities said he kidnapped the O'Connell girl from a convenience store, drove her to a secluded area, then raped and killed her. Her body was found the next day. She had been stabbed and her throat was slashed.