Judge to hear arguments on SD's single execution drug

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SIOUX FALLS (AP) — A federal judge will hear arguments next week on whether South Dakota's one-drug capital punishment procedure is constitutional.

Attorneys who represent convicted killer Donald Moeller, who is scheduled to be executed in late October or early November, contend that the method that will likely use pentobarbital violates the constitutional ban on cruel and unusual punishment.

Moeller has said in state court that he's ready to accept death as the consequence of the 1990 killing of 9-year-old Becky O'Connell. And U.S. District Court Judge Lawrence Piersol has upheld the constitutionality of Moeller's conviction and sentence, but he has yet to rule in the 2004 case on South Dakota's execution protocol.

Piersol is scheduled to view the South Dakota State Penitentiary's execution chamber Thursday morning before a 1:30 p.m. hearing in U.S. District Court in Sioux Falls.

South Dakota has two execution drugs in its inventory, sodium thiopental and pentobarbital, but its supply of sodium thiopental expires in September, said Attorney General Marty Jackley.

"If you fast-forward to October, the relevant issue is pentobarbital," Jackley said.

Faced with a dwindling of supplies of sodium thiopental, most states have turned to pentobarbital, a barbiturate used to treat anxiety and convulsive disorders such as epilepsy. Pentobarbital supplies also have shrunk after its manufacturer said it would try to prevent its use in executions.

Moeller's attorneys, in a July filing, said they were seeking information on how the state is obtaining its supply of pentobarbital, whether it's from an FDA-approved company, how the drug is stored and how it's delivered. Nearly all recent filings in the case have been sealed.

Elijah Page was executed by lethal injection in 2007, South Dakota's first execution in 60 years. The state now has four inmates on death row.

Piersol's upcoming ruling on the method could affect both Moeller and Eric Robert, who is scheduled to be put to death in mid-October for the 2011 killing of prison guard Ronald "R.J" Johnson.

Jackley said Piersol has given attorneys a road map on how he would like the arguments to be tailored. The judge in his order said he will consider the method's degree of risk, magnitude of pain and the availability of other essential protocols.

Piersol said he will also listen to arguments on what alterations would be necessary to make the protocol constitutional if it's found to be unconstitutional.

Deborah Czuba, a Little Rock, Ark.-based federal public defender representing Moeller, said she could not comment on the pending litigation.

Robert's co-defendant, Rodney Berget, was also sentenced to death, but an order for stay of execution was issued in August pending an appeal. The state Supreme Court is scheduled to hear oral arguments in Berget's case Monday.

The fourth man on death row is Charles Russell Rhines, who was convicted in the 1992 fatal stabbing of 22-year-old Donnivan Schaeffer during the burglary of a Rapid City doughnut shop. His conviction and death sentence was upheld in September, but no execution date has been set.

Tags: death penalty, news, updates, courts, execution, pentobarbital, prison