A federal appeals court panel on Tuesday issued a strong warning to Arizona
officials who have continuously violated and changed their own written protocol
for executing state death-row inmates.
In its ruling on Tuesday, the three-judge panel of the 9th U.S. Circuit Court
of Appeals in San Francisco turned down a request to delay two upcoming
executions -- that of Robert Henry Moormann on Wednesday and of Robert Charles
Towery 8 days later on March 8.
While the judges declined to delay the executions, they wrote that Arizona has
forced the court "to engage in serious constitutional questions and complicated
factual issues in the waning hours before executions."
"This approach cannot continue," the panel wrote. "We are mindful of the
admonition requiring us to refrain from micro-managing each individual
execution, but the admonition has a breaking point."
And unless Arizona officials make permanent changes, the judges wrote that the
court might have to start monitoring each individual execution in the state to
make sure the law is followed.
The ruling comes after the state Department of Corrections unexpectedly changed
its execution protocol last month, one of multiple unannounced changes in
Defense attorneys argued to the court that the new protocol loosened
requirements for those who inject inmates with the lethal drugs and gave far
too much discretion to corrections Director Charles Ryan.
According to the new protocol, Ryan can decide with which and how many drugs to
execute inmates and must give the inmates' 1 week's notice of what he decided.
But on Monday, less than 48 hours before Moormann's scheduled Wednesday
execution, corrections staff realized that 1 of the drugs they had planned to
use expired last month and is no longer available.
They then notified Moormann and his attorneys that he would be executed with
just one drug, pentobarbital.
The late notice violates the department's new written execution protocol.
"How such a discovery escaped the state for the past six weeks is beyond us,"
wrote the appeals panel on Tuesday. "(It) gives us pause as to the regularity
and reliability of Arizona's protocols. To be sure, the state caught the
mistake, but almost too late."
Although the judges warned Arizona about violating and changing its execution
protocol, they said that neither Moormann nor Towery is likely to be subjected
to cruel and unusual punishment because of those changes, and did not deserve
to have their executions delayed.
Also Tuesday, a different 3-judge panel at the 9th Circuit turned down a
separate filing from Moormann that sought a delay in his 10 a.m. Wednesday
execution over arguments about his mental disabilities.
Moormann, of Flagstaff, was serving nine years to life in prison in 1984 for
kidnapping and molesting an 8-year-old girl when the state let him out on the
3-day compassionate furlough from a state prison in Florence, about 60 miles
southeast of Phoenix.
Moormann beat, stabbed and suffocated his adoptive mother, Roberta Moormann,
before cutting off her head, legs and arms, halving her torso, and flushing all
her fingers down the toilet. He then went to various businesses asking if he
could dispose of spoiled meat and animal guts before he threw most of her
remains in trash bins and sewers.
The killing prompted the state to change its furlough policy.
Moormann's attorneys have been arguing in courts at every level that he should
not be executed because multiple psychologists have diagnosed him as mentally
State law prohibits executing the mentally disabled, or those who have IQs
lower than 70.
Prosecutors argue that Moormann's mental capacity at the time of the killing
was just above the legal requirement for mental impairment.
In its ruling Tuesday, the 9th Circuit panel ruled that Moormann's mental
disabilities at the time of the crime are what matters.
"There is no clearly established federal law that a person who was not mentally
retarded at the time of the crime or the trial may nevertheless be exempted
from the death penalty ... because of subsequent mental deterioration," the
Although Moormann's teachers and family members say that he was clearly
mentally impaired as a child, his abilities have worsened over the years
following a spate of health problems, including a stroke in 2007.
Moormann's attorneys also have been unsuccessful in arguing to courts and a
clemency board that because Roberta Moormann sexually abused her adoptive son
throughout childhood and into adulthood, it would be "unconscionable" to
Moormann's attorneys have at least 1 outstanding request to delay the
In a Tuesday filing at the U.S. Supreme Court, they ask for a delay over
arguments about his mental disabilities.
(source: Associated Press)