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 eight 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 recent years.
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’ one week’s notice of what he decided.
But on Monday, less than 48 hours before Moormann’s scheduled Wednesday execution, corrections staff realized that one 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 three-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 three-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 disabled.
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 panel wrote.
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 execute him.
Moormann’s attorneys have at least one outstanding request to delay the execution.
In a Tuesday filing at the U.S. Supreme Court, they ask for a delay over arguments about his mental disabilities.