A three-judge panel last week refused to delay two executions, for Robert Henry Moormann and Robert Charles Towery, but it put Arizona on notice that things better get change soon.
The warning comes in response to the state Department of Corrections abrupt change in execution protocol last month after many such unannounced changes in recent years.
Defense lawyers argued the new protocol gives too much discretion to the head of the prison system, Director Charles Ryan, and changed requirements for who may inject inmates with the lethal drugs.
The panel rejected the defense request for a preliminary injunction against the 2012 protocol, as changed, but 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,” they wrote. “We are mindful of the admonition requiring us to refrain from micromanaging each individual execution, but the admonition has a breaking point.”
They said the state “invited” the current litigation by changing the protocol after issuing the death warrants.
If the state doesn’t settle on a set of permanent changes the judges may start monitoring each individual execution in the state to guarantee the law is followed.
Under the latest set of changes, corrections staff realized one of the drugs they had planned to use expired last month and is no longer available. That came just 48-hours before Moormann’s scheduled execution Feb. 29.
They notified Moormann and his lawyers they would use one drug, pentobarbital. That late notice violates the department’s own written execution protocol.
How that escaped discovery by the state for the past six weeks “is beyond us,” the judges said. The three judges in the Towery panel were Judges Margaret McKeown, Marsha Berzon and Johnnie Rawlinson. The author was not identified.
In Moormann’s case, the opinion also includedd McKeown and Rawlinson and was signed by Judge Mary Schroeder.
Moormann, 63, was convicted of killing and dismembering his adoptive mother. He was executed on Feb. 29 after the U.S. Supreme Court rejected his last ditch appeals.
Towery’s execution is set for March 8.