Lawyers Spar Over Potential Death Penalty Delay

Oct 22, 2012

South Dakota lawyers argue whether a death row inmate’s lethal injection should happen next week. Donald Moeller got his final appeal dismissed earlier this month and says he accepts the death penalty. Now a woman who says she’s Moeller’s friend wants the execution put on hold.

Donna Nichols didn’t appear in federal court, but her lawyer says she’s concerned Donald Moeller isn’t competent to waive his last appeal ahead of his execution. Rapid City lawyer Robert Van Norman says Nichols is Moeller's step-sister.

Attorney Mark Marshall says that’s not accurate. He points out that Moeller’s mom was married to his step-father for several years. They divorced, and Moeller’s step-father married Nichols’ mother. So there’s no legal or blood connection between the two.

Attorney General Marty Jackley says that’s why he argues Donna Nichols’ court filings aren’t enough to request a stay of execution.

"It simply didn’t establish anything in regard to the competency issue that was before the court, and Mr. Moeller noted that there is no actual relationship to this individual," Jackley says. 

During the hearing Moeller spoke, saying “She’s not family. She’s not been a friend.” He claims he’s received two notes from her this year.

Three attorneys also argued whether a judge has the legal authority to delay an inmate’s execution. Van Norman says his client is a friend of confessed child killer Donald Moeller and wants the court to stay Moeller’s execution because he argues Moeller is not competent to accept the death penalty.

Marshall says the way his client’s lethal injection appeal was dismissed earlier this month doesn’t allow the district court jurisdiction to issue a stay of execution. Attorneys for the state agree.

Judge Lawrence Piersol questions that. He presents a scenario that an inmate decides to dismiss appeals but is later evaluated and found to be incompetent. Judge Piersol sharply asks, “So we execute somebody who’s stark-raving mad?”

Attorney General Marty Jackley says the court doesn’t have the authority to stop the execution, but South Dakota has other safeguards.
 
"Under the law, an execution can be stopped by either the governor or it can be stopped by a court of competent jurisdiction," Jackley says. "So if somebody were to be insane, state law does not allow them to be put to death, so the South Dakota Supreme Court Chief Justice Gilbertson would have that jurisdiction."

The federal court judge says he plans to return a decision on the case promptly. Donald Moeller’s lethal injection could be scheduled as early as Sunday.

Moeller leaves the federal courthouse in Sioux Falls.