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Federal court panels refuse to block two looming Arizona executions

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Tuesday, Feb. 28, 2012
By Dustin Volz
Cronkite News

WASHINGTON – A federal circuit court Tuesday refused to stand in the way of the executions of two Arizona inmates, scheduled to be put to death Wednesday and next week.

Separate panels of the 9th U.S. Circuit Court of Appeals released a flurry of opinions this week rejecting appeals by death-row inmates Robert Henry Moormann and Robert Charles Towery.

Moormann, 63, is currently scheduled to be executed at 10 a.m. Wednesday for the 1984 murder and dismemberment of his adoptive mother while on a three-day furlough from prison.

Towery, 47, is scheduled to be put to death by lethal injection March 8 for the 1991 robbery and murder of a Valley man.

Their attorneys were pursuing last-minute appeals Tuesday night, including appeals to the full 9th Circuit court and, possibly for Moormann, an emergency stay of execution appeal to the U.S. Supreme Court.

The Arizona Attorney General’s Office could not be immediately reached for comment on the cases Tuesday.

The circuit court Tuesday affirmed lower court decisions denying a stay of execution for Moormann and upholding recent changes to the Arizona Department of Corrections‘ lethal-injection protocol.

Defense attorneys had argued that, among other problems, the new protocols lessen executioner qualifications.

“The new protocol strips away the safety measures that were in the earlier protocol and that were found to be constitutional and consistent,” said Dale Baich, the federal public defender for Arizona.

“It’s our view that the proper course is to stay the execution so that those serious questions could be addressed rather than allow the executions to go forward,” he said.

A separate three-judge panel rejected an appeal claiming Moormann should not be executed because he is mentally retarded.

On Monday, another circuit panel denied Towery‘s claims that a previous attorney engaged in “egregious” professional misconduct by failing to present evidence of an abusive childhood as a mitigating circumstance in his sentencing.

“We were disappointed that the panel did not send this matter back to the state court,” said Baich. “We have asked the full court to review the panel’s decision and allow Mr. Towery to return to the state court for a new sentencing.”

Towery was also a plaintiff with Moormann in the failed challenge to the state’s lethal-injection procedures.

Baich filed two motions Tuesday asking the full court to review both the lethal-injection case and Towery’s claim of attorney negligence.

Towery was convicted in 1992 for the first-degree murder of Mark Jones, a crime he has admitted committing with a roommate. He was also convicted of armed robbery, first-degree burglary, kidnapping, theft and attempted theft.

At his sentencing, Towery’s sisters testified that their mother was physically and emotionally abusive during his childhood. But the sentencing judge said Towery “could not show that it (his upbringing) had an effect on his behavior that was beyond his control or rose to the level of a mental impairment,” the circuit court panel wrote.

Gov. Jan Brewer cannot reduce Moormann’s sentence to life in prison because the Arizona Board of Executive Clemency last week voted 4-1 against recommending reducing his sentence.

The board is scheduled to vote on Towery’s sentence Friday.