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tion protocol and whether it's constitutional.
• The federal public defender's office based in Little Rock, Ark., has been representing Moeller in the federal case. Attorneys for the office have contended that the execution method that will likely use pentobarbital violates the constitutional ban on cruel and unusual punishment. Their response to Marshall's stipulation was filed under seal.
• And neither Marshall nor Jennifer Horan with the federal public defender's office would comment Tuesday.
• Moeller, 60, is to be executed in late October or early November in the 1990 killing of 9-year-old Becky O'Connell. After years of fighting his conviction and death sentence, Moeller indicated in July in state court that he's ready to accept execution.
• U.S. District Court Judge Lawrence Piersol has upheld the constitutionality of Moeller's conviction and sentence, but he has yet to rule in the case on South Dakota's execution protocol.
• Marshall wrote Tuesday that the matter is dismissed with prejudice based on a federal rule of civil procedure that says a plaintiff may dismiss an action without a court order by filing a stipulation signed by all parties who have appeared.
• Attorney General Marty Jackley confirmed that his office reached an agreement with the state lawyer representing Moeller to dismiss the federal case challenging the execution protocol. Jackley declined to comment on the federal public defenders' response because it's under seal.
• South Dakota has two execution drugs in its inventory, sodium thiopental and pentobarbital, but its supply of sodium thiopental expired in September.
• Faced with dwindling supplies of sodium thiopental, most states have turned to pentobarbital, a barbiturate used to treat anxiety and convulsive disorders such as epilepsy. Supplies of pentobarbital also have shrunk after the drug's manufacturer said it would try to prevent its use in executions.
• In a July filing, the federal public defenders representing Moeller said they were seeking information on how the state is obtaining its supply of pentobarbital, whether it's from an FDA-approved company, how the drug is stored and how it's delivered. Nearly all recent filings in the case have been sealed.
• Piersol has told the attorneys how he would like the arguments to be tailored during a hearing scheduled for Thursday. The judge said he will consider the capital punishment procedure's degree of risk, magnitude of pain and the availability of other essential protocols.
• He also will listen to arguments on what alterations would be necessary to make the execution protocol constitutional if it's found to be unconstitutional.

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