Death Penalty
12:37 pm
Wed January 22, 2014

In Light Of Investigations, Inmate's Lawyers Ask Courts To Stay Execution

Despite possible or pending investigations into how the state carried out executions by the state auditor, the legislature, two state Boards of Pharmacy, the Food and Drug Administration and the U.S. attorney’s office, the state of Missouri has shown no signs of holding off on next week's execution.

Lawyers representing inmate Herbert Smulls are hoping the courts will stay his execution for 60 days, so that some of these investigations can play out. Smulls is scheduled to be put to death on Jan. 29 for the 1991 shooting of Stephen and Florence Honickman.

Since the state's last execution a month ago, St. Louis Public Radio and the Beacon found that the Oklahoma compounding pharmacy supplying the execution drug isn't licensed in Missouri.

"A recent execution – interestingly, in Oklahoma – demonstrates that the risk from the use of pentobarbital to kill a human being is not speculative, but is very real," Cheryl Pilate, Smull's lawyer, wrote in the motion. "After being injected with pentobarbital during his execution, the Oklahoma prisoner said, 'I feel my whole body burning.'"

Missouri's execution drug supplier is located in Oklahoma, and there has been speculation that the pharmacy has been supplying other states.

Lawyers representing Smulls recently questioned David Dormire, the director of the division of adult institutions. Dormire is one of the few people who helped find a pharmacy willing to sell to a department of corrections for an execution. He testified that he didn't know if the pharmacy was licensed to sell in Missouri.

From Pilate's court filing.

"We were very surprised, really, by the lack of attention that was given to vetting the pharmacy -- finding out if it was qualified to do what it did, if it was inspected, if it was properly licensed," Pilate said in an interview. "It seemed that there was almost no knowledge actually of the capabilities of the compounding pharmacy."

Pilate and her coworkers also confirmed that the state has been storing the execution drug at room temperature, leading the Department of Corrections to use a drug past its use date.

"The fact that the compounding pharmacy did not direct them to keep the drug in a frozen state raises extreme alarm," Pilate said. "We don't know what that drug is at this point."

The execution drug matters. In Ohio, an inmate took 15 minutes to die after being administered a different lethal injection drug. A witness reported that he struggled, gasped for breath and choked.

Smulls "could suffer excruciating pain during the execution," Pilate said.

The state hasn't responded to Pilate's filing yet. In previous statements, the Department of Corrections has said only that it follows all laws in carrying out executions. Based on previous filings, the attorney general's office is likely to argue that the state has carried out two executions with its current protocol and that validates the new method -- and secrecy.

"First of all, we don't know what those individuals experienced as they were losing consciousness. To make any conclusions on what is observed would be wrong," Pilate said. "No. 2, compounded drugs vary from batch to batch. What went into the veins of [the previous inmates] is not necessarily what is intended to go into Mr. Smulls."

Compounded drugs do vary from batch to batch. In inspections spanning the last decade, the Missouri Board of Pharmacy has found that about one out of every five drugs didn't meet standards.

Meanwhile, Pilate is also seeking a stay on different grounds. Smulls is an African-American man convicted by an all-white jury. Pilate is arguing before the Missouri Supreme Court that the only black juror was dismissed under false pretenses -- that qualms with her demeanor and occupation were veiled attempts to exclude her because of her race.

At the moment, it's still unclear what chances the two potential stays have. The stay based on the quality of the drug is before a new judge who hasn't heard this case before. And there is also a considerable amount of new information on the quality of the pharmacy and the drug.

But unless the courts -- or Gov. Jay Nixon -- intervene, next week the state will carry out its third execution in as many months.

Follow Chris McDaniel on Twitter@csmcdaniel