By Jim Salter, Associated Press
ST. LOUIS (AP) – Attorneys for condemned inmate Herbert Smulls pressed on with concerns Monday about Missouri’s execution drug, even as the state prepares for its third execution since November.
Smulls is scheduled to die at 12:01 a.m. Wednesday for killing St. Louis County jeweler Stephen Honickman in 1991. On Sunday, attorneys for Smulls filed a motion with U.S. District Court alleging that the state’s refusal to name the compounding pharmacy that makes Missouri’s execution drug prohibits them from proving that the execution method could cause pain and suffering for the inmate.
“Bound and gagged by statute and court order, counsel cannot prove Missouri’s current execution protocol represents a `constitutionally unacceptable’ risk without further investigation,” the appeal states.
A spokeswoman for the Missouri attorney general’s office did not respond to a message seeking comment.
It is one of several appeals filed on Smulls’ behalf. His attorneys, Lindsay Runnels and Cheryl Pilate, also have requested clemency from Gov. Jay Nixon, whose spokesman said the governor had not made a decision as of Monday evening.
Ruling on a separate motion, U.S. District Judge Beth Phillips in Kansas City refused Monday to grant Smulls a 60-day stay of execution. Pilate called the ruling “denial of due process” and said she would appeal to the 8th U.S. Circuit Court of Appeals.
“In essence he can’t win, and in essence the courthouse is closed to him,” Pilate said.
Missouri had used a three-drug cocktail for executions since 1989, but makers stopped selling those drugs for executions. Missouri ultimately switched late last year to a form of pentobarbital made by a compounding pharmacy, though it refuses to name that pharmacy or say where it is located.
Compounding pharmacies custom-mix drugs for individual clients and are not subject to oversight by the U.S. Food and Drug Administration, though they are regulated by states.
The drug was used to execute serial killer Joseph Paul Franklin in October and convicted killer Allen Nicklasson in November. Neither inmate showed any outward signs of distress during those executions.
But attorneys for Smulls say that with so little known about the drug, the possibility that something could go wrong persists.
So far, the courts have disagreed. The 8th U.S. Circuit Court of Appeals late Friday allowed the identity of the compounding pharmacy to remain a secret. The ruling overturned a federal judge’s order that the state disclose the identity of the pharmacy to Smulls’ lawyers.
Smulls, 56, of St. Louis, has been on death row for more than two decades.
Smulls met on July 27, 1991, at F&M Crown Jewels in Chesterfield with Stephen Honickman and his wife, Florence. Smulls said he wanted to buy a diamond for his fiancee, and went to the shop with 15-year-old Norman Brown.
Inside the shop, Smulls shot both. Honickman, 51, pleaded, “Enough already, take what you want.” The robbers took rings and watches, including those worn by Florence Honickman.
At Smulls’ trial, assistant prosecutor Dean Waldemer said Florence Honockman was shot in the arm and side and played dead while lying in a pool of her own blood. She survived.
Stephen Honickman staggered to the door and fell into the arms of police officers before dying at a hospital.
Smulls and Brown were arrested about 15 minutes later. Florence Honickman identified Smulls as the shooter.
St. Louis County prosecutor Bob McCulloch called it a crime that merited the death penalty.
“They planned it out, including killing people, whoever was there,” McCulloch said.
Brown was convicted in 1993 of first-degree murder and other charges, and sentenced to life without parole.
Smulls’ attorneys spent years appealing, alleging that it was unfair that Smulls, who is black and from St. Louis city, was convicted by an all-white jury in St. Louis County. The U.S. Supreme Court denied his last appeal on that claim in April 2009.
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