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May 19, 2012

Missouri AG pushing state to get serious about carrying out executions again

This interesting new AP article, headlined "Missouri attorney general urges state Supreme Court to schedule executions or explain why not," reports on efforts by Missouri Attorney General Chris Koster to get his state's machinery of death operational again.  Here are the details:

Koster filed a motion on Thursday seeking execution dates for nine men. The motion also questions why the court has not set execution dates for 10 others whose execution dates were previously requested.  "Silence is not an option in this matter any longer," Koster said in an interview on Friday.  "The court needs to give us the word that we can move forward with these, or they need to articulate why not."

Beth Riggert, spokeswoman for the Missouri Supreme Court, declined to speculate on why execution dates have not been set for the 10 earlier inmates.  As for the nine new ones, she said each has five business days to respond to Koster's call for execution dates. "The court will rule when it deems it appropriate," she said.

Meanwhile, Missouri's next execution will apparently use a new process.  Previously, the state used a three-drug protocol.  But a shortage of one of those drugs, sodium thiopental, has prompted the state to go to a single-drug method.

Between 1989, when executions resumed in Missouri, and 2005, the state put to death 66 convicted killers.  But in the seven years since then, only two men have been executed — Dennis Skillicorn in 2009 and Martin Link last year....

In Missouri, the attorney general typically requests an execution date after traditional court appeals are exhausted.  In years past, the state Supreme Court would then establish a date, setting in motion last-minute court appeals as well as a clemency request before the governor.  But it has been six years since Koster's predecessor, now Gov. Jay Nixon, requested an execution date for Jeffrey Ferguson. Execution dates for five inmates have been pending since 2007.

Koster acknowledged that two issues may have made the Supreme Court reluctant to move forward.  Death penalty opponents have filed several claims that lethal injection violates a constitutional guarantee against cruel and unusual punishment, saying it potentially causes extreme pain that the drug-induced inmate cannot articulate.  A 2010 ruling by the U.S. Supreme Court cleared the use of the drugs. Then a shortage of one of the three drugs emerged.  Some states halted executions because of the inability to obtain sodium thiopental, which renders the inmate unconscious....

Missouri has revised its protocol and will now use just one drug, propofol (marketed as Diprovan), which will be administered intravenously, Dave Dormire, director of the Missouri Department of Correction's Division of Adult Institutions, said in a statement on Friday.  Corrections officials did not say when the new protocol was adopted.

Koster also noted that there has been a change in "political sentiment" toward the death penalty, with an increasing number of states reluctant to carry it out and prosecutors becoming more reluctant to seek it.  Still, he said that as long as it is law in Missouri, there is an obligation to move forward with executions.  "The political world doesn't affect the carrying out of these sentences until legislatures act," Koster said.  "I have an obligation to strictly follow the letter of the law. The Supreme Court does as well."

May 19, 2012 at 11:29 AM | Permalink


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For the bulk of these 19 murderers, there should be no last minute appeals on anything but LI. (The LI appeal shouldn't stay any execution.) These guys have had years to raise whatever they needed to raise. They shouldn't be allowed to wait until an execution date.

Posted by: federalist | May 19, 2012 3:59:39 PM

True. Now that Missouri has a new protocol,
it will be interesting to see how this plays out. More delays because of the drug change?
Let us hope not.

The real question is the Missouri Supreme Court going to have the guts to set numerous execution dates? The AG in Mississippi is requesting 3 executions in the same week.

Posted by: DaveP | May 19, 2012 4:20:01 PM

I'd set one a day for 19 business days. Love to see the outrage over that.

Posted by: federalist | May 19, 2012 5:42:22 PM

federalist, I'm sure you would "love" to inject the 19 bastards yourself. Why don't you volunteer?

Posted by: onlooker | May 19, 2012 6:12:11 PM

I don't think they'd take me. But if they asked, I would have zero problems lethally injecting these guys.

Posted by: federalist | May 19, 2012 7:33:19 PM

Federalist etc.

The blogs have missed 2 LI cases that were issued recently.
Ringo v Lombardi 8th US Circuit
West v Schofield Tennessee Court of Appeals at Nashville

Posted by: DaveP | May 19, 2012 8:32:16 PM

i'm just wondering why it's up to the state supreme court to set the dates. After the issuance of a death warrant i would think everything else would be on the bureau of prisons.

Posted by: rodsmith | May 19, 2012 9:02:35 PM


It depends on the particular state statute.
Missouri's AG files a motion with the state supreme court. After the date is set, the DOC is responsible for carrying it out. With the recent developments, I expect more litigation with the change in protocol. Missouri should prevail. It depends on the state and federal courts how quickly it will happen. With DP cases, you never know.

Posted by: DaveP | May 19, 2012 9:35:16 PM

DaveP, couple of things I'd like to see--(1) collateral estoppel in LI cases--if there's a state judgment on the merits binding on the murderer, the federal courts ought to respect it, (2) in federal litigation, the Baze standard for a stay ought to be followed and (3) courts enforcing the standards for last-minute litigation.

One of the murderers ought to have been executed already--but that capital-murderer coddling judge, Fernando Gaitan balled him out.

Posted by: federalist | May 20, 2012 8:36:18 AM


Agreed. One issue I am going to look at is this Ringo case. I thought the 8th circuit reversed Gaitan and upheld the Missouri LI over 3 years ago. Cert was denied. What does Ringo claim that wasn't resolved in Taylor?

You are thinking of Roderick Nunley. It should
be back in Gaitan's court now to vacate the stay because the Missouri sup court denied the appeal and cert was denied.

Posted by: DaveP | May 20, 2012 9:19:12 AM

onlooker --

"federalist, I'm sure you would "love" to inject the 19 bastards yourself. Why don't you volunteer?"

onlooker, I'm sure you would love to do the autopsies of the murder victims (such as remains of them) yourself. Why don't you volunteer?

Posted by: Bill Otis | May 20, 2012 9:46:03 AM

It's ironic that Bill Otis tries to characterize this blog as a left-leaning forum.

Look at most of the comments above.

Does federalist actually get aroused when executions are carried out?

Posted by: Calif. Capital Defense Counsel | May 20, 2012 1:14:57 PM

No, CCDC, but I do look at it as uplifting that a society has the moral courage to do what's right over the objections of moral scolds like you.

Posted by: federalist | May 20, 2012 2:53:36 PM

I have been reading about this new drug that Missouri is going to use. Diprovan(propofol). Never been used in executions. I can just see the litigation now.

I am sure other states will be watching closely on this.

Also, it seems Florida Governor Rick Scott's pen has run out of ink.

Posted by: DaveP | May 20, 2012 3:57:57 PM

Hey federalist, was it morally courageous for Texas to execute an innocent man?

Posted by: Calif. Capital Defense Counsel | May 20, 2012 4:22:56 PM

Prove it, CCDC.

Posted by: federalist | May 20, 2012 4:29:04 PM

Court to Texas: Pay $2 million to man imprisoned for 26 years

Wrongfully convicted Texas trio exonerated in 1994 robbery

Dallas County district attorney a hero to the wrongfully convicted

Conviction in 1984 South Pasadena murder overturned

Posted by: George | May 20, 2012 4:47:13 PM


"It's ironic that Bill Otis tries to characterize this blog as a left-leaning forum. Look at most of the comments above."

If you think the comments on a single thread tell you beans about how the FORUM is properly characterized, it's no wonder you lose almost all your cases.

The decided majority of commenters on this site are defense-oriented (if not practicing defense lawyers), and Doug is a center-left guy with an open mind. Anyone who regularly reads this blog, except apparently you, knows this.

Posted by: Bill Otis | May 20, 2012 7:32:19 PM

I believe they should resume as soon as possible. I am personally tired of hearing (by prisoners), how being put to death is cruel and unusual. Excuse me - but I believe the people murdered in the ways they did was cruel and unusual. I think propofol is an excellent idea. It will be like going to sleep. In most cases it would seem too kind but hey, if it gets the job done....
Every year the count changes as to how much it is costing to keep prisoners alive in prisons. They tax payers are the ones who flip the bill. I am a criminal justice student who just happened to run by here in looking up some information on a person who has been using tax dollars with any and all kinds of appeals. It is no wonder states are going broke. There needs to be a better limit on appeals.
What about the 8th amendment rights of the people they murdered.

Posted by: V.Dillon | Jul 7, 2012 5:20:33 PM

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