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January 29, 2014

SCOTUS grants stay of Missouri execution because . . . ? UPDATE: Execution completed after many hours of legal wrangling

As detailed in this AP report, headlined "Supreme Court grants stay of execution for killer Herbert Smulls," it seems concerns about lethal injection drugs and plans in Missouri has gotten the attention of at least one Justice. Here are the details:

The U.S. Supreme Court has granted a stay of execution for Missouri death row inmate Herbert Smulls. Justice Samuel Alito signed the order, sent out late Tuesday night.

Smulls’ attorney, Cheryl Pilate, says the stay is temporary while the high court reviews the case, but she is hopeful it will become permanent. The execution team will reconvene at noon today, expecting the stay to have been lifted, said Mike O’Connell, spokesman for the Department of Public Safety.

Pilate had made last-minute pleas to spare Smulls, focusing on the state’s refusal to disclose from which compounding pharmacy it had obtained the lethal-injection drug, pentobarbital. Missouri has argued that the pharmacy is part of the execution team so its name can’t be released.

Smulls was convicted of killing a St. Louis County jeweler and badly injuring his wife during a 1991 robbery. Smulls had been scheduled to die at 12:01 a.m. today, at the Eastern Reception, Diagnostic and Correctional Center in Bonne Terre.“We’re happy to get the stay and we’re glad the court is reviewing it,” Pilate said.

A message late Tuesday seeking comment from Eric Slusher, a spokesman for Missouri Attorney General Chris Koster, was not immediately returned. Gov. Jay Nixon denied clemency on Tuesday afternoon for Smulls. “These crimes were brutal, and the jury that convicted Smulls determined that he deserved the most severe punishment under Missouri law,” he said in an email.

On Monday, a federal judge denied a stay of execution that Smulls’ lawyers had asked for 60 days to prove that Missouri’s injection would violate his Eighth Amendment protections against cruel and unusual punishment, by putting him at risk of an excruciating death.

Smulls, 56, of St. Louis, was sentenced to death for the 1991 murder of Chesterfield jeweler Stephen Honickman. He would be the third inmate to be executed in Missouri in three months using pentobarbital produced for the Department of Corrections by a compounding pharmacy in Oklahoma.

I cannot help but speculate that Ohio's recent lethal injection controversy somehow played a role in the granting of this stay. But this AP report suggests that Missouri was not planning to adopt Ohio's new execution method, but rather its already established method of using compounded pentobarbital. Therefore, I am a bit puzzled as to just why Justice Alito would intervene on this issue, especially after the Eighth Circuit had last week rejected en banc this condemned murderer's complaints abut the execution process.

Among my concerns about this stay is the message it seems to send to anyone scheduled to be executed by any method in any state. If Ohio's troubles using a different execution method prompts SCOTUS to stop or delay Missouri's distinct execution plans, then I think any and every lawyer for a capital defendant arguably has an obligation to re-raise (and re-raise and re-raise) in state and federal courts any and all possible claims about one state's execution methods after each and every execution anywhere else in the US.

UPDATE:  I have now heard from a knowledgeable source that Smulls also had a Batson claim before the Supreme Court and that it may be Batson issues, not any Eighth Amendment claim, that is serving as the basis for the stay.

ANOTHER UPDATE:  This AP report notes the stays were all finally lifed and that Smulls was executed late Wednesday night:

Late Wednesday night, Smulls was put to death with a lethal dose of pentobarbital, Missouri's third execution since November and the third since switching to the new drug that's made by a compounding pharmacy the state refuses to name.

Smulls, 56, did not have any final words. The process was brief, Smulls mouthed a few words to his two witnesses, who were not identified, then breathed heavily twice and shut his eyes for good. He was pronounced dead at 10:20 p.m.

Florence Honickman spoke to the media after the execution, flanked by her adult son and daughter. She questioned why it took 22 years of appeals before Smulls was put to death. "Make no mistake, the long, winding and painful road leading up to this day has been a travesty of justice," she said.

His attorneys spent the days leading up to the execution filing appeals that questioned the secretive nature of how Missouri obtains the lethal drug, saying that if the drug was inadequate, the inmate could suffer during the execution process. The U.S. Supreme Court granted a temporary stay late Tuesday before clearing numerous appeals Wednesday -- including the final one that was filed less than 30 minutes before Smulls was pronounced dead, though the denial came about 30 minutes after his death....

Like Joseph Paul Franklin in November and Allen Nicklasson in December, Smulls showed no outward signs of distress in an execution process that took about nine minutes. Missouri had used a three-drug protocol 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. The state claims that since the compounding pharmacy is part of the execution team, it is not required to disclose its name....

Smulls' legal case was protracted over several appeals and over several years, finally ending in 2009 with the death sentence. His accomplice, Norman Brown, was sentenced to life in prison without parole. "It was a horrific crime," [[St. Louis County prosecutor Bob] McCulloch said. "With all the other arguments that the opponents of the death penalty are making, it's simply to try to divert the attention from what this guy did, and why he deserves to be executed."

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. Smulls' attorney, Cheryl Pilate, contended the state's secrecy regarding where the pentobarbital is made makes it impossible to know whether the drug could cause pain and suffering during the execution process.

Pilate also said she and her defense team used information obtained through open records requests and publicly available documents to determine that the compounding pharmacy is The Apothecary Shoppe, based in Tulsa, Okla. In a statement, The Apothecary Shoppe would neither confirm nor deny that it makes the Missouri drug.

Pilate said the possibility that something could go wrong persists, citing recent trouble with execution drugs in Ohio and Oklahoma. She also said that previous testimony from a prison official indicates Missouri stores the drug at room temperatures, which experts believe could taint the drug, Pilate said, and potentially cause it to lose effectiveness.

Some Missouri lawmakers have expressed reservations about the state's execution procedure. On Tuesday, Missouri Senate Democratic Leader Jolie Justus introduced legislation that would create an 11-member commission responsible for setting the state's execution procedure. She said ongoing lawsuits and secrecy about the state's current lethal injection method should drive a change in protocol.

January 29, 2014 at 11:03 AM | Permalink


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The update changes things some but it is interesting that Alito is the one who did this given his separate concurrence in Baze that ends thusly:

"The Court should not produce a de facto ban on capital punishment by adopting method-of-execution rules that lead to litigation gridlock."

Smulls btw was sentenced to die pursuant to a murder done during an armed robbery where someone else was shot as well though she survived. As things go, doesn't sound like "worse of the worst" territory. Premeditation was cited by the prosecution in one article as part of why it was justified.


If one does not oppose the death penalty across the board, this seems to be someone that LWOP could very well be appropriate.

Posted by: Joe | Jan 29, 2014 12:22:51 PM

Joe, there's no "i'm not the worst of the worst" ticket out of the death penalty. Moreover, the "worst of the worst" is not judged only by the specifics of the crime.

As for the stay, if it relates to Batson, that's garbage, since that stuff should have been litigated long ago, and the Supreme Court should not be staying the hand of the state where the criminal has strategically delayed his litigation. And I don't care if it's so they can all take a look---the stay is lawless and illegitimate. There are rules detailing when a stay is appropriate, and where the criminal has delayed, there are almost no circumstances under which a stay should be granted.

As for the LI issues, once again, these issues should have been resolved by the federal courts before the appointed hour. As the Supreme Court has unanimously noted, the victims' families have an interest in timely enforcement of state criminal judgments. They should not be jerked around by unexplained stays, even if they are denominated as "temporary."

These stays only show that Congress was right in enacting the act that would expedited habeas procedures. Too bad the Ninth Circuit and now Eric "Marc Rich" Holder have acted shamelessly in thwarting the law.

Posted by: federalist | Jan 29, 2014 12:54:40 PM

How apropos for our demented age:
akin to Pontius Pilate knowingly ordering the death of an innocent man (theoanthropos),
“Smulls’ attorney, Cheryl Pilate” harbours the life of one who intently took the life of an innocent man (Stephen Honickman),
by gaining a “stay of execution for killer Herbert Smulls”.

Posted by: Adamakis | Jan 29, 2014 1:00:59 PM

Joe, there's no "i'm not the worst of the worst" ticket out of the death penalty. Moreover, the "worst of the worst" is not judged only by the specifics of the crime.

The first statement answers something I didn't quite say. I didn't say the person was not legally eligible for the death penalty. He presumptively met the rules set forth in state law and all. But, as a whole, colloquially, "worst of the worst" is test promoted as why executions should be allowed.

Unfortunately, quite a few people are in prison for murder and other heinous crimes. In our history, only a small subset were executed. As to other factors, it would interest me to know what -- other than the crime -- was the dominant reason why he was sentenced to die. I take it he lacked mitigation, but that probably is true for many not sentenced to die.

As concern to victims and per a recent post as to "costs," Stevens' footnote 17 in Baze is notable. The articles on the Smulls case btw focuses on the lethal injection issues. SCOTUSBlog doesn't have an article up yet. If Batson claims factors in, that should be noted in the coverage, not just part of "inside knowledge."

The action cited here also is not readily apparent to those who go to the SCOTUS website. It really should have a better system for actions of this sort. If you know to search, the docket page does have this notation:


But, why was this notable even if short term stay granted? It's a mind reading game. Nothing new. The 10th Cir. was overruled, w/o comment, as to a denial of a stay regarding a same sex marriage case. This isn't exactly best practices.

Posted by: Joe | Jan 29, 2014 1:20:55 PM

You state "there's no "i'm not the worst of the worst" ticket out of the death penalty. Moreover, the "worst of the worst" is not judged only by the specifics of the crime. "

Would you please elaborate on how it is determined that one is the "worst of the worst."


Posted by: learning | Jan 29, 2014 1:34:34 PM

Re federalist's opinion of Justice Alito's order (lawless and illegitimate), I have long thought that Justice Alito is the most lawless judge on the Supreme Court.

Posted by: lawyer | Jan 29, 2014 1:36:07 PM

"answers something I didn't quite say"---maybe so, but my post wasn't strictly to answer you, but to also educate. As to you, it's a reminder.

Posted by: federalist | Jan 29, 2014 1:39:10 PM

learning --

It is precisely because there is no agreed definition of "the worst of the worst" that not a single death penalty statute setting forth the criteria for imposition uses such language.

No one could confidently say that the BTK multiple sex-torture killer of women was "worse" than the Boston Marathon bomber, who blew apart three people (two women and an eight year-old boy).

I have no idea which is worse, and neither does anyone else. Nor does it make a difference. The conduct of each was grossly inhuman, and deserves the DP regardless of what happens in other atrocious cases.

Posted by: Bill Otis | Jan 29, 2014 2:25:55 PM

The stay has now been lifted....

Posted by: Jacob Berlove | Jan 29, 2014 6:50:27 PM

this is an absolute circus:


Oh, and Joe, he tried to kill two people and convinced a 15 year old kid to ruin his life by assisting with such an awful crime. He's in worst of the worst territory.

Posted by: federalist | Jan 29, 2014 9:23:39 PM

federalist --

What's needed at this point is a rule automatically barring any request for a stay filed less than 24 hours before the execution date. The rule should direct the clerk of the court to decline to file the request and return it to counsel unopened.

I'm all for full and fair review, but this is gaming the system pure and simple. And it's from the same snickering cynics who will tell us tomorrow that the DP needs to be abolished because -- ready now -- THERE ARE TOO MANY DELAYS.

Posted by: Bill Otis | Jan 29, 2014 10:11:07 PM

The person killed a store-owner in the course of an armed robbery. I don't know if he "tried" to kill the woman. But, I'll take that as a given for the sake of argument. Bill Otis cited a multiple sex torture killer and the Boston Marathon bomber. The first to me -- it's subjective, so I'm not going to convince you obviously but I re-affirm my belief many non-abolitionists will agree -- is a different level offender from the other two. The involvement of a teen (whose life is not "ruined" because he was used in this fashion) doesn't change that.

The guy deserved a very long prison sentence. I'd say this if I believed in the death penalty. I'll take my education. I offer my own.

Posted by: Joe | Jan 29, 2014 10:17:00 PM

"I don't know that he 'tried' to kill the woman." Um, he shot her in the abdomen.

And the idea that graduating a kid to a murder beef is not "ruining" the kid for life--well, I'll just let that stand.

Posted by: federalist | Jan 29, 2014 11:11:49 PM

Gaming the system by Smulls' publicity hound lawyers came to an end tonight. Not that this will keep them from doing a boatload of interviews, none of which will feature prominent mention of what their client actually did.


Posted by: Bill Otis | Jan 30, 2014 2:16:14 AM

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