UPDATE: Defense lawyers concerned about Missouri execution drug

Thursday, June 7, 2012 | 3:50 p.m. CDT

ST. LOUIS — As the Missouri Supreme Court decides whether to set execution dates for six condemned killers, attorneys for death row inmates are raising concerns about the state's new one-drug lethal injection method.

In May, Missouri Attorney General Chris Koster asked the state Supreme Court to set execution dates for up to 19 condemned men. Court records released Thursday to The Associated Press show the court has advised attorneys for six of those inmates that they have until June 29 to show why an execution date should not be set.

Attorneys for the inmates are citing a variety of concerns, but high on their lists is the new execution method.

Modern executions around the U.S. have used a nearly identical three-drug method — until recently. One drug, sodium thiopental, is no longer available because its maker won't sell it for use in executions.

States have scrambled to find substitutes. Missouri announced in May the switch to a single execution drug, an anesthetic called propofol that has never been used in an execution in the U.S. It is the same drug that caused the overdose of pop star Michael Jackson in 2009.

Cheryl Pilate, the attorney for inmate Herbert Smulls, wrote in a filing to the Supreme Court that propofol has been known to cause extreme pain in some patients, even in normal doses. She wrote that the Missouri plan calls for a dose 15 times greater than normal, potentially increasing the risk of pain and suffering.

"It's an untested protocol," Pilate said in an interview. "It has not been used anywhere else. No one has ever done this."

Pilate said different people react differently to propofol and there is no guarantee how it would work as an execution drug.

"We don't know anything about the training they (executioners) receive," she said. "We don't know anything about the scientific research the state has done. We see nothing but the bare protocol itself."

St. Louis attorney Richard Sindel made a similar argument on behalf of inmate David Barnett. Sindel did not return messages seeking comment.

Koster was unavailable for comment Thursday, spokeswoman Nanci Gonder said. He wrote in court filings that the state is prepared and ready to proceed with executions.

But Missouri Supreme Court Chief Justice Richard Teitelman noted that though news reports indicated the state had changed to a one-drug method, "neither the attorney general nor the (corrections) department has notified the Court of its adoption of a new protocol or the basis for such adoption."

All six inmates facing potential execution dates were convicted of first-degree murder. In addition to Smulls and Barnett, they are Jeffrey Ferguson, Allen Nicklasson, Joseph Franklin and William Rousan.

Propofol, marketed as Diprivan, is made by AstraZeneca. Spokespeople for AstraZeneca and its U.S. marketer, APP, have declined comment on its use in executions.

Missouri is one of three states with a single-drug execution protocol. The others are Arizona and Ohio, but they are using a different drug.

Three other states — South Dakota, Idaho and Washington — have options for single- or multiple-drug executions, according to the Death Penalty Information Center. California and Kentucky are exploring a switch to a one-drug method.

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Mark Foecking June 8, 2012 | 1:54 a.m.

They could use any number of drugs. Morphine would be a good one. There are benzodiazepines used in anesthesia, like midazolam, that would also reliably produce amnesia nad unconsciousness. Give enough of any of these drugs, and the subject will die, and relatively painlessly.

If we want to debate the death penalty in the legislature, than that's what the debate should be about, not whether the law says to use a particular drug. I find this somewhat disingenious.


(Report Comment)
frank christian June 8, 2012 | 8:12 a.m.

"I find this somewhat disingenious." True. There is a lot of that in our legal system. A few years ago in CA, two defense lawyers clearly broke the law in effort to convince the jury that, their client, a heinous murderer was innocent.

Bill O'Reilly, with the resources of Fox News, took the issue to the highest legal authorities in that state, to absolutely no avail.

I like the words of some legal eagle, who insists that the initial instructions from judge to every jury should end with the reminder, ...."and the Defense will try to fool you!"

(Report Comment)

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