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UPDATE: High court to rule on petitions for Herbert Smulls

Tuesday, January 28, 2014 | 10:06 p.m. CST; updated 10:02 a.m. CST, Wednesday, January 29, 2014

*UPDATE: This story has been updated to include that the Supreme Court is expected to rule Wednesday on petitions regarding Smulls' case and includes a comment from the Missouri Attorney General's office.

ST. LOUIS — The U.S. Supreme Court is expected to rule Wednesday on two petitions regarding Missouri death row inmate Herbert Smulls, the Missouri Attorney General's office said.

Smulls' execution was temporarily stayed late Tuesday with an order from the high court signed by Justice Samuel Alito. It was sent about two-and-a-half hours before Smulls was scheduled to die at 12:01 a.m. Wednesday.

Missouri statutes allow executions to occur at any time on the day they are scheduled — that's why the state always sets the execution time for a minute after midnight, in case there are court delays. If the U.S. Supreme Court decides in favor of the state, the execution could occur later Wednesday. Witnesses to the execution were told to report to the Bonne Terre prison by noon and await the high court ruling.

Smulls' lawyer, Cheryl Pilate, made last-minute pleas Tuesday to spare his life, focusing on the state's refusal to disclose the name of the compounding pharmacy that produces the lethal-injection drug, pentobarbital, for use in the execution. But Missouri has argued that the compounding pharmacy is part of the execution team and therefore its name cannot be released to the public.

Smulls, 56, was convicted and sentenced to death for killing a St. Louis County jeweler and badly injuring his wife during a 1991 robbery.

Pilate says the stay is temporary while the high court reviews the case, but she is hopeful the stay will become permanent.

"We're happy to get the stay, and we're glad the court is reviewing it," she said.

Missouri statutes allow executions to occur at any time of the day they are scheduled; that's why the state always sets the execution time for one minute after midnight, in case there are court delays. If the U.S. Supreme Court ultimately decides in favor of the state, the execution could still occur Wednesday.

Eric Slusher, a spokesman for Missouri Attorney General Chris Koster, said the high court is expected to rule on the two pending petitions Wednesday. 

St. Louis County prosecutor Bob McCulloch said talk about the drug is a smoke screen aimed at sparing the life of a cold-blooded killer. He noted that several courts have already ruled against Smulls, including the U.S. District Court in Kansas City and the 8th U.S. Circuit Court of Appeals. Gov. Jay Nixon denied clemency Tuesday evening.

Pilate contends that the state's secrecy makes it impossible to know whether the drug could cause pain and suffering during the execution process.

Smulls had already served prison time for robbery when, on July 27, 1991, he went to F&M Crown Jewels in Chesterfield and told the owners, Stephen and Florence Honickman, that he wanted to buy a diamond for his fiancee. He took 15-year-old Norman Brown with him.

Once in the shop, Smulls began shooting. Stephen Honickman pleaded, "Enough already, take what you want," according to testimony from his wife. The robbers took rings and watches, including those that Florence Honickman was wearing.

Florence Honickman was shot in the side and the arm. She feigned death while lying in a pool of her own blood but survived. Her 51-year-old husband died.

Police stopped Smulls 15 minutes later, and they found the stolen jewelry along with weapons in his car. Florence Honickman identified the assailants.

Brown was convicted in 1993 of first-degree murder and other charges and was sentenced to life without parole. Smulls got the death penalty.

Missouri had used a three-drug execution process since 1989, until the drug makers stopped selling those drugs for executions. Missouri eventually switched late last year to pentobarbital, and the state argues that the compounding pharmacy providing the drug is part of the execution team — and therefore its name cannot be released to the public.

Compounding pharmacies custom-mix drugs for 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 two Missouri inmates late last year.

On Tuesday, Pilate said that previous testimony from a prison official indicates the state stores the drug at room temperatures, which could taint the drug and potentially cause it to lose its effectiveness.

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.

Also 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.

Associated Press writers Justin Juozapavicius in Tulsa, Okla., and Chris Blank in Jefferson City, Mo., contributed to this report.


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Comments

Michael Williams January 28, 2014 | 5:17 p.m.

"On Tuesday, Pilate said that previous testimony from a prison official indicates the state stores the drug at room temperatures, which could taint the drug and potentially cause it to lose its effectiveness."
_________________

There's lots of scientific data on the stability of pentobarbital in a variety of solvents at a variety of temperatures. This decision should be a slam dunk for any judge with a computer or a library card.

As for Smulls' fears...well, geez....look at "fear" from the perspectives of Stephen and Florence Honickman.

(Report Comment)
Michael Williams January 28, 2014 | 5:27 p.m.

Here's one formulation; the recommendation is storage at room temperature. The dissolution solvent is ethanol, propyleneglycol, and water.

http://www.akorn.com/documents/catalog/m...

To illustrate the stability of pentobarbital, here's an article describing the death of 2 dogs that partook of a horse dead and buried 2 years.

http://vdi.sagepub.com/content/22/4/632....

(Report Comment)

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