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Lethal Injection

Supreme Court won’t block Missouri lethal injection

Image: Herbert Smulls

Herbert Smulls Missouri Dept. of Corrections via AP

The U.S. Supreme Court late Wednesday denied last-minute appeals that had temporarily blocked the planned execution of a Missouri man.

The high court had issued a last-minute stay of execution of Herbert Smulls — who was originally scheduled to die at 12:01 a.m. Wednesday — after the defense submitted two petitions seeking a full review of the case.

At about 5:30 p.m., the court removed the stay, with more than six hours to go before the execution warrant was due to expire.

It was unclear if the state planned to move ahead and put Smulls to death Wednesday night. His lawyer, Cheryl Pilate, said a stay from a lower court, still in effect, prevented the state from proceeding.

Smulls, 56, was put on death row for murdering a St. Louis jeweler during a 1991 heist.

In papers filed with the U.S. Supreme Court, his lawyers argued he did not get a fair trial because prosecutors improperly removed a black woman from the jury pool, resulting in an all-white jury.

They also challenged Missouri's current method of lethal injection, which relies on a loosely regulated, out-of-state compounding pharmacy for the drug it uses.

After the applications were denied by the high court, Smulls' lawyer said the defense team would file another round of last-minute papers to try to get the execution put off again.

"Our client is having a very difficult day," Pilate said shortly before the Supreme Court issued its order.

"He's trying to remain hopeful while at the same time the people who want to execute him are hovering outside his door."

Smulls' execution has focused fresh attention on prisons' controversial use of compounding pharmacies for drugs used in lethal injections.

With many drug manufacturers refusing to sell their products for executions, death-penalty states have increasingly turned to customer-order specialty pharmacies.

"Our client is having a very difficult day."

In Smulls' case, his lawyer argued that the state must disclose in court papers the name of the pharmacy that sold the pentobarbital so that it can investigate it and insure the integrity and sterility of the drug.

His defense team has also argued that pentobarbital could cause extreme pain and cited the Jan. 9 execution of convicted killer Michael Lee Wilson in Oklahoma.

His final words were, "I feel my whole body burning" but he showed no signs of physical distress, according to a media witness.

St. Louis County prosecutor Bob McCulloch called the last-minute bids a smoke screen. "It's simply a distraction, just another attempt to delay the execution," he said.

In a motion filed with the Supreme Court opposing a stay of execution, Missouri noted that Smulls lost numerous challenges to his conviction and sentence in state and federal courts in the 21 years before Tuesday's 11th hour bid for a delay.

"The time for enforcement of Missouri's criminal judgment against Herbert Smulls is long overdue," state lawyers wrote.

Scores of condemned prisoners across the nation have filed legal challenges to new lethal-injection protocols put in place as the old drugs have become unavailable.

In Ohio, convicted murderer Dennis McGuire failed to win a reprieve by arguing that an untried two-drug compound could trigger an agonizing phenomenon called "air starvation" before death, violating the constitutional protection against cruel and unusual punishment.

When McGuire was executed Jan. 16, it took him 25 minutes to die and witnesses reported that he repeatedly gasped for air. Three prison guards filed incident reports claiming he said his lawyer told him to put on "a big show," but an investigation by the public defender's office found no evidence of that.