The lawyer for a Missouri death row inmate Herbert Smulls filed a new appeal to the U.S. Supreme Court about two hours before the execution deadline of 11:59 p.m. Wednesday.
Lawyer Cheryl Pilate again challenged the state's refusal to reveal the origin of its execution drug, pentobarbital. She contends that the state's secrecy makes it impossible to know whether the drug could cause pain and suffering during the execution process.
The attorney general's office responded to Pilate's last-minute filing, saying previous court rulings have sided with the state's position.
Smulls, 56, was sentenced to death for killing a suburban St. Louis jeweller and badly injuring his wife during a 1991 robbery.
The U.S. Supreme Court granted a stay late Tuesday, shortly before the scheduled 12:01 a.m. Wednesday execution, after Smulls' attorneys filed an appeal challenging the state's refusal to disclose where it obtained its execution drug. The high court lifted that stay without explanation around 5 p.m., and did the same with the appeals court stay about 4 hours later. After that, Pilate filed another round.
Among the appeals Pilate made was one focusing on the state's refusal to disclose the name of the compounding pharmacy that produces the pentobarbital used during executions. State prison officials maintained that the compounding pharmacy is part of the execution team and therefore its name cannot be released to the public.
St. Louis County prosecutor Bob McCulloch has said talk about the drug was a smoke screen aimed at sparing the life of a cold-blooded killer. He noted that several courts had 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.
"It was a horrific crime," McCulloch said on Tuesday. "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."
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.