BONNE TERRE, Mo. — The U.S. Supreme Court has yet to decide whether Missouri can go through with the scheduled Wednesday execution of a death-row inmate whose attorneys are challenging the state's refusal to disclose where it obtains its lethal injection drug.
The high court issued a temporary stay less than three hours before Herbert Smulls was scheduled to be executed at 12:01 a.m. Wednesday at the state prison in Bonne Terre. Smulls, 56, was sentenced to death for killing a suburban St. Louis jeweler and badly injuring his wife during a 1991 robbery.
Missouri law allows an execution to occur at any time on the day it is scheduled, so the execution could occur if the court sides with the state as some point Wednesday. Witnesses to the execution were told to report to the prison by noon, though no ruling had been issued as of mid-afternoon.
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 pentobarbital that is used during executions. Pilate contends that the state's secrecy makes it impossible to know whether the drug could cause pain and suffering during the execution process.
"We're happy to get the stay and we're glad the court is reviewing it," she said, adding that was hopeful the stay would become permanent.
State prison officials maintain 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 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.
"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.
Once in the shop, Smulls began shooting. The robbers took rings and watches, including those that Florence Honickman was wearing.
She was shot in the side and the arm, and 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 stolen jewelry and weapons in his car. Florence Honickman identified the assailants.
Brown was convicted in 1993 of first-degree murder and other charges, and 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 to pentobarbital, which was used to execute two Missouri inmates late last year. Neither inmate showed visible signs of distress.
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.
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.