Attorney for Mo. death row inmate seeks stay over drug concerns

ST. LOUIS -- The attorney for Missouri death row inmate Herbert Smulls has asked a federal court for a 60-day stay of execution, citing concerns about whether the state's execution drug could cause the inmate to suffer during the process.

Attorney Cheryl Pilate filed the stay motion Tuesday in U.S. District Court in Jefferson City, Mo. It wasn't clear when the court would rule.

Smulls was sentenced to death for killing a St. Louis County jeweler in 1991. He would be the third Missouri death row inmate executed since November, and the third to die by an injection of a form of pentobarbital made by a compounding pharmacy. The Missouri Department of Corrections refuses to say where the drug is made, or by whom.

Pentobarbital was used in an execution Jan. 9 in Oklahoma, where inmate Michael Lee Wilson's final words were, "I feel my whole body burning." Pilate said it is possible the same pharmacy provides the drug to both states.

A corrections department spokesman, David Owen, did not respond to an interview request. Nanci Gonder of the Missouri Attorney General's office said in an email statement that the department's response to the stay request will be filed by noon Friday, but declined further comment.

Pilates, in the court document, cites sealed deposition testimony by David Dormire, director of the Division of Adult Institutions for the corrections department.

Dormire's testimony "reveals a shocking level of bureaucratic indifference regarding the lethal drug, including a failure to obtain even the most basic information about the background and reliability of the compounding pharmacy, including whether it is properly licensed or adheres to industry standards ..." Pilate wrote.

The filing cites concerns about how the corrections department stores the pentobarbital. Pilate wrote that the drug to be used on Smulls was picked up Jan. 14 -- 15 days before the execution. Dormire testified it is stored at room temperature, according to Pilate. She said pharmaceutical standards call for a "high risk" compounded drug to be kept at room temperature for no more than 24 hours, or it could degrade, raising the risk it wouldn't work properly.

"These are essentially experiments on human subjects," Pilate said in an interview. "What I can tell you is it is likely to cause excruciating pain."

Missouri and other states used a three-drug execution method for decades, but pharmaceutical companies have stopped selling those drugs for use in executions. Many states now get the drugs from compounding pharmacies, which custom mix drugs for individual clients. Unlike typical pharmaceutical firms, compounding pharmacies are not regulated by the U.S. Food and Drug Administration, though they are subject to state regulations.

Concerns about Missouri's execution process prompted a Missouri House panel to schedule a hearing Tuesday. It was canceled when corrections department director George Lombardi declined to attend.

Smulls, 56, was convicted of killing Chesterfield jeweler Stephen Honickman while Smulls and an accomplice were robbing the store owned by Honickman and his wife. Florence Honickman was shot twice but survived.