Court considers state's lethal injection protocol; says execution drugs obtained illegally

KANSAS CITY, Mo. -- An attorney representing four state residents argued before a panel of the Missouri Court of Appeals Wednesday that a judge incorrectly dismissed a lawsuit challenging the state's procedures for obtaining the drugs it uses to perform executions.

Justin Gelfand, representing two former state lawmakers and two Missouri residents, argued the state violates federal and state law by using an illegal prescription to obtain pentobarbital from a compounding pharmacy for the lethal executions.

The lawsuit does not challenge the death penalty, only the practices used to obtain the drugs.

Cole County Circuit Court Judge Patricia Joyce dismissed the lawsuit in July 2015, ruling taxpayers do not have standing to challenge Department of Corrections' operations, and the Missouri Supreme Court has jurisdiction in lawsuits related to the death penalty.

The Missouri attorney general's office argued the lawsuit illegally was trying to enforce federal food and drug laws privately.

The state also argued it had been filed as a last-ditch effort to block the execution of David Zink, who had filed and lost similar legal challenges to the state's execution protocols.

He was put to death the day after Joyce's ruling for abducting and killing a southwest Missouri woman in 2001.

"The plaintiffs are cherry-picking various statutes and regulations out of context to achieve an absurd result," argued Michael Spillane, an assistant Missouri attorney general.

Missouri obtains its execution drug from a compounding pharmacy, and prison officials have refused to discuss how or whether it is tested.

Spillane said Wednesday although the lawsuit and Joyce's ruling mention pentobarbital, the state is not acknowledging it is the drug it uses in executions.

The lawsuit alleges federal and state laws prohibit the use of compounded drugs commercially available in the marketplace and copies of drugs that are FDA-approved, such as pentobarbital.

The plaintiffs also argue the state violates state and federal laws by requiring a physician to fill prescriptions for the drug without conducting a medical exam, and taxpayer money should not be used to buy the drugs.

After the court hearing, Gelfand said the larger issue is "to this day, public officials have never been required to defend the legality of their procedures. Every time anybody raised these claims, including various inmates, the state has successfully argued to have the claims dismissed on jurisdictional grounds. The irony of the state's position is the fact that in the context of the death penalty, public officials claim they don't have to follow laws like the rest of us."

It wasn't clear when the appeals court would issue a ruling.