Herbert Smulls, 36 hours from execution, remains stuck in a Kafkaesque legal bottleneck
Regardless of one’s position on capital punishment, a reasonable person can understand the legal paradox facing attorneys representing Herbert Smulls.
They know a key piece of information that could help their death-row client avoid the executioner, but they’re under a court order not to do anything with it.
Smulls is scheduled to die by lethal injection one minute after midnight on January 29 in Bonne Terre, Missouri, having been convicted in a 1991 shooting in St. Louis County.
Smulls’ attorneys are trying to delay his execution for at least two months so they can learn more about Missouri’s secretive lethal injection protocol and thus determine if their client faces an unconstitutional death.
The thing is, two of Smulls’ attorneys know where Missouri gets its lethal injection drug – but have to act as if they don’t know.
Cheryl Pilate and Joseph Luby, both Kansas City lawyers, found out the name of the compounding pharmacy in Oklahoma that supplied Missouri with 10 milligrams of pentobarbital, the drug set to be pushed into Smulls’ veins.
They learned about it by reading an e-mail from a federal judge’s office that got sent to them inadvertently. Afterward, they were ordered by the court to return the e-mail, delete any record of it from their files, not say anything to anyone about it, and refrain from investigating the pharmacy on their own.
In other words, Pilate and Luby already know something they had been trying to learn but have to sit on the information, which could help their client.
That Catch-22 is the essence of their latest appeal to the federal courts, arguing that Smulls’ First Amendment rights are being stifled.
Smulls faces long odds, particularly after Friday’s 8th Circuit Court of Appeals ruling against Smulls and his attorneys’ quest to investigate the pharmacy. He has been transferred to the Eastern Reception Diagnostic Correction Center in Bonne Terre, the facility that houses Missouri’s death chamber.
The Pitch was able to figure out three possible pharmacies that could have been the source of Missouri’s lethal injection drug by reverse-engineering information gleaned from redacted records made available by the Missouri Department of Corrections.
Of those three compounding pharmacies, only one affirmed its ability to make sterile injectable drugs when The Pitch called. The Apothecary Shoppe in Tulsa, Oklahoma, was that one pharmacy. Its CEO, Deril Lees, denied to The Pitch that it had supplied pentobarbital to Missouri.
But Lees’ name showed up again in a news story over the weekend from New Orleans-area investigative news outlet The Lens. A reporter there uncovered an e-mail from Lees to the Louisiana Department of Corrections regarding a confidentiality agreement. The story, by Della Hasselle, outlines how officials with the Louisiana Department of Corrections have been trying to get its execution drug and got in contact with the Apothecary Shoppe in an attempt to do so.
The Apothecary Shoppe, according to The Lens, isn’t registered as a pharmacy supplier with Louisiana. Nor, as The Pitch has found, is it registered to do business in Missouri.
