Court fight stalling Mo. execution in final hours

Associated Press
FILE - In this Dec. 13, 2011 file photo released by the Missouri Department of Corrections is death-row inmate Herbert Smulls who is scheduled to die by injection one minute after midnight Wednesday, Jan. 29, 2014 for killing St. Louis County jeweler Stephen Honickman in 1991. The U.S. Supreme Court has granted a stay of execution for Missouri death row inmate Herbert Smulls, Tuesday, Jan. 28, 2014. Justice Samuel Alito signed the order that was sent out Tuesday night after President Barack Obama's State of the Union speech. (AP Photo/Missouri Department of Corrections)
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FILE - In this Dec. 13, 2011 file photo released by the Missouri Department of Corrections is death-row inmate Herbert Smulls who is scheduled to die by injection one minute after midnight Wednesday, Jan. 29, 2014 for killing St. Louis County jeweler Stephen Honickman in 1991. The U.S. Supreme Court has granted a stay of execution for Missouri death row inmate Herbert Smulls, Tuesday, Jan. 28, 2014. Justice Samuel Alito signed the order that was sent out Tuesday night after President Barack Obama's State of the Union speech. (AP Photo/Missouri Department of Corrections)

BONNE TERRE, Mo. (AP) — The execution of a death-row inmate in Missouri was still on hold Wednesday night pending a court fight, with the deadline for the state to complete the lethal injection fast approaching.

Missouri's attorney general asked the U.S. Supreme Court late Wednesday to clear an appeals court stay that was delaying the execution of Herbert Smulls 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.

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., but another appeal is still pending.

The state has until 11:59 p.m. Wednesday to execute Smulls. If it doesn't happen, the Missouri Supreme Court will set a new execution date.

Among the final appeals made by Smulls' lawyer, Cheryl Pilate, was one focusing on the state's refusal to disclose the name of the compounding pharmacy that produces the pentobarbital 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.

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.

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.

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Associated Press writers Justin Juozapavicius in Tulsa, Okla., and Chris Blank in Jefferson City, Mo., contributed to this report.

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