Attorneys for Allen Nicklasson attempt to halt his execution

10/09/2013 2:26 PM

10/09/2013 11:42 PM

Attorneys for a Missouri inmate scheduled to be put to death this month using a controversial, untested method filed a motion Wednesday seeking to halt the execution.

Allen Nicklasson, 41, is scheduled to die by lethal injection Oct. 23 for the 1994 killing of Excelsior Springs resident Richard Drummond.

Drummond was kidnapped and shot after stopping to help Nicklasson and two co-defendants after their car broke down on a mid-Missouri road. The state executed one of those co-defendants, Dennis Skillicorn, in 2009.

Missouri intends to inject him with a drug never before used for an execution in the United States. Nicklasson’s lawyers said they need more time to pursue a legal challenge to its use.

Last year, Missouri announced that it intended to employ propofol, a widely used surgical anesthetic, to carry out executions after the state was unable to obtain supplies of drugs previously used.

That new execution protocol prompted a federal lawsuit filed by some death row inmates, including Nicklasson, that still is pending. Medical experts cited by attorneys for the inmates have said that its use poses “a substantial risk of causing severe and unacceptable levels of pain and suffering during the execution.”

Using it would violate Nicklasson’s constitutional right prohibiting cruel and unusual punishment, his attorneys maintain.

Attorney Jennifer Herndon argued in Wednesday’s motion filed with the Missouri Supreme Court that Nicklasson would suffer “irreparable harm” if he was executed without a chance to pursue litigation.

Missouri’s proposed use of propofol is being watched closely by other states experiencing shortages of more commonly used execution drugs. Manufacturers of those drugs object to their use in executions and have withheld supplies as a result.

The Missouri Society of Anesthesiologists recently released a statement expressing concern that using propofol to execute prisoners would result in similar shortages of the drug for surgical purposes.

The German company that produces most of the world’s propofol supply has stated that it opposes its use in executions and asked the Missouri Department of Corrections to return its propofol.

On Wednesday, the department announced that it would return the drug, but the department noted it also had a supply of propofol produced by a domestic manufacturer. The announcement did not indicate if the supply was sufficient to carry out the scheduled execution. A department spokesman did not return a call seeking comment.

The German company, Fresenius Kabi, released a statement later Wednesday stating it was pleased with Missouri’s decision.

“However, we remain very concerned that use of propofol — even domestically produced propofol — in any executions would still lead to a severe shortage of propofol in the United States,” according to the statement.

It noted that European Union regulations “do not make a distinction on the source of a drug as export sanctions or bans are considered.”

“We continue to communicate with concerned stakeholders, U.S., state, federal and EU officials to ensure that propofol is used only for its intended therapeutic purposes,” the company said.

Since Missouri announced last year its intention to use propofol in executions, it has made changes to its execution protocol that has delayed the pending federal suit.

Herndon argued in her motion that Nicklasson should not be penalized by the delay caused by the state.

The legal issues raised in the federal lawsuit could have been addressed before the execution if not for the Corrections Department’s “laggard efforts to salvage its misguided propofol-based execution method,” she wrote.

The Missouri attorney general’s office intends to file a written objection to the stay request, a spokeswoman said.

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