The U.S. Supreme Court has granted a stay of execution for Missouri death row inmate Herbert Smulls, who had been scheduled for lethal injection at 12:01 a.m. Wednesday.
Justice Samuel Alito signed the order that was sent out Tuesday night after President Barack Obama’s State of the Union speech.
Smulls’ lawyers had made last-minute pleas Tuesday to spare his life, focusing on the state’s refusal to disclose from which compounding pharmacy they obtain the lethal-injection drug, pentobarbital. Missouri has argued the compounding pharmacy is part of the execution team — and therefore its name cannot be released to the public.
Defense attorney Cheryl Pilate contends, however, that the secrecy makes it impossible to know whether the drug could cause pain and suffering during the execution process.
Pilate said the stay is temporary while the high court reviews the case, but she is hopeful it will become permanent.
Missouri statutes allow executions to occur at any time of the day they are scheduled. That’s that’s why the state always sets the execution time for one minute after midnight, in case there are court delays. If the U.S. Supreme Court ultimately decides in favor of the state, the execution could still occur Wednesday.
Smulls, 56, was convicted and sentenced to death for killing a St. Louis County jeweler and badly injuring his wife during a 1991 robbery.
Earlier in the day, Missouri Gov. Jay Nixon denied clemency for Smulls, calling him a career criminal and saying he committed the crimes in “a cold-blooded and deliberate manner.”
Pilate said she and her defense team used information obtained through open-records requests and publicly available documents to determine that the compounding pharmacy is The Apothecary Shoppe, based in Tulsa, Okla. In a statement, The Apothecary Shoppe would neither confirm nor deny that it makes the Missouri drug.
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.
The drug was used to execute two Missouri inmates late last year.
On Tuesday, Pilate said that previous testimony from a prison official indicates the state stores the drug at room temperatures, which could taint the drug and potentially cause it to lose its effectiveness.
The prospect of being put to death with a drug whose origin remains sealed “terrifies” Smulls, his attorney said. Pilate also said her client changed in prison, becoming a man who gets along well with other inmates and guards.