Missouri is prepared to carry out next week’s scheduled execution of a convicted Kansas City killer, Gov. Jay Nixon said Tuesday.
But attorneys for Michael Taylor, who is scheduled to be executed Feb. 26 for the 1989 kidnapping, rape and killing of 15-year-old Ann Harrison, said the state now has no lawful way to put him to death.
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They filed a motion Tuesday in federal court to stay the execution.
Nixon addressed the issue Tuesday, the day after an Oklahoma pharmacy agreed not to supply the drug for Taylor’s execution.
Attorneys representing Taylor had filed a federal suit in Oklahoma against the compounding pharmacy that they believed had contracted with the Missouri Department of Corrections to provide pentobarbital. The drug has been used in three Missouri executions since November, although neither the state nor the Oklahoma pharmacy has acknowledged that the pharmacy has been the drug source.
Several reporters asked Nixon about the drug situation Tuesday morning after he spoke at a gathering in the Capitol.
He did not say if the state has obtained a different drug or an alternative source for pentobarbital.
“We will be prepared to move forward with the necessary responsibility to effectuate the ultimate penalty next week,” the governor said.
In their motion for a stay, attorneys for Taylor said any pentobarbital the state previously had stockpiled now would be expired.
And reports that the state may have alternative lethal injection chemicals on hand, if true, would leave Taylor little time to mount a legal challenge, his attorneys argued.
While being questioned during a recent deposition, a Missouri corrections official testified that the state had obtained the drugs midazolam and hydromorphone as a “backup” for use in executions.
But the state’s written lethal injection protocol only specifies the use of pentobarbital. In a written statement released Tuesday afternoon, the Department of Corrections said it was prepared to carry out the execution “following the established execution protocol.”
Whatever the state intends to use, Taylor’s lawyers said he is entitled to a stay.
“Switching the protocol or the pentobarbital supplier now — a week before the scheduled execution — would violate Taylor’s right to due process of law,” his lawyers argued in the motion for a stay.
And they noted that the only execution carried out using a combination of midazolam and hydromorphone resulted in an Ohio inmate suffering through a 24-minute execution during which he was seen gasping for breath for at least 10 minutes.
Such pain and suffering constitutes a violation of the constitutional protection against cruel and unusual punishment, they said.
Because of what happened during the Jan. 16 execution of Dennis McGuire, Ohio’s governor granted a reprieve to the inmate next scheduled to be executed so the method can be studied. In Louisiana, where officials announced they intended to use the same drugs, an inmate has been granted a 90-day stay so the proposed protocol can be reviewed.
“Missouri may not take Taylor’s life without due process of law, meaning he has the right to meaningful notice of — and an opportunity to challenge — Missouri’s plan for executing him,” his lawyers said in their stay motion.
The federal judge overseeing the case instructed the state to respond in writing to Taylor’s motion for a stay of execution by noon Thursday.
Florida became the first state to use midazolam as an execution drug in October. But unlike Ohio, it used it in combination with two other drugs. Two men have been executed this year using that method, which the state’s Supreme Court has ruled as constitutional, although the court has scheduled a hearing on the issue before the next execution, scheduled for the same day as Taylor.