Another Federal Judge Calls Out Missouri
Two days after that hearing, on February 12, the Chief Judge of the 8th U.S. Circuit Court of Appeals, William Jay Riley, who repeatedly had voted against Smulls, interrupted oral argument in an unrelated death penalty case to tell a lawyer for the State Attorney's General office that the federal appeals panel did not in any event appreciate Missouri officials executing men before the courts had concluded their judicial review. Specifically, Chief Judge Riley said:
I might just tell you this. I'll probably regret saying this later, but I think it was the execution of Nicklasson, but the State of Missouri executed somebody which they probably had the right to do, right in the middle of our petition for rehearing voting. And I just wanted you to take back the word that... some of the members of the Court did not appreciate that. That we were right in the middle of that...
And I think you have probably heard that some people have written on it. But we were moving as fast as we can and, as Chief Judge, I was pushing to get everything done in time. But I think you need to be a little more patient.
The "Nicklasson execution" to which the Chief Judge referred, took place on December 12 and it prompted from 8th U.S. Circuit Court Judge Kermit Bye a remarkable dissent. "I feel obliged to say something,’ Judge Bye wrote at the time, “because I am alarmed that Missouri proceeded with its execution of Allen Nicklasson before this court had even finished voting on Nicklasson’s request for a stay." He continued:
In my near fourteen years on the bench, this is the first time I can recall this happening. By proceeding with Nicklasson’s execution before our court had completed voting on his petition for rehearing en banc, Missouri violated the spirit, if not the letter, of the long litany of cases warning Missouri to stay executions while federal review of an inmate’s constitutional challenge is still pending.”
Here are the links to Judge Bye’s first and second dissents in these premature execution cases.
The Drug Supplier Bags Out
Seven days after Chief Judge Riley's admonition, this past Monday, came the next bad thing to happen to Missouri officials in their quest to expedite the implementation of the death penalty in their state. Under legal pressure from death row inmate Michael Taylor, the compounding pharmacy that was poised to supply the drug (pentobarbital) the state wanted to use to execute him next week backed out of its commitment to provide the drug. The Apothecary Shoppe, in Tulsa, Oklahoma, announced that it would not give the Missouri Department of Corrections the pentobarbital it had compounded and that it had not previously given state officials the drug for Taylor's execution.
Missouri immediately reacted to this unexpected news by declaring that it would be able to proceed anyway with Taylor's execution, now scheduled for the 26th, without materially changing its lethal injection protocols. Late Wednesday, state officials informed Taylor's lawyers that they have obtained pentobarbital from another, unidentified supplier. "There is no reason to believe that the execution will not, like previous Missouri executions using pentobarbital, be rapid and painless," state attorneys wrote in a motion filed with a federal trial judge in Missouri opposing a stay request by Taylor. Here is the link to Missouri's filing.