smulls motion to stay - 1st amend violations as filed

8/13/2019 Smulls Motion to Stay - 1st Amend Violations as Filed

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IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF MISSOURI

CENTRAL DIVISION

DAVID ZINK, et al., ))

Plaintiffs, )

) No. 2:12-CV-4209-BP

)

v. ) This is a capital case

)

GEORGE A. LOMBARDI, et al., ) Execution of Plaintiff Smulls

) scheduled January 29, 2014

Defendants. )

HERBERT SMULLS MOTION FOR A 60-DAY STAY OF EXECUTION

BASED ON FIRST AMENDMENT VIOLATIONS AND COUNSELS

CONFLICT OF INTEREST

Charles M. Rogers Cheryl A. Pilate

Wyrsch, Hobbs, Mirakian, PC Lindsay J. Runnels

1000 Walnut, Suite 1600 Morgan Pilate LLC

Kansas City, MO 64106 926 Cherry Street(816) 221-0080 Kansas City, MO 64106

(816) 471-6694

Case 2:12-cv-04209-BP Document 301 Filed 01/26/14 Page 1 of 28


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TABLE OF CONTENTS

INTRODUCTION """"""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""" #

FACTURAL BACKGROUND""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""" $

LEGAL ARGUMENT"""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""" %$

First Amendment Claim """"""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""" %$

Conflict Claim """"""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""" &'

STANDARDS GOVERNING A STAY OF EXECUTION""""""""""""""""""""""""""""""""""""""""""""""""" &(

CONCLUSION """"""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""" &)



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INTRODUCTION

Plaintiff Herbert Smulls, by and through his counsel Cheryl Pilate, Lindsay

Runnels and Charles Rogers, hereby move this Honorable Court for a 60-day stay

of execution because Mr. Smulls and his counsels First Amendment right to free

speech are being chilled by Missouris death penalty statute, RSMo. 546.720, the

protective order, and other orders in this case, all of which prohibit Mr. Smulls and

counsel from: (1) disclosing the compounding pharmacy responsible for producing

the pentobarbital the State intends to execute him with on January 29, 2014; (2)

divulging any knowledge about the pharmacy or the laboratory that reportedly

analyzed the drug; (3) disseminating recent information of great public concern

about Missouris execution protocol obtained from the deposition of Missouri

Department of Corrections official David Dormire; (4) providing their experts with

information known about the compounding pharmacy; (5) disclosing the testing

laboratory responsible for testing the compounded pentobarbital; (6) disclosing and

further investigating known federal safety and testing regulations by the testing

laboratory; (7) disclosing and further investigating known state and federal

lawsuits in which the testing laboratory is named as a defendant; (8) investigating

the compounding pharmacy; (9) disclosing and further investigating known

disciplinary actions against the compounding pharmacy; (10) investigating the

testing laboratory; (11) inquiring of any person with knowledge of the



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compounding pharmacy and the testing laboratory; (12) disclosing to the press

information of public importance about Missouris execution procedures, protocols

and suppliers; and (13) petitioning the government for redress of these grievances.

In addition to chilling Mr. Smulls and his counsels speech, this First

Amendment violations have in effect frozen Mr. Smulls representation, prevent

counsel from the investigation and advocacy required to fulfill their duty to

provide Mr. Smulls with zealous representation under the Missouri Rules of

Professional Conduct and the ABA GUIDELINES FOR THE APPOINTMENT AND

PERFORMANCE OF DEFENSE COUNSEL IN DEATH PENALTY CASES(2003) (hereafter

Guidelines).1

Counsel are burdened by an untenable conflict of interestcounsel are in

possession of information that would greatly assist Mr. Smulls in proving his

claims for relief, but counsel have been ordered not to speak of this information,

share the information, or investigate the information further. Mr. Smulls is entitled

to loyal, conflict-free representation and these important interests between counsel

and Mr. Smulls can only be resolved by restoring counsels and Mr. Smulls

freedom to disclose and act upon information about the pharmacy, the testing

laboratory, and the Department of Corrections statements.

1The ABA Guidelines are available online at

http://www.americanbar.org/content/dam/aba/migrated/2011_build/death_penalty_representation/2003guidelines.authcheckdam.pdf



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FACTURAL BACKGROUND

The United States Supreme Court noted that [t]he authors of the Bill of

Rights did not undertake to assign priorities as between the First Amendment and

Sixth Amendment rights, ranking one as superior to the other. Nebraska Press

Assoc. v. Stuart, 96 S.Ct. 2791, 2803-04 (1976). But the life of Herbert Smulls

who faces imminent execution on January 29, 2014, with expired, degraded,

improperly stored pentobarbital compounded by an undisclosed pharmacy from

ingredients of uncertain provenance and puritydepends upon the interplay of

those rights. So long as Missouris death penalty statute and the Courts current

protective and gag orders prevent Mr. Smulls and his counsel from exercising

their First Amendment right to free speech, counsels duties of loyalty and zealous

advocacy of Mr. Smulls interests are irreparably compromised.

Missouris Black Hood law, RSMo. 546.720.2, empowers the director of

the States Department of Corrections to select an execution team consisting of

those persons who administer ... lethal chemicals and those persons, such as

medical personnel, who provide direct support for the administration of ... lethal

chemicals, and further dictates that the identities of members of the execution

team ... shall be kept confidential. An individual having knowledge of the

identity of an execution team member may not, without the approval of the

director of the department of corrections, knowingly disclose the identity of a



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current or former member of an execution team or disclose a record knowing that it

could identify a person as being a current or former member of an execution team.

RSMo. 546.720.3. In the event a person discloses the identity of a member of the

execution team, he or she is civilly liable to that individual and faces actual and

punitive damages. RSMo. 546.720.3(1)-(2). The Defendants in this case have

taken the position that public disclosure of information relating to the execution

team, which the Department of Corrections argues encompasses the out-of-state

compounding pharmacy and the testing lab in its scope, would be contrary to the

safety, security, and anonymity interests of the Department and its execution

personnel, and were granted a protective order by the district court that further

limits counsels disclosure and use of the scant information the Department of

Corrections has reluctantly made available, or which counsel has otherwise

obtained. (see Doc. 112).

Through no fault or action of Mr. Smulls or any of the Zink plaintiffs,

information regarding the identity of the compounding pharmacy was disclosed by

email to Smulls counsel, Cheryl Pilate, and to Joe Luby, counsel for several other

Zinkplaintiffs. The court ordered Pilate and Luby to completely delete the email

sent by the Court from their system and to delete any information obtained from

that email from their files. ... [and] reiterated that Ms. Pilate, Mr. Luby, and any

member of Plaintiffs' counsel and staff are ordered not to disclose the information



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provided in the email, are not to conduct investigations regarding the contents of

the email, and are ordered to delete any trace of the contents of the emails and of

the information contained within it. (Docket Entry 251).

An intractable Catch-22 results that imperils the First Amendment rights of

Mr. Smulls and his counsel, Mr. Smulls Sixth and Eighth Amendment rights, and

counsels ethical and professional duties under this states Rules of Professional

Conduct and the American Bar Associations Guidelines for the Appointment and

Performance of Defense Counsel in Death Penalty Cases. The situation also creates

a conflict between Mr. Smulls interests and counsels interests.

Counsel possesses key information that they are prohibited by the Court

from using to Mr. Smulls benefit, and that, pursuant to Missouris Black Hood

statute, they are obligated to refrain from disclosingeven to other members of the

plaintiffs legal teams, solely for the purpose of investigationunless and until

Missouri Department of Corrections Director George Lombardi, the party most

interested in shielding the information from public scrutiny, authorizes such

disclosure. In addition to the inadvertent disclosure by the Court, the Defendants

also separately disclosed the name of the compounding pharmacy when they failed

to fully redact a document produced during discovery.



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If Ms. Pilate and her co-counsel act on the innocently and inadvertently

obtained information regarding the compounding pharmacy in her possession, they

face the civil sanctions imposed by RSMo. 546.720.3 as well as judicial sanctions

for violating an order of the district court. If, on the other hand, they hold the

information confidential and take no action to investigate the pharmacy, the testing

lab, and the compounded pentobarbitalalready in the Departments possession in

preparation for Mr. Smulls executionthey cannot fully litigate Mr. Smulls

Eighth Amendment claim on the merits, nor can they advocate for their client in

the public domain, nor can they present to Governor Nixon, who has the sole

authority to grant executive clemency, all of Mr. Smulls persuasive evidence in

support of a commutation of his sentence. Further complicating the situation is the

fact that counsel have learned from documents in the public domain and media

reports the identities of the compounding pharmacy and the testing lab.

Failure to pursue every constitutional avenue of relief available to Mr.

Smulls unquestionably violates counsels duty of diligence, loyalty and advocacy

under Missouri Rules of Professional Conduct and the ABAGUIDELINES FOR THE

APPOINTMENT AND PERFORMANCE OF DEFENSE COUNSEL IN DEATH PENALTY CASES

(2003). The ultimate infringement on Mr. Smulls civil libertiesthe state-

sanctioned termination of his lifeis at stake.



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Mr. Smulls Eighth Amendment claim requires full investigation of

every aspect of the Departments execution protocol, including the grave risk

that the Department will inject him with an expired, degraded, improperly

stored drug, causing excruciating pain before inducing death.

Missouri has come under intense scrutiny of late not only for numerous

last-minute changes to its execution protocol, as Judge Kermit Bye of the Eighth

Circuit noted in a blistering critique of the states execution practices, but also for

turning to shadow pharmacies hidden behind the hangmans hood, [and] copycat

pharmaceuticals to ensure it has a steady supply of pentobarbital to keep its

execution machinery churning.2 In order to prove his Eighth Amendment claim

that executing him with the unlawfully obtained compounded pentobarbital would

be unconstitutional, Mr. Smulls must be able to show that the Departments use of

a defective lethal drug poses an enormous risk that he will experience severe and

unnecessary pain during the execution. Mr. Smulls cannot make such a showing

unless he has critical information currently shielded by Missouris statute and the

protective order and, more importantly, the time to develop evidence from that

information. Mr. Smulls cannot present an alternative method of execution unless

he knows what the current method of execution entails. Moreover, Mr. Smulls

must be permitted to gather, investigate and rely upon information that is already

in the public domain. The Department has thus far successfully insulated its ever-

shifting execution protocol from inspection by designating the compounding

2Nicklasson v. Lombardi, Case No. 13-3664, Amended Order, at 12-13 (Bye and Kelly, J.J.,dissenting)



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pharmacy that supplies its lethal injection drugs and the testing laboratory as

members of the undisclosed execution team.

As a plaintiff in the Zink v. Lombardi, et al. litigation, Mr. Smulls brought

suit against Missouris execution protocol on May 15, 2012, only six weeks after

the Department of Corrections issued its propofol protocol. Since then, he and the

other plaintiffs have raced to challenge the frustratingly moving target of the

Departments execution protocol, which has changed five times in the last six

months. The Department has obstructed plaintiffs efforts by prolonging and

complicating discovery, failing to respond to discovery requests, and lodging

legally baseless objections. Meanwhile, the Department has continued to execute

Zinkplaintiffs before the federal courts had determined whether proceeding with

the executions was constitutional. Mr. Smulls has but threedays to develop his

claim, and faces not only the Departments obstructionism, but also its efforts to

keep him from using information readily available from public sources.

Mr. Smulls has every reason to believe that the states execution protocol is

fundamentally flawed and creates a grave risk that he, and other plaintiffs, will

suffer immense, excruciating pain upon receiving the lethal injection. David

Dormire, the director of adult institutions, recently testified to alarming facts

regarding the secret pharmacy that compounded the pentobarbital intended to be

used to execute Mr. Smulls. Dormire did not know how the pharmacy was



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selected, nor whether it is properly licensed or adheres to industry standards. (Ex.

A, Dormire Deposition 1-15-14 (Redacted), p. 47). Dormire did not know what

steps had been taken by anyone at the Department to determine the quality or

reliability of the pharmacy or its product. The Department had not inspected the

pharmacy, and Dormire did not know if it had ever been inspected by a

government agency or whether it was registered under the new federal Drug

Quality and Security Act (DQSA). Id., pp. 46-47. He did not know if the

pharmacy was licensed in Missouri. Id. Dormire disclosed that the compounded

pentobarbital has been stored improperly at room temperature for well over a

week, impermissibly long under nationally accepted USP standards; the

mishandled drug is highly likely to be degraded or contaminated by the time of Mr.

Smulls scheduled execution.Id., pp. 105-106, 125.

Dr. Larry Sasich, a pharmacology expert retained by the Zinkplaintiffs who

specializes in drug safety and efficacy issues, has expressed his particularized

concerns regarding the compounded pentobarbital in multiple affidavits that

convince counsel that further investigation into the compounding pharmacy, its

pharmacists, its suppliers, and the laboratories vouching for the efficacy of the

compounded pentobarbital is necessary. According to Dr. Sasich, compounding

pharmacies represent an emerging, substandard drug industry responsible for

making large quantities of unregulated, unpredictable and potentially unsafe



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drugs. (Ex. B, Sasich Declaration Nov. 7, 2013, 12). Relying on counterfeit,

substandard, or expired ingredients from the unregulated grey market and poor

practices, compounding pharmacies are far more likely to create hazardous

contaminated or sub-potent drugs, and it is nearly impossible to trace the active

ingredients to their original manufacture to verify their quality. The Department of

Corrections policy of secrecy regarding its pentobarbital supplier creates far

greater uncertainty as to the potency, quality, and origin of the drugs ingredients.

Sasich notes the substantial risk that the compounded pentobarbital

assuming the drug obtained by the Department of Corrections is in fact

pentobarbitalwill be sub-potent or super-potent, risking a range of intolerable

outcomes including life-threatening but not fatal respiratory depression or

suffocation and gasping for breath before the loss of consciousness. Id., 35.

Contamination with dangerous allergens, toxins, or microbes is another hazard that

could induce highly unpredictable, rapidly evolving and potentially painful and

agonizing reactions upon injection of the compounded drug. Id., 28-30. The

pentobarbital may be contaminated by foreign particles that will contaminate the

solution or precipitate out of it, creating a risk of pulmonary embolism and

substantial pain and suffering. Finally, Sasich notes, if the dosage form of the drug

fails to reach or maintain the proper pH, there is a hazard the compound will cause

burning on injection, the precipitation of solid particles that could cause pulmonary



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LENS just last night, the pharmacy may supply Louisiana and Georgia with

compounded pentobarbital.3 (Ex. C,LENSArticle, 1-25-14). Current Court orders

prevent counsel from doing any investigation about this information. A member of

the general public could better and more effectively investigate Mr. Smulls

claims.

Mr. Smulls cannot meet the burden of proof to prevail on his Eighth

Amendment claim absent additional information about the source of the

Department of Corrections pentobarbital.

LEGAL ARGUMENT

First Amendment Claim

Under the First Amendment, Congress shall make no law ... abridging the

freedom of speech. U.S. Const. amend. I. It is well-settled that freedom of speech

is within the liberty safeguarded by the due process clause of the Fourteenth

Amendment from invasion by state action. Nebraska Press Assoc., 96 S.Ct. at

2801 (quoting Near v. Minnesota ex rel. Olson, 283 U.S. 697, 707 (1931)). By

3Della Hasselle, State has explored illegally obtaining drugs for upcoming execution, The Lens,

Jan. 25, 2014,available at: http://thelensnola.org/2014/01/25/state-has-explored-illegally-obtaining-drug-for

execution/?utm_medium=email&utm_campaign=Breaking+news+Illegal+death+penalty+drug&

utm_content=Breaking+news+Illegal+death+penalty+drug+CID_87e3835e5f1daf2a03161bb786

4d94e2&utm_source=Email%20Campaign&utm_term=Continue%20reading%20at%20The%20Lens



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impeding, if not entirely prohibiting, disclosure of or discussion about the Missouri

execution teams constituent members or their practices, RSMo. 546.720.3 serves

as a prior restraint on speech as the statute is applied in this case. The Supreme

Court frowns upon prior restraints on speech, calling them the most serious and

the least tolerable infringement on First Amendment rights. Nebraska Press

Assoc., 96 S.Ct. at 2803. Prior restraints represent an immediate and irreversible

sanction, and where, as here, there is the threat of civil liability and judicial

sanctions for exercising the freedom of speech, the restraint does not merely chill

speech, but freezes it at least for the time.Id.

The Supreme Court strongly disfavors content-based speech restrictions

because [t]he essence of ... forbidden censorship is content control. Police Dept.

of Chicago v. Mosley, 408 US 92, 96 (1972). Above all else, the Supreme Court

advises, the First Amendment means that government has no power to restrict

expression because of its message, its ideas, its subject matter, or its content. Id.

at 95 (citations omitted). Missouris Black Hood statute preventing disclosure of

the identities of the execution team, construed broadly and in the manner applied

in this case, is unquestionably a content-based restriction and thus is subject to

strict scrutiny: the state must show that the regulation is necessary to serve a

compelling state interest and that it is narrowly drawn to achieve that end.



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Burson v. Freeman, 504 U.S. 191, 198 (1992)(quoting Perry Ed. Assn. v. Perry

Local Educators Assn., 460 U.S. 37, 45 (1983)).

The asserted compelling state interest justifying this particular

infringement on Mr. Smulls and counsels First Amendment right is the safety,

security, and anonymity interests of the Department and its personnel. While the

safety, security, and anonymity of the members of the execution teammeaning

those people directly involved in administering the lethal drugis a legitimate

interest, there is no such rationale for restricting the dissemination of information

regarding the identity of the out-of-state, for-profit compounding pharmacy or the

testing laboratory. By the Departments rationale, if the out-of-state pharmacy

(more than 350 miles from Missouris death chamber) and the testing lab (just

short of 500 miles from Missouris death chamber) are directly involved in

administeringthe lethal drug, then so too must be the contractor that provides the

gurney, the medical tubing, and the latex gloves that those who administer the

lethal drug wear during the execution. No fair reading of the statue would expand

its clear language to include an out-of-state contractor that provides the drugs at

least fifteen days prior to the administration of the lethal drugs.

It is unclear that the United States has ever recognized the anonymity

interest of any entity that compounds pharmaceuticals that will be injected into its

citizens bloodstream. To the contrary, if transparency is warranted anywhere, it is



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in the arena of high-risk drug compounding. This is underscored by the enactment

only two months ago of the Drug Compounding Quality and Security Act, which

increases the U.S. Food and Drug Administrations oversight of drug

compounderslegislation that was implemented in response to the 2012 fatal

national meningitis outbreak caused by tainted medicine from a compounding

pharmacy.See21 U.S.C. 355. See Pub. L. No. 113-54, 127 Stat. 587 (Nov. 27,

2013), 102(a) (modifying scope of FDCA 505).

Moreover, evidence shows Defendants fear that the pharmacy will be

targeted for retaliation is baseless. Using records obtained through a Sunshine Act

request alone, Kansas City newsweekly The Pitchwas able to identify the three

compounding pharmacies that had the same Oklahoma license renewal date, and

had paid the same fee for their licenses. The Pitch learned that of two of those

three pharmacies did not compound sterile injectable drugs. The Apothecary

Shoppe, of Tulsa, Oklahoma, informed The Pitch that they did in fact compound

sterile injectable drugs. Compounded pentobarbital is a sterile injectable. Based

on publicly available information and basic investigation The Pitchreported that it

was very likely that the Apothecary Shoppe, of Tulsa, Oklahoma, was supplying

compounded pentobarbital to the Department of Corrections, naming the pharmacy



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in a feature article published January 21, 2014.4 (Ex. D, The PitchArticle, 1-21-

14). Five days later, counsel is not aware of any retaliation, harassment, or

violence directed at the Apothecary Shoppe. The threat is not merely speculative,

it is nonexistent and Defendants insistence on protecting the details regarding the

source of its pentobarbital is in fact motivated by its desire to conceal the harsh

reality of executions from the public. California First Amendment Coalition v.

Woodford, 299 F.3d 868, 880 (9th Cir. 2002) (overturning prison regulation

barring public viewing of lethal injection as an impermissible restriction of the

publics First Amendment right to view executions because it is critical for the

public to be reliably informed about the lethal injection method of execution).

The Defendants interest in protecting its execution process from a purely

speculative danger dissipates when compared to Mr. Smulls clear and present,

cognizable, corporeal interest in exercising his First Amendment rights in order to

preserve his Eighth Amendment right to be free from cruel or unusual punishment,

and his most fundamental liberty: life.

The publics interest in Missouris lethal injection protocol also countervails

the Defendants interest in protecting its compounding pharmacy from a purely

4Steve Vockrodt,As questions linger about Missouris shadowy lethal injection protocol, the

state is days away from killing another inmate, The Pitch, Jan. 21, 2014, available at:

http://www.pitch.com/kansascity/herbert-smulls-allen-nicklasson-death-penalty-missouri-department-of-corrections/Content?oid=4094006



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illusory threat. An informed public debate is critical in determining whether

execution by lethal injection comports with the evolving standards of decency

which mark the progress of a maturing society, and the Department of

Corrections is thwarting this debate, obstructing the flow of vital information by

shrouding its execution protocol in the hangmans hood. California First

Amendment Coalition, 299 F.3d at 876. Defendants furtive implementation of the

death penalty is repugnant to adversaries and advocates of the death penalty alike.

As Missouri State Rep. Jay Barnes remarked, regardless of ones position,

everyone should agree that [the death penalty] must be carried out according to

the requirements of the Constitution and the laws of our state.5

Conflict Claim

Counsel is burdened by an untenable conflict.

The restriction on Mr. Smulls and his counsels exercise of freedom of

speech has constructively deprived Mr. Smulls of conflict-free, zealous

representation and has effectively placed counsel at risk of violating the rules of

professional conduct.

The ABA GUIDELINES FOR THE APPOINTMENT AND PERFORMANCE OF

DEFENSE COUNSEL IN DEATH PENALTY CASES (2003) establishes the duties post-

conviction and clemency counsel owe their client. Once an execution is scheduled,

5Seestatement of Jay Barnes, available at: http://barnesformissouri.com/.



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Guidelines 10.5.1 directs that counsel should seek to litigate all issues, whether or

not previously presented, that are arguably meritorious under the standards

applicable to high quality capital defense representation ... [and] should fully

discharge the ongoing obligations imposed by these Guidelines, including the

obligation[] to ... continue an aggressive investigation of all aspects of the case.

(emphasis added). This includes an investigation of all actual and potential Eighth

Amendment claims.

Guidelines 10.7(A) states that Counsel at every stage have an obligation to

conduct thorough and independent investigations relating to the issues of both guilt

and penalty. At every stage of the proceedings, counsel has a duty to investigate

the case thoroughly. SeePowell v. Alabama, 287 U.S. 45, 57 (1932). Because

counsel are operating under various protective orders that deny them their First

Amendment right to investigate, speak to government oversight agencies, even

mention the compounding pharmacy or the lab, or to share the information they

have with their experts, the media and the Governor, they are wholly prevented

from fulfilling their ethical duty to Mr. Smulls under these Guidelines.

Guideline 10.15.2(B) provides Clemency counsel should conduct an

investigation in accordance with Guideline 10.7. Further, Guideline 10.15.2(D)

states Clemency counsel should ensure that the process governing consideration



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of the clients application is substantively and procedurally just, and, if it is not,

should seek appropriate redress. (emphasis added).

Similarly, the Missouri Rules of Professional Conduct command that

lawyer shall act with reasonable diligence and promptness in representing a

client. Mo. S. Ct. Rule 4-1.3. This means counsel:

should pursue a matter on behalf of a client despite opposition,

obstruction, or personal inconvenience to the lawyer and take

whatever lawful and ethical measures are required to vindicate a

clients cause or endeavor. A lawyer must also act with commitment

and dedication to the interests of the client and with zeal in advocacyupon the clients behalf.Id., n. 1.

In order to discharge these duties, counsel has identified the following

investigative steps that, at a minimum, should be taken on Mr. Smulls behalf in

order to vindicate his rights, but which are obstructed by the restrictions on

information regarding the pharmacy and lab:

1. depose the compounding pharmacist(s) and the testing chemist(s) at

their facilities to ascertain the procedures they follow and the

instructions they give their clients about handling, storage and

administration of the product;

2. ascertain any disciplinary histories of those entities or individuals with

the agencies or boards that regulate their professional licenses;



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3. determine the conditions and manner in which the pentobarbital was

compounded and how it was stored at the pharmacy or lab before it

was turned over to the Department of Corrections;

4. investigate the pharmacys compliance with state and federal laws as

well as industry standards for compounding;

5. ascertain the accreditation, qualifications, and methodology of the

analytical laboratory that tested the pentobarbital provided to the

Department of Corrections;

6. investigate whether the laboratory has been cited by the FDA or any

other regulatory agency for safety or compliance problems, or failures

to follow proper testing protocols and regulations;

7. investigate pending or past lawsuits involving the compounding

pharmacy and the testing laboratory;

8. present to Mr. Smulls experts evidence already known about the

compounding pharmacy and the testing laboratory;

9. present to government agencies and oversight bodies information and

evidence already known about the compounding pharmacy and the



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testing laboratory so that these bodies may address Mr. Smulls

grievances6;

10. present to Governor Nixon information already known about the

compounding pharmacy and the testing laboratory so that he may

fully consider the risks of Mr. Smulls suffering unnecessary pain

during the execution7; and,

11. determine the likelihood of degradation, contamination, super- or sub-

potency of the pentobarbital in the Departments possession.

This is not an exhaustive list, but the minimum steps that reasonably

effective counsel would take in order to discharge the duty of aggressive

investigation of whether the compounded pentobarbital poses a substantial risk

6The protective orders prevent counsel from communicating known evidence of state and federalviolations to government oversight agencies. Mr. Smulls is prevented from presenting his claims

to the government for redress in further violation of his First Amendment rights. The Missouri

Pharmacy Board informed counsel We understand you are unable to provide the name of the

name of a specific pharmacyIn light of the Boards limited jurisdiction and the unknown

identity of the alleged entities, the Board elected to take no further action. SeeEx. E, Letter

from Missouri Board of Pharmacy." Defendants informed counsel via email that they consider it a violation of this Courts

protective order for Mr. Smulls to present known evidence about the testing lab and Dr. Sasichsaffidavit about it to Governor Nixon. SeeEx. F, Email from Sue Boresi to counsel. Not only does

this violate Mr. Smulls First Amendment rights, but also infringes on the Governors powers.

Under the Missouri Constitution, Article IV, Section 7, the governor, and the governor alone, has

the power to grant reprieves, commutations and pardons, after conviction, for all offensesexcept treason and cases of impeachment upon whatever conditions and limitations the

governor may deem proper. The governors power is essentially unlimited, and he has the ability

to receive and consider evidence from any and all sources and is not restricted as to the nature

of the considerations he may entertain or the evidence he may receive. Young v. Hayes, 218F.3d 850, 853 (8thCir. 2000).



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of serious harm [or] an objectively intolerable risk of harm. Baze v. Rees, 128

S.Ct. 1520, 1531 (2008).

Bound and gagged by statute and court order, counsel cannot prove

Missouris current execution protocol represents a constitutionally unacceptable

risk without further investigation. Nor can counsel provide zealous advocacy by

bringing information about the Defendants protocol and actions to light. The

public must have the opportunity to be informed about how the State and its

justice system implement the most serious punishment the state can exact from a

criminal defendant and to freely discuss the constitutionality of executions.

California First Amendment Coalition, 299 F.3d at 873. Counsel would be remiss

in not exposing the constitutional and safety issues with the states shadowy

execution protocol to the light of day to protect Mr. Smulls interests.

Counsel are in an untenable situationthey have information that they have

obtained through publicly available documents that they are forbidden from using,

investigating, or even discussing with the press, investigative agencies and the

Governor in their plea for clemency. A member of the general public could better

investigate Mr. Smulls claims for relief.

In this case, the Black Hood statute and the Courts protective order have

thrust a conflict upon counsel. Counsel personally faces potential civil and judicial

sanctions if they divulge information regarding the pharmacy, laboratory, certain



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throughout the Zink litigation. Defendants should not be allowed to reap the

benefits of their dilatory and obstructive tactics at the cost of Mr. Smulls life.

Additionally, Mr. Smulls does not seek an indefinite stay of execution in this

Motion. He seeks only a stay of 60 days, in which he can litigate the issue of his

free speech rights with relation to information in this case.

CONCLUSION

The chilling of Mr. Smulls speech by statute and court order grossly inhibits

Mr. Smulls and his counsels First Amendment rights and, as a result, irreparably

harms his ability to litigate his Eighth Amendment claim. The death penalty is

irreversible, and there will be no way to remedy the injustice of an excruciatingly

painful and unconstitutional execution after the fact.

Based on the foregoing arguments, Mr. Smulls respectfully requests that this

Court grant his motion for a 60-day stay of execution, granting him the opportunity

to litigate his First Amendment claims, to petition the government for redress of

his grievances, and to fully investigate his Eighth Amendment claim by exercising

the rights afforded him under the First Amendment.

Respectfully submitted,

MORGAN PILATE, LLC



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/s/ Cheryl A. Pilate

Cheryl A. Pilate Mo. #42266

Lindsay J. Runnels Mo. #62075

926 Cherry St.

Kansas City, MO 64106

Telephone: 816-471-6694

[email protected]

[email protected]

/s/ Charles M. Rogers

Wyrsch Hobbs Mirakian, P.C.

1000 Walnut, Ste. 1600

Kansas City, MO 64105

Telephone: 816-221-0080

[email protected]

CERTIFICATE OF SERVICE

I, Cheryl Pilate, do herby certify that a true and accurate copy of the above

and forgoing was served on all counsel of record via the ECF system on the 26th

day of January, 2014.

/s/ Cheryl A. Pilate

smulls motion to stay - 1st amend violations as filed

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