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Transcript of 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
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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
/s/ Charles M. Rogers
Wyrsch Hobbs Mirakian, P.C.
1000 Walnut, Ste. 1600
Kansas City, MO 64105
Telephone: 816-221-0080
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