Herbert Smulls Archives

Three inmates’ attorneys argue against setting of their execution dates

February 24, 2014 By Mike Lear

Attorneys for three men sentenced to be executed have presented their arguments to the Missouri Supreme Court why it shouldn’t set a date for their executions. The Court ordered those attorneys to prepare those arguments in Show Cause orders issued in each case, January 29. The State Attorney General’s Office has responded to two of them.

Russell Bucklew, William Rousan and Cecil Clayton (photos courtesy; Missouri Department of Corrections)

Among the arguments attorneys for William Rousan, Russell Bucklew and Cecil Clayton separately make is that because their clients are plaintiffs in Zink v. Lombardi, ongoing federal litigation regarding Missouri’s lethal injection process, their executions should not proceed until that has been settled. To this point, the Attorney General’s Office argues legal precedent that federal litigation is not a reason not to set an execution date. Joseph Franklin, Allen Nicklasson and Herbert Smulls were also plaintiffs in Zink v. Lombardi when they were executed in November, December and January, respectively.

Attorneys for Clayton argue that he is incompetent to understand his punishment due to a deteriorating mental state, in part because of a head injury 25 years before he fatally shot Berry County Sheriff’s Deputy Christopher Castetter in November, 1996. That injury at a sawmill resulted in the removal of part of the right frontal lobe of his brain. The Attorney General’s Office’s response to the arguments of Clayton’s attorneys is due March 5.

Attorneys for Bucklew, who in 1996 shot Michael Sanders, the presumed new boyfriend of his ex, say he suffers from malformed blood vessels that cause among other things, bleeding from his mouth and eyes, and could increase the risk of a painful or prolonged lethal injection. The state argues that doesn’t merit an indefinite delay in setting his execution date.

Rousan also claims instructions given to the jury at his trial were confusing; an issue the state says the Court and federal courts have already dealt with. Rousan, his son and brother participated in the murder of a rural Bonne Terre couple as part of a cattle theft and robbery.

Missouri is scheduled to carry out the execution by lethal injection of Michael Taylor early Wednesday morning. Taylor is one of two men sentenced to death after pleading guilty to the 1989 murder of 15-year-old Ann Harrison of Kansas City.

On Friday the State Supreme Court set March 26 as the date for the execution of Jeffrey Ferguson for the 1989 abduction, rape and murder of 17-year-old Kelli Hall in St. Louis County.

Both Ferguson and Taylor were among four men for whom the Supreme Court in December ordered attorneys to present arguments why their execution dates should not be set. The others of those four were Roderick Nunley and David Barnett. Nunley is the second man who plead guilty in the murder of Harrison. Barnett stabbed each of his grandparents more than 10 times at their Glendale home before stealing their car and $120 in cash.

Governor Nixon denies clemency to man scheduled for execution early Wednesday

January 28, 2014 By Mike Lear

Governor Jay Nixon has denied a clemency petition for 56-year-old Herbert Smulls, scheduled to be executed early tomorrow by lethal injection for the 1991 murder of a St. Louis County jewelry store owner.

Herbert Smulls (courtesy, Missouri Department of Corrections)

In a statement, Nixon says he has reviewed Smulls’ case, saying the decision is not one he takes lightly.

Herbert Smulls shot and killed Stephen Honickman and seriously wounded Florence Honickman in a cold-blooded and deliberate manner during a robbery of their jewelry business in Chesterfield,” says Nixon. “A career criminal, Smulls was apprehended by law enforcement shortly after the murder with stolen jewelry still in the car.

“These crimes were brutal, and the jury that convicted Smulls determined that he deserved the most severe punishment under Missouri law. Both the conviction and the death sentence of Herbert Smulls have held up under extensive judicial review by the state and federal courts. My decision on clemency upholds the action by the jury and the decisions by the courts.

“I ask that Missourians remember Stephen Honickman at this time, and keep Florence Honickman and the family and friends of the Honickmans in their thoughts and prayers.”

Smulls is scheduled to be executed just after midnight Wednesday morning at the Eastern Reception and Diagnostic Correctional Center at Bonne Terre, Missouri.

Corrections Director cites litigation, pending execution for not talking to Oversight Committee

January 21, 2014 By Mike Lear

Department of Corrections Director George Lombardi confirms he will talk to the House Committee on Government Oversight and Accountability, just not today.

Department of Corrections Director George Lombardi (right) testifies to the House Appropriations Committee on Public Safety and Corrections.

The Committee was scheduled to hold a hearing today to investigate Corrections’ execution procedures, specifically how it acquires the drugs it uses for executions and how it determines when a condemned individual has exhausted all appeals.

Lombardi did speak to the House Appropriations Committee on Public Safety and Corrections. After that hearing he told Missourinet the reasons he would not testify to the Oversight committee today are that issues related to the drug, pentobarbital, are the subject of ongoing litigation, and because an execution is scheduled for next week, that of Herbert Smulls.

Lombardi confirmed that he will testify before the Oversight Committee at a later date.

See our earlier story on Director Lombardi not testifying to the Oversight Committee Tuesday

The chairwoman of the appropriations committee, Marsha Haefner (R-St. Louis), did ask Lombardi about the execution issues being the subject of controversy, and whether the outcome of litigation could impact the Corrections Department budget.

He told the Committee that due to litigation, “There’s not hardly anything I can say about that right now. I will tell you that the legal defense fund handles any kind of judgement against any state agency.”

Lombardi declined to answer any questions about the execution protocol.

Bill proposes moratorium on, study of state executions

January 14, 2014 By Mike Lear

Some state lawmakers want executions in Missouri put on hold until questions are answered about how they are being carried out.

Representative John Rizzo (courtesy, Missouri House Communications)

Representative John Rizzo (D-Kansas City) has proposed that an 11-member commission be appointed to study those same issues, and he wants executions halted through the end of this year or until that commission’s work is complete, whichever comes first.

“I want them to look into some of the pharmaceuticals that are being used … how they’re being acquired. I’d like for them to look into the most recent execution of a person that in my opinion was still in the (legal) process but then was executed.”

The issues Rizzo cites are the same ones that will be looked into by the House Committee on Government Oversight and Accountability when it meets Tuesday. It will ask how the Corrections Department determines whether a condemned man has exhausted all of his constitutional appeals. Judge Kermit Bye, in a dissenting opinion, wrote that Missouri executed Allan Nicklasson December 11, “before the federal courts had a final say on whether doing so violated the federal Constitution.”

See our earlier story on the House Oversight Committee

It will also follow-up on the report that the Department of Corrections obtained the pentobarbital used to execute Joseph Paul Franklin in November from a compounding pharmacy in Oklahoma that is not licensed in Missouri, and whether that would be a violation of state law.

Rizzo says his bill isn’t about being for or against the death penalty.

“I think it’s an opinion of … are there things that are going on that circumvent the law?”

Rizzo proposes the panel be made up of a lawmaker from each party from each chamber, a county prosecutor, a capital defense attorney, the state public defender and the Attorney General or their representatives, two treating physicians and a pharmacist.

The bill was filed Tuesday afternoon. It would have to move quickly through the legislature to impose a moratorium before the next execution that is scheduled in Missouri, that of Herbert Smulls on January 29.

Audit will probe Corrections Department execution procedures, drug procurement (AUDIO)

January 13, 2014 By Mike Lear

Death penalty opponents and attorneys representing condemned men say the Missouri Department of Corrections is keeping too many secrets and could be breaking state law in the way it’s obtaining drugs to carry out lethal injections. The State Auditor’s Office will explore some of those issues in the course of the audit of Corrections announced last week.

The State Auditor’s Office could look at the executions of Joseph Paul Franklin (left) and Allen Nicklasson during the course of the audit it is conducting of the Department of Corrections.

Media reports say the Department acquired the pentobarbital used in the execution of Joseph Paul Franklin in November from a compounding pharmacy in Oklahoma that is not licensed in Missouri. This has some officials asking whether that violates state law or falls into some sort of “gray area.”

Deputy State Auditor Harry Otto says the audit can include any executions that fall in its timeframe, the two fiscal years that will end June 30. That would include the execution of Franklin and the execution of Allan Nicklasson December 11, as well as any executions that happen through June 30. The only other execution for which a date has been set is that of Herbert Smulls, scheduled to happen January 29.

“There is a fair amount of public interest in this subject,” Otto says, “so we’ll look to see whether the Department has followed its own policies and procedures with respect to the execution protocol. The changes that they made … did they make them pursuant to their own policies and procedures? And we’ll try to evaluate whether or not there was any violation of state law.”

How deeply auditors will explore execution procedures depends on what they learn as the investigation is conducted.

“An auditor keeps probing until he feels he’s gotten the full story,” says Otto. “If we ask questions and they lead to further questions which leads to another angle or pursuing that to the ultimate answer … we keep going until we get the answer. If we picked one … and there are some unanswered questions, it’s likely we would pick the next one and see if that was repeated or if that was isolated.”

State law provides that some components of execution procedures be kept confidential, such as the identities of members of the execution team. Otto says his office has the authority to find out things that members of the public or the media could not because of those protections. That doesn’t mean that information would become public, however.

“There’s still confidentiality with respect to what you tell the auditor. That doesn’t always get published,” Otto tells Missourinet. “When we learn of things that are otherwise protected and they become part of our work papers, they remain protected. In other words, simply because we got the identities of certain parties, that doesn’t mean we’re going to publish those identities in our report, nor can our work papers be [obtained in a Sunshine Law request].”

Otto says if any violations of law are made public, the Auditor’s Office would refer them to the proper law enforcement agency. An audit report could be ready by this fall.

Listen to the interview with Harry Otto, 11:16