Missouri Bypasses the Constitution in its Fumbling Hurry to Kill

Kermit E. Bye of Fargo, N.D., is one of 11 judges on the 8th District U.S. Court of Appeals, which considers appeals from district courts in seven states, including both Missouri and North Dakota. The court sits in both St. Louis and St. Paul, Minn.

Appeals usually are heard by a three-judge panel. In cases considered to be of high public importance, a hearing can be conducted by the court "en banc," which is to say by all the judges. If someone loses his appeal, he has the right to request a rehearing en banc.

To reiterate: If you lose an appeal, you have the constitutional right to request an en banc rehearing. The appeal isn't over until the court acts on that request. We bring up these legalities because they touch on a scathing dissenting opinion that Judge Bye filed in a Missouri death penalty case on Dec. 20:

"At approximately 10:52 p.m. on December 11, 2013, Missouri executed Allen Nicklasson before this (en banc) court had completed its review of Nicklasson's request for a stay of his execution, a request he brought in a pending action challenging the constitutionality of Missouri's execution protocol. That bears repeating. Missouri put Nicklasson to death before the federal courts had a final say on whether doing so violated the federal constitution."

Yes, the clunky Missouri death penalty machine — the machine that formerly employed a dyslexic doctor to mix the execution drugs and supervise executions; the one that almost created a nationwide shortage of a critical anesthetic drug; the one that has changed its execution protocols time and time again — the machine has again made an appalling mistake.

It's a safe bet it won't be the last mistake. The American Bar Association has studied the Missouri machine and two years ago made an exhaustive series of recommendations. The ABA study was done by a blue-ribbon panel of judges, former prosecutors, former defense attorneys and academic experts. It is two inches thick and no doubt fits nicely in the drawer where Gov. Jay Nixon has shoved it.

He should take it out. These shameful problems have gone on long enough.

But executing people is good politics in Missouri, and politics takes precedence over the law. Judge Bye appears to be on safe ground when he writes that Nicklasson's execution was unconstitutional.

So eager was the state corrections department to do away with Allen Nicklasson before his defense team could raise more pesky Eighth Amendment objections that it injected him with a lethal dose of pentobarbital before the court of appeals could consider his petition for a rehearing en banc.

We will never know if the 11 judges on the bench would have voted to hear the case. Odds are they would not have. But this is about the law, not the odds.

The execution proceeded after the U.S. Supreme Court had voted 5-4 to lift a stay that the appeals court had issued on the question of Nicklasson's legal representation.

But Nicklasson's lawyers had raised a new challenge, objecting to the state's brand-new single-drug execution method. The pentobarbital had come from a mysterious "compounding" pharmacy; St. Louis Public Radio and its online partner, The Beacon, have reported the pharmacy is in Oklahoma. It is not regulated by the Food and Drug Administration and has no Missouri business license.

The appeals court rejected the new challenge. Missouri killed Nicklasson before the court en banc had a chance to consider a rehearing. In this deadly game of cat and mouse, the cat won.

Allen Nicklasson, 41 when he died, was not a sympathetic character, despite a horrific childhood and a diagnosis of bipolar disorder. He'd been found guilty of the 1994 "Good Samaritan" killing of Richard Drummond of Excelsior Springs. He also killed two other Good Samaritans in Arizona.

His accomplice in the killings, Dennis Skillicorn, was executed in 2009. But Nicklasson had filed one appeal after another. When his last-minute appeal reached the Supreme Court, Missouri Attorney General Chris Koster pleaded, "In the last 19 years, Nicklasson has filed appeals or challenges to his convictions numerous times, in five different courts. The time for enforcement of Missouri's criminal judgment against Allen L. Nicklasson is long, long overdue."

The Department of Corrections, its supply of Oklahoma pentobarbital ready and waiting in the death chamber at the prison in Bonne Terre, wasn't going to take the chance that the appeals court en banc would find problems with a brand-new, first-for-Missouri pentobarbital protocol. Given DOC's history, the haste was understandable, if not constitutional.

Judge Bye, who was joined in his dissent by Appeals Court Judge Jane Kelly, seemed shocked when he reviewed Missouri's sloppy and callous death penalty history.

"Missouri's past history of scheduling executions before a death row inmate has exhausted his constitutional rights of review, using unwritten execution protocols, misrepresenting dosage levels for drugs used in lethal injection and providing unfettered discretion to a dyslexic physician to mix the drugs and oversee its executions, has earned from this federal judge more than just a healthy judicial skepticism," he wrote.

He continued, "Its current practice of using shadow pharmacies hidden behind the hangman's hood, copycat pharmaceuticals, numerous last-minute changes to its execution protocol and finally, its act of proceeding with an execution before the federal courts had completed their review of an active request for a stay, has committed this judge to subjecting the state's future implementation of the penalty of death to intense judicial scrutiny, for the sake of the death row inmates involved as well as adversaries and advocates of capital punishment alike."

REPRINTED FROM THE ST. LOUIS POST-DISPATCH