Federal judge grants stay of execution in Missouri

AP News

11/19/2013 8:09:54 PM - AP News

ST. LOUIS (AP) — A federal judge in Missouri on Tuesday granted a stay of execution to white supremacist serial killer Joseph Paul Franklin just hours before his scheduled death, citing concerns over the state's new execution method.

U.S. District Court Judge Nanette Laughrey ruled that a lawsuit filed by Franklin and 20 other death row inmates challenging Missouri's execution protocol must be resolved before he is put to death.

The state appealed Laughrey's ruling to the 8th U.S. Circuit Court of Appeals in St. Louis on Tuesday night, though it wasn't clear how quickly that court would rule. A second lower court federal judge, weighing a separate defense appeal contesting Franklin's competency to be executed based on his mental illness, also granted a stay and said the issue needs "a meaningful review."

Laughrey's 14-page ruling criticizes the timing of the state's changes to how it carries out capital punishment, specifically its plan to use for the first time a single drug, pentobarbital. It also takes issue with a plan to acquire the drug from a compounding pharmacy.

Laughrey wrote that the Missouri Department of Corrections "has not provided any information about the certification, inspection history, infraction history, or other aspects of the compounding pharmacy or of the person compounding the drug." She noted that the execution protocol, which has changed repeatedly, "has been a frustratingly moving target."

It wasn't immediately clear whether the state would appeal the ruling. Messages left with the state attorney general's office were not returned.

If a federal appeals court or the U.S. Supreme Court struck down Laughrey's ruling, the execution could go forward. Franklin's attorney, Jennifer Herndon, said the execution warrant allows it to be carried out anytime Wednesday.

Herndon said Franklin, who has been diagnosed as mentally ill, didn't seem to fully understand the stay.

"He was happy," she said. "I'm not really convinced that he totally understands that he was going to die."

Franklin, 63, was convicted of seven other murders, but the Missouri case was the only one resulting in a death sentence. Franklin also has admitted to shooting and wounding civil rights leader Vernon Jordan and Hustler magazine publisher Larry Flynt, who has been paralyzed from the waist down since the attack in 1978.

Like other states, Missouri long had used a three-drug execution method. Drugmakers stopped selling those drugs to prisons and corrections departments, so in April 2012 Missouri announced a new one-drug execution protocol using propofol. The state planned to use propofol for an execution last month.

But Gov. Jay Nixon ordered the Missouri Department of Corrections to come up with a new drug after an outcry from the medical profession over planned use of the popular anesthetic in an execution. Most propofol is made in Europe, and the European Union had threaten to limit exports of it.

The corrections department turned to pentobarbital made through a compounding pharmacy. Few details have been made public about the compounding pharmacy, because state law provides privacy for parties associated with executions.

"Throughout this litigation, the details of the execution protocol have been illusive at best," Laughrey wrote. "It is clear from the procedural history of this case that through no fault of his own, Franklin could not resolve his claims without a stay of his scheduled execution date."

She added: "Franklin has been afforded no time to research the risk of pain associated with the Department's new protocol, the quality of the pentobarbital provided, and the record of the source of the pentobarbital."

Nixon spokesman Scott Holste had no immediate comment about the ruling.

Franklin was in his mid-20s when he began drifting across the country. He bombed a synagogue in Chattanooga, Tenn., in July 1977. No one was hurt, but soon, the killings began.

He arrived in the St. Louis area in October 1977 and picked out the Brith Sholom Kneseth Israel synagogue from the Yellow Pages. He fired five shots at the parking lot in Richmond Heights after a bar mitzvah on Oct. 8, 1977. One struck and killed Gerald Gordon, a 42-year-old father of three.

Franklin got away. His killing spree continued another three years.

Several of his victims were interracial couples. He also shot and killed, among others, two black children in Cincinnati, three female hitchhikers and a white 15-year-old prostitute, with whom he was angry because the girl had sex with black men.

He finally stumbled after killing two young black men in Salt Lake City in August 1980. He was arrested a month later in Kentucky, briefly escaped, and was captured for good a month after that in Florida.

Overall, Franklin was convicted of eight murders — two in Madison, Wis., two in Cincinnati, two in Salt Lake City, one in Chattanooga, Tenn., and the one in St. Louis County. Years later in federal prison, Franklin admitted to several crimes, including the St. Louis County killing. He was sentenced to death in 1997.

In an interview with the St. Louis Post-Dispatch on Monday, Franklin insisted he no longer hates blacks or Jews. While he was held at St. Louis County Jail, he said he interacted with blacks at the jail, "and I saw they were people just like us."

He has made similar statements to other media but has denied repeated interview requests from The Associated Press. Herndon said Franklin's reasoning exemplified his mental illness: Franklin told her the digits of the AP's St. Louis office phone number added up to what he called an "unlucky number," so he refused to call it.