Court filing: Don't execute serial killer because he might get hurt

With less than 24 hours left before serial killer Joseph Paul Franklin is scheduled to die, a final flurry of activity is underway from those trying to stop his execution.

Their main argument: The new drug protocol being used by the state of Missouri might hurt Franklin while it is killing him.

Franklin's attorneys, who are representing all Missouri death row inmates, filed the motion Monday in U. S. District Court for the Western District of Missouri.

The opening statement in the motion is printed below.

PLAINTIFF JOSEPH FRANKLIN’S MOTION FOR STAY OF EXECUTION 
Only four weeks before Joseph Franklin’s scheduled execution, the Department of Corrections announced a new lethal injection protocol—its third new method in as many months. This latest protocol has left Mr. Franklin and other death-sentenced prisoners scrambling to gather scientific evidence and present the accompanying legal claims in this Court, to which the state-affiliated Defendants removed this action from the Circuit Court of Cole County, Missouri. On November 8, 2013, the plaintiffs moved to amend their complaint in order to assert numerous claims against the new protocol. 

Procedural difficulties aside, Defendants’ execution method is fatally flawed. 

Defendants plan to execute Mr. Franklin with pentobarbital obtained from a “compounding pharmacy,” and, in order to keep the identity of their compounding pharmacy a secret, the Defendants have dubiously named that supplier as a member of its “execution team” under Mo. Rev. Stat. § 546.720.2.. The use of anonymously compounded pentobarbital puts Mr. Franklin at risk of an excruciatingly painful execution, according to pharmacy expert Dr. Larry D. Sasich and anesthesiologist Mark J.S. Heath. Compounded drugs are all but unregulated, and their ingredients come from an unsavory network of “grey market” suppliers whose unknown products subject the end-user to severe risks.

The use of anonymously-compounded pentobarbital creates substantial risks (a) that the drug will be sub-potent, super-potent, or even that that the drug will not be pentobarbital at all, and that it would cause permanent brain damage without even killing the prisoner, (b) that the drug will be contaminated with allergens or pathogens, which would cause a “potentially painful and agonizing” anaphylactic reaction or an acute blood reaction, (c) that the drug will contain foreign particles that create a “substantial risk of pain and suffering” on injection or by causing a pulmonary embolism, and (d) that the drug will fail to reach or maintain the proper pH, resulting in severe burning on injection, a pulmonary embolism, or the multiplication of pathogens and the risks they carry. All told, the new method is “replete with flaws that present a substantial risk of causing severe and unacceptable levels of pain and 
suffering.”

The new protocol not only risks excruciating pain while increasing Mr. Franklin’s punishment in violation of ex post facto principles, but its provisions also transgress the manner-of-execution statute as well as binding state law governing the manufacture and administration of compounded drugs. The Court should stay Mr. Franklin’s execution so that Defendants do not extinguish his claims.

Franklin's crimes are described in this passage from a Missourinet article:

Franklin is on Missouri’s Death Row, scheduled to die by lethal injection Nov. 20 for staking outside of a St. Louis area synagogue and firing on Jewish congregation members as they left the service.

He has been convicted of several murders, and given six life sentences, as well as a death sentence. He confessed to the attempted murders of two prominent men: Larry Flynt in 1978, and Vernon Jordan, Jr., the civil rights activist, in 1980. Franklin has not been convicted in either of those cases.