David Zink is scheduled to be executed at 6 p.m. Tuesday in Bonne Terre.
After a nearly hour-long hearing Friday afternoon, Cole County Circuit Judge Pat Joyce said she'll rule by Monday morning on a request for a temporary restraining order to block that execution - a request made in a lawsuit filed Thursday by four Missouri taxpayers, accusing the Corrections department of violating state and federal laws with its use of pentobarbitol as the execution drug.
"We are not raising a constitutional challenge to the death penalty," St. Louis lawyer Justin K. Gelfand told Joyce. "We aren't saying that executions are illegal."
But they must be done in a legal manner, he said - and using a compounding pharmacy to make a copy of a drug that's commercially available is against the law.
Assistant Attorney General Michael Spillane countered that Gelfand's clients are raising issues Zink already has raised in several courts - and lost.
Spillane's 16-page response to Gelfand's 18-page lawsuit says several times that the plaintiffs "are really acting as surrogates for Zink."
But, Gelfand argued, "Mr. Zink is not a plaintiff (or) a party to this case."
Gelfand's clients are:
• Former state Rep. and Sen. Jon Bray, D-University City, who now heads the St. Louis-based Consumers Council.
• Former state Rep. Jeanette Mott Oxford, D-St. Louis, who now directs the group Empower Missouri (the former Missouri Association for Social Welfare).
• A Catholic nun, Sister Mary Ann McGivern, who also is a member of Empower Missouri's Criminal Justice Task Force.
• Rev. Elston McCowan, a Baptist minister and chairman of the Missouri NAACP's criminal justice and prison committee.
All four are Missouri taxpayers, Gelfand noted, who have been "standing to keep the defendants from violating the law" and spending tax money in illegal ways.
Spillane told Joyce the plaintiffs filed their case in the wrong court; any effort to halt an execution the Missouri Supreme Court already has ordered must be filed with that court.
"He's asking you to tell my client (the Corrections department) not to obey that Supreme Court order," Spillane said.
Since they're not trying to block any specific execution but instead are trying to keep the state from violating existing laws, Gelfand said, the Cole County circuit court is the right place to have sued.
Joyce gave no indication she was leaning to one side of the case or the other.After a nearly hour-long hearing Friday afternoon, Cole County Circuit Judge Pat Joyce said she'll rule by Monday morning on a request for a temporary restraining order to block that execution - a request made in a lawsuit filed Thursday by four Missouri taxpayers, accusing the Corrections department of violating state and federal laws with its use of pentobarbitol as the execution drug.
"We are not raising a constitutional challenge to the death penalty," St. Louis lawyer Justin K. Gelfand told Joyce. "We aren't saying that executions are illegal."
But they must be done in a legal manner, he said - and using a compounding pharmacy to make a copy of a drug that's commercially available is against the law.
Assistant Attorney General Michael Spillane countered that Gelfand's clients are raising issues Zink already has raised in several courts - and lost.
Spillane's 16-page response to Gelfand's 18-page lawsuit says several times that the plaintiffs "are really acting as surrogates for Zink."
But, Gelfand argued, "Mr. Zink is not a plaintiff (or) a party to this case."
Gelfand's clients are:
• Former state Rep. and Sen. Jon Bray, D-University City, who now heads the St. Louis-based Consumers Council.
• Former state Rep. Jeanette Mott Oxford, D-St. Louis, who now directs the group Empower Missouri (the former Missouri Association for Social Welfare).
• A Catholic nun, Sister Mary Ann McGivern, who also is a member of Empower Missouri's Criminal Justice Task Force.
• Rev. Elston McCowan, a Baptist minister and chairman of the Missouri NAACP's criminal justice and prison committee.
All four are Missouri taxpayers, Gelfand noted, who have been "standing to keep the defendants from violating the law" and spending tax money in illegal ways.
Spillane told Joyce the plaintiffs filed their case in the wrong court; any effort to halt an execution the Missouri Supreme Court already has ordered must be filed with that court.
"He's asking you to tell my client (the Corrections department) not to obey that Supreme Court order," Spillane said.
Since they're not trying to block any specific execution but instead are trying to keep the state from violating existing laws, Gelfand said, the Cole County circuit court is the right place to have sued.
Joyce gave no indication she was leaning to one side of the case or the other.