The Ghost of Herbert Smulls Haunts Missouri's Death Penalty Plans

It's been just three weeks since Missouri executed Herbert Smulls before his appeals were exhausted. And virtually nothing has gone right for the state in its efforts to implement the death penalty since.
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Morteza Nikoubazi/Reuters

It has been only 21 days since Missouri began to execute convicted murderer Herbert Smulls some 13 minutes before the justices of the United States Supreme Court denied his final request for  stay. And it is fair to say that the past three weeks in the state's history of capital punishment have been marked by an unusual degree of chaos, especially for those Missouri officials who acted so hastily in the days leading up to Smulls' death. A state that made the choice to take the offensive on the death penalty now finds itself on the defensive in virtually every way.

Whereas state officials once rushed toward executions—three in the past three months, each of which raised serious constitutional questions—now there is grave doubt about whether an execution scheduled for next Wednesday, or the one after that for that matter, will take place at all. Whereas state officials once boasted that they had a legal right to execute men even while federal judges were contemplating their stay requests now there are humble words of contrition from state lawyers toward an awakened and angry judiciary.

Now we know that the Chief Judge of the 8th U.S. Circuit Court of Appeals, as well as the justices of the Supreme Court of the United States, are aware there are problems with how Missouri is executing these men. Now there are fresh new questions about the drug(s) to be used to accomplish this goal. Now there are concerns about the accuracy of the statements made by state officials in defending their extraordinary conduct. Herbert Smulls may be dead and gone but his case and his cause continue to hang over this state like a ghost.

The Supreme Court Wants Answers

Missouri's problems started almost immediately after Smulls was executed on January 29. On January 30, the Associated Press published a story titled: "Lawyers: Mo. Moving Too Quickly on Executions" in which it was disclosed, for the first time to a national audience, that state officials were executing prisoners before their appeals were exhausted. On February 1, we posted a piece here at The Atlantic titled: "Missouri Executed This Man While His Appeals Was Pending in Court," in which we published emails from Smulls' attorneys to Missouri officials showing that the state was aware that Smulls' appeal was pending at the Supreme Court at the very moment he was being injected with lethal drugs.

Clearly, the justices in Washington were paying close attention to what Missouri had done (killed Smulls) and not done (waited for the justices to tell them they could). On February 3, five days after Smulls' execution, the Clerk of the Court wrote to Missouri officials directing them to file a second response to a petition for certiorari that had been filed on behalf of Smulls and several other death row inmates (who are still alive). The request demonstrated, at the least, that the Court did not consider Smulls' final appeal to be frivolous. Here is the link to that letter. Missouri's response is due March 5. I am curious to know whether state officials reveal any regret for the timing of the Smulls' execution.

A Roiling Hearing

One week after Missouri received that letter from the Supreme Court, state officials appeared at a legislative hearing to discuss and defend Missouri's execution protocols. David Hansen, a state assistant attorney general, spoke at length about the Smulls' execution. There was no stay in effect at the time of the condemned man's execution, Hansen told lawmakers, and the controversy over premature executions was caused not by overzealous state officials but rather by "death row attorneys" who, he said, "have developed a legitimate and very deliberate strategy to ensure that there is always a stay motion pending during the course of the [death] warrant which is a de facto repeal of the death penalty."

Here is the link to much of Hansen's testimony. It was confident. It was defiant. And in several material respects, it was inaccurate. For example, Hansen quoted James Liebman, the distinguished professor at Columbia Law School, for the proposition that what Missouri has been doing is also being done in other states. But Liebman did not say that and was so dismayed by the misuse of his words that he submitted a letter late Tuesday night to Missouri's lawmakers seeking to clarify the record. Here is the link to Liebman's letter. And here is the essence of his position on the inappropriateness of Missouri's current execution protocol:

I pointed out that the Supreme Court has occasionally issued orders in capital cases saying it will no longer entertain papers from a particular capital prisoner, having found that previous papers filed were frivolous. I pointed out that, if Missouri believed that this same point had been reached in Mr. Smulls’ case—a conclusion that Mr. Smulls and his attorneys strongly disputed—it would not be appropriate for one adversary to resolve that matter unilaterally over the objection of the other.

Instead, Mr. Hansen’s office should have formally asked the Supreme Court to deny Mr. Smulls’ pending papers and to refuse to accept further papers from him, thus allowing the state to proceed with an execution without fear that the legal basis for that solemn and irreversible action was in doubt. Only then would the crucial contested matter of law and fact have been resolved, not unilaterally by one party to the dispute, but by the decision of a neutral court of law.

This was not the only problem with Hansen's testimony. Joseph W. Luby, an attorney for Smulls and other death row inmates in the state, also felt compelled to write a letter to Missouri lawmakers seeking to correct the record that Hansen had created. Not only had Hansen mischaracterized the procedural posture of the three cases in which Missouri had executed inmates before their appeals were exhausted, Luby wrote, but state officials were engaged in a pattern and practice of not even responding to opposing counsel in the final hours and minutes before executions. Here is the link to Luby's letter. He didn't say it but I will: This is inappropriate and perhaps unethical conduct by of state lawyers.

Another Federal Judge Calls Out Missouri

Two days after that hearing, on February 12, the Chief Judge of the 8th U.S. Circuit Court of Appeals, William Jay Riley, who repeatedly had voted against Smulls, interrupted oral argument in an unrelated death penalty case to tell a lawyer for the State Attorney's General office that the federal appeals panel did not in any event appreciate Missouri officials executing men before the courts had concluded their judicial review. Specifically, Chief Judge Riley said:

I might just tell you this. I'll probably regret saying this later, but I think it was the execution of Nicklasson, but the State of Missouri executed somebody which they probably had the right to do, right in the middle of our petition for rehearing voting. And I just wanted you to take back the word that... some of the members of the Court did not appreciate that. That we were right in the middle of that...

And I think you have probably heard that some people have written on it. But we were moving as fast as we can and, as Chief Judge, I was pushing to get everything done in time. But I think you need to be a little more patient.

The "Nicklasson execution" to which the Chief Judge referred, took place on December 12 and it prompted from 8th U.S. Circuit Court Judge Kermit Bye a remarkable dissent. "I feel obliged to say something,’ Judge Bye wrote at the time, “because I am alarmed that Missouri proceeded with its execution of Allen Nicklasson before this court had even finished voting on Nicklasson’s request for a stay." He continued:

In my near fourteen years on the bench, this is the first time I can recall this happening. By proceeding with Nicklasson’s execution before our court had completed voting on his petition for rehearing en banc, Missouri violated the spirit, if not the letter, of the long litany of cases warning Missouri to stay executions while federal review of an inmate’s constitutional challenge is still pending.”

Here are the links to Judge Bye’s first and second dissents in these premature execution cases.

The Drug Supplier Bags Out

Seven days after Chief Judge Riley's admonition, this past Monday, came the next bad thing to happen to Missouri officials in their quest to expedite the implementation of the death penalty in their state.  Under legal pressure from death row inmate Michael Taylor, the compounding pharmacy that was poised to supply the drug (pentobarbital) the state wanted to use to execute him next week backed out of its commitment to provide the drug. The Apothecary Shoppe, in Tulsa, Oklahoma, announced that it would not give the Missouri Department of Corrections the pentobarbital it had compounded and that it had not previously given state officials the drug for Taylor's execution.

Missouri immediately reacted to this unexpected news by declaring that it would be able to proceed anyway with Taylor's execution, now scheduled for the 26th, without materially changing its lethal injection protocols. Late Wednesday, state officials informed Taylor's lawyers that they have obtained pentobarbital from another, unidentified supplier. "There is no reason to believe that the execution will not, like previous Missouri executions using pentobarbital, be rapid and painless," state attorneys wrote in a motion filed with a federal trial judge in Missouri opposing a stay request by Taylor. Here is the link to Missouri's filing.

A New Challenge to Missouri's Lethal Injection Rules

The confusion over precisely how Missouri intends to execute Taylor generated on Tuesday another big headache for state officials-- a substantial new request for a stay of execution in Taylor's case. Here is the link to that motion and here is how defense attorneys summarize their argument:

Missouri has identified no lawful means of executing Taylor next week. Any pentobarbital Missouri previously acquired is now expired. Though Missouri has indicated it has midazolam and hydromorphone, its execution protocol does not permit administration of those drugs; even if it did, Taylor would warrant a stay because those drugs have already inflicted unconstitutional pain and suffering in an execution and the states using them have thus temporarily halted executions.

In any event, switching the protocol or the pentobartibal supplier now – a week before the scheduled execution – would violate Taylor’s right to due process of law.

Taylor's lawyers made those arguments before they learned that Missouri had reportedly acquired a new supply of pentobarbital. State lawyers would say only in their court filing Wednesday that "Missouri has now arranged with a pharmacy, that is not the pharmacy Taylor threatened and sued, to supply pentobarbital for Taylor's execution." In their response Thursday, the link to which may be found here, Taylor's lawyers wrote this:

Utterly nothing is known about this pharmacy. Has it been cited for
violating federal and state laws more or less often than the previous pharmacy? Does it also send its drugs, to be tested for purity and sterility, to a laboratory that approved a batch of tainted steroids that killed over 60 people? For that matter, does the pharmacy test its drugs at all?

If Missouri has its way, it will not tell Taylor anything more about the drug officials seek to use to execute him next week. It will argue that the conduct of its officials should be presumed to be lawful, and proper, and designed to respect the constitutional rights of the condemned. A few weeks ago, we know, the federal courts were willing to accept these arguments and to allow these dubious executions to proceed. Now I'm not so sure. No matter what the trial judge decides on Taylor's stay request, this dispute is going first to the 8th Circuit and then to the Supreme Court. Will those appellate judges be motivated to remind Missouri who gets the final say on executions in this nation?

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Andrew Cohen is a contributing editor at The Atlantic, 60 Minutes' first-ever legal analyst, and a fellow at the Brennan Center for Justice. He is also chief analyst for CBS Radio News and has won a Murrow Award as one of the nation's leading legal journalists. More

Cohen is the winner of the American Bar Association’s 2012 Silver Gavel Award for his Atlantic commentary about the death penalty in America and the winner of the Humane Society’s 2012 Genesis Award for his coverage of the plight of America’s wild horses. A racehorse owner and breeder, Cohen also is a two-time winner of both the John Hervey and O’Brien Awards for distinguished commentary about horse racing.

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