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.
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.

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Andrew Cohen is a contributing editor at The Atlantic. He is a legal analyst for 60 Minutes and CBS Radio News, a fellow at the Brennan Center for Justice, and Commentary Editor at The Marshall Project

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