Missouri Executed This Man While His Appeal Was Pending in Court

Herbert Smulls was pronounced dead four minutes before the justices in Washington denied his final stay. Did Missouri officials breach their ethical duties by permitting this to happen?


It is 2014, not 1964 or 1914, and yet on Wednesday night a black man in Missouri, a black man convicted by an all-white jury, was executed before his federal appeals had been exhausted. He was executed just moments after reportedly being hauled away by prison guards while he was in the middle of a telephone call discussing his appeals with one of his attorneys. He was executed even though state officials knew that the justices of the United States Supreme Court still were considering his request for relief.

Asked repeatedly not to execute Smulls while appeals were pending, state officials failed even to respond to emails from defense attorneys that night while corrections officials went ahead with the execution. Smulls thus was pronounced dead four minutes before the Supreme Court denied his final stay request. This was not an accident or some bureaucratic misunderstanding and did not come as a surprise to Smulls’ lawyers. They say it was the third straight execution in Missouri in which corrections officials went ahead with lethal injection before the courts were through with the condemned man's appeals.*

Just last month, for example, Missouri officials similarly executed a man named Allen Nicklasson before his appeals were concluded. That timing of that execution prompted a federal appeals court judge, 8th U.S. Circuit Court of Appeals Judge Kermit Bye, to declare that he was “alarmed” that Missouri proceeded with its execution “before this court had even finished voting on Nicklasson's request for a stay. In my near fourteen years on the bench, this is the first time I can recall this happening.”

Below are some of the emails sent Wednesday night from Smulls’ attorneys to state lawyers as the deadline drew near for the expiration of the death warrant authorizing their client’s execution. Over and over again, the defense tried to impress upon state officials the need to wait for the judicial process to play out before executing Smulls:

Such frantic communication from defense attorneys to state officials is not uncommon in the hours leading up to an execution-- the state, after all, has the body of the man it seeks to execute (literally, habeas corpus). What is striking here, though, is not just that state lawyers failed or refused even to respond to Smulls’ attorneys but that these officers of the court, and corrections officials, essentially divested the Supreme Court of jurisdiction by killing the litigant.

The timeline is everything here. Before 10:00 that night, Smulls’s attorney notified state officials that there were active pending appeals at the both the Supreme Court and the 8th Circuit. “Do not execute Mr. Smulls while claims for legal relief and stay are pending,” the defense attorneys pleaded with opposing counsel. There was no email response from Missouri’s lawyers, Smulls' attorney Cheryl Pilate told me Friday. There was instead a single telephone call, much earlier in the evening, in which a state attorney acknowledge the existence of a stay (before filing to have that stay removed).

At 10:11, the final lethal injection protocols were initiated. By this time, the 8th Circuit had rejected all of the claims before it—over another pointed dissent from Judge Bye—leaving only an active appeal before the Supreme Court. At 10:20 Smulls was pronounced dead. Ten minutes later, at 10:30, the Supreme Court notified the lawyers that Smulls’ final stay request had been denied at 10:24. This means that Missouri began to execute a man 13 minutes before it was entirely sure it could do so. Smulls was pronounced dead four minutes before the Supreme Court finally authorized Missouri to kill him.

Via email Friday, I asked state attorneys to comment upon the emails they received from defense attorneys and Missouri’s evident lack of response to them. I asked them to explain their rationale in proceeding with the execution knowing the justices still had the case. Through a spokeswoman, late Friday, they responded:

The law is clear: the pendency of litigation is insufficient to stop an execution.  Barefoot v. Estelle, 463 U.S. 880, 895-96 (1983). The legal mechanism for a federal court to stop an execution is a court-ordered stay.  On January 29, 2014, the State of Missouri directly asked the United States Supreme Court if the execution of Mr. Smulls should be stopped.  The Court said no three times that day prior to execution, lifting all stays.
Attorneys for the State were in contact with the clerks of both the Eighth Circuit Court of Appeals and the United States Supreme Court throughout the evening of the execution.  Both courts were aware that the execution would proceed once all stays had been lifted. No stay of execution was in effect at time of the execution.
Counsel for the State spoke to Ms. Pilate after the United States Supreme Court vacated the first two stays on the evening of January 29. Her subsequent emails, sent after the United States Supreme Court vacated the final stay, simply reiterated her demand that the State halt the lawful execution of her client but contained no legal authority for her demand (emphasis in original).

Some legal experts agree with that view. They contend that, at some point, the appellate process is over and that a man set for execution ought to be executed. This view posits that any other approach would give defense attorneys the power to pile appeal upon appeal in an effort to postpone the implementation of a death warrant. But this is not a universal view. Some death penalty advocates I spoke with on Friday say that state officials have an affirmative duty not to proceed with an execution if they know a Supreme Court appeal is pending. Clearly, Judge Bye, a veteran jurist, agrees with the latter approach.

In my view, if there were a breach here it was as much one of ethics as it was one of law. State lawyers acting as prosecutors (which is what Missouri’s attorneys were doing on the night of the execution) have special obligations to act as “a minister of justice and not simply that of an advocate,” according to the comment for Rule 4-3.8 of the Missouri Rules of Professional Conduct. “This responsibility carries with it specific obligations to see that the defendant is accorded procedural justice.” They should have been considering not just their obligation to execute Smulls, in other words, but their obligations to ensure it was done fairly and justly.

There is more relevant language in Missouri's ethics rules. The Preamble, for example, states that a "lawyer should demonstrate respect for the legal system and for those who serve it, including judges, other lawyers and public officials. While it is a lawyer's duty, when necessary, to challenge the rectitude of official action, it is also a lawyer's duty to uphold legal process." But because I am no expert in legal ethics, I asked some legal ethicists to weigh in on what happened here. One, Michael Downey, an ethics specialist at the St. Louis law firm Armstrong Teasdale, shared this view:

The lawyers at issue were representing the state were acting in a prosecutorial capacity. Moreover, this was a capital case, and Smulls was facing execution on the very night the communications occurred. When acting in a prosecutorial capacity, lawyers have special obligations to make sure that justice is done. Not to ensure that a criminal receives maximum punishment, but to make sure that justice is done…

Perhaps the lawyers prosecuting the case have a very good explanation for why they did not respond. But it better have been a very, very good reason for not responding to defense counsel, and for allowing an execution – which may or may not have been proper – to occur.

I get that state authorities felt that they had their own legal obligations to enforce the death warrant before it expired and they had to jump through hoops to obtain a new one. What I don't get is the mindset of a lawyer telling the executioners to go ahead and kill a man knowing that at that very moment the justices are considering his case. What law school professor would teach a young student to make such a choice? What Attorney General would recommend that maneuver as official state policy?

“We strive toward excellence,” is the motto of the Missouri Department of Corrections. But let me offer a theory that undercuts that noble promise. State officials pressed ahead Wednesday night, knowing an appeal was outstanding, because they didn't want another delay in Smulls' execution-- didn't want to answer more questions about lethal injection.  But, stay or no stay in place, the knowledge that the justices were considering the case should have been enough to cause those officials to pause. Just imagine what we'd be talking about today if the justices had granted Smulls' stay request four minutes after he was pronounced dead. It was not open-and-shut against him. Judge Bye's dissent was not frivolous.

Indeed, it was Judge Bye on Wednesday night who best summed up the balance of factors involved. "Smulls faces the ultimate, irrevocable penalty in the absence of a stay," the judge wrote. "Missouri, on the other hand, merely faces the administrative work involved in obtaining a new date on which to execute Smulls." Judge Bye offered this blunt formula after explaining why Smulls' challenge to the injection protocols to be used against him were worthy of more substantial consideration by the federal courts that only a stay of execution would have provided.

What happened in Missouri this week is unacceptable in a nation that purports to worship its rule of law. It ought to be unacceptable even to the most ardent supporters of capital punishment. And the worst news of all is that there is no reason to think the problem is going to get better anytime soon. Missouri wasn't punished for its zealotry. And that surely signals officials in other death penalty states, like Louisiana, that they won't likely be punished, either, if they execute someone while his appeals still are pending. Herbert Smulls may have deserved to die. But surely not before the Supreme Court was through looking at his case.


*Last November, for example, Missouri executed Joseph Paul Franklin in circumstances almost identical to those that occurred in the Smulls case. Franklin’s lawyers, in a federal complaint filed after his execution, contend that Missouri in these last three executions is violating the terms of its own written policy.

The Missouri Department of Corrections, the complaint alleges, precludes a prisoner from being escorted from his holding cell to the execution chamber while there is pending legal activity—not necessarily a stay—to halt the execution process. The Director of the Department of Corrections is supposed to ask the Attorney General: “Are there any legal impediments or reasons why the lawful execution of (Inmate Name) should not proceed?"

It’s hard to fathom how state lawyers could have answered that question in the negative Wednesday night knowing that the Supreme Court was at that very moment evaluating Smulls’ stay request.