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Missouri Executes Herbert Smulls 24 Minutes Before Supreme Court Rejects Final Appeal

February 3, 2014 by Brett Wilkins in Crime & Punishment with 1 Comment

Herbert Smulls

A Missouri death row inmate was put to death by lethal injection 24 minutes before the United States Supreme Court rejected his final appeal, with the state arguing that it is perfectly legal to kill a prisoner before their due process has run its course.

The Atlantic’s Andrew Cohen reports 56-year-old Herbert Smulls, convicted by an all-white jury of murdering Chesterfield jewelry store owner Stephen Honickman and permanently injuring his wife, Florence, during a 1991 armed robbery, was on the phone with one of his lawyers last Wednesday discussing the status of his appeal to the US Supreme Court when he was hauled away to his death. Lethal injection protocols commenced at 10:11 pm. Smulls was pronounced dead at 10:20. Ten minutes later, the Supreme Court informed Smulls’ legal team that his request for a stay of execution had been issued at 10:24 pm– four minutes after he was pronounced dead.

Smulls’ lawyers failed to convince state officials to delay his execution until all his legal appeals were exhausted. “Do not execute Mr. Smulls while claims for legal relief and stay are pending,” they pleaded, pointing out that appeals were still active in both the Eighth Circuit Court of Appeals and the US Supreme Court. State lawyers did not respond, according to Smulls attorney Cheryl Pilate.

A spokesman for the Missouri State Attorney General’s office explained to Cohen that Smulls’ execution was perfectly legal:

The law is clear: the pendency of litigation is insufficient to stop an execution. Barefoot v. Estelle… 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 the execution, lifting all stays.

Attorneys for the state were in contact with 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 the time of the execution.

The US Supreme Court had issued a stay of execution for Smulls late Tuesday night after his lawyers argued that state officials should disclose the compounding pharmacy that would provide the drug used for the lethal injection. An increasing number of pharmaceutical companies are refusing to allow their products to be used in executions, leading to states using compounding pharmacies that mix drugs to be used to kill condemned inmates.

Smulls’ defense team asserted that it needed more information about the source of the pentobarbital used to execute condemned inmates, arguing it might cause them severe pain, a violation of the Constitution’s Eighth Amendment prohibition of “cruel and unusual punishment.”

Officials from the Missouri Department of Corrections have refused to disclose the identity of the compounding pharmacy, which is believed to be located in Oklahoma, saying its policy was to protect participants in executions from possible retribution.

According to Smulls’ lawyers, his execution was the third in a row in which Missouri prisoners were put to death before all of their legal appeals were exhausted. Last month, Allen Nicklasson was killed before the Supreme Court rejected his final appeal, leading Judge Kermit E. Bye of the Eighth Circuit Court of Appeals to criticize Missouri’s entire capital punishment system:

Missouri’s past history of scheduling an executions before a death row inmate has exhausted his constitutional rights of review, using unwritten execution protocols, misrepresenting dosage levels for drugs used in lethal injection and providing unfettered discretion to a dyslexic physician to mix the drugs and oversee its executions, has earned from this federal judge more than just a healthy judicial skepticism.

Judge Bye, who wrote a powerful dissent in the Nicklasson case, also dissented as the Eighth Circuit Court rejected Smulls’ stay.

Cohen asserts that “if there were a breach here, it was as much one of ethics as it was one of law.” State ethics rules state that lawyers must “uphold legal process.” Michael Downey, an ethics expert at the St. Louis law firm Armstrong Teasdale told Cohen that prosecutors “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,” Downey stressed.

But to Smulls’ victims, that’s exactly what happened last Wednesday at 10:11 pm, and far too late at that.

“Make no mistake, the long, winding and painful road leading up to this day has been a travesty of justice,” lamented Florence Honickman, who questioned why it took 22 years of appeals to kill her husband’s killer, after the execution.

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