Last Wednesday, the state of Missouri executed a man while his appeal was still being considered by the justices of the Supreme Court.
In an article in The Atlantic, Andrew Cohen reports that Herbert Smulls — a black man convicted by an all-white jury — was on the phone discussing the status of his pending federal appeal when he was taken to be executed.
Cohen constructs a time-line of the events surrounding Smulls’s final minutes: at 10:11 p.m., lethal injection protocols were initiated, and Smulls was pronounced dead at 10:20 p.m. Ten minutes later, at 10:30 p.m., the Supreme Court notified Smulls lawyers that they denied his request for a stay of execution at 10:24 p.m., four minutes after he had been pronounced dead.
According to Smulls’s lawyers, this is the third consecutive execution in Missouri that was carried out before the courts had a chance to rule on the inmate’s appeal. A spokeswoman for Missouri state attorneys Mike Spillane and Stephen Hawke told Cohen that “[b]oth 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.”
Cohen remarks that while this is technically true, he fails to understand “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?” he asks. “What Attorney General would recommend that maneuver as official state policy?”
It is possible, Cohen contends, that state attorneys are relying on these legal niceties to avoid having to acquire additional death warrants for inmates at a time when the constitutionality of “experimental” execution drug cocktails is being challenged.
This morning, Louisiana Governor Bobby Jindal argued that such cocktails are “fair” because their constitutionality will be determined by a federal court.
“Where we stand with the execution that’s coming up, we’re in front of federal court,” he said. “The Department of Corrections feels confident they can make that case to the judges that this is a fair way to carry out the verdict of the court.”
Scott Eric Kaufman is the proprietor of the AV Club's Internet Film School and, in addition to Raw Story, also writes for Lawyers, Guns & Money. He earned a Ph.D. in English Literature from the University of California, Irvine in 2008.
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