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February 02, 2014 3:50 PM Outrageous abuse of due process on death row: an execution takes place minutes before the appeals process is exhausted

By Kathleen Geier

This is ghastly: last week, the state of Missouri executed a man before his federal appeals were exhausted. The man was — but of course — African-American, and — oh yes — had been convicted by an all-white jury. The Atlantic’s Andrew Cohen has more about the case of Herbert Smulls:

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.

Smulls was killed by lethal injection a full four minutes before the Supreme Court signed off on the execution.

As Cohen reports, the failure to delay the execution was no accident. In Missouri and other states, it’s standard policy to proceed with an execution even while federal appeals go forward. This case was particularly egregious, however:

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.

Moreover, says Cohen, this 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.”

A spokesperson for Missouri state attorneys claims the execution was lawful. But many death penalty advocates in the legal community argue otherwise. Cohen reports “[s]ome 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.”

I have always believed that the death penalty is barbaric, and horrible miscarriages of due process like this are among the reasons why. What would have happened if the court had ruled to stay the execution — after the prisoner had been killed?

I’ll close with these words from Cohen:

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.
Kathleen Geier is a writer and public policy researcher who lives in Chicago. She blogs at Inequality Matters. Find her on Twitter: @Kathy_Gee

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