And now here’s a truly shocking story. The debate over capital punishment continues to rage and one of the key points of debate is whether innocent people are executed. But now comes a new twist: cases where people whose cases are still pending are hurriedly put to death — and the cases reportedly come out of the state of Missouri, the Atlantic reports:
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.
But is this defendable? The Atlantic piece, which needs to be read in full, suggests the answer is now as clearcut as you might think:
Some legal experts…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.
Andrew Cohen’s conclusion:
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.
Indeed, if prisons can put to death prisoners whose cases are being considered by the Supreme Court then the court’s name should be changed: it isn’t Supreme, the corrections institution is.
Joe Gandelman is a former fulltime journalist who freelanced in India, Spain, Bangladesh and Cypress writing for publications such as the Christian Science Monitor and Newsweek. He also did radio reports from Madrid for NPR’s All Things Considered. He has worked on two U.S. newspapers and quit the news biz in 1990 to go into entertainment. He also has written for The Week and several online publications, did a column for Cagle Cartoons Syndicate and has appeared on CNN.