According to his lawyers, Herbert Smulls was put to death for the 1991 robbery-murder of a St. Louis jewelry store owner while his case was still on appeal before the U.S. Supreme Court. They also complained that while Smulls was talking to his lawyers about his appeal, correctional officers dragged him away from the phone to prepare him for execution.
Just before 10 p.m. the lawyers filed yet another appeal to SCOTUS for a stay of execution. Joseph Luby, one of the attorneys, said he received an email from the court at 10:30 p.m. advising that the application for a stay had been denied at 10:24 p.m. The injection of pentobarbital began at 10:11 p.m. and Smulls was pronounced dead at 10:20 p.m., four minutes before the appeal was denied.
The death warrant for Smulls was set to expire at 11:59 p.m. If he had still been alive after midnight, another delay would have occurred as the court would have to set a new execution date. The State was aware that SCOTUS had received another appeal, but the lawyers at the attorney general’s office had had enough of the endless appeals. They authorized the warden to proceed with the execution.
The lawyers for Smulls say that their client is the third person executed by Missouri while appeals for them were still pending. Missouri AG Chris Koster denied the state had done anything wrong, saying: “The United States Supreme Court has ruled that pending litigation is not sufficient to stop an execution. The legal mechanism for a federal court to stop an execution is a court-ordered stay.”
Kudos to Missouri for ignoring the last second appeal filed by lawyers on behalf of Mr. Smulls. I'm sure they had no expectation of success and their real aim was to delay the execution past midnight so that it would have to await the setting of a new date. To its credit, the state did not fall for that trick. Smulls had been roosting on death row for more than 20 years. Enough is enough!
I just wish that my home state of Texas would follow the lead of Missouri. Unfortunately, Texas waits until all appeals have been exhausted.
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