Death Penalty

Inmate was executed while a SCOTUS stay request was pending, lawyers say

Lawyers for death-row-inmate Herbert Smulls say their client was executed while another stay request was pending before the U.S. Supreme Court.

The time of death for inmate Herbert Smulls, executed by the state of Missouri on Wednesday, was 10:20 p.m., the Associated Press reports. The Supreme Court’s stay denial was issued at 10:24 p.m., according to defense lawyer Joseph Luby. “It’s just troubling and fundamentally lawless,” he told AP.

Luby said Missouri had executed three inmates in the last three months while appeals were still pending. In one case, a stay request was pending before the full 8th U.S. Circuit Court of Appeals based in St. Louis when the executed was carried out. A dissenter wrote after the execution that, “In my near 14 years on the bench, this is the first time I can recall this happening.”

If Smulls had not been put to death by 11:59 p.m., the death warrant would have expired and the state of Missouri would have to apply for a new one.

The state says it’s permissible to carry out an execution while a stay request is pending, but legal experts told AP it’s an unusual practice.

Missouri Attorney General Chris Koster defended the timing in an email to AP. “The United States Supreme Court has ruled that pending litigation is not sufficient to stop an execution,” Koster wrote. “The legal mechanism for a federal court to stop an execution is a court-ordered stay.”

Accoding to Koster, the state “directly asked the United States Supreme Court if the execution of Herbert Smulls should be stayed; for the third time that day, the court said no. No stay of execution was in effect at the time of execution.”

Appeals in the case had sought the name of the compounding pharmacy that supplied the pentobarbital to be used in the execution. The appeals also focused on selection of the all-white jury that convicted Smulls, who was black.

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