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Premature Executions

 Once again I have been asked to explain a matter legal. The question that has been referred to me is on its face a simple one but in reality has a quirk that makes the answer unexpected.  The question is, what is the highest court in the land?

The uninformed will immediately respond that it is the United States Supreme Court and the next highest, in the legal hierarchy, the Federal Courts of Appeal.  People answering in that fashion can be forgiven for their answers since they are merely reflecting conventional wisdom.  In fact, however, the highest court in the land is the Missouri Supreme Court.  It has repeatedly shown itself to be above the United States Supreme Court and other federal courts when it comes to death penalty cases over which, most people, including the federal courts themselves, thought they had the final word.  By repeatedly refusing to delay executions while the appeals of the condemned are being considered by federal courts, the Missouri Supreme Court has shown that it considers itself to be the final arbiter of such matters.

Its defiant proclivities are described in great detail in a dissent by Judge Kermit E. Bye, a member of the U.S. Court of Appeals for the 8th Circuit in the case of Zink, Nicklasson et al vs. Lombardi.  That case involved a motion for a stay of execution filed by Mr. Nicklasson who was asserting that his execution violated the federal constitution. Mr. Nicklasson, like other death row inmates described in this space last week, was seeking information about the drug protocol the state intended to use to effect his dispatch.  He was not to get it.  As Judge Nye explained in the opening part of his dissent,  “Missouri put Nicklasson to death before the federal courts had a final say on whether doing so violated the federal constitution.”

If this were an isolated case, one could simply attribute it to an innocent mistake of the sort anyone could make.    In fact, however, ” Judge Bye’s painstakingly detailed dissent describes in detail how the Missouri Supreme Court has repeatedly been told by the U.S. Supreme Court, the 8th Circuit Court of Appeals and federal district courts that when those courts are considering a matter, the Missouri Supreme Court should defer to those courts and not take it upon itself to permit executions to proceed without waiting to see what the higher courts say.  Mr. Nicklasson was not, as Judge Bye observes, an aberrance:  “Missouri has a well-documented history of attempting to execute death row inmates before the federal courts can determine the constitutionality of the executions.”  Judge Bye’s opinion is replete with examples of the judicial wanderings of that court in Missouri’s death chambers.

Judge Bye opens his discussion by observing that in 1983 the Missouri court set an execution date for Doyle Williams before the time for Mr. Williams to petition the Supreme Court for direct review of his conviction and death sentence had expired.  Justice Harry Blackmun stayed the execution and explained to the Missouri Justices that they had to wait for that time to pass before executing Mr. Williams.  A few months later Missouri set the execution dates for four inmates before the required time had run.  Justice Blackmun, said of the date:  “I thought I had advised the Supreme Court of Missouri once before. . . that I . . .  shall stay. . .the execution of any Missouri applicant” if the execution is scheduled by the state before the requisite time had passed.  Justice Blackmun further observed that if Missouri “fails to fulfill its responsibility, I shall fulfill mine.”  Thirteen months later in similar circumstances the Missouri Court again denied a request for a stay. The Federal district court granted the stay saying: “The Missouri Supreme Court ignored its responsibility to stay executions while federal judicial review is pending.”

Less than a year later, the Missouri Court refused to postpone an execution while a defendant exercised his constitutional right to have a court review the questions raised.  The federal court granting that stay said “it becomes painfully obvious that the Missouri Supreme Court’s refusal to stay Gerald Smith’s execution. . . had no basis in fact nor in law, but was merely an expedient way of washing its hands of the matter and passing the buck to the Federal courts. . . .” In January 2014 Missouri executed Herbert Smulls 30 minutes before the U.S. Supreme Court denied his request for a stay.  The executioners were prescient.

In the Zink case Judge Bye concluded his dissent saying: “Missouri’s past history of scheduling executions before a death row inmate has exhausted his constitutional right of review. . . has earned from this federal judge more than just a healthy skepticism regarding Missouri’s implementation of the death penalty. . . . Its current practice of using shadow pharmacies hidden behind the hangman’s hood. . .numerous last-minute changes to its execution protocol. . . and finally its act of proceeding with an execution before the federal courts had completed their review of an active request for a stay, has committed this judge to subjecting the state’s future implementation of the penalty of death to intense judicial scrutiny. . . .” The condemned will applaud the wisdom of the judge.  The rest of us, and especially the federal courts, now understand why Missouri calls itself the “Show Me” state.

Christopher Brauchli is a lawyer in Boulder, Colorado. He can be emailed at brauchli.56@post.harvard.edu.

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