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February 21, 2014

Is an executed murderer now haunting Missouri's efforts to carry out death sentences?

SmallsThe somewhat tongue-in-cheek question in the title of this post is prompted by this notable new commentary by Andrew Cohen at The Atlantic.  Here is the headline and subheadline of the article: "The Ghost of Herbert Smulls Haunts Missouri's Death Penalty Plans; It's been just three weeks since Missouri executed Herbert Smulls before his appeals were exhausted. And virtually nothing has gone right for the state in its efforts to implement the death penalty since." And here is how the lengthy piece gets started:

It has been only 21 days since Missouri began to execute convicted murderer Herbert Smulls some 13 minutes before the justices of the United States Supreme Court denied his final request for stay. And it is fair to say that the past three weeks in the state's history of capital punishment have been marked by an unusual degree of chaos, especially for those Missouri officials who acted so hastily in the days leading up to Smulls' death. A state that made the choice to take the offensive on the death penalty now finds itself on the defensive in virtually every way.

Whereas state officials once rushed toward executions—three in the past three months, each of which raised serious constitutional questions—now there is grave doubt about whether an execution scheduled for next Wednesday, or the one after that for that matter, will take place at all. Whereas state officials once boasted that they had a legal right to execute men even while federal judges were contemplating their stay requests now there are humble words of contrition from state lawyers toward an awakened and angry judiciary.

Now we know that the Chief Judge of the 8th U.S. Circuit Court of Appeals, as well as the justices of the Supreme Court of the United States, are aware there are problems with how Missouri is executing these men. Now there are fresh new questions about the drug(s) to be used to accomplish this goal. Now there are concerns about the accuracy of the statements made by state officials in defending their extraordinary conduct. Herbert Smulls may be dead and gone but his case and his cause continue to hang over this state like a ghost.

February 21, 2014 at 11:24 AM | Permalink

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Andrew Cohen is an abolitionist. So are maybe a quarter to a third (at most) of the population. Fine. Disagreement is what democratic government exits peaceably to resolve. It has, and capital punishment is, as they say about the far less popular ACA, "the law of the land."

What is not so fine is that this piece, to judge from the excerpts given, is so misleading as to be intentionally dishonest.

One of the most dishonest things about it is its anguished rendition of the consequence (the punishment) without any even marginally adequate description of the cause (the crime). That by itself is amazingly sleazy. It is as dishonorable as it is revealing that abolitionists so often resort to this tactic.

Then there's what it affirmatively says, e.g., "the past three weeks in the state's history of capital punishment have been marked by an unusual degree of chaos, especially for those Missouri officials who acted so hastily in the days leading up to Smulls' death."

OK, what's missing here?

1. The "chaos" was caused not by Missouri, but by Smulls' throw-it-up-against-the-wall lawyers, who filed seriatim, frenetic, last-minute appeals.

2. And what exactly is the "haste" being referred to? Smulls was executed TWENTY THREE YEARS after he murdered a jewelry store owner in a robbery. Only in the fantasy language of abolitionism is 23 years "haste."

3. The article is written to make it appear that the execution was illegal, i.e., that it was conducted while Smulls' litigation was still being adjudicated.

The first thing missing here is that Smulls was executed under a valid death warrant that the courts, from SCOTUS on down, had repeatedly upheld over the defense's delaying tactics.

The second thing missing is the obvious put essential point that any condemned killer could, under Cohen's fruitcake theory, NEVER be legally executed because his lawyers could ALWAYS, 20 minutes before the execution, file something in court, then claim that "litigation is pending raising important constitutional questions."

Are we suppose to not know this? Or know it but ignore it?

4. What had actually happened is that the same or similar claims HAD ALREADY BEEN REJECTED in some of Smulls' numerous earlier filings. Thus, as the Guardian (no friend of capital punishment) reported this story:

"Missouri has executed a man convicted of killing a jewelery store owner during a 1991 robbery after the US supreme court denied last-minute appeals that in part challenged the drug used in the execution.

"After the United States supreme court vacated three separate stays of execution on January 29 2014, Herbert Smulls was executed for the 1991 murder of Stephen Honickman," said Chris
Koster, the Missouri attorney general.

"Smulls, 56, was pronounced dead at 10.20pm local time at a state prison in Bonne Terre after receiving a lethal dose of pentobarbital, the corrections department said.

"The supreme court on Wednesday lifted a temporary stay of execution for Smulls, denying last-minute appeals. The top court late on Wednesday also vacated a stay from the US court of appeals." ###

Lastly, there is not an iota of actual evidence supporting the gravamen of these last minute appeals, to wit, that the chemicals the state used produced or were likely to produce unbearable pain. Cohen simply whistles past this point.

The problem here is not merely that Cohen is incredibly dishonest, although that is a big deal. The problem is that his dishonesty is borne of abolitionism's core arrogance: It's belief that, because It Is Right and Everybody Else Is a Barbarian, it is entitled to use all available means, including quite prominently lying, to achieve its ends.

If there are any honest abolitionists out there, it is time to denounce this article. I will not be holding my breath.


Posted by: Bill Otis | Feb 21, 2014 12:57:16 PM

| three in the past three months, each of which raised serious constitutional questions |
| On February 1, we posted a piece here at The Atlantic titled: "Missouri Executed This Man While His Appeals Was Pending in Court," |

▼ Or ▼

Jokers trying to game the system ran out of clock:

| ANOTHER UPDATE: This AP report notes the stays were all finally lifted and that Smulls was executed late Wednesday night |
… Florence Honickman spoke to the media after the execution, flanked by her adult son and daughter. She questioned why it took 22 years of appeals
before Smulls was put to death. "Make no mistake, the long, winding and painful road leading up to this day has been a travesty of justice," she said.

… The U.S. Supreme Court granted a temporary stay late Tuesday before clearing numerous appeals Wednesday -- including the final one that was filed
less than 30 minutes before Smulls was pronounced dead, though the denial came about 30 minutes after his death
....”

-- sentencing.typepad.com/sentencing_law_and_policy/2014/01/scotus-grants-stay-of-missouri-execution-because-.html

Posted by: Adamakis | Feb 21, 2014 1:08:57 PM

I've got to agree with Bill Otis on this one. Reading Cohen's work on this one could easily leave someone thinking the execution had been carried out while direct appeals were still pending, even for the minority of folks who understand the direct vs. habeas distinction.

I actually did get that impression from a Cohen piece that immediately followed the execution and I suspect that I am very far out on the tail end of the curve as far as understanding goes. It was only later that I even realized which execution Cohen was talking about and that realization made me understand that nothing else Cohen writes can be trusted.

Posted by: Soronel Haetir | Feb 21, 2014 1:37:50 PM

wait a min!

if this is true!

"It's been just three weeks since Missouri executed Herbert Smulls before his appeals were exhausted."

sounds to me like the governor and anyone at the state prison involved is now guilty of MURDER!

Posted by: rodsmith | Feb 21, 2014 3:26:15 PM

rodsmith --

How many times is a convicted killer allowed to file a new motion 30 minutes before the execution, so that the courts must be allowed time (how much?) to consider it?

Really, how many times? Three? Ten? Fifty? Two hundred?

Is there any point at which the state officials can say, "Enough, that's it, we're going ahead." What point would that be? And if there is no point, doesn't that mean that the execution, though legal and deserved, can never be carried out?

Posted by: Bill Otis | Feb 21, 2014 5:16:49 PM

Now, Bill, you are being "intellectually dishonest" in your lengthy first post. This was not a collateral or direct appeal challenging the validity of the criminal conviction and sentence. Rather, it appears to be a section 1983 action that raises a cause of action under the Eighth Amendment and notions of due process. Why are you exclusively bashing the DP attys and deceptive abolitionists? Instead, shouldn't you be complaining about the US Constitution itself, Congress for passing an enabling law like 1983, and "liberal, activist" judges who have "intepreted" the 8th Amend, the 14th Amend, and 1983 to allow for litigation over lethal injection protocols??? Come on.

Posted by: Mashup | Feb 21, 2014 5:30:33 PM

Anything Andrew Cohen writes is anti DP and I remember his prediction that SCOTUS would find lethal injection unconstitutional with Kennedy providing the 5th vote.
Of course, we all know that it would have been unanimous had Kentucky provided a consciousness check which Ginsburg and Souter objected to.

Posted by: DaveP | Feb 21, 2014 8:12:48 PM

"Whereas state officials once boasted that they had a legal right to execute men even while federal judges were contemplating their stay requests now there are humble words of contrition from state lawyers toward an awakened and angry judiciary."

One would think, of course, that anyone who believes in the rule of law would be appalled at this statement. An "angry" judiciary"? So when a state carries out its lawful judgment in the absence of a stay the federal courts are angry? What possible basis for anger is there? Shouldn't they be angry at the last minute litigation that could have been filed years earlier? And what of the jerking around of the victims' families? Where does that fit in the calculus?

At the hearing for Smulls' Batson claim, the first words out of the judge's mouth should have been, "Why didn't you file this claim years earlier?" The next words, "Case dismissed with prejudice." That's the law. It needs to be followed.

Posted by: federalist | Feb 21, 2014 9:07:33 PM

Mashup --

I'm well aware, as are you, that challenges to the DP can be and routinely are sliced-and-diced into all manner of atomized causes of action. The purpose of this is not to prevail on the merits, which Smulls failed to do one single time. The purpose is to game the system. This is exactly what "deceptive abolitionists" (your quite correct phrase) aim to do.

For 23 years, Smulls got all the process that was due from any sane system, and then some. No part of the Constitution allows killers to litigate the system, and their well-earned punishment, into the ground.

Let me ask you the same question I asked rodsmith: How many times is a convicted killer allowed to file a new motion 30 minutes before the execution, so that the courts must be allowed time (how much?) to consider it?

Really, how many times? Three? Ten? Fifty? Two hundred?

Is there any point at which the state officials can say, "Enough, that's it, we're going ahead." What point would that be? And if there is no point, doesn't that mean that the execution, though legal and deserved, can never be carried out?

Posted by: Bill Otis | Feb 21, 2014 10:26:40 PM

Mashup--was there a stay in place? No. So why was the State of Missouri legally obligated to wait? Can you explain that? Oh, you can't because Missouri had every right to proceed.

And if federal judges don't like it, that's just too bad. Well, it should be. And Cohen's open cheerleading for the rule of law to be ignored simply because Missouri chose not to play the "Mother, may I" game.

Posted by: federalist | Feb 21, 2014 10:58:31 PM

Bill,

I understand your policy-based frustration with last minute "appeals" in this context. However, one cannot ignore the actual factual nuances of individual cases and the "up to the last minute" changes that are happening right now due to the limited availability of drugs and drug providers for state-sponsored executions and that are created by anti-transparency statutes as to the source of these drugs. To categorize all DP cases as somehow factually identical, especially in their frivolity, the way you do (not to mention your predictable protestations about a system riddled with loopholes and abused by a bar of insidious, desperate DP attys who just don't appreciate the finality of judgments like you do) requires as much sleight of hand as you accuse Cohen of using. The last minute motion scenario you describe is not going to continue into perpetuity as you suggest. Also, we are a system of law and order, and we must accept and trust the process and rule of law, even it takes time to litigate matters in courts of law, and accept that some things, like state executions, are tricky because both parties have competing protected rights and interests at stake. Further, one needs to think about the implications of some of the dialogue and arguments going on with all this. What if a court told the state it could not make time for a criminal prosecution, wouldn't you be hopping mad at that injustice? But the argument you espouse seems to be that state actors can bypass the courts when necessary to pursue their own interests, that state executives and counsel can adjudicate these issues themselves without a court, or states can just do what they want because they run out of patience waiting for judicial decisions. That sounds like anarchy.

Posted by: Mashup | Feb 21, 2014 11:33:12 PM

Bill,

I forgot to point out that you failed to address my point that you should not be berating the abolitionists when the source of your frustration starts and ends with the US Constitution, the US Code, and case law by way of the courts. It is ineffective gamesmanship to blame journalists and the criminal defense bar.

Posted by: Mashup | Feb 21, 2014 11:57:44 PM

Mashup---I'd still like to know what provision of law required the State of Missouri to wait. The Supreme Court has said otherwise.

If you can't do that, then everything you posit is basically BS.

And another thing--one of Smulls' claims was a Batson claim, which filed years after Smulls' habeas case was decided. Would you mind explaining why a court should spend more than five minutes on such a claim? The law is very clear on this point.

With respect to the last-minute litigation over the execution protocol, perhaps you'd like to explain how your idea is death-slog litigation is a prerequisite to execution? Baze certainly doesn't condition an execution on conducting intrusive discovery. In fact, Baze states that the prisoner must make a showing that there is a substantial risk of pain. If he can't, no stay.

It really is amazing how the left crows about the rule of law, but countenances federal judges getting angry and taking it out on victims' families.

Myself, I'd go even further--i'd insist on proper service of process before I'd stop an execution. I wouldn't make it any easier for last minute BS litigation to help a prisoner. Turn off the fax machine, don't answer the phone from the clerk and certainly don't look at the blackberry. Capital defense attorneys think nothing of all sorts of litigation tricks--well, no service of process equals no stay.

By the by, Mashup, Taylor's attorneys are raising the Oklahoma guy saying that he felt a burning sensation. Now Mashup, even a dimmest liberal knows that the burning sensation only would be caused by the KCl. And the Oklahoma guy said that the sensation was happening 12 seconds into the execution--and everyone knows that the KCl wouldn't be given to the inmate within 12 seconds. And pentobarbital doesn't cause burning all over the body.

If this is all you got, you should be laughed out of court. It's nonsense on stilts. As for the rest of it, you have speculation. That's it. Well, speculation doesn't get it done under Baze.

It's too bad that there are so many 'rat judges on the federal bench who blow off the law.

Posted by: federalist | Feb 22, 2014 1:57:15 AM

Except that Bill has no frustration with the Constitution. Some judges yes, but not what little the document should actually be understood to protect against.

Posted by: Soronel Haetir | Feb 22, 2014 1:59:31 AM

Mashup --

"I understand your policy-based frustration with last minute 'appeals' in this context."

As Soronel correctly notes, it has zip to do with me or my supposed frustration. Not everything is about emotion. Some things are about justice, and executing this killer is one of them.

"However, one cannot ignore the actual factual nuances of individual cases and the "up to the last minute" changes that are happening right now due to the limited availability of drugs and drug providers for state-sponsored executions and that are created by anti-transparency statutes as to the source of these drugs."

Under Baze, it is the defendant's burden to prove, not the state's to disprove, a substantial likelihood of severe pain. Smulls didn't discharge his burden, and there is no legal requirement that the state assist his intentionally time-consuming fishing expedition.

"To categorize all DP cases as somehow factually identical, especially in their frivolity, the way you do..."

Kindly quote the language in which I state or imply that "all DP cases [are] somehow factually identical." You're not about to, because you fabricated it. Nice job!

Oh, and why would you need to fabricate a position for me if you could refute the one I actually take?

"...(not to mention your predictable protestations about a system riddled with loopholes and abused by a bar of insidious, desperate DP attys who just don't appreciate the finality of judgments like you do)..."

I'm not nearly as predictable as your refusal (again) to discuss one single detail of what lies at the base of this whole dispute, that being your beloved Mr. Smulls' murder.

But I'll concede that you have a reason for your silence. The reason is that you see nothing wrong with Smulls' behavior, so there's nothing to discuss. Why bother?

"...requires as much sleight of hand as you accuse Cohen of using."

Yes, yes, it's always about me, isn't it? At least you haven't called me a racist or a blood luster. You're shrewd enough to let your buddies do that sort of dirty work for you.

Congratulations, I guess.

"The last minute motion scenario you describe is not going to continue into perpetuity as you suggest."

It would if you have your way. But, if I'm wrong about that, at what point does the state have the right to put an end to it? If you refuse to specify such a point, you make clear that perpetuity is EXACTLY what you want.

What, 23 years isn't long enough? The state is required to wait until the day before perpetuity?

"Also, we are a system of law and order, and we must accept and trust the process and rule of law, even it takes time to litigate matters in courts of law..."

There is absolutely nothing that takes 23 years to litigate.

"...and accept that some things, like state executions, are tricky because both parties have competing protected rights and interests at stake."

But you refuse to accept any stated limit on when the state can bring down the curtain on this circus.

What you're trying to do is put on the appearance of balance while carefully avoiding what the rest of the thread sees is going on here. Can you say, G-A-M-I-N-G T-H-E S-Y-S-T-E-M.

Sure you can. But you're not about to, and will continue instead to pretend that a charade is due process, legalism is law, and burlesque is sobriety.

Only federalist, Soronel, DaveP, Adamakis and I all see through it.

Andrew Cohen is a disingenuous writer at best; there is not one iota of evidence Smulls suffered severe (or any significant) pain; there never was any such evidence; the case dragged on for over two decades while the defense bar cackled at the victim's family (and ran the meter); and all these numerous last-minute motions could have been raised before the last minute.

Oh, and one more thing. All your arguments are make-weights. The unrevealed (but now obvious) truth is that you oppose all executions, period, and that the reason you refuse to criticize gaming the system is that you think it's a perfectly valid thing to do to keep the barbarians at bay.

Your side lost Baze, and your pal Smulls got what his behavior earned him. That's what Andrew Cohen, and you, refuse to accept.

Posted by: Bill Otis | Feb 22, 2014 3:23:58 AM

The bottom line here is that the attorneys were throwing up repeated, rehashed arguments trying to "beat the clock" to midnight when the death warrant expired.

Then the case would go back to the Missouri Supreme Court for a new execution date. Delay is all they are interested in. I can't wait to see what Michael Taylor's attorneys have planned for next week.

Posted by: DaveP | Feb 22, 2014 7:24:16 AM

Bill,

I truly do not have an opinion one way or the other about the DP. I was drawn to this blog many years ago because of Doug's questions and policy insights about the DP, such as whether so much ink, time, and resources should be dedicated to this one form of punishment, especially at the expense of others (e.g., lax drunk driving punishments). There is no need for you or "federalist" to make so many arbitrary assumptions about me or others. I do feel strongly about the rule of law and respect for the courts, whether state or federal, and I am certainly not going to attack their integrity, or the judges', simply because i disagree with a decision or because I do not like the length of time it takes to reach a decision.

On another note, and I am in no way trying to diminish their plight and losses or sound disrespectful in any way, but victims do not have a constitutional right to expedited executions, nor do current or former prosecutors. If you feel they should or deserve more protection, that is a policy issue worth discussing, but it is not a settled matter---regardless of how much clarity of insight you and the other commenters think you have. The states have compelling interests in enforcing their laws and having federal courts respect the finality of state court judgments, and, as you know, the courts have struggled to balance this in the context of the DP, as the US constitution and federal law, which implicate (like it or not) the prisoner's rights, are involved as well.

I am not commenting because I think there was merit or not in this defendant's case. I commented because I felt the attack on Cohen was harsh and just as cleverly crafty as the author was accused of being, and I also believe the possible timing issue of the pet. and the actual execution raises serious concerns, even if the facts of the timing issue are resolved in favor of the state. It makes me wonder what it would mean if a state when ahead with an execution prematurely. Such a move resembles, at least to me, our long history with state actors not always following the rule of law (e.g., Brown v. Board of Education) or at least posturing themselves defiantly. I also commented because I find the latest developments with drugs access, providers, and protocol interesting because it is bearing witness to historical, legal sea-changes in real time.

I am not a victim of a major violent crime, so I genuinely do not know how I would feel about all of this if I were. I sincerely respect the victims' feelings and perspective, as well as those of their advocates. But I also believe that justice is, and must be under our current system, meted out in stages, beginning with a (rightful) conviction and imposition of a sentence, which is the first step in affirming our societal beliefs/values in enforcing the rule of law and protecting victims of heinous (or petty) crimes. Our system takes a lot of patience.

Also, to answer your question, I do not know how many last minute motions are too many, but I believe that the state will eventually find some degree of finality to its judgment, and perhaps the death sentence will be executed, once matters that are allowed to be and are brought in a court of law can be decided by the court. At least this is the system we currently have, but perhaps it is flawed like you say, which is why we are all commenting on a blog with the word "policy" in its title because these are important policy issues, no what side one may be on.

Posted by: Mashup | Feb 22, 2014 10:34:52 AM

I should clarify that my use of the word "victim" refers to the actual victim and/or those impacted by the crime, like family, spouses, etc.

Posted by: Mashup | Feb 22, 2014 11:04:37 AM

Mashup--are you sure you're not Joe's doppelganger? Your post uses a lot of words, but says very little. But what you do say is silly.

"On another note, and I am in no way trying to diminish their plight and losses or sound disrespectful in any way, but victims do not have a constitutional right to expedited executions, nor do current or former prosecutors."

The ignorance and disingenuousness of this sentence is manifest. First of all, Mashup, an execution after 23 years is hardly expedited. (Why you persist in your dishonesty after Bill explicitly called you out is beyond me.) Second, unanimous Supreme Court caselaw has held that victims' families and states have an interest in timely enforcement of capital case judgments. Why don't we start by getting that right?

The other issue--you don't (and cannot) address the fundamental flaw of Cohen's piece and your posts---when there is no stay in place, the state has the power to execute its judgment. You fail to grasp this fundamental point. Instead, you yap about some odd notion of what the rule of law is and claim the moral high ground because you would never ever criticize our majestic courts.

In my view, courts and judges should be ruthlessly criticized when they are wrong. The criticism should be pitiless. Courts have a lot of power in America, and those who wield power over their fellow citizens should be freely criticized. For example, the "wise [sic] Latina" posited, in prepared testimony, that the Ginsburg dissent would have affirmed the Second Circuit in the Ricci case. That's flat-out wrong, and it's a mistake that a person sitting on the federal bench for 17 years absolutely should not make. But, according to Mashup, who apparently believes in lese-majeste when it comes to our courts (although funny how that never seems to apply to Scalia or Thomas), I shouldn't question the presumed brilliance of the "wise [sic] Latina." That's farcical. Apparently, so long as she votes the right way, it doesn't matter that she isn't the sharpest tool in the drawer. And, of course, Sotomayor's limited talent manifests itself on the bench, as her boneheaded dissent in Buck v. Thaler amply showed.

Personally, if I were the Missouri AG, I would be unsparing in my criticism of Kermit Bye. His ranting about the federal judicial power being disrespected because Missouri, in the absence of a stay, executed a murderer is beneath contempt. Bye made a spectacle of himself, and he's either too stupid to know the law or an ideologue. Either way, he is lawless and unfit.


Posted by: federalist | Feb 22, 2014 12:47:14 PM

Federalist,

Get over yourself.

Posted by: Mashup | Feb 22, 2014 1:04:55 PM

Mashup, learn some law. You're an ill-informed twit.

Posted by: federalist | Feb 22, 2014 1:40:35 PM

Mash-up is not my sock-puppet, to clear that up.

Posted by: Joe | Feb 22, 2014 1:45:52 PM

Waylon Jennings has a song that reminds me of people like you, Federalist, and it is appropriate for males or females. It is entitled "Rainy Day Woman," about an insufferably negative woman in his life. Going by memory, the most descriptive verse goes something like this,

"That woman of mine ain't happy
Til she finds something wrong or someone to blame
If it ain't one thing, it's another one on the way"

Posted by: Mashup | Feb 22, 2014 5:11:08 PM

mashup, you've gotten your ass kicked rhetorically, and you resort to insults. Next time try upping your game.

And by the by, what's insufferable is your misplaced confidence in your abilities.

Posted by: federalist | Feb 22, 2014 8:12:46 PM

I think that a discussion of the "death penalty" should address the use of the phony words. Why say that Missouri "executed" the guy? They killed him.

Posted by: Liberty1st | Feb 22, 2014 10:09:17 PM

I believe you threw the first punches, unless you think words like BS, silly, ignorant, etc, amount to neutral, acceptable, disarming, or professional language to direct at someone. Further, I did not realize we were in a competition, nor keeping score of alleged rhetorical victories. Thanks for clarifying that, Federalist. Some people might think that a pro DP advocate believes life is precious and people are valuable, but your caustic language, negative and combative tone, and bullying tactics most certainly suggest that you may be an exception to that understanding. Take care, my friend.

Posted by: Mashup | Feb 22, 2014 11:31:35 PM

Now bill you know I think the entire appeals system is a joke. That there should be a maximum time limit to file any appeal outside of actual evidence of innocence or if the law itself has changed.

but right now this is what we have. If there was an appeal in process they legally should have waited. what would have taken so long for someone to call one of the justices and said "hey these jokers just filed a pretty much bill shit appeal 30 min before an execution! You want we should put them on hold?"

If no. Move on! other wise they stop!

Posted by: rodsmith | Feb 23, 2014 4:50:49 AM

Aw, mashup, did I hurt your itty-bitties? Actually, if you go back upthread, you're snide comment about me "arbitrarily" ascribing views to you merited a biting response. But really, are you so sensitive that calling you out on what the law actually is now constitutes bullying? Waah. You called Bill Otis intellectually dishonest, but then you studiously ignored what the law actually is--and then you get upset because someone says that if you can't address the law, your argument is BS.

As for your whiny--"I thought DP advocates think life is precious" . . . . really? Whether or not I think "life is precious" has little or anything to do with my fileting of your posts.

It is funny, Mashup, for all your condescension, you can't seem to make a legal argument.

Posted by: federalist | Feb 23, 2014 11:06:17 AM

Mashup --

It seems to me that the central deception Cohen employs is to make it appear that Missouri was violating either the law or some legal rule by executing Smulls while his (latest) motion was being considered.

There are two reasons this creates a false impression. The first and most important is that courts are well aware of their ability to impose stays with or without the request of a party. And many times in this very case, courts did so. When they did, Missouri stood back.

Missouri went forward only (1) when it had a valid order and execution date, and (2) when no stay existed.

Given the that the court could, and in the past had, imposed a stay, but declined to do so as the hour of execution approached, Cohen's picture of Missouri as engaged in lawless, hasty and sneaky conduct is simply false.

Do you disagree?

Second, your analysis provides no specific answer to the question this cases vividly poses: What is to stop a condemned inmate from filing a new motion 30 minutes before the execution, and then claiming that it cannot proceed because litigation is pending before the court? And then doing this every single time the execution gets re-scheduled?

It is no answer to say that the court can direct that the clerk accept no more motions. First, the defense bar should never, ever be able to game the system to the point that such a thing becomes necessary. Second, it won't work anyway, because defense counsel can file a new motion regardless, claiming that new and previously unknown facts have just come to light (the defendant has gone crazy from the stress of it all, or a witness recanted just two hours ago).

The central conceit and critical flaw in Cohen's article is that it would allow the defense, through such means, effectively to determine the execution date on its own, and the date will be the year 3000.

This is not patience and acceptance of the rule of law. It's a prescription for the opposite: Disrespecting (and thus eroding) the rule of law by allowing it to become an increasingly obvious and laughable charade.

One last question. You say that I'm being as slick as I say Cohen is. But you don't directly say whether you think Cohen is being slick.

Do you think he is?

Posted by: Bill Otis | Feb 23, 2014 2:34:13 PM

Mashup will probably slink away. After all, he's been "bullied" in the comments section.

Posted by: federalist | Feb 23, 2014 2:42:58 PM

The Herbert Smulls case reminds me about what happened to Caryl Chessman on May 2nd, 1960.

Posted by: visitor | Feb 23, 2014 4:34:48 PM

Rod, there is a maximum time limit to validly file an appeal (see 28 USC 2244). The problem is that nothing prevents an attorney representing an inmate from raising a less than meritorious claim of actual innocence or a change in the law and asking for a stay.

You can look at any state that has the death penalty. In most states, no execution date is set until the first (and supposedly only) round of federal habeas review is over. Frequently, the execution date is set well after that first round is over and there has been no further activity in state or federal court challenging the validity of the conviction. Once the execution date is set, however, the inmate (actually his attorneys) suddenly discovers that he has new claims or has claims that should be reconsidered -- frequently discovering these claims in the last week before the execution date and demanding that a stay be granted until the lower federal courts can decide these claims which are filed one by one until a stay is granted or the time for the execution expires.

Posted by: tmm | Feb 24, 2014 11:01:31 AM

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