CREDIT: Missouri Department of Corrections
Herbert Smulls was in the middle of a phone call discussing his attorneys’ final efforts to save his life when he was reportedly seized by prison guards, hauled into an execution chamber, and injected with a toxic cocktail of drugs. At the time of his death, an appeal was pending before the United States Supreme Court asking the justices to halt his execution. Andrew Cohen lays out the timeline:
At 10:11, the final lethal injection protocols were initiated. By this time, the 8th Circuit had rejected all of the claims before it—over another pointed dissent from Judge Bye—leaving only an active appeal before the Supreme Court. At 10:20 Smulls was pronounced dead. Ten minutes later, at 10:30, the Supreme Court notified the lawyers that Smulls’ final stay request had been denied at 10:24. This means that Missouri began to execute a man 13 minutes before it was entirely sure it could do so. Smulls was pronounced dead four minutes before the Supreme Court finally authorized Missouri to kill him.
As Cohen notes, “[j]ust imagine what we’d be talking about today if the justices had granted Smulls’ stay request four minutes after he was pronounced dead.” At the very least, Smulls’ appeal held enough merit that a United States Court of Appeals judge would have granted the stay.
And yet, thanks to a 1983 Supreme Court ruling, Missouri’s actions were probably legal. The state points to Barefoot v. Estelle, which explained that “[s]tays of execution are not automatic pending the filing and consideration of a petition for a writ of certiorari from this Court to the court of appeals that has denied a writ of habeas corpus,” to justify its actions in the Smulls case.
Smulls died amidst a cloud of uncertainty regarding exactly how Missouri planned to execute him and whether those protocols were even legal. In an earlier iteration of his appeals, a divided United States Court of Appeals for the Eighth Circuit held that the state was not required to disclose the manufacturer of the drugs used in its execution protocol — information that Smulls’ lawyers wanted so that they could determine the quality of the drugs being used (and, by extension, whether they were likely to cause Smulls an undue amount of pain).