Herbert Smulls

In Missouri, the practice of putting inmates to death even though their cases are on appeal is not really that unusual, and lawyers think this signals a huge problem with the state’s judicial system, the Associated Press reports.

The case of Herbert Smulls is just the latest example. His lawyers are arguing that his execution is the third consecutive example of Missouri carrying out the death sentence even though the case was in court.


Granted, the state says the practice is perfectly legal, and legal experts say it is also rare. But according to AP, it's raising the concerns of defense lawyers, just as ethics questions about capital punishment have arisen over the drugs that certain states use to execute inmates.

Smulls, who was originally scheduled to die at 12:01 a.m. Wednesday, was granted a temporary stay of execution after U.S. Supreme Court Justice Samuel Alito signed an order. However, later that evening, while Smulls' attorneys made one last desperate push for a permanent stay, the battle abruptly ended.

Smulls death warrant would have expired at 11:59 p.m. Wednesday, and a new execution would have had to be set, if he were still alive at midnight.

But he wasn’t. He was dead by 10:20 p.m., nine minutes after his execution started. One of his attorneys, Joseph Luby, said that he received an email at 10:30 p.m. saying that the stay application was rejected at 10:24. Not that it mattered.


"It's just troubling and fundamentally lawless," Luby said.

The state attorney general, Chris Koster, said that there were no rules broken in going forward with the execution. "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."


Koster also pointed out that the state "directly asked the United States Supreme Court" if the execution should be stayed once more, and the court said no.

According to Luby, this is the third time in the last three months that the state has executed three convicted killers while appeals were pending.


Read more at the Associated Press.