DEATH PENALTY LITIGATION CLINIC

6155 Oak Street, Suite C Kansas City, MO 64113

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Rebecca E. JVood,nan, Executive Director Joseph W Luby Jessica E. Sutton Sonali Shahi

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February 12, 2014

Via electronic mail to Jay.Barnes@house.mo.gov

Rep. Jay Barnes Chairman, Government Oversight and Accountability Committee Missouri House of Representatives 201 West Capitol Avenue, Room 415B Jefferson City, MO 65101 Dear Rep. Barnes: I appreciate the opportunity to describe for your committee some of the many problems that infect Missouris death penalty as carried out by the Department of Corrections, the Office of the Attorney General, and the private parties with whom the State has contracted. I write separately to address two issues describedand mischaracterizedby Assistant Attorney General David Hansen. Because Mr. Hansen spoke as the last witness, his testimony went unrebutted.
The Governing Law

Citing Hill v. McDonough, 547 U.S. 573, 583-84 (2006), Mr. Hansen argued that the mere presence of litigation does not entitle a prisoner to a stay of execution. That is indeed what Hill and other authorities say, but it does not excuse the States conduct. The issue is not whether and when a federal court might grant a stay. It is whether the State should refrain from executing the prisoner so that the court can decide whether to issue a stay in light of the particular litigation before it. This simple distinction is not lost on the judiciary: While the current protocol litigation is not among the category of cases for which Nicklasson was entitled to an automatic stay of his execution, it was nonetheless a claim that Missouri would violate the federal constitution by executing him. Nicklasson v. Lombardi, Case No. 13-3664, Order of Dec. 23, 2013, at 14 (Bye, J., dissenting from the denial of rehearing). Not content to let the courts decide the constitutional issue presented, the State of Missouris pattern is to resolve the prisoners claim for itself by executing the claimant. That is the basis of Judge Byes outrage at Missouris conduct: Nicklasson was entitled to have this court complete its equitable review under Hill to determine whether he was entitled to a stay before Missouri executed him. Id. at 14-15. Fundamental to the rule of law is the principle that, [W]here there is a legal right, there is also a legal remedy by suit or action at law. Marbury v. Madison, 1 Cranch 137, 163 (1803), quoting William Blackstone, Commentaries on the Laws of England (1769). The State is free to contest a claim of legal right. But that does not make it proper for the State to extinguish the claim by means of self-help.

The Prisoners Stay Remedies

I am especially troubled that Mr. Hansen misstated the circumstances under which the State has carried out the last three executions. According to Mr. Hansen, the prisoners attorneys pursue a very deliberate strategy to ensure there is always a stay motion pending during the course of a death warrant, which is a de facto repeal of the death penalty. Mr. Hansen suggested that stay proceedings were pending during the last three executions only because the still-pending motions were sprung on the courts and the State at the eleventh hour. But the circumstances of each case disprove the States characterization of them. 1 Joseph Franklin On the afternoon of Tuesday, November 19, Judge Laughrey granted a stay of execution on one of the four grounds that Mr. Franklin had advancedspecifically, that the use of compounded pentobarbital violates the Eighth Amendment. In the course of granting a stay, Judge Laughrey expressly declined to resolve the other grounds. These remaining grounds did not require the heightened evidence needed for an Eighth Amendment claim, specifically, that the execution method presents a substantial risk of serious harm. On the evening of November 19, the Eighth Circuit granted the States motion to vacate the stay, ruling that Mr. Franklin had not presented enough evidence to justify a stay under the Eighth Amendment. Mr. Franklins attorneys moved the Eighth Circuit for rehearing on that issue, and after that effort failed (at 2:45 a.m.), they applied for a stay in the U.S. Supreme Court (all the while also frantically litigating a claim that Mr. Franklin was mentally incompetent to be executed). That effort, too, was unsuccessful, and the Supreme Court denied a stay at 5:43 a.m. on Wednesday, November 20. At that point there remained over 18 hours on Mr. Franklins death warrant.
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Meanwhile, the additional grounds that were originally presented to Judge Laughrey remained unresolved. These included a claim that Missouris execution method violates expost facto principles because it gives rise to an execution more painful than under the method in effect at the time of the prisoners crimes, that the protocol illegally designates the drugs supplier as a member of the execution team, and that the protocol violates state pharmacy regulations as made cognizable under the Missouri Administrative Procedure Act. Because these claims remained pending without a ruling, counsel filed a renewed motion asking Judge Laughrey to resolve them. That motion was filed at 5:02 a.m. This was not a motion that counsel held back or strategically sprung on the State at the last moment; indeed, it was no fault of Mr. Franklins attorneysand certainly not their deliberate strategythat Judge Laughrey would grant a stay on Mr. Franklins most demanding claim while leaving the other grounds unresolved. At 5:24 a.m., I sent an email to opposing counsel, notifying them of the renewed motion as well as the fact that Judge Laughrey had been summoned to consider it: Dear Counsel: As you know, we have filed a renewed motion for stay of execution, asking the Court to consider the grounds that it declined to consider after finding that Mr. Franklin had sufficiently proven a viable Eighth Amendment claim. I have contacted the emergency number [for] the U.S. District Court, and the clerk with whom I spoke is contacting Judge Laughrey to alert her of our motion. In the meantime, I expect you and your clients to refrain from executing Mr. Franklin while this matter remains pending.

Those circumstances are more fully described in the attached excerpt from prisoner Russell Bucklews recent filing in the Missouri Supreme Court, urging that court not to set an execution date against him. 2

To this date, I have never received a response to that email. The State went forward with Mr. Franklins execution at 6:07 a.m. Allen Nicklasson On December 11, 2013, Mr. Nicklasson was executed under similarly troubling circumstances. Eight days before that, Mr. Nicklassons attorneys filed a stay motion with Judge Laughrey, advancing essentially the same non-Eighth Amendment claims that Mr. Franklin had advanced. In the meantime, a panel of the Eighth Circuit had granted a stay on December 9, on grounds relating to the validity of Mr. Nicklassons underlying conviction and sentence. The State asked the Supreme Court to vacate that ruling, which it eventually did. Nevertheless, because the Eighth Circuit had granted a stay, Judge Laughrey declined to issue a definitive ruling on the lethal injection issues before her. Mr. Nicklassons attorneys pressed the district court for a ruling, because they were aware that the State might succeed in its effort to vacate the Eighth Circuits stay. Counsel therefore notified the court of their need for a ruling, and they also filed a conditional motion for stay urging the court to rule on the grounds before it because of the possibility that the Supreme Court might vacate the Eighth Circuits stay.
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Only after Mr. Nicklassons attorneys pressed the court for a ruling, and only after opposing counsel declined to pledge that they would refrain from executing Mr. Nicklasson with a stay motion pending, Judge Laughrey issued an order denying a stay. That order was finally issued at 11:08 a.m. on December lisome ten hours before the Supreme Court vacated the Eighth Circuits stay on other issues, and thirteen hours before the death warrant would expire. As with Mr. Franklins case, it was no fault of Mr. Nicklassons attorneys that the district court retained the motion for stay rather than ruling on its merits. But, after that ruling, counsel did the only thing they could have done: they immediately appealed it to the Eighth Circuit and asked that court for the same stay on identical grounds. Even then, the initial three-judge panel of the Eighth Circuit declined to issue a ruling on the lethal injection issues until after the Supreme Court vacated the other stay. Specifically, the Supreme Court vacated the stay at about 10 p.m. on December 11, by a vote of five-to-four, and the Eighth Circuit denied a stay on the lethal injection grounds at 10:11 p.m. Once again, Mr. Nicklassons attorneys took the logical next step, which was to move the full Eighth Circuit for a stay of execution and rehearing en banc, advancing the same grounds that had been filed with Judge Laughrey eight days earlier. That motion was filed at 10:3 1 p.m., but the State began executing Mr. Nicklasson at about 10:43 p.m., after the Attorney General informed the DOC that there were no legal impediments to the execution.
Herbert Smulls The events leading up to Mr. Smulls recent execution were described at some length during Mondays hearing. Nevertheless, one particular misstatement of Mr. Hansen nevertheless requires correction. Mr. Hansen stated that, after the Supreme Court vacated the Eighth Circuits stay of execution on the Zink litigation, Mr. Smulls attorneys suddenly came forward with a new motion for stay in the Eighth Circuitas though counsel were holding back this remedy and waiting to play their card at the opportune moment.
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But that is not what happened. In fact, the underlying motion for stay in the Eighth Circuit advanced three separate grounds: first, the pendency of a petition for certiorari in the Zink case; second, a due process claim advancing the Catch 22 created by the States successful argument that Mr. Smulls cannot obtain the information that the courts say he needs in order to prove his claims; and third, a First Amendment claim that Mr. Smulls and his attorneys were denied the right to obtain and then communicate information of critical public interest. As Judge Laughrey did in Joseph Franklins case, the Eighth Circuit granted a stay on only one of these grounds, and it declined to rule on the others. The Supreme Court vacated that stay at 9:25 p.m. on January 29. Approximately one hour before that ruling, Mr. Smulls had filed a conditional and renewed 3

motion for stay in the Eighth Circuit, urging that Court for a stay on the two grounds that still remained unresolved. The State was well aware of these grounds, and indeed, it had earlier filed (at 2:42 p.m. on January 29) a motion asking the Eighth Circuit to expedite its ruling on the two unresolved claims. Thus, Mr. Smulls counsel did not spring a last-minute surprise on the State or the courts; we were simply seeking a ruling on remedies that were already on file. That ruling finally came at 10:07 p.m., with the Eighth Circuit denying a stay despite Judge Byes vigorous three-page dissent arguing in support of the due process claim. That claim for a stay had been lodged with the Supreme Court in anticipation of the Eighth Circuits ruling, and the issue became ripe for the Supreme Court as soon as the Eighth Circuit had resolved it at 10:07 p.m. The State nevertheless began injecting Mr. Smulls with a lethal chemical at 10:11 p.m. and pronounced him dead at 10:20 p.m. Four minutes later, the Supreme Court sent word that it had denied Mr. Smulls motion for stay. With that development, the State had thumbed its nose at all three levels of the federal judiciary over the course of three executions in three months. Once again, I appreciate your willingness to examine the Department of Corrections methods. Please let me know if you have any questions or wish to review any additional documents relating to this matter. yours,

Enc.