letter to rep. jay barnes - 2-12-2014 (05035524) (1)

8/13/2019 Letter to Rep. Jay Barnes - 2-12-2014 (05035524) (1)

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DEATH PENALTY LITIGATION CLINIC6155 Oak Street, Suite CKansas City, MO 64113

816 363-2795 dpIcdp1cIinic.com816 363-2799 Fax Jittp:/Jwww.dplclinic.comAttorneysRebecca E. JVood,nan, Executive DirectorJoseph W LubyJessica E. SuttonSonali Shahi

February 12, 2014Via electronic mail to [email protected]. Jay BarnesChairman, Government Oversight and Accountability CommitteeMissouri House of Representatives201 West Capitol Avenue, Room 415BJefferson City, MO 65101Dear Rep. Barnes:

appreciate the opportunity to describe for your committee some of the many problemsthat infect Missouris death penalty as carried out by the Department of Corrections, the Office ofthe Attorney General, and the private parties with whom the State has contracted. I writeseparately to address two issues describedand mischaracterizedby Assistant AttorneyGeneral David Hansen. Because Mr. Hansen spoke as the last witness, his testimony wentunrebutted

The Governing LawCiting Hill v McDonough, 547 U.S . 573 , 583-84 2006 , Mr. Hansen argued that themere presence of litigation does not entitle a prisoner to a stay of execution. That is indeed whatHill and other authorities say, bu t it does not excuse the States conduct. The issue is no t whetherand when a federal courtmight grant a stay. It is whether the Sta te should refrain from executingthe prisoner so that the court can decide whether to issue a stay in light of the particular litigationbefore it. This simple distinction is not los t on th e judiciary: While the current protocollitigation is not among the category of cases for which Nicklasson was entitled to an automaticstay of his execution, it was nonetheless a claim that Missouri would violate the federalconstitution 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 cour ts decide the constitutional issue presented, the Sta te ofMissouris pattern is to resolve the prisoners claim for itself by executing the claimant. That isthe basis of Judge Byes outrage at Missouris conduct: Nicklasson was entitled to have thiscourt complete its equitable review under Hill to determine whether he was entitled to a staybefore 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 vMadison Cranch 137, 163 1803 , quoting William Blackstone, Commentaries on the Laws ofEngland 1769 . The State is free to contest a claim of legal right. But tha t does not make it

proper for the State to extinguish the claim by means of self-help.


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motion for s tay in the Eighth Circuit, urging that Court for a stay on th e two grounds that stillremained unresolved. T he S ta te was well aware of these grounds , and indeed, it had earlier fileda t 2 :42 p.m. on January 29 a motion asking the Eighth Circuit to expedite its ruling on th e twounresolved 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 camea t 10:07 p.m., with the Eighth Circuit denying a stay despite Judge Byes vigorous three-pagedissent arguing in support of t he due process claim. That claim for a stay had been lodged withthe Supreme Court in anticipation of the Eighth Circuits ruling, and the i ssue became ripe forthe Supreme Court as soon as the Eighth Circuit had resolved it a t 10:07 p .m. The Sta tenevertheless began injecting Mr. Smulls with a lethal chemical at 10:11 p .m. and pronouncedhim dead at 10:20 p.m. our minutes later, the Supreme Court sent word that it had denied Mr.Smulls motion fo r stay. With that development, the Sta te had thumbed its nose at all three levelsof the federal judi i ry over the course of three executions in three months.Once again, appreciate your willingness to examine the epartment of Correctionsmethods. Please let me know if you have any questions or wish to review any additionaldocuments relating to this matter.

Enc.

yours,

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letter to rep. jay barnes - 2-12-2014 (05035524) (1)

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