Reporter's notebook: Missouri has a long history of trying to execute prisoners before courts say it's OK

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Federal appeals court judge Kermit Bye threw sand in the gears of Missouri's death-penalty machine last month when he aired his frustration over Allen Nicklasson's execution.
Missouri's death chamber
  • Missouri's death chamber

Bye, a federal judge for 14 years, issued a biting court opinion upbraiding Missouri for killing Nicklasson before he was done reviewing the condemned man's request to delay his punishment.

Bye's opinion caught the attention of lawmakers in Missouri, as well as this newspaper, which was prompted by Bye's opinion to publish a lengthy review of Missouri's death-penalty protocol this week. How could Missouri put someone to death, an irreversible fate for the person in question, rather than wait a little while for federal judges to finish their work at relatively little harm to the state?

Sure, prolonging final justice for a death-row prisoner costs the state money and often drags out for years upon years. But that's what states, which still carry the death penalty, sign up for by deciding that it's still worth punishing convicts with their lives. The appeals process is important; it's supposed to keep innocents from dying and ensure that states carry out executions legally.

To be clear, there was no stay of execution in effect when Nicklasson got executed, which means Missouri didn't flagrantly break the law by executing the admitted killer of an Excelsior Springs man. But Nicklasson's attorneys were trying to convince all 11 judges on the 8th U.S. Circuit Court of Appeals for a stay, but Nicklasson died before those judges could decide. Bye thought that tiptoed up against the fringes of the law, if not breaking it outright.

"By proceeding with Nicklasson's execution before our court had completed voting on his petition for rehearing....Missouri violated the spirit, if not the letter, of a long litany of cases warning Missouri to stay executions while federal review of an inmate's constitutional challenge is still pending," Bye wrote.

That long history stretches back to 1983, according to Bye's research of Missouri's capital-punishment methods. 

It's that year when Missouri set Doyle Williams' execution date before he had the chance to ask the U.S. Supreme Court to review his case. Judge Harry Blackmun delayed Williams' execution and reminded Missouri that all death-row inmates deserve their day before the Supreme Court before they die. It made no sense, Blackmun thought, to set an execution date before that happens. Death-row prisoners face long odds by the time their cases get up to the Supreme Court, but it's still part of the process.

Despite Blackmun's admonition, Missouri some months later set execution dates for four other condemned prisoners. Blackmun delayed those execution dates, too. In doing so, he sounded his annoyance with Missouri.

"[I]f it fails to fulfill its responsibility, I shall fulfill mine," Blackmun wrote in reference to Missouri officials who seemed to want to jump the gun on the executions.

Missouri kept ignoring the country's highest court a year later when it set a date for Walter Blair to die. Blair asked the Missouri Supreme Court to delay his execution while federal courts did their routine in examining his case. The Missouri Supreme Court brushed him off, prompting federal courts to intervene and stall the execution. In doing so, federal judges castigated the Show-Me State once again.

The cycle repeated itself in 1986 with Gerald Smith's planned execution, despite questions about whether he was mentally competent to understand his punishment. Smith killed his girlfriend with a crow bar after suspecting that she had given him a sexually transmitted disease. He later admitted to the crime in a letter to the editor of a local newspaper, saying he would do it again, before signing off as "Gerald Smith, the cold blooded killer."

Missouri in 1986 wanted to proceed with Smith's execution, but his brother managed to turn to federal courts to put off the execution date while Smith's competency was evaluated. Federal courts agreed with Smith's brother, telling the Missouri Supreme Court that its refusal to delay the execution "had no basis in fact nor in law, but was merely an expedient way of washing its hands of the matter and passing the buck to the federal courts."

Smith was ultimately executed in 1990, one of Missouri's first lethal-injection casualties. It's from there where The Pitch's feature this week picks up on the state's troubled history with lethal injection and the secrecy under which it's deployed. 

All of which set the table for Bye's harsh rebuke of Missouri in December, putting the state on notice that it had "earned from this judge more than just a healthy judicial skepticism regarding Missouri's implementation of the death penalty."

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