Ivy League law professor calls out lawyer from Missouri Attorney General’s office for misrepresenting testimony on executions

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Missouri officials in charge of carrying out executions have tiptoed so precariously on the fringes of the law over the last six months that they got called to a hearing before Missouri legislators earlier in February to explain themselves.

And even when they do that, they’re having a hard time keeping their story straight.

David Hansen, a lawyer working for Missouri Attorney General Chris Koster, was sent to testify before the House Oversight and Accountability Committee on February 10 to explain his office’s thinking on the state’s last three hasty executions. Herbert Smulls was executed on January 29 before the U.S. Supreme Court issued its final decision on an application for a stay. The two executions before Smulls bore similar trademarks, which earned the state admonishments from two separate federal judges for killing inmates before judges had fully vetted their circumstances.

Lawmakers wanted to know for themselves if it was true that Missouri officials are executing prisoners before their appeals are exhausted (they are), and if so, why.

Hansen was asked whether other states do this sort of thing, and Hansen said yes, and referenced a law expert telling a reporter that the practice sometimes happens elsewhere.

“I just saw an article in the last week where a Columbia Law School professor was asked a question, Columbia Law School Professor Jim Liebman, and he was asked whether this happens anywhere else,” Hansen told the House committee. “And he said, ‘It’s unusual but it’s not unheard of for an execution to proceed with an appeal still pending.'” 

The testimony made it seem like Liebman had said other states follow Missouri’s practice.

Word of Hansen’s testimony made its way back to Liebman, who felt he had been misrepresented. Enough so that he wrote a letter to Jefferson City House Republican Jay Barnes, who chairs the committee hearing Hansen’s testimony. Liebman, a well-known scholar on criminal-law issues, isn’t aware of any other state that acts as Missouri does.

“In fact, I was saying that the practice is unusual, though not unheard of, in Missouri,” Liebman’s letter reads (emphasis in the original). “As I understand it, Missouri officials have followed this practice in only 3 of the state’s 71 modern executions. I am aware of no other state that follows this controversial practice (emphasis in the original).”

Liebman goes on to say that he thinks it’s inappropriate for Missouri officials to conclude that a condemned prisoner’s appeals for a stay are frivolous and then carry out the execution.

“Instead, I said the better procedure is to have a court say that, not for the state to say that,” Liebman wrote.

The Pitch sent the letter to Koster’s office for a response but hasn’t heard back.

Liebman’s criticisms are echoed to a certain extent in an appeal filed last Friday by attorneys for Michael Taylor, the Kansas City man scheduled for execution on February 26 for the 1989 murder of Raytown’s Ann Harrison.

Taylor’s legal team filed a lengthy recitation of the timelines for executions of Joseph Franklin, Allen Nicklasson and Smulls, pointing out that in each instance the men were executed while their attorneys had papers in front of appeals courts, among other arguments in favor of a delay of his upcoming execution. But those appeals for a stay were rejected on Monday. Appeals will continue, but time is running short before Wednesday’s planned execution.

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