Kansas City attorney Lindsay Runnels last spoke with her client Herbert Smulls at 9:30 p.m. Wednesday. They talked for 10 minutes, Runnels from her downtown Kansas City law office and Smulls in a prison in Bonne Terre, Missouri.
At 9:40 p.m., a prison guard arrived to get Smulls and cut off the phone call over the inmate's protestations. Runnels tried calling back two minutes later, but the line was disconnected. Not long after, she found out that federal courts had dispensed with the 56-year-old prisoner's last stay of execution.
By 10:20 p.m., Smulls was dead from a fatal dose of pentobarbital, the punishment meted out by a St. Louis County jury more than 20 years ago. That jury convicted Smulls for the shooting death of jewelry-store owner Stephen Honickman in 1991. Honickman's wife, Florence, was injured in the shooting but survived the ordeal.
"My thoughts and prayers are with Florence Honickman and the family and friends of Stephen Honickman," said Missouri Attorney General Chris Koster in a statement delivered about 25 minutes after Smulls was executed.
Smulls is the third to die on Missouri's death row since November.
"We are immensely saddened but also angry because what we see coming in Missouri is an assembly-line approach to executions," said Cheryl Pilate, another Kansas City attorney who represented Smulls.
Missouri lost no time in executing Smulls once it had a window with which to do it. His attorneys learned that the U.S. Supreme Court flicked away the last stay of execution right around 10 p.m. Smulls was pronounced dead at 10:20 p.m., according to various media accounts. His attorneys had applied for another appeal when their client died.
Smulls was originally scheduled to die at 12:01 a.m. Wednesday, but an intense round of litigation preceding Smulls' execution made its way up to the Supreme Court, grabbing the attention of Justice Samuel Alito such that he delayed the execution
just after President Barack Obama wrapped up his State of the Union address. But condemned prisoners face long odds by the time their fate ends up in the hands of the highest court.
Smulls' legal team attacked his pending execution from a number of different fronts. They criticized his conviction by an all-white jury, particularly the cynical way the last qualified black juror was eliminated from the jury pool. More prominently, they fought to open the secretive method by which Missouri has chosen to kill condemned inmates just in the last few months.
Smulls' attorneys argued against having their client die in the state's hands when they couldn't know who made the drug, how it was made, who tested the drug for purity and potency, and how it was prescribed by an unnamed physician.
"I still find it absolutely amazing you can be a plaintiff in a lawsuit and find out nothing about the means used to kill you," she tells The Pitch
The effort cracked some light into the process. A Tulsa, Oklahoma, pharmacy called the Apothecary Shoppe appears to have compounded the lethal dose of pentobarbital for Missouri, as well as possibly other states. They also learned that Missouri officials pay for the drug with a bag of cash. They learned that when officials in charge of arranging an execution are under testimony, they often can't answer basic questions about the process. They discovered that the lab which insisted Smulls' lethal dose was clean was the same lab that vouched for the purity of a contaminated drug which killed dozens in New England.
They fought Missouri for the information because they argued that Smulls couldn't be sure he would die a constitutional death without it.
The discoveries were the latest episode revealing troubles in Missouri's lethal-injection protocol, a history that includes execution equipment designed by someone with bogus credentials and a doctor on contract to assist in killing inmates despite his admission that it wasn't unusual for him to make mistakes in administering drugs. Outside Missouri have come reports in recent weeks of prisoners expressing pain and struggle as they were put down by lethal injection.
But in the end, they didn't learn enough to spare their client, in part due to bizarre and inane legal machinations
that handcuffed their investigation.
"The death penalty is literally and figuratively carried out in the dark," Pilate says. "Here we are, it's night and someone is executed, and how it happened is largely covered up. We're in the dark."
Smulls died without much in the way of connections to the outside world; his body will be received by his lawyers.
While his lawyers weren't able to convince enough federal judges to delay Smulls' execution, one sounded his displeasure once again with how Missouri administers its capital punishment.
"With regard to the balance of harms, Smulls faces the ultimate, irrevocable penalty in the absence of a stay," wrote 8th Circuit Court of Appeals Judge Kermit Bye on January 29, the same judge who issued a stinging rebuke of Missouri's capital punishment a month earlier. "Missouri, on the other hand, merely faces the administrative work involved in obtaining a new date on which to execute Smulls."