James S. Liebman Simon H. Rifkind Professor Columbia Law School 435 W. 116th St.

New York, NY 10027 212-854-3423 jliebman@law.columbia.edu

February 19, 2014, updated at 10:45 pm EST Representative Jay Barnes Chairman, Missouri House Oversight and Accountability Committee 201 W. Capitol Avenue, Rm. 415B Jefferson City, MO 65101 Via email: Jay.Barnes@house.mo.gov Re: Inaccurate presentation of my views in testimony to the House Oversight and Accountability Committee on February 10, 2014 Dear Chairman Barnes: It has recently come to my attention that Missouri Assistant Attorney General David Hansen inaccurately represented my views to the Committee in testimony on February 10, 2014. Mr. Hansen was testifying on the question whether it is appropriate for state officials to proceed with an execution despite knowing that the prisoner has filed papers in the United States Supreme Court that could result in a stay of the execution and, potentially, the invalidation of the state court order warranting the execution. This, of course, is exactly what Mr. Hansens office did in the case of Herbert Smulls who was executed by Missouri on January 29, 2014, despite knowing that Mr. Smulls had pending before the United States Supreme Court a request for a stay of execution and for review on certiorari of certain constitutional challenges to his death sentence and those of other prisoners. It is my understanding that the question of the appropriateness of this action by Mr. Hansens office was a matter under consideration at the hearing before your Committee. At page 4 of the transcript of Mr. Hansens testimony, he responds to a question from the Committee about whether his offices practice of proceeding with an execution despite the pendency of papers that could invalidate its legal basis was common practice in other states. Mr. Hansen answered: No. I havent looked at other states and Ive seen it reported by the plaintiffs attorneys. Ive seen articles recently where theyve contended that this is I heard earlier today from Mr. Luby that this is a uniquely Missouri experience. I think with some diligence you can determine that thats not the case. And I would also, because weve seen this
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language from the United States Supreme Court over the last couple years something that I just read to you thats indicated that requesting a stay is not enough. But I would also like to cite, 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 asked whether this happens anywhere else. And he said Its unusual but its not unheard of for an execution to proceed with an appeal still pending. (01:59:32) He agreed that corrections officials could reach the point of believing that enough is enough. You wouldnt be surprised if the State felt that way maybe with justification . So thats a law school professor from New York who is quoted in an article thats been nationwide. Mr. Hansens reference to my views is inaccurate in two important respects. The reporter to whom I spoke, Jim Salter of the Associated Press, published a story on January 30, 2014 under the headline: Lawyers: Mo. Moving Too Quickly on Executions . The article is available at http://bigstory.ap.org/article/lawyers-mo-moving-too-quickly-executions. Mr. Salter asked me if I had heard of other states taking this kind of action, and I told him that I was unaware of any state besides Missouri that had proceeded in this fashion. It was in this context, that I made the statements that Mr. Salter attributed to me in his Associated Press article, as follows: Columbia Law School professor Jim Liebman said it is unusual, but not unheard of, for an execution to proceed with an appeal still pending. He agreed that corrections officials could reach the point of believing that enough is enough. "You wouldn't be surprised if the state felt that way, maybe with justification, but the procedure is to have a court say that, not for the state to say that," Liebman said. (emphasis added). The first problem with Mr. Hansens paraphrase of my statement to the Associated Press reporter is that he uses it to suggest that I believe Missouris practice has been replicated in other states. In fact, I was saying that the practice is unusual, though not unheard of, in Missouri. As I understand it, Missouri officials have followed this practice in only 3 of the States 71 modern executions. I am aware of no other state that follows this controversial practice. The second problem with Mr. Hansens testimony is that it quoted only half of the statement I made to the Associated Press and omitted the other half in which I criticized his office for taking exactly the action that he purports to quote me as endorsing. As I told the Associated Press, in my opinion, it is not appropriate for state officials to make the unilateral decision that papers pending in the United States Supreme Court that could result in a stay of execution and, eventually, a reversal of the death warrant are frivolous and thus may be ignored in order to allow an execution to occur without a final court ruling. Instead, I said, the better procedure is to have a court say that, not for the state to say that. I pointed out that the Supreme Court has occasionally issued orders in capital cases saying it will no longer entertain papers from a particular capital prisoner, having found that previous papers filed were frivolous. I pointed out that, if Missouri believed that this same point had been reached in Mr. Smulls casea
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conclusion that Mr. Smulls and his attorneys strongly disputedit would not be appropriate for one adversary to resolve that matter unilaterally over the objection of the other. Instead, Mr. Hansens office should have formally asked the Supreme Court to deny Mr. Smulls pending papers and to refuse to accept further papers from him, thus allowing the state to proceed with an execution without fear that the legal basis for that solemn and irreversible action was in doubt. Only then would the crucial contested matter of law and fact have been resolved, not unilaterally by one party to the dispute, but by the decision of a neutral court of law. The aftermath of Mr. Smulls case provides some support for this view. It is my understanding that, after learning that Missouri had gone ahead with Mr. Smulls execution without awaiting for a ruling on the papers he and others had filed, the U.S. Supreme Court asked Mr. Hansens office to file a response to those papers. It is the practice of the Court to ask for a response only when there is a colorable claim to be responded to, which is hardly an indication that the Court agreed with Mr. Hansens office, and disagreed with Mr. Smulls and his attorney s and the other petitioners on whether the claims raised were frivolous. By requesting a response, the Court has given at least some indication that it was in doubt whether the execution was legally appropriate in view of the claims Mr. Smulls had raised in the papers that were pending unresolved in the Court when the execution occurred. In order to set the record straight on my views on these matters, I respectfully request that the Committee include this letter in the record of its proceedings on the issues to which I refer above. I greatly appreciate your consideration of this request and your Committees consideration of the important issues presented by the procedures used in the course of executing Mr. Smulls.

Sincerely,

James S. Liebman Simon H. Rifkind Professor of Law

cc Hon. John Rizzo Hon. Kevin McManus Hon. Mark Parkinson Hon. Tom Flanigan Hon. Jeff Messenger Hon. Gina Mitten Hon. Chris Molendorp Hon. Tommie Pierson Hon. Todd Richardson Hon. Paul Fitzwater Hon. Chris Koster Hon. David Hansen Joe Luby, Esq.