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Transcription of David Hansen at Capital Punishment Hearing on 2.10.

01:44:00 Jay Barnes: Good afternoon. David Hansen: Good afternoon. Mister chairman, members of the committee my name is David Hansen. Im an assistant attorney general for the Missouri Attorney Generals office and Im also the deputy chief counsel of our Public Safety division. There have been some extraordinary allegations made related to the recent executions and theres been an extraordinary amount of misinformation as well. We appreciate the opportunity to be here today to speak to you about that. As youre probably aware the attorney generals office has a long standing policy of not discussing cases that are in current litigation and certainly this, the underlying case, the Zink case currently challenges protocol as you all know I believe is in current litigation. (01:44:56) But we did think it was important to speak with the committee and provide information on two issues. And those issues are the timeline of the court activity in the executions, particularly the most recent execution the Smulls execution and discuss the standard the Supreme Court uses when addressing stays of execution. So I guess after listening to Mr. Lubys testimony that would be really were here to talk about the third issue that he addressed with this committee and that is motions that are pending and when the decisions are made to proceed. And I do have a brief statement Id like to make and then Id be happy to answer any questions. Mr. Jim Leighton is here as well with me; he is the state solicitor for the Missouri attorney generals office and has been for a number of years. Herbert Smulls murdered Stephen Honickman in 1991. And and over the course of the next two decades he appealed those, that conviction and that sentence to multiple courts in both the state court and the federal court. (01:46:15) His sentences were affirmed in all those circumstances and the law is clear that the pendency of litigation is an insufficient reason to stop execution. Thats United States Supreme Court case of Barefoot versus Estell which we cited to the United States Supreme Court on the evening of Mr. Smulls execution and we asked the United States Supreme Court to vacate the stay that had been issued by the Eighth Circuit which they ultimately did. (01:46:44) So on January 29th, Mr the date of Mr. Smulls execution, the state of Missouri directly went to the United States Supreme Court and asked if the execution should happen. The court answered that question and they said no the execution should not be topped. They said that three different times on that day on January 29th lifting all the stays that had been entered. Now throughout that day and throughout the evening as well, attorneys for the State had been in contact with clerks for the Eighth Circuit Court of Appeals and for the United States Supreme Court. They were aware that the execution would proceed once all of the stays had been lifted. There was no stay of execution in effect when Mr. Smulls was executed and the same is true with Mr. Nicklasson and Mr. Franklin. (01:47:46) And so to be clear, the United States Supreme Court ruled against ultimately ruled against Mr. Smulls eight times, eight times over the course of the last two decades. Id be happy to take take questions. John Rizzo: First of all Id like to say thanks for being here today. Im just curious, with your professional opinion, how many laws are okay to break to satisfy one law? Because it seems, I mean, I think unequivocally, excuse me, theres at least question of these laws that are being broken. I mean I 1

think that Mr. Luby put some good examples forth earlier: the FDA issues, the unlicensed in the state of Missouri issues, and I think that Department is actually in a tough situation where they have to carry something out by statute but then theres also statutes that say you cant do some of the things that have been done. (01:49:07) So what Im Jay Barnes: Stop, were not going to ask a, when did you stop beating your wife question. So youre going to have to rephrase it in some way. Rizzo: Okay. Um, let me ask you as far as the signing off that the director talked about earlier. The night of an execution or the Department as the director said earlier. He says he looks at the attorney generals office and then they sign off, who is that person or is that different in every scenario they designate a person? Are there calls made back to the attorney generals office and then is there a call from the attorney generals office? How does that work? (01:49:55) Hansen: The attorney general is asked by the director of the Department of Corrections prior to proceeding with the execution whether there are any legal impediments to the lawful execution. That question is directed to us right before the chemicals are administered and at that time, ultimately its the attorney general who advises the director of the department and perhaps the governors office whether there are legal impediments. And then it is the decision of the director of the department and the governor whether or not to proceed. I think thats the best way I could answer that question. (01:50:39) Rizzo: Okay, now, at what point with say the Herbert Smulls you seemed familiar, Im sure you are, with motions that are pending is it said its okay to go forward with this? I mean, Im sorry to interrupt but, do we feel like as, did the AGs office feel like at that point things were exhausted or did it seem like they were not going to have merit at some point and then we just move forward with the pending litigation or motions? When did, at what point do you say that were not moving were going to keep moving forward even though thats happening? (01:51:26) Hansen: I guess I can tell you what happened factually. Rizzo: Yeah. Hansen: And that is when the Supreme Court, so when, kind of to set the stage a little bit, the United States Supreme Court granted a stay on the, essentially the night before the execution, really its the evening of the execution because its supposed to happen at midnight. J. Rizzo: Sure. DH: Its supposed to happen on the 29th. And on the 28th, I think it was 9:24, Justice Alito issued a stay of execution that evening. At that time, actually before Justice Alito issued that stay, the United State Supreme Courts office is in contact with our office and asked if it was the state of Missouris intention to proceed if a stay was pending but there was no stay order granted and the governors office indicated if 2

there were no stay orders the execution would proceed. So at 9:24 Justice Alito issued that stay. The next day then, January 29th, which was the day that the execution was ordered to take place by the Missouri Supreme Court, and in the warrant of execution, at 4:36 p.m. that afternoon, the United States Supreme Court lifted that stay, the stay challenging the execution protocol. But a stay remained in effect that the state had issued earlier. We went to the court, asked the court to remove that stay and that evening, I believe it was 9:23 p.m. that evening, the United States Supreme Court vacated the stay of the eighth circuit so for the third time that day, the United States Supreme Court said that the execution could proceed and at that time the Department of Corrections informed us that they were proceeding. (01:53:32) Rizzo: Okay let me ask you this. If we had, if the State had waited on the other motions to be denied and lets say, because I know the warrant goes until 12:01 or is it midnight and then you have to go get something reissued or could you walk me through that? Hansen: Well, the warrant that is issued is issued by the Supreme Court. Again, its an order of the United excuse me, the Missouri Supreme Court that orders the department to carry out the lawful execution. So its ordered on a specific date. It doesnt, the order itself doesnt say a time frame but it says it shall occur on this day. And so thats what Director Lombardi alluded to earlier. Thats why they begin at 12:01 of that day so they have as long as they can during that day because at the conclusion of the day the warrant is no longer good. (01:54:25) Rizzo: So what youre saying is the refusal is, I guess, if somebody were to come into your office and say dont do this until these other motions are stayed, or decided on, the refusal would be some sort of violation if in fact the execution was not carried out on that date? Im just trying to clarify. Hansen: It has to be carried out on that date. And in fact, the department, you know, has indicated repeatedly to the United States Supreme Court. The United States Supreme Court has asked them, you know, whats the last time you can end an execution to get it completed before the warrant expires? They have indicated to ensure for all potential scenarios, they cant start any later than 10 p.m. that evening right before the warrant expires so I dont know if that answers your (01:55:22) Rizzo: That it helps. So if there is lets say, if theres a stay that is put in place, that goes past the date, at that point, you would have to go get more, another order from the state Supreme Court for the stay? Hansen: The State Supreme would have to issue a new order and a new warrant. Rizzo: And how difficult is that? I mean, do you feel like that might not have happened? Hansen: Well I cant speak I think that for that I think about the difficulty, I think the issue is, and nows maybe the best, is as good a time as any to talk about it is that the offenders attorneys. What we call the death row attorneys have developed a legitimate or very deliberate strategy to ensure that there is always a stay motion pending during the course of the warrant which is a de facto repeal of the death penalty. And when they their argument is if theres a stay, you cant execute them. Excuse me, yeah, a 3

motion to stay, as long as we have a motion for stay filed someplace, you cant execute them and in the last three executions, they have ensured that every time, theres always a motion for stay pending in a court so that it cant be carried out. Ill just say that the United States Supreme Court again has said that the State has a strong interest in carrying out its judgments. (01:57:00) And in Hill the United States Supreme Court said that the filing of an action that cant proceed under section 1983, section 1983 thats the section that plaintiffs have brought their suit under challenging execution protocol. So thats talking specifically like cases like this. The Supreme Court has said the filing of an action of such a case does not entitle the plaintiff to an order staying an execution as a matter of course. Both the State and the victims of the crime have an important interest in the timely enforcement of the sentence and they also said later in that case citing another Supreme Court case that a stay of execution is an equitable remedy. Its not available as a matter of right, and equity must be sensitive to the States strong interest in enforcing its criminal judgments without undue interference from the federal court. So its not just a question of, you know, what do you have to do to get another warrant. The question is what is the purpose behind, the, the, the continuous and perpetual motions to stay and that is to frustrate the purpose that this body, and the law that this body has established and that is the punishment for first degree murder and the ability to carry it out. (01:58:23) Rizzo: Okay. Do you know of other states, just to answer the question from earlier, that have carried on an execution with similar motions pending? Hansen: 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 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. I think that was actually in the Daily Mail in the United Kingdom. Rizzo: Sure. And to that fact you have to at least understand a little bit of why these questions are being asked. I mean this isnt something thats, you know, thought up in some vacuum somewhere. I mean these are things that have been talked about throughout the United States. I mean as Mr. Luby said earlier, some states have put executions on hold because of the lack of pharmaceuticals and so on and so forth. And at the end of the day, were just wanting to figure out I dont want to speak for anybody else Im just wanting to figure out how exactly do we go about doing this? This is, this is, in no regard is anybody done, the chairman has done a great job at keeping this not about pro-death penalty or antideath penalty, not about murder. (02:00:45) This is about a process with, in regards to anything we do as a State. And when there are no guidelines in place, no kind of oversight, I guess, it lends itself to credibility questions and all were trying to do and understand here is how this process works. And I 4

think that the question has been raised in multiple news outlets everywhere from the New York Times as you just stated to CNN to all over the place how we go about invoking this penalty. As you said, its something the legislature enacted; its something we have to do. The director has to administer his duties. It is what it is. The question that I think we all come back to is how far do we go to do that and I dont, I understand where youre coming from when youre talking about delay tactics. I really do. (02:01:51) I just think when were in a position of invoking this penalty, do you see, let me get to this question here, do you see, sorry, do you see that, do you feel that if say we did wait and there were motions and the motions were denied that there would then be five more motions? You understand what Im saying? With the Herbert Smulls case, for example, if there was a time period where we waited, the Supreme Court, the Eighth Circuit, so on and so forth, denied the stays or vacated the stays, and everything was good, excuse me, already had vacated the stays but they denied the motions; that there would then be another five or I dont know, ten whatever motions to continue to delay in that case? (02:02:34) Hansen: Just two things, first we appreciate the questions you have based on the reports and based on what has happened. Kind of like the director did earlier, I want to tell you how very seriously we take this. We at the attorney generals office have legal and ethical obligations. We are working throughout the night on these cases; multiple attorneys watching what is being filed, in communication with the clerks of the court for the highest courts in this land. And its a somber, serious, professional exercise and that is why were here to kind of explain some of the headlines, some of the articles suggested that its kind of flippant, that someone was executed while a motion was pending. (02:03:33) Now as to whether there would be more motions, I cant speculate as to whats going to happen in other cases but I can tell you for example Rizzo: Yeah. Hansen: In this, even in this case, in Smulls, at nine or at 9:23 when the Supreme Court decided this case. They had already just earlier filed some more motions in the eighth circuit (the recording cuts out and then continues)before the Supreme Court had issued their decision they had gone, they had looped right back around and went to the district court Judge Laughrey and said weve filed another stay motion. Rizzo: So you do feel like its almost perpetual? (02:04:14) Hansen: Well I just, I guess I would say its not a matter of what I feel, its a matter of what the facts were, have been. Rizzo: Well yeah, okay, I see what youre saying. Sure, okay. Thank you. Kevin McMannus: (02:04:28): Whats the standard for stay, just like any other, um Hansen: Likelihood of success on the merits. McMannus: And no other remedy? No other adequate remedy other than likelihood of success? Hansen: Perhaps how you speak. 5

Other unknown male: Other than success, irreparable harm done, and unavailability of other remedies. McMannus: Okay so in these cases, the first two are taken as a given? Jim Leighton: Basically it comes down to likelihood of success. (02:05:04) Barnes: Okay, the case, I put these claims in three categories, Eighth Amendment, trial specific, and then Im trying to find where my category list went claims of illegality. Thats right. Do you know of Supreme Court cases outside of Eighth Amendment or trial specific granting stays? Jim Leighton: In. Barnes: Just in terms of general death penalty jurisprudence. Leighton: Like in death penalty cases? Barnes: In death penalty cases. Leighton: On grounds other than the Eighth Amendment? Barnes: Or the issue Hansen: An issue related to the trial or defendant? Barnes: Yes. Hansen: I dont think were aware of any. (02:05:53) Barnes: Okay, um, you talked about the Eighth Circuit with Mr. Smulls there was this, there was a stay at the Eighth Circuit. Okay. What was the next step after the Eighth Circuit? So after district court denied a stay Hansen: Correct. Barnes: Then there was not an appeal but a request is it then a request for a stay in the Eighth Circuit? Hansen: I think they might have even filed a notice of appeal and a stay request in the Eighth Circuit. Barnes: Okay but its not necessarily asking for a stay from the higher court isnt an appeal is that right or? Hansen: Its an appeal of order. Leighton: Yeah. Under the federal rules, the denial of injunction is appealable and a stay is a form of an injunction. (02:06:53) 6

Barnes: Okay. Leighton: So the typical approach is that they file a notice of appeal as a denial of a stay and they file a ___ Hansen: Alright, Justice Alitos stay was issued that night. The stay was granted based on the request for the stay of Missouri Batson issue and the court did not rule that evening on the request for stay on the Lombardi cert petition. They did do that the next day when they lifted the stay of the Batson claim and at Barnes: Okay, let me back up. So weve got, sorry to be confused, do we have parallel requests for stays being filed? (02:07:53) So theres a request filed in circuit court, theres a request filed in the eighth circuit, and then at the same time, theres a request for stay that skips all of the above and goes to the Supreme Court? Im trying to figure out how, if the eighth circuit stay was to point to the pendency of something at the Supreme Court, how we got to the Supreme Court to start with. Hansen: Because they had filed a cert petition, the Lombardi cert petition was a decision of the eighth circuit en banc, all the judges; and they filed a cert petition appealing that decision to the United States Supreme Court. So that was the next place for them to go. They also (02:08:43) McManus: Now was that in a separate case though? Hansen: That was the rising out of what we call the Zink law suit Barnes: Okay. So that was Zink and then in addition to Zink, so thats how, thats how that got to the Supreme Court? Leighton: Yes. Barnes: And the eighth circuit said, when the request for a stay was made, the eighth circuit pointed to the Supreme Court. So, look, Zink or Lombardi is at the Supreme Court okay. So then Alito makes a stay on Batson. Hansen: Not the Lombardi case but on they had also filed ___ at the same time, appealing the Missouri Supreme Courts decision denying leave on the Batson claim. Barnes: Then the court, Supreme Court, withdraws the stays. Hansen: They lifted the stay on the day of execution, on the 29th, at 4:36 p.m. The court lifted Judge Alitos stay on the Batson claim and at the same time they issued an order denying the stay request on the Lombardi claim which they had not ruled on the night before because they had already granted the stay on the Batson claim. Barnes: And then the stay goes back to the eighth circuit no, alright. Hansen: There wasnt much time left in the execution warrant and so we did. Because the stay granted was a panel decision 7

Hansen: Eighth circuit stay. Leighton: Yeah the eighth circuit stay was So the Supreme Court had lifted their stay, the only other stay, there was one stay that was in effect. That was the eighth circuit stay that had been issued the night before at 10:15 and so, but now, it was 4:36 in the afternoon and theres less than 8 hours left in the execution warrant. Uh, presumably we could have asked the eighth circuit on the court en banc to reverse the panel decision but we went directly to the United States Supreme Court. And really this is another issue, another point to make, because the United States Supreme Court, in denying a stay at 4:36 on the Lombardi cert petition, they made it clear that the cert petition is pending for us but we do not believe that that is sufficient to stay this execution, therefore, were not granting a stay. (02:11:33) Well the stay that was issued by the eighth circuit said were not granting that stay because youve got that Lombardi petition for the United States Supreme Court but the Supreme Court had just said thats not sufficient to grant a stay for Mr. Smulls. So we discussed, out of an abundance of caution, we went back to the United States Supreme Court and we filed a motion with the, asking them to vacate the stay issued by the eighth circuit on the Lombardi claim and thats what they did. So really, they told us a second time on that issue that this is not a sufficient reason to stay the execution. So not only did we go to the court three times that day, the United States Supreme Court answered that question two times within five hours. (02:12:20) Barnes: Further questions? Representative Rizzo proceed. Rizzo: I excuse me, I asked the director earlier and he didnt know he kind of diverted you guys. How do you, we make decisions on who goes next and so on and so forth? I mean I just was cur I Leighton: No one in this room gets Rizzo: Yeah and thats what, its just a question. Leighton: The practice that been at the attorney generals office for many years has been to move for execution dates to be set when we think that the pending litigation to an inmate has been completed that kind of goes to the trial specific items that Representative Barnes spoke of. So there would be a direct appeal, a post-conviction case with an appeal, and a federal habeas case would come to a conclusion. At that point the court can set a date and what criteria the court uses in setting a date and what criteria the court uses in setting a date are.. thats the courts. (End) (02:13:33)

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