Missouri Executions loom as part of chief justice's legacy Since 2013, the state supreme court has issued execution warrants for 20 men

By Scott Lauck The Daily Record Newswire ST. LOUIS, MO - When Judge Mary R. Russell became chief justice of the Missouri Supreme Court two years ago, she was asked what the court would do about the death penalty, then long on hold in the state. She noted that a federal challenge to Missouri's method of execution was ongoing. "As soon as that is announced," she said at the time, "then we'll take that decision and consider what to do next." What came next was a string of executions unprecedented in modern Missouri. Since late 2013, the Supreme Court under Russell has issued execution warrants for 20 men, including one scheduled for next month. Sixteen inmates have been put to death so far - almost as many executions as took place under Russell's six immediate predecessors combined. At a press conference last week to mark the end of her two-year term on June 30, Russell said the number of recent executions was the result of a large backlog of death-sentenced inmates whose appeals had been exhausted. She noted that all decisions, including executions, involve a majority of the court, and that the court is required by law to set them when the attorney general requests them. "It's nothing I've done individually," she said. "It's the court as a whole that operates on this." Still, the chief justice appears to have some discretion in the pace and timing of executions. Backlog or no, some say the court's nearly-one-per-month pace can be attributed to a combination of Russell's administrative powers and persuasive authority. "The 30-day pace of executions, one execution per month - that's her," said Sean O'Brien, a law professor at the University of Missouri-Kansas City and a veteran death penalty litigator. "The Missouri Supreme Court isn't obligated to jump when the attorney general says 'boo!'" he said. "The Missouri Supreme Court absolutely sets the pace." Change in stance Missouri's lethal injection methods have been the subject of litigation in federal courts for years, alleging that the state's execution protocol constituted cruel and unusual punishment. Previous chief justices had cited the litigation as reason not to set executions. Between 2005 and 2013, just two men were put to death. Judge Richard Teitelman, who led the court from 2011 to 2013, signed an order in 2012 that declined to set execution dates, saying it was "premature" in light of a trial on the matter scheduled later that year. Judge William Ray Price Jr. who served as chief justice from 2009 to 2011, said when he took office that "I doubt if we will do anything" while the federal litigation remained ongoing. But on July 1, 2013, Russell's first official day as chief justice, Attorney General Chris Koster filed renewed motions for the court to set executions. "For nearly a decade, the mere pendency of federal litigation has been used as an artificial hurdle, unauthorized by law or federal court order, to prevent the State from carrying out the death penalty," Koster said in a written statement at the time. The court began setting executions the following month. The 8th U.S. Circuit Court of Appeals has repeatedly upheld Missouri's method of execution, despite challenges not only to the various drugs proposed for use but also to the secrecy with which the state obtains those drugs. Earlier this year, it upheld the dismissal of one of the main challenges to Missouri's execution protocol. Soon after, a July 14 execution was set for the lead plaintiff in that action, David Zink. Though the executions have coincided with Russell's tenure, the court's change in stance isn't necessarily attributable entirely to her. Judge Paul C. Wilson replaced Price on the court in late 2012, possibly providing a change in votes. However, Wilson's and the rest of the judges' stances on most of the execution settings isn't known. The court typically sets executions in orders that don't disclose the results of any vote that may have taken place. Still, some of the lines of disagreement have become clear over the past year. Since last July, the court has issued written opinions in four death penalty cases in which legal claims were raised at the last minute. In three of those, the judges split 4-3 along the same lines: Russell and Wilson, along with Judges Patricia Breckenridge and Zel M. Fischer, voted to allow the execution, while Teitelman and Judges Laura Denvir Stith and George W. Draper III argued that the inmate should get a hearing. The execution earlier this month also drew a last-minute ruling from the Supreme Court, though with a wider margin. A few days before Richard Strong was put to death on June 9, the court ruled 6-1 not to grant a stay. Only Teitelman voted to allow Strong to pursue his claims of mental illness. In one of her recent dissents, Stith criticized the effect that "Missouri's sudden rush of executions" has had on the attorneys who represent those inmates during their last days. A small cadre of lawyers, most at small firms or solo practices, has provided the bulk of the representation, raising questions about whether those attorneys are able to provide adequate legal help on a grueling month-after-month schedule. "They're all people in small firms with limited resources, screaming for help and money and investigative resources and time, and just simply not getting it," O'Brien said. Judge Breckenridge is set to succeed Russell as chief justice on July 1. Though Breckenridge has typically voted alongside Russell in last-minute death penalty appeals, it's not yet clear if she will continue to set executions at the current pace. E-filing, muni courts While death penalty issues seem likely to be part of Russell's legacy on the court, she has other issues she prefers to highlight. At her press conference on Tuesday, Russell touted the expansion of the electronic filing system on Case.net. She said 82 courts are on e-filing, 100 are expected by the end of year, and every court should be on the system by this time next year. Russell also noted that the Court Automation Committee is studying an expansion of that system to the general public, which would allow nonlawyers to view court documents from their home computers rather than at courthouse terminals. Though she termed the public expansion a "high priority," she said privacy issues remain a concern. She gave no timetable other than to say "someday it will be a reality." "There are a lot of things that are not as easy as you'd like it to be," she said. Russell also spoke about the Supreme Court's efforts to address municipal courts in St. Louis County, which have been the subject of withering criticism and a harsh U.S. Department of Justice investigation following last year's unrest in Ferguson. Russell noted that the court in December approved a rule change intended "to make crystal clear that no one could be put into jail for failure to pay a fine." "We do not have debtors' prisons in Missouri," she said. She also noted the court's unusual appointment in April of Judge Roy Richter of the Court of Appeals Eastern District to take over the Ferguson Municipal Court. The court had been excoriated in the federal report for focusing more on revenue rather than public safety, prompting the previous municipal judge to resign. Russell praised Richter's efforts, as well as those of retired St. Louis Circuit Judge Donald McCullin, whom the Ferguson City Council earlier this month named to the post permanently. "I think public trust and confidence has been restored to that court," Russell said. Published: Fri, Jul 03, 2015