Below are some of the emails sent Wednesday night from Smulls’ attorneys to state lawyers as the deadline drew near for the expiration of the death warrant authorizing their client’s execution. Over and over again, the defense tried to impress upon state officials the need to wait for the judicial process to play out before executing Smulls:

Such frantic communication from defense attorneys to state officials is not uncommon in the hours leading up to an execution-- the state, after all, has the body of the man it seeks to execute (literally, habeas corpus). What is striking here, though, is not just that state lawyers failed or refused even to respond to Smulls’ attorneys but that these officers of the court, and corrections officials, essentially divested the Supreme Court of jurisdiction by killing the litigant.

The timeline is everything here. Before 10:00 that night, Smulls’s attorney notified state officials that there were active pending appeals at the both the Supreme Court and the 8th Circuit. “Do not execute Mr. Smulls while claims for legal relief and stay are pending,” the defense attorneys pleaded with opposing counsel. There was no email response from Missouri’s lawyers, Smulls' attorney Cheryl Pilate told me Friday. There was instead a single telephone call, much earlier in the evening, in which a state attorney acknowledge the existence of a stay (before filing to have that stay removed).

At 10:11, the final lethal injection protocols were initiated. By this time, the 8th Circuit had rejected all of the claims before it—over another pointed dissent from Judge Bye—leaving only an active appeal before the Supreme Court. At 10:20 Smulls was pronounced dead. Ten minutes later, at 10:30, the Supreme Court notified the lawyers that Smulls’ final stay request had been denied at 10:24. This means that Missouri began to execute a man 13 minutes before it was entirely sure it could do so. Smulls was pronounced dead four minutes before the Supreme Court finally authorized Missouri to kill him.

Via email Friday, I asked state attorneys to comment upon the emails they received from defense attorneys and Missouri’s evident lack of response to them. I asked them to explain their rationale in proceeding with the execution knowing the justices still had the case. Through a spokeswoman, late Friday, they responded:

The law is clear: the pendency of litigation is insufficient to stop an execution. Barefoot v. Estelle, 463 U.S. 880, 895-96 (1983). The legal mechanism for a federal court to stop an execution is a court-ordered stay. On January 29, 2014, the State of Missouri directly asked the United States Supreme Court if the execution of Mr. Smulls should be stopped. The Court said no three times that day prior to execution, lifting all stays.

Attorneys for the State were in contact with the clerks of both the Eighth Circuit Court of Appeals and the United States Supreme Court throughout the evening of the execution. Both courts were aware that the execution would proceed once all stays had been lifted. No stay of execution was in effect at time of the execution.