SMULLS, HERBERT

DOB: November 28, 1957
Race: African-American
Gender: Male

CRIME AND TRIAL

County of conviction: St. Louis
Number of counts: 1 (not including one victim injured but not killed during same incident)
Race of victim:
Gender of victim: Male
Date of crime: July 27, 1991
Date of sentencing: December 21, 1992

TRIAL COUNSEL:

Karen Kraft

LEGAL STATUS:

• Rehearing en banc pending in Eighth Circuit, Case No. 05-2456.

• Eighth Circuit grants AG’s motion for rehearing vacating their own decision which reversed the D. Court’s denial of habeas, February 2, 2007.
   

CURRENT COUNSEL:

Cheryl Pilate
Charlie Rogers
Wyrsch & Hobbs
1000 Walnut Street, Ste 1600
Kansas City, MO  64106
816-221-0080

Jeremy Weis
Berkowitz Oliver
Williams Shaw & Eisenbrandt LLP
2600 Grand Boulevard, Suite 1200
Kansas City, MO  64108
816-627-0311
816-561-7007 fax
jweis@bowse-law.com

REPORTED OPINIONS:

• Eighth Circuit grants AG’s motion for rehearing vacating their own decision which reversed the D. Court’s denial of habeas, February 2,
  2007.
   
• Eighth Circuit reverses D. Court’s denial of habeas based on Batson claim and remands for determination of whether strike was racially motivated, Smulls v. Roper, 467 F.3rd 1108 (8^th Cir. 2006), Vacated 2/2/07.
   
• Eighth Circuit reverses D. Court’s denial of habeas based on Batson claim and remands for determination of whether strike was racially motivated, Smulls v. Roper, 467 F.3rd 1108 (8^th Cir. 2006), Vacated 2/2/07.
   
• Denial of post-conviction relief affirmed by State v. Smulls, 71 S.W.3d 138 (Mo. banc),  cert. denied, 123 S.Ct. 503 (2002)
   
• Denial of post-conviction relief following earlier remand reversed and remanded by Smulls v. State, 10 S.W.3d 497 (Mo. banc), cert. denied, 531 U.S. 881 (2000).
   
• Conviction and sentence affirmed, denial of post-conviction relief reversed and remanded, by State v. Smulls, 935 S.W.2d 9 (Mo. banc 1996), cert. denied, 520 U.S. 1254 (1997).

SIGNIFICANT LEGAL ISSUES:

• Impartiality of second judge considering defendant's 29.15 motion, in light of first judge's statement that he spoke to the second judge after his own disqualification for alleged racial bias.
   
• Sufficiency of prosecution's asserted race- and gender-neutral reasons for peremptory strikes under Batson; trial court's refusal to require state to provide gender-neutral reasons for striking females from jury, prior to Supreme Court decision extending Batson to gender-based strikes; trial judge's gender bias as suggested by prior judgment against him for discriminating against a female employee on the basis of gender
   
• Trial judge's statements regarding Batson challenge, indicating possible racial bias

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