The Alabama Supreme Court has granted the state’s request to execute Kenneth Eugene Smith by nitrogen hypoxia, according to Alabama Attorney General Steve Marshall.
Smith was twice convicted by juries for the murder-for-hire of Elizabeth Dorlene Sennett in her home in Colbert County in 1988. Sennett was a pastor’s wife who was beaten and stabbed. Smith confessed to his role in the crime. Smith has been on death row since 1996.
Smith would be the 1st inmate executed by nitrogen hypoxia, a method the Legislature approved in 2018 but that no state has ever used.
“Elizabeth Sennett’s family has waited an unconscionable 35 years to see justice served,” Marshall wrote on X, the platform previously called Twitter.
“Though the wait has been far too long, I am grateful that our talented capital litigators have nearly gotten this case to the finish line,” Marshall wrote.
The justices voted 6-2 to grant the state’s request, with 1 justice recusing. The order, issued Wednesday, does not set a date, but says that Gov. Kay Ivey is to schedule a timeframe in not less than 30 days.
Ivey’s communications director, Gina Maiola, said the timeframe has not been determined.
Justices Greg Shaw, Tommy Bryan, Will Sellers, Brady Mendheim, Sarah Stewart, and Jay Mitchell concurred with the decision. Chief Justice Tom Parker and Justice Greg Cook dissented. Justice Kelli Wise recused.
Smith’s lawyers, Robert Grass and Andrew Johnson, said it would be wrong to execute Smith with an untested method.
“We are disappointed in this decision and will continue to pursue the enforcement of Mr. Smith’s rights through the judicial process,” Grass and Johnson said in a statement. “It is noteworthy that 2 justices dissented from this Order. Like the eleven jurors who did not believe Mr. Smith should be executed, we remain hopeful that those who review this case will see that a second attempt to execute Mr. Smith – this time with an experimental, never-before-used method and with a protocol that has never been fully disclosed to him or his counsel – is unwarranted and unjust.”
The statement refers to the jury voting 11-1 to recommend a sentence of life without parole after Smith’s conviction in 1996.
Alabama tried to execute Smith by lethal injection in November 2022 but stopped the procedure because workers were unable to start an intravenous connection before the execution warrant expired at midnight.
In a federal lawsuit, Smith had sought to block a second attempt to execute him by lethal injection, alleging it would subject him to cruel and unusual punishment. Smith claimed he was strapped to a gurney and poked with needles for several hours during the unsuccessful attempt to tap his veins.
State officials told the federal court they would not try again to execute Smith by lethal injection. Instead, on Aug. 25, Marshall asked the Alabama Supreme Court to set a date to execute Smith by nitrogen hypoxia.
Smith’s attorneys have also gone to court to try to block his execution by nitrogen hypoxia.
The state has noted that Smith, as part of his lawsuit to avoid lethal injection, supported his argument by saying the state had an alternative method available, nitrogen hypoxia. Smith claims that does not waive his right to challenge nitrogen hypoxia.
Alabama’s redacted protocol for nitrogen hypoxia says the condemned inmate will be on a gurney and have a mask placed on his face. It says the nitrogen gas will be administered for 15 minutes or for 5 minutes following a flatline indication on the EKG, whichever is longer.
John Palombi, assistant federal defender for the Middle District of Alabama, said the state needs to disclose more information about how nitrogen hypoxia will work before using it.
“Yesterday, the Alabama Supreme Court, over the dissents of Chief Justice Parker and Justice Cook, authorized Mr. Smith’s execution based on a heavily redacted protocol that was adopted in secrecy,” Palombi said. “In the interest of transparency and safety, when a state chooses to kill one of its citizens using an untried method, the Governor should postpone setting an execution date for Mr. Smith until a less redacted protocol is produced and the constitutionality of this protocol can be litigated.”
Source: al.com, Staff, November 3, 2023
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