Smith, 41, asked for the stay because of a proposed moratorium on the death penalty that is before the state Legislature.
He is set to be executed by lethal injection April 4 at the Oklahoma State Penitentiary in McAlester.
"Petitioner's claim of harm is based solely upon speculation that House Bill 3138 will pass and become law," judges said. "Petitioner has failed to show a clear legal right to the relief requested."
Smith asked for the stay March 8, after the House Criminal Justice and Corrections Committee voted 4-0 to pass HB 3138. The moratorium, if it becomes law, would halt executions currently scheduled and prevent state courts from imposing new death penalty sentences.
"A stay ... until the resolution of this pending bill calling for a moratorium would protect Mr. Smith from the deprivation of his life and liberty and prevent a manifest injustice in the event that a moratorium on executions becomes effective just shortly after Mr. Smith's execution," his attorneys told the court in their emergency request.
Death penalty moratorium passes Oklahoma House committee, but it's unlikely to become law Attorney General Gentner Drummond and an assistant told the court a request for that reason is barred by state law. They also pointed out that the bill's author, Rep, Kevin McDugle, R-Broken Arrow, "is very pessimistic about its chances."
The bill is not expected to even be heard on the House floor.
Oklahoma death row inmate Michael DeWayne Smith speaks during his clemency hearing March 6. Smith faces execution for two 2002 murders. He claims he is innocent even though he confessed to police. His attorneys also claim he is intellectually disabled.
The Oklahoma Pardon and Parole Board voted 4-1 March 6 to deny him clemency.
Smith told the parole board he was hallucinating from his drug use when he confessed to police. "I didn't commit these crimes. I didn't kill these people. I was high on drugs," he said.
What to know about the case
Smith was convicted at trial of 1st-degree murder for 2 fatal shootings in Oklahoma City on Feb. 22, 2002. Jurors agreed he should be executed for both deaths.
The 1st victim, Janet Moore, 40, was shot once at her apartment. The second victim, Sharath Babu Pulluru, 24, was shot 9 times at a convenience store then doused with lighter fluid and set on fire.
Neither was Smith's original target, according to testimony at the 2003 trial.
At the time, he was 19 and a member of a street gang in Oklahoma City known as the Oak Grove Posse. He also was high on PCP and hiding from police, who had a warrant for his arrest on a 2001 murder case.
In the first shooting, Smith actually was looking for Moore's son, Phillip Zachary, because he mistakenly thought Zachary was a snitch, prosecutors said.
"It's her fault she died," he told police. "She panicked and she got shot. ... She like, 'Help! Help!' I'm like, I had to. I had no choice."
Smith next went to the A&Z Food Mart to shoot a worker over comments to the newspaper about a robbery at another food mart next door, prosecutors said. He instead killed Pulluru, who was filling in at the store for a friend.
A clerk at the Trans Food Mart had killed a fellow gang member during a robbery on Nov. 8, 2000. A worker at the A&Z Food Mart had told The Oklahoman in 2000 he was proud of his neighbor.
"The rest of the kids will learn a lesson by him being dead and stop doing these things," the A&Z Food Mart worker had said.
The shootings in 2002 came days before a trial for two other gang members involved in the robbery was set to begin. Smith confessed to his roommate and a neighbor before his arrest, according to their testimony at his trial.
Smith also had asked for a stay of his execution as he seeks DNA testing on evidence from the A&Z Food Mart in support of his innocence claim. The Court of Criminal Appeals denied that request Monday in a separate order.
Smith was convicted at a separate trial of 2nd-degree murder for the fatal shooting of Otis Payne outside an Oklahoma City club on Nov. 24, 2001. He had admitted to police that he handed the gun to the shooter, David Burns. He was sentenced to life in prison for that crime.
Source: The Oklahoman, Staff, March 26, 2024
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"One is absolutely sickened, not by the crimes that the wicked have committed,
but by the punishments that the good have inflicted."
but by the punishments that the good have inflicted."
— Oscar Wilde
