Steve Marshall: Kenneth Eugene Smith didn’t suffer in aborted lethal injection
Arguing against a lawsuit, Alabama’s attorney general contended that an inmate did not suffer unconstitutionally during a lethal injection that was called off last year when the execution team couldn’t establish an intravenous line despite repeated attempts. Alabama Attorney General Steve Marshall’s office asked a judge to dismiss the lawsuit filed by Kenneth Eugene Smith seeking to prevent the state from making a second attempt to put him to death. The attorney general argued that repeatedly being pricked with a needle does not rise to the level of cruel and unusual punishment and that Smith did not suffer unconstitutional pain and mental anguish during the attempted execution. “Allegations of pain related to difficulty achieving intravenous access do not amount to cruel and unusual punishment,” lawyers for the state wrote in the Monday court filing. Smith was scheduled to be put to death by lethal injection on November 17 for the 1988 murder-for-hire slaying of Elizabeth Dorlene Sennett. Prison officials called off Smith’s execution for the night after they were unable to establish IV access. The failed execution was the second instance that year of Alabama being unable to carry out an execution because of difficulties connecting intravenous access and its third since 2018. The problems led to Alabama Gov. Kay Ivey seeking a pause in executions to conduct a “top-to-bottom” review of the state’s capital punishment system. The Alabama Supreme Court, at Ivey’s request, abolished the previous one-day timeframe to carry out a death sentence. Instead, the governor will set a window of time for the execution to be carried out. The prison system had blamed last-minute legal filings — combined with a midnight deadline to get the execution started — as a reason for calling off Smith’s execution. Smith’s lawyers argued in the court filing that Smith was “subjected to ever-escalating levels of pain and torture” on the night of the “botched” execution. They argued prison staff strapped Smith to a death chamber gurney, despite a court order in place at the time blocking the execution from going forward, and later subjected him to numerous needle jabs, including in the neck and collarbone region. Republished with the permission of The Associated Press.
Attorneys: ‘Botched’ execution caused pain and torture
Alabama prison staff strapped an inmate to a death chamber gurney, despite a court order in place at the time blocking the execution from going forward, and later subjected him to numerous needle jabs, including in the neck and collarbone region while an official held his head, attorneys wrote in a court filing. Attorneys for Kenneth Eugene Smith claimed the state violated the U.S. Constitution, various court orders, and its own lethal injection protocol during the “botched” execution attempt earlier this month. Smith’s attorneys are asking a federal judge to forbid the state from making a second attempt to execute him, saying Smith was already “subjected to ever-escalating levels of pain and torture” on the night of the failed execution. “Defendants’ treatment of Mr. Smith does not fall within society’s standards for a constitutional execution. The botched execution was terrifying and extremely painful for Mr. Smith,” attorneys for Smith wrote in the complaint filed in federal court. The lawsuit accuses the state of violating the constitutional ban on cruel and unusual punishment, seeks monetary damages, and asks for an injunction to block Alabama from “making a second attempt to execute Mr. Smith.” The Alabama Department of Corrections did not immediately respond to an email seeking comment. Alabama Gov. Kay Ivey last week announced a temporary pause in executions to review the state’s capital punishment system, citing concerns for victims’ families that death sentences were delayed. “For the sake of the victims and their families, we’ve got to get this right,” Ivey said. Smith was scheduled to be put to death by lethal injection on November 17 for the 1988 murder-for-hire slaying of Elizabeth Dorlene Sennett. Prison officials said they called off Smith’s execution for the night after they were unable to establish IV access within the 100-minute window between the court clearing the way for it to begin and a midnight deadline. Smith’s attorneys say the state strapped Smith to the death chamber gurney at about 8 p.m. and left him there even though the 11th U.S. Circuit Court of Appeals issued a stay at 7:59 p.m. Smith was not told of the stay and had no way to communicate with his attorney or family as he lay strapped to the gurney, his attorneys said. “The execution continued on in defiance of the Eleventh Circuit’s stay, with Mr. Smith remaining strapped to a gurney until nearly midnight,” attorneys wrote. The U.S. Supreme Court lifted the stay shortly at 10:20 p.m., and it was around that time that the execution team began trying to establish IV access, according to the court filing. Smith was jabbed with needles multiple times in his arms, hands, neck, and collarbone region “well past the point at which the executioners should have known that it was not reasonably possible to access a vein,” his attorneys wrote. Smith’s attorneys wrote that the team tilted Smith in “an inverse crucifixion position” while strapped to the gurney and left him there for several minutes. Attorneys said they also believe the team injected Smith with “some sort of sedative and/or anesthetic”— violating assurances to a federal judge in court proceedings that they do not use intramuscular injections. Attorneys said the prison team then used a large gauge needle to try to establish a line through a blood vessel beneath the collarbone. When Smith did not comply with a request to turn his head, a deputy warden held “Smith’s head in both his hands, torqued it to the side, saying, ‘Kenny, this is for your own good.’” After multiple attempts, the execution team left the chamber, and Smith and his attorneys later learned sometime before midnight that the execution had been called off for the night. It was the state’s second such instance of being unable to kill an inmate in the past two months and its third since 2018. The state completed an execution in July, but only after a three-hour delay caused at least partly by the same problem with starting an IV line. The Alabama Department of Corrections has disputed that the cancellation of Smith’s execution was a reflection of problems. The department blamed the late-running court action, saying, “ADOC had a short timeframe to complete its protocol.” Republished with the permission of The Associated Press.
Judge dismisses lawsuit over upcoming lethal injection
A federal judge dismissed an inmate’s claim seeking to block his upcoming execution in Alabama because of reported problems at a recent lethal injection. The judge on Sunday granted Alabama’s request to dismiss the lawsuit brought by Kenneth Eugene Smith, agreeing that Smith waited too long to file the challenge. But U.S. District Judge R. Austin Huffaker Jr. also warned Alabama’s prison commissioner to strictly follow established protocol when officials attempt to put Smith to death next month. “Sanctions will be swift and serious if counsel and the Commissioner do not honor or abide by their representations and stipulations,” Huffaker wrote. Smith is set to be executed by lethal injection November 17 after being convicted in the murder-for-hire killing of Elizabeth Dorlene Sennett, 45. Smith’s attorneys pointed to a July execution, which an anti-death penalty group claims was botched, to argue that Alabama’s lethal injection process creates a risk of cruel and unusual punishment. The July 28 execution of Joe Nathan James Jr. was carried out more than three hours after the U.S. Supreme Court denied a request for a stay. State officials later acknowledged the execution was delayed because of difficulties in establishing an intravenous line but did not specify how long it took. A doctor who witnessed a private autopsy paid for by an anti-death penalty group said it appeared officials might have attempted to perform a “cutdown,” a procedure in which the skin is opened to allow a visual search for a vein. Huffaker noted that Corrections Commissioner John Hamm “represents in his brief and during oral argument that the ADOC did not employ a cutdown procedure or intramuscular sedation during the James execution and denies any present intent to employ any such procedure in the future.” Huffaker ruled that Smith missed the time frame to challenge Alabama’s lethal injection process. Smith missed the 2018 deadline to request execution by nitrogen hypoxia, an execution method that Alabama has authorized but not developed a process to use. Smith’s attorneys argued that the state violated his due process rights by not providing him the information necessary to make a knowing and voluntary waiver of his nitrogen hypoxia election right in 2018. ADVERTISEMENT His attorneys argue that Smith did not know nitrogen hypoxia “would not be implemented for years, if ever.” Huffaker said that complaint also could not overcome a “clear statute-of-limitations hurdle.” Prosecutors said Smith was one of two men paid $1,000 to kill Sennett on behalf of her husband, the Rev. Charles Sennett, who was deeply in debt and wanted to collect on insurance. Smith maintained it was the other man who killed Sennett, according to court documents. Smith was initially convicted in 1989, and a jury voted 10-2 to recommend a death sentence, which a judge imposed. His conviction was overturned on appeal in 1992. He was retried and convicted again in 1996. This time, the jury recommended a life sentence by a vote of 11-1, but a judge overrode the jury’s recommendation and sentenced Smith to death. Alabama no longer allows a judge to override a jury’s recommendation. Republished with the permission of The Associated Press.
Judge grills Alabama officials over lethal injection process
A federal judge on Thursday questioned Alabama officials about the state’s lethal injection procedures — including how many needle “pokes” are too many — after problems with vein access at the state’s last two scheduled executions. U.S. District Judge R. Austin Huffaker, Jr. put forth the questions during a court hearing in a lawsuit filed by Kenneth Eugene Smith, who is seeking to block his upcoming Nov. 17 execution. His attorneys have pointed to problems at recent lethal injections. Alabama called off a lethal injection last month after having trouble accessing the veins of the 351-pound (159-kilogram) inmate, and advocacy groups have alleged a July execution, carried out after a lengthy delay, was botched. Huffaker asked an attorney for the state at what point is the search for a vein impacted by the constitutional ban on cruel and unusual punishment. “It is 10 pokes? Is it 11? Is it 100? Is it one hour? … What is it?” Huffaker asked. He also asked when does the state make a decision to abort a lethal injection when there are problems obtaining a vein connection. Robert Anderson, of the Alabama attorney general’s office, said the state prison commissioner and warden are in charge of the decision on when to call off an execution. Huffaker also asked the state prison commissioner to clarify when the state will be ready to use nitrogen hypoxia, an execution method the state has authorized but never used. Huffaker said the state had told him different things at different times, including once suggesting that it could be ready for last month’s execution — a suggestion that turned out to be untrue. “It’s being developed, but we don’t have a protocol at this point,” Alabama Corrections Commissioner John Hamm told the judge. Anderson added that Alabama is attempting to develop the country’s first procedures for execution by nitrogen hypoxia, so it is a complicated endeavor and difficult to estimate a precise time. Smith, 57, is set to be executed by lethal injection at Holman Correctional Facility on Nov. 17 after being convicted in the 1988 murder-for-hire killing of Elizabeth Dorlene Sennett, a 45-year-old grandmother and pastor’s wife. Smith’s attorney, Robert Grass, said Alabama’s lethal injection procedure creates the intolerable “risk of cruel and unusual punishment.” He also said the state has kept much of the process shrouded in secrecy, including the identities and qualifications of the people who connect the IV line to the inmate. Grass is seeking to obtain records from recent executions and to interview execution team members. Alabama is asking the judge to dismiss Smith’s lawsuit, arguing that courts have long upheld the constitutionality of lethal injection. Alabama last month called off the lethal injection of Alan Miller after being unable to access his veins. The state faced a midnight deadline to get the execution underway. Miller said in a court filing that prison staff poked him with needles for over an hour as they tried to find a vein. Miller’s attorneys are fighting the state’s effort to seek a new execution date for him. The July execution of Joe Nathan James Jr. was carried out three hours after the U.S. Supreme Court said the state could proceed. The state acknowledged that establishing the intravenous line took longer than expected. However, Reprieve US Forensic Justice Initiative, a human rights group that opposes the death penalty, has maintained the execution was botched. Witnesses to a private autopsy said that James’ body showed evidence that officials had attempted to perform a “cutdown,” a procedure in which the skin is opened to allow a visual search for a vein. They also speculated that he may have been given a sedative shot. The state said that a “cut down” is not part of their protocol and that James was not sedated. Hamm, speaking under oath during the Thursday hearing, told the judge that during Smith’s execution that the state will not use a “cut down” procedure and will not give any sort of sedative shot. Republished with the permission of The Associated Press.
Alabama sets execution date for Kenneth Eugene Smith
Alabama has set a November execution date for a man convicted in the 1988 murder-for-hire killing of a pastor’s wife. The scheduled execution follows criticism over the state’s last two lethal injection attempts, including one that was called off after the execution team had trouble finding a vein. Kenneth Eugene Smith, 57, is set to die at Holman Correctional Facility on November 17, according to a Friday order from the Alabama Supreme Court. Smith was sentenced to death for the killing of Elizabeth Dorlene Sennett, a 45-year-old grandmother and pastor’s wife. Prosecutors said Smith was one of two men who were each paid $1,000 to kill Sennett on behalf of her husband, the Rev. Charles Sennett, who was deeply in debt and wanted to collect on insurance. Elizabeth Sennett was found dead on March 18, 1988, in the couple’s home in Colbert County. The coroner testified that she had been stabbed eight times in the chest and once on each side of the neck. The pastor killed himself a week later. Smith maintained it was the other man who stabbed Elizabeth Sennett, according to court documents. Smith was initially convicted in 1989, and a jury voted 10-2 to recommend a death sentence, which a judge imposed. His conviction was overturned on appeal in 1992. He was retried and convicted again in 1996. This time, the jury recommended a life sentence by a vote of 11-1, but a judge overrode the jury’s recommendation and sentenced Smith to death. Alabama no longer allows a judge to override a jury’s recommendation. In 2017, Alabama became the last state to abolish the practice of letting judges override a jury’s sentencing recommendation in death penalty cases, but the change was not retroactive and therefore did not affect death row prisoners like Smith. John Forrest Parker, the other man that prosecutors said was paid to kill Elizabeth Sennett, was executed in 2010. When asked if he had any final words, Parker turned his head to face Mike and Charles Sennett, the victim’s sons, and said, “I’m sorry. I don’t ever expect you to forgive me. I really am sorry.” Alabama last month called off the execution of Alan Miller because of difficulty accessing the inmate’s veins. Alabama Corrections Commissioner John Hamm told reporters that “accessing the veins was taking a little bit longer than we anticipated,” and the state did not have sufficient time to get the execution underway by a midnight deadline. That was at least the third time Alabama has acknowledged problems with venous access during a lethal injection. The state’s July execution of Joe Nathan James took more than three hours to get underway. And, in 2018, Alabama called off the execution of Doyle Hamm after being unable to establish an intravenous line. Republished with the permission of The Associated Press.
