Alabama man faces 2nd execution date this year for killing
An Alabama man who avoided execution in February was scheduled to be put to death Thursday for the 1991 killing of a woman taken at gunpoint from an ATM location and shot in a cemetery. Willie B. Smith III, 52, was scheduled to receive a lethal injection at a southwest Alabama prison for his conviction in the kidnapping and murder of 22-year-old Sharma Ruth Johnson. The state prepared to carry out the execution Thursday evening after the U.S. Supreme Court denied a request to halt the plan. Prosecutors said Smith had a shotgun when he abducted Johnson in October 1991 from an ATM location in Birmingham. He withdrew money using her bank card and then took her to a cemetery and shot her in the back of the head. Johnson was the sister of a Birmingham police officer. This is Smith’s second execution date this year. Last Feb. 11 — while Smith was in a holding cell near Alabama’s death chamber — the state called off a lethal injection when the U.S. Supreme Court upheld an injunction affirming he could not be executed unless allowed to have his pastor by his side. The Alabama prison system has now said Smith will be able to have his pastor with him Thursday in the death chamber. Smith’s lawyers had argued he has an intellectual disability that prevented him from understanding the prison paperwork related to selection of an execution method. They asked justices to stop the lethal injection. Experts have estimated Smith’s IQ from 64 on the low end and 75 on the high end, but courts have ruled he is eligible for the death penalty. A defense expert in a post-trial appeal said while Smith’s IQ was measured at 64, his language, reading, and mathematics skills, and that these particular results were inconsistent with a diagnosis of intellectual disability. The Supreme Court ruled in 2002 that executing intellectually disabled people is unconstitutional. In reviewing Smith’s case in 2019, the 11th U.S. Circuit Court of Appeals ruled that a later Supreme Court decision that “states may not weigh a defendant’s adaptive strengths against his adaptive deficits” in determining disability did not retroactively apply to Smith. Last-minute court filings centered on whether Smith should have been given assistance to understand the form distributed to death row inmates in 2018 regarding the selection of an execution method. After adopting nitrogen hypoxia as an execution method, state law gave inmates a 30-day window to request that as their preferred execution method. If Smith had requested nitrogen hypoxia, his death sentence could not be carried out to date because the state has not yet developed a system for using nitrogen to execute inmates. Smith’s attorneys had unsuccessfuly asked the Supreme Court to stay the execution by lethal injection until a trial could be held in his ongoing lawsuit arguing that the Americans with Disabilities Act required him to have assistance in understanding the form. While the 11th Circuit denied the stay request, one member of the three-judge panel sharply criticized Alabama. Circuit Judge Jill Pryor wrote in a concurring opinion the state has acknowledged Smith has “significantly subaverage intellectual functioning” and that Smith said he received no explanation of the form related to execution method selection. “It disturbs me that ADOC, which took on the responsibility to inform prisoners about their right to elect death by nitrogen hypoxia within 30 days, did so in such a feckless way,” Pryor wrote. The state of Alabama argued that Smith had access to his lawyers for help in requesting nitrogen. The Department of Corrections changed some procedures in the face of the COVID-19 pandemic. The prison system limited media witnesses to the execution to one journalist, a representative from The Associated Press. Republished with the permission of the Associated Press.
Alabama only state to limit media to 1 witness at execution
Alabama will be the third state to carry out an execution during the COVID-19 pandemic and will be the only prison system to reduce the number of news media witnesses to a single reporter. The Alabama Department of Corrections said because of COVID-19 precautions only one reporter, a representative of The Associated Press, will be allowed to witness Thursday’s lethal injection of Willie B. Smith. The state in the past allowed five media witnesses, although the number of outlets sending reporters is sometimes less than that. Only the federal government, Texas, and Missouri have carried out executions since the pandemic began last year. None reduced the number of media witnesses to a single reporter. There have been 19 executions carried out since April of 2020, according to a database maintained by the Death Penalty Information Center. All of them were attended by multiple reporters with the exception of one lethal injection in Texas where the prison system neglected to notify reporters it was time to carry out the punishment. Robert Dunham, executive director of the Death Penalty Information Center, said the media serves an “irreplaceable function” as “the public’s witnesses and play a vital role in holding states accountable when executions visibly go wrong.” “If an execution is not safe enough to be witnessed by the full complement of reporters, the remedy is not to decrease accountability and increase secrecy by excluding media witnesses who would otherwise be permitted to attend. If an execution is not safe enough for witnesses, it is not safe enough to go forward at all,” Dunham wrote in an email. Paige Windsor, the executive editor of the Montgomery Advertiser, said the news organization disagreed “that the press restrictions were necessary for COVID mitigation, especially once a vaccine was available.” “We object to any laws, procedures or practices that limit press coverage of state business, particularly when that business involves killing a human being in the public’s name. Reporting on all aspects of these proceedings is how a free press ensures the public’s business is carried out as prescribed,” Windsor said in an emailed statement. The Alabama Department of Corrections did not immediately respond to an email seeking comment. The prison system wrote in a media advisory issued Monday that the number of witnesses were being limited, “due to measures necessary because of the COVID-19 pandemic.” It is the same procedure and witness restrictions the state planned to use at Smith’s original execution date in February. That execution was called off by the state. Two reporters witnessed the two executions carried out in Missouri during the pandemic. And two or more reporters witnessed the executions in Texas, with the exception of the May lethal injection of Quintin Jones. Two reporters had been set to witness the execution, but a prison spokesperson never received the usual telephone call to bring them to the execution chamber. Thirteen of the 19 executions were carried out by the federal government. The AP served as the national media pool, providing coverage to other outlets, but local news outlets also witnessed the executions. An AP analysis earlier this year found that those executions may have acted as a superspreader event for COVID-19 infections. Most states have not carried out death sentences during the COVID-19 pandemic. Smith is scheduled to be executed by lethal injection for the 1991 kidnapping and killing of Sharma Ruth Johnson, 22. Prosecutors said Smith abducted Johnson at gunpoint from an ATM in Birmingham, stole $80 from her and then took her to a cemetery where he shot her in the back of the head. Smith’s attorneys on Tuesday asked the 11th U.S. Circuit Court of Appeals to block the lethal injection, arguing the intellectually disabled inmate could not understand the prison paperwork that laid the groundwork for the planned lethal injection. Lethal injection is the main execution method used in Alabama. But after lawmakers authorized nitrogen hypoxia as an execution method in 2018, the new law gave death row inmates a 30-day window to select nitrogen hypoxia as their execution method. Nitrogen hypoxia is a proposed execution method in which an inmate would breathe only nitrogen, thus depriving him or her of oxygen, causing unconsciousness and then death. Three states have approved it as an execution method, but it has never been used. Smith did not turn in a form selecting nitrogen, paving the way for the state to execute him next week by lethal injection. The state has not developed a procedure for using nitrogen as an execution method, and at least for now is not scheduling executions with nitrogen hypoxia. “I did not understand the Election Form because I’m slow and have trouble reading,” Smith said, according to a declaration filed with the emergency request for a preliminary injunction. Republished with the permission of the Associated Press.
Ruling could block Alabama execution scheduled next week
An appellate court on Friday ordered a judge to consider a request to block an Alabama execution next week as attorneys argue the low-IQ inmate should have been given help understanding the prison paperwork that laid the groundwork for the planned lethal injection. The three-judge panel directed the district court to decide a request for a preliminary injunction to prevent the state from executing Willie B. Smith III on Thursday. The 11th U.S. Circuit Court of Appeals ruled that a federal judge prematurely dismissed a lawsuit arguing that Smith was due help under the Americans with Disabilities Act in understanding paperwork related to execution method selection. The panel ruled a judge erred in saying Smith did not have standing to bring the claim. Lawyers for Smith said he has an IQ in the 70s and should have received help under the 1990 act that bars discrimination against those with disabilities. Thursday’s execution date and plan is still in place. However, John Palombi, an attorney for Smith said the decision requires the district court judge to decide whether to issue a preliminary injunction. “If the motion for preliminary injunction is granted, it would stop Mr. Smith’s execution and allow this case, which was filed long before the State asked for an execution date for Mr. Smith, to continue with discovery and depositions and go to trial as scheduled in June 2022,” Palombi wrote in an email. Smith was convicted of the 1991 kidnapping and murder of Sharma Ruth Johnson, 22. Prosecutors said Smith abducted Johnson at gunpoint from an ATM in Birmingham, stole $80 from her and then took her to a cemetery where he shot her in the back of the head. The 11th Circuit ruling centered on what, if any, obligations the state had in helping state inmates understand a brief window in which they could change their requested execution method. Lethal injection is the main execution method used in Alabama. But after lawmakers authorized nitrogen hypoxia as an execution method in 2018, the new law gave death row inmates a 30-day window to select nitrogen hypoxia as their execution method. The Federal Defenders for the Middle District of Alabama, who defend death row inmates but weren’t representing Smith at the time, drafted an election form for their clients to request nitrogen. The prison warden later gave every death row inmate a copy of the form. Smith did not turn in a form selecting nitrogen, paving the way for the state to execute him next week by lethal injection. The state has not developed a procedure for using nitrogen as an execution method, and at least for now is not scheduling executions with nitrogen hypoxia. The state argued Smith could not bring the claim because Smith never gave any indication that he wanted to request nitrogen. Smith also had a conversation with his then-lawyer in 2018 when the form was distributed, an attorney for the state told the judges. “The evidence is he talked to his lawyer in June: Nothing,” Alabama solicitor general Edmund G. LaCour told the panel during arguments Wednesday “He did have access to assistance. It’s plain as day.” This is Alabama’s second attempt this year to carry out Smith’s death sentence. The state called off a prior execution plan last Feb. 12 after the U.S. Supreme Court maintained an injunction saying he could not be put to death without his pastor present. The reprieve came the same night of his scheduled lethal injection as he waited in a holding cell near the death chamber. Republished with the permission of the Associated Press.
Mental capacity at issue as Alabama man faces execution date
Federal judges heard arguments Wednesday about whether an Alabama inmate had the mental capacity to understand the paperwork setting up his planned execution next week, with a defense lawyer arguing the man’s cognitive deficiencies warranted disability assistance. The 11th U.S. Circuit Court of Appeals is considering an appeal by Willie B. Smith III, who was convicted of a woman’s 1991 kidnap and killing. His lawyer said the man has an IQ in the 70s and should have received help under the Americans with Disabilities Act to understand a form related to the selection of an execution method. Smith is scheduled to receive a lethal injection on October 21 in the death of Sharma Ruth Johnson, 22. Prosecutors said Smith abducted Johnson at gunpoint from an ATM in Birmingham, stole $80 from her, and then took her to a cemetery where he shot her in the back of the head. This is Alabama’s second attempt this year to carry out Smith’s death sentence. The state called off prior execution plans last February 12 after the U.S. Supreme Court maintained an injunction saying he could not be put to death without his pastor present. The reprieve came the same night of his scheduled lethal injection as he waited in a holding cell near the death chamber. The Americans with Disabilities Act of 1990, also known as ADA, prohibits discrimination based on disability. Smith’s attorneys argued a federal judge wrongly dismissed a lawsuit last month involving the claims about his needing assistance under the federal disabilities act. But the state maintained it was the legally correct decision. Wednesday’s oral arguments centered on what, if any, obligations the state had in helping state inmates understand a brief window in which they could change their requested execution method. “He will be executed by lethal injection in eight days if he does not prevail in this lawsuit,” attorney Spencer Hahn told the appellate panel Wednesday. “Mr. Smith had, and has, cognitive deficiencies such that he could not and can not make the decision to elect a method of execution without reasonable accommodation.” Lethal injection is the main execution method used in Alabama. But after lawmakers authorized nitrogen hypoxia as an execution method in 2018, the new law gave death row inmates a 30-day window to select nitrogen hypoxia as their execution method. The Federal Defenders for the Middle District of Alabama, who defend death row inmates but weren’t representing Smith at the time, drafted an election form for their clients to request nitrogen. The prison warden later gave every death row inmate a copy of the form. Smith did not turn in a form selecting nitrogen. The state has not developed a procedure for using nitrogen as an execution method, and at least for now, is not scheduling executions with nitrogen hypoxia. In dismissing the lawsuit last month, a judge said that the “form was not required, directed, or sanctioned” by state law and “for the entire month of June 2018, both before and after this form was distributed, Smith had the ability to opt into execution by nitrogen hypoxia through any writing he chose.” Smith’s attorneys in their appeal questioned how an “inmate who has been segregated and locked-down; 23 hours a day for almost 30 years with, at best, an IQ of 72 could have and should have known about a change in Alabama law.” Attorneys for the state have disputed that Smith is disabled. The state has argued that the form was not required by state law, and Smith never gave any indication that he wanted to request nitrogen. Smith also had a conversation with his then-lawyer in 2018 when the form was distributed, an attorney for the state told the judges. “The evidence is he talked to his lawyer in June: Nothing,” Alabama solicitor general Edmund G. LaCour told the panel. “He did have access to assistance. It’s plain as day.”
Judge dismisses execution lawsuit, reprimands AG’s office
On Friday, a federal judge paved the way for Alabama to proceed with a lethal injection next month and reprimanded the state attorney general’s office for giving false information to the court during the litigation centered on forms given to death row inmates for selecting an execution method. Chief U.S. District Judge Emily C. Marks dismissed a lawsuit that argued the state failed to give Willie Smith, who has an IQ below 75, required help under the Americans with Disabilities Act in filling out forms that affected the timing of his execution. Smith is scheduled to be executed on Oct. 21 by lethal injection for the 1991 kidnapping and murder of 22-year-old Sharma Ruth Johnson in Birmingham. After Alabama authorized nitrogen hypoxia as an execution method, the state gave death row inmates a brief window to select that as their execution method. The state has not yet developed a protocol for using nitrogen hypoxia and is not setting execution dates for inmates who requested it. Smith did not turn in a form selecting nitrogen. His attorneys argued that the state was required by law to help intellectually disabled inmates like Smith with the form. Marks dismissed the claim, saying the form was not required by state law and that Smith could have written on his own to request nitrogen. Marks ruled that the “form was not required, directed, or sanctioned” by state law and “for the entire month of June 2018, both before and after this form was distributed, Smith had the ability to opt into execution by nitrogen hypoxia through any writing he chose.” Smith’s attorney indicated they will appeal. “The court’s dismissal of our complaint on jurisdictional grounds does not reject the merits of our claim, which is that the Department of Corrections, when it distributed an opt-in form for a method of execution, created a program without providing an accommodation to Mr. Smith, who is cognitively disabled. We are anticipating appealing this decision and continuing to fight for Mr. Smith,” federal defender John Palombi wrote in an email. Marks also issued an order formally reprimanding the Office of the Alabama Attorney General Steve Marshall and Assistant Attorney General Lauren Simpson over false information given to the court. Simpson had previously told the court that the warden of Holman Prison made the decision herself to hand out the forms. However, the judge noted that Warden Cynthia Stewart in 2018 testified that she was instructed to do so. “Although she could not recall who gave her the instruction, she acknowledged it would have been someone above her in the chain of command,” Marks wrote. Simpson was fined $1,500. Marks wrote that the misrepresentation was inexcusable, although she did not think Simpson acted maliciously. “The Court finds that the improper conduct here was reckless, particularly given that this is a case involving the death penalty; it was not an isolated event but rather occurred across two written filings and was stated orally at a hearing,” Marks wrote. Republished with the permission of the Associated Press.
Pastor can hold inmate’s hand during execution
Alabama said it will allow a death row inmate’s pastor to hold his hand during a lethal injection next month, a decision that was made to end litigation over the issue. Lawyers for Alabama wrote in a June court document that inmates can now have a personal spiritual adviser present with them in the execution chamber and the adviser will be allowed to touch them. The agreement settled litigation over Alabama inmate Willie Smith’s request to have his personal pastor with him as he is put to death. Smith was convicted of the 1991 kidnapping and murder of 22-year-old Sharma Ruth Johnson in Birmingham. According to court documents, Smith’s spiritual adviser can: anoint the inmate’s head with oil; pray with the inmate and hold his hand as the execution begins, as long as the adviser steps away before the consciousness assessment is performed; and remain in the execution chamber until the curtains to the witness rooms are drawn. The description was included in a footnote in a joint filing in June by the state and Smith’s attorneys in which the two sides announced they had reached an agreement over the spiritual adviser issue. The case is one of a series of legal fights over personal spiritual advisers at executions. A Texas death row inmate won a reprieve Wednesday evening from execution for killing a convenience store worker during a 2004 robbery after claiming the state was violating his religious freedom by not letting his pastor lay hands on him at the time of his lethal injection. Alabama officials in February called off Smith’s execution after the justices maintained an injunction issued by the 11th U.S. Circuit Court of Appeals saying he could not be executed without his pastor present in the chamber. Alabama officials wrote in a court filing that the state recognized “its policy restricting access to the execution chamber to institutional chaplains was unlikely to survive further litigation” and that it had reached an agreement to allow Smith’s pastor to be with him in the chamber. Alabama has rescheduled Smith’s execution for next month. The state wrote in court filings that it will inform other inmates of their opportunity to select a spiritual adviser to accompany them in the execution chamber. However, it noted that the pastor will not be in the chamber when the time of death is called to protect the privacy of the person who performs that function. In the past, Alabama routinely placed a Christian prison chaplain employed by the state in the execution chamber to pray with an inmate if requested. The state stopped that practice after a Muslim inmate asked to have an imam present. The prison system, which did not have a Muslim cleric on staff, maintained until recently that nonprison staff would not be allowed in the chamber. Republished with the permission of the Associated Press.
Religion and the death penalty collide at the Supreme Court
The Supreme Court is sending a message to states that want to continue to carry out the death penalty: Inmates must be allowed to have a spiritual adviser by their side as they are executed. The high court around midnight Thursday declined to let Alabama proceed with the lethal injection of Willie B. Smith III. Smith had objected to Alabama’s policy that his pastor would have had to observe his execution from an adjacent room rather than the death chamber itself. The order from the high court follows two years in which inmates saw some rare success in bringing challenges based on the issue of chaplains in the death chamber. This time, liberal and conservative members of the court normally in disagreement over death penalty issues found common ground not on the death penalty itself but on the issue of religious freedom and how the death penalty is carried out. Justice Brett Kavanaugh, one of three justices who said they would have let Smith’s execution go forward, said Alabama’s policy applies equally to all inmates and serves a state interest in ensuring safety and security. But he said it was apparent that his colleagues who disagreed were providing a path for states to follow. States that want to avoid months or years of litigation over the presence of spiritual advisers “should figure out a way to allow spiritual advisors into the execution room, as other States and the Federal Government have done,” he wrote in a dissent joined by Chief Justice John Roberts. Justice Clarence Thomas also would have allowed the execution of Smith, who was sentenced to die for the 1991 murder of 22-year-old Sharma Ruth Johnson in Birmingham. Alabama had up until 2019 allowed a Christian prison chaplain employed by the state to be physically present in the execution chamber if requested by the inmate, but the state changed its policy in response to two earlier Supreme Court cases. Robert Dunham, the executive director of the Death Penalty Information Center, says the court’s order will most clearly affect states in the Deep South that have active execution chambers. Dunham said most state execution protocols, which set who is present in the death chamber, do not mention spiritual advisers. For most of the modern history of the U.S. death penalty since the 1970s, spiritual advisers have not been present in execution chambers, he said. The federal government, which under President Donald Trump resumed federal executions following a 17-year hiatus and carried out 13 executions, allowed a spiritual adviser to be present in the death chamber. The Biden administration is still weighing how it will proceed in death penalty cases. The court’s order in Smith’s case contained only statements from Kavanaugh and Justice Elena Kagan. “Willie Smith is sentenced to death, and his last wish is to have his pastor with him as he dies,” Kagan wrote for herself and liberal justices Sonia Sotomayor and Stephen Breyer, as well as conservative Amy Coney Barrett. Kagan added: “Alabama has not carried its burden of showing that the exclusion of all clergy members from the execution chamber is necessary to ensure prison security.” Justice Neil Gorsuch and Justice Samuel Alito did not make public their views, but at least one or perhaps both of them must have voted with their liberal colleagues to keep Smith’s execution on hold. The court’s yearslong wrestling with the issue of chaplains in the death chamber began in 2019, when the justices declined to halt the execution of Alabama inmate Domineque Ray. Ray had objected that a Christian chaplain employed by the prison typically remained in the execution chamber during a lethal injection, but the state would not let his imam be present. The next month, however, the justices halted the execution of a Texas inmate, Patrick Murphy, who objected after Texas officials wouldn’t allow his Buddhist spiritual adviser in the death chamber. Kavanaugh wrote at the time that states have two choices: Allow all inmates to have a religious adviser of their choice in the execution room or allow that person only in an adjacent viewing room. In response, the Texas prison system changed its policy, allowing only prison security staff into the execution chamber. But in June, the high court kept Texas from executing Ruben Gutierrez after he objected to the new policy. Diana Verm, a lawyer at the Becket Fund for Religious Liberty, which had submitted briefs in two of the spiritual adviser cases, said it was unusual for the court with its conservative majority to halt executions. “You can tell from some of the opinions that the justices don’t like the last-minute nature of execution litigation, but this is an area where they are saying: ’Listen … religious liberty has to be a part of the process if it’s going to happen,” Verm said. Republished with the permission of the Associated Press.
Alabama set to carry out its first execution during pandemic
Alabama is preparing to execute an inmate by lethal injection in what would be the state’s first death sentence carried out during the COVID-19 pandemic. Willie B. Smith III, 51, is scheduled to be put to death Thursday at a south Alabama prison for the 1991 shotgun slaying of Sharma Ruth Johnson. It would be the first execution carried out by any state in 2021, although there have been federal executions, according to a list maintained by the Death Penalty Information Center. U.S. District Judge Austin Huffaker, Jr. on Tuesday denied Smith’s lawyers request for a stay. The Alabama Supreme Court ruled the execution could go forward with precautions. Smith’s attorneys have sought a stay arguing that the pandemic and the prohibition on in-person prison visits had made it difficult for them to adequately represent him. They said Smith has been unable to receive the number of in-person visits from attorneys, friends, and a pastor that death row inmates normally do before their date in the execution chamber. The prison system said Smith could have contact visitation during the week preceding his execution. Attorneys also argued the execution would be a super-spreader event. Some COVID-19 cases have been linked to recent federal executions. The Alabama attorney general’s office wrote in court filings that the state is no longer under a stay-at-home order and said carrying out executions is one of the functions of state government. “The State is open, and its agencies are expected to function. One of the State’s functions is to ensure that justice is carried out in a timely fashion by performing executions of those inmates on death row who have exhausted their appeals,” the Alabama attorney general’s office wrote. The Department of Corrections has changed some procedures in the face of the pandemic. The prison system is limiting media witnesses to the execution to a single reporter, a representative from The Associated Press. Prosecutors said Smith abducted Johnson at gunpoint in October 1991 as she waited to use an ATM in Birmingham, forced her into the trunk of a car, and withdrew $80 using her bank card. Prosecutors said he then took her to a cemetery where he shot her in the back of the head and later returned to set the car on fire. A jury convicted Smith in 1992 in the death of Johnson, who was the sister of a Birmingham police detective. Appellate courts rejected Smith’s claims on appeal, including that his lawyers provided ineffective assistance at trial and that he should not be executed because he is intellectually disabled. Court records indicate a defense team expert estimated his IQ at 64 while a prosecution expert pegged it at 72. Republished with the permission of the Associated Press.
