The execution of a death row prisoner in Alabama is being called off, a state official says, citing time constraints imposed by the night’s court battle

By Dakin Andone, CNN

(CNN) – Officials at Alabama Correctional Facilities on Thursday cited time constraints caused by a late-night court battle to halt the planned execution of a death-row prisoner — the second time in as many months the state has failed to do so Execution before the deadline to carry out a death sentence.

Kenneth Smith’s execution by lethal injection – which would have been the fourth execution in the US this week – was stayed after administrators struggled to find a vein to put an IV line in: “We’ve seen it in several places (his body) tried,” said Justice Department Commissioner John Hamm, according to AL.com.

The thwarted trial underscores critics’ questions about Alabama’s ability to adhere to its own death penalty protocol. The case – in which the trial jury’s 11-1 vote for life imprisonment was overturned by a judge’s decision to impose the death penalty – also comes as the jury’s recommendations received the national spotlight after a Florida jury overturned the Parkland school had not unanimously recommended the shooter be executed, resulting in his life sentence.

Smith’s execution was called off around 11:20 p.m. “due to time constraints caused by the delay in the trial,” the Correctional Authority said in a statement, adding that the protocols needed to conduct the execution “could not be carried out before the expiry of the death sentence.” “

Smith was scheduled to be executed at 6 p.m. for his role in the 1988 murder of Elizabeth Sennett. But the US 11th Circuit Court of Appeals granted him a stay of execution just hours before his death sentence expired at midnight. The state then filed an urgent complaint with the US Supreme Court, which, less than two hours before the death sentence expired, reversed its decision, overturning the lower court’s decision and allowing the state to proceed with the execution.

Although the Supreme Court’s decision did not comment on the summary appeal, it found that Liberal Justices Sotomayor, Kagan and Jackson had maintained the stay.

The failure to carry out Smith’s execution on Thursday mirrored the state’s failed attempt in September to have Alan Eugene Miller executed.

Even then, Hamm blamed the spate of eleventh-hour trials, saying that “according to our protocol, the veins of the convict could not be accessed before the death sentence expired.”

Both failed execution attempts follow the death of Joe Nathan James, whom the state executed in July in an execution that has since come under scrutiny after a report in The Atlantic said a private autopsy showed James had “a… suffered a long death.”

Corrections officers had cut into James’ skin to find a vein to put an IV line in — which isn’t part of Alabama’s lethal injection protocol, Dr. Joel Zivot, an anesthetist and professor at Emory University who witnessed the autopsy, told CNN.

“Last night’s attempted execution of Kenneth Smith is the latest in a series of executions and attempted executions that demonstrate the failure of Alabama’s ability to implement the death penalty consistent with its protocols and constitutional values,” said Ngozi Ndulue, deputy director of the Death Penalty Information Center said in a statement Friday to CNN.

Ndulue was particularly critical of the “secrecy with which Alabama conducts executions,” saying it “allows this pattern to continue, with the only public scrutiny coming from post-execution litigation and autopsies.”

“When other states have had ongoing problems with executions, they have suspended executions and investigated the root cause of the problem,” Ndulue said.

Smith’s jury voted 11-1 for life

When Smith was convicted, a jury voted 11-1 for life imprisonment, which was overruled by the trial judge, who opted for the death penalty instead, a practice the state has since repealed.

Smith’s attorneys argued in a previous Supreme Court filing that he should not be executed. If he were tried today and his jury came to the same conclusion, his attorneys said, Smith would not qualify for execution — in Alabama or anywhere else, since no jurisdiction today allows the practice of judicial override.

Putting Smith to death despite the jury verdict would constitute a cruel and unusual punishment and would violate his eighth amendment constitutional protections.

Alabama, in 2017, was the last U.S. state to reverse the judicial override that allowed judges to ignore a jury’s life-or-death decision in fatalities and hand down the alternative verdict. However, the new law was not retroactive, and inmates like Smith, whose grand juries returned what was then a life “advisory” sentence, remain on death row.

While the practice was previously allowed in three other states — Indiana, Florida and Delaware — Alabama judges have routinely set aside jury votes for life, according to a 2011 report by the Equal Justice Initiative. At the time, about 20% of the death sentences among the state’s death row inmates were for judicial violations, the report says.

The Supreme Court has grappled with the issue of Alabama’s judicial override since it was overturned. In 2020, the court denied the motion of another inmate, Calvin McMillan, who advocated overturning his death sentence, saying it was unconstitutional because his jury voted for life.

Smith was one of four death row inmates scheduled to be executed this week after the Supreme Court on Wednesday denied his request for a stay of execution. Stephen Barbee in Texas and Murray Hooper in Arizona were both executed Wednesday, and Richard Fairchild in Oklahoma was executed Thursday.

The murder of Elizabeth Sennett

Smith was convicted of capital murder in 1996, court documents show, for his role in a murder for hire against Sennett, a local minister’s wife who was having an affair and got an insurance policy for his wife so he could pay off his debts.

Sennett’s husband, Charles Sennett, recruited someone to kill his wife, court records say. This man then recruited two more, one of whom was Smith, and Sennett agreed to pay $1,000 each to kill his wife and make it look like she was killed in a burglary.

In March 1988, the men carried out the murder as planned, and Smith took a VCR from the Sennett home, which he kept in his own apartment.

Charles Sennett killed himself a week after his wife’s murder, the records say, when investigations began to focus on him. But Smith was arrested after authorities, after receiving an anonymous tip, executed a search warrant at his home and found Sennett’s VCR.

He was found guilty and sentenced to death, but an appeals court overturned that original finding and ordered a new trial, finding that the state had fiercely challenged the would-be jurors on the basis of their race.

Smith was retried on retrial. But the jury was apparently influenced during the penalty phase, which occurs after the guilt phase in felony trials. During the sentencing phase, prosecutors and defense attorneys traditionally argue about aggravating and mitigating circumstances – reasons why they say the defendant should be executed or receive a lesser sentence, such as life imprisonment without parole.

This time the jury voted 11-1 for life in prison with no possibility of parole, his attorneys wrote and heard evidence about Smith’s “character and circumstances.”

However, the judge found that the aggravating factors outweighed the extenuating circumstances, Smith’s attorneys write, and overruled the jury’s verdict and sentenced Smith to death.

The case of judicial override

Judicial override was intended to allow judges to essentially control juries and prevent them from handing down death sentences in an arbitrary or discriminatory manner, lawyers for the Innocence Project wrote in a 2020 brief to the Supreme Court in support of McMillan’s case.

Florida, Delaware and Indiana outlined specific standards for when a judge could override a jury’s vote for life, they wrote. In Florida and Delaware, for example, the facts supporting a death sentence had to be so convincing that no “reasonable person” would object.

As a result, there was rarely a judicial overturn to impose a death sentence – or a majority of the cases in which it was used were later overturned. In addition, judges in Florida, Delaware, and Indiana frequently used it to hand down life sentences when a jury had ruled on death.

Alabama has not instituted such protections, the attorneys’ brief said, and judges there only had to “consider” the jury’s verdict.

The state abolished this practice in 2017 by amending the law to specify that jury verdicts are no longer “advisory” but final.

“You are entitled to a trial by a jury of your own age, and so should your conviction,” Senator Dick Brewbaker, who sponsored the bill, told CNN affiliate WSFA in February 2017 ahead of his bill’s passage.

“One of the most important things about our democracy is that our laws are derived from common law,” said Brewbaker, a Republican. “Therefore, a violent crime is a crime against a community. That’s why we have a process in the community. So we elect a community jury and they decide guilt, innocence and punishment.”

The CNN Wire
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