BACKGROUND: (The Independent): "Kenneth Smith “vindicated” a previous jury decision to spare his life while in prison, having worked hard to become and stay sober and earning an associates degree through studying, his lawyers have said. A statement from law firms Arnold & Porter and Bradley Arant Boult Cummings LLP, highlighted Smith’s work to help other inmates during his time behind bars. “We are deeply saddened that the state of Alabama and the Alabama Department of Corrections have executed Kenneth Eugene Smith. During his incarceration, Kenny vindicated the jury’s judgment when it voted 11-1 to spare his life that Kenny’s life had value despite the crime for which he was convicted,” the statement read. “He worked to become and stay sober. He found and sincerely practiced his faith. He studied and earned an associate’s degree. He developed his artistic skill and would have made a very fine lawyer under different circumstances. “He helped other inmates whom he considered his brothers to achieve sobriety and with other personal problems and he maintained loving relationships with his wife, mother, siblings, children, grandchildren, and other family and friends.” The statement continued: “Nothing can undo the tragic consequences of the actions for which he was convicted, including the pain of the Sennett family and friends. “Kenny’s life, however, should be considered in its full context. Kenny was subject to the death penalty only because his trial judge applied a since-repealed Alabama statute to override the jury’s 11 to 1 determination that his life should be spared – a practice that not only is unavailable under current Alabama law but also has since been declared unconstitutional by the United States Supreme Court. “There currently are efforts in the Alabama legislature to ensure that inmates like Kenny, who are on death row only because a judge overrode a jury’s measured determination to spare their lives, won’t suffer the same fate that he did today. “Unfortunately, those efforts, if successful, will be too late for Kenny."
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PASSAGE OF THE DAY: "Mr. Smith’s case is unusual in several respects. First, he has already survived one execution attempt, which left him with post-traumatic stress disorder, according to a clinical psychologist and trauma expert who examined him. On November 17, 2022, the state tried and failed to execute Mr. Smith using lethal injection but abandoned its efforts after four hours when staff were unable to access a vein. Second, Mr. Smith would likely not be sentenced to death today. In 1996, a jury recommended that he receive a sentence of life in prison by a vote of 11 to 1, but the judge overrode its recommendation and sentenced him to death. Alabama judges no longer have the ability to override jury sentencing recommendations, so if sentenced today, Mr. Smith would not be facing execution. Third, unless an appeals court intervenes, Mr. Smith will be the first human being executed using nitrogen gas. The consequences of using this protocol are completely unknown, even to Alabama officials."
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STORY: "Federal Judge’s Ruling Will Permit Alabama to Execute Kenneth Smith Using Nitrogen Gas," published by The Death Penalty Information Center on January 11, 2024.
GIST: "On January 10, 2024, U.S. District Judge Austin Huffaker denied Kenneth “Kenny” Smith’s challenge to Alabama’s intended use of nitrogen gas to execute him. Although Mr. Smith plans to appeal, the ruling currently authorizes Alabama to use its new, untested method of nitrogen hypoxia to execute Mr. Smith on January 25.
Mr. Smith’s case is unusual in several respects. First, he has already survived one execution attempt, which left him with post-traumatic stress disorder, according to a clinical psychologist and trauma expert who examined him. On November 17, 2022, the state tried and failed to execute Mr. Smith using lethal injection but abandoned its efforts after four hours when staff were unable to access a vein.
Second, Mr. Smith would likely not be sentenced to death today. In 1996, a jury recommended that he receive a sentence of life in prison by a vote of 11 to 1, but the judge overrode its recommendation and sentenced him to death. Alabama judges no longer have the ability to override jury sentencing recommendations, so if sentenced today, Mr. Smith would not be facing execution.
Third, unless an appeals court intervenes, Mr. Smith will be the first human being executed using nitrogen gas. The consequences of using this protocol are completely unknown, even to Alabama officials.
Mr. Smith’s legal challenge alleged that aspects of Alabama’s nitrogen hypoxia protocol violated his 1st, 8th and 14th Amendment rights, as well as his religious freedom rights.
For example, Mr. Smith alleged that the mask that would be placed over his face would impede his ability to make a final statement or audibly pray; he further contended that the possibility that he would vomit in the mask would create additional risk.
At a hearing on December 20, 2023, the court heard evidence and expert witness testimony from both parties. Mr. Smith argued that his execution would expose him to a “severe risk of a persistent vegetative state, a stroke, or the painful sensation of suffocation, i.e., superadded pain.”
To satisfy his legal burden, Mr. Smith also identified “feasible and readily implemented alternatives” that would reduce the risk to him, either by amending Alabama’s protocol or by executing him by firing squad.
Alabama argued in response that Mr. Smith’s concerns were speculative and/or otherwise barred and should be dismissed.
In his order, Judge Huffaker wrote that although Mr. Smith had properly pled and raised substantial Constitutional and statutory claims, he was not entitled to a preliminary injunction because he had not shown he was likely to succeed on the merits.
Citing the U.S. Supreme Court’s earlier decision in Glossip, Judge Huffaker said that “the fact that little or no evidence and scientific proof on [nitrogen hypoxia as an execution method] existed” did not relieve Mr. Smith of his burden to show that the method creates an unacceptable risk of pain.
Likewise, he ruled that Mr. Smith had not shown that the protocol substantially burdens his ability to exercise his religion.
Last week, four United Nations experts expressed alarm over Mr. Smith’s upcoming execution, warning that the state’s intention to kill him with the untested method could subject him to cruel and inhuman treatment amounting to torture.
In their joint statement released on January 3, the four independent UN monitors call on the US government and Alabama to halt the execution. “We are concerned that nitrogen hypoxia would result in a painful and humiliating death,” the experts write."
The entire story can be read at:
PUBLISHER'S NOTE: I am monitoring this case/issue/resource. Keep your eye on the Charles Smith Blog for reports on developments. The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be found at: http://www.thestar.com/topic/charlessmith. Information on "The Charles Smith Blog Award"- and its nomination process - can be found at: http://smithforensic.blogspot.com/2011/05/charles-smith-blog-award-nominations.html Please send any comments or information on other cases and issues of interest to the readers of this blog to: hlevy15@gmail.com. Harold Levy: Publisher: The Charles Smith Blog; |
SEE BREAKDOWN OF SOME OF THE ON-GOING INTERNATIONAL CASES (OUTSIDE OF THE CONTINENTAL USA) THAT I AM FOLLOWING ON THIS BLOG, AT THE LINK BELOW: HL
https://www.blogger.com/blog/post/edit/120008354894645705/47049136857587929
FINAL WORD: (Applicable to all of our wrongful conviction cases): "Whenever there is a wrongful conviction, it exposes errors in our criminal legal system, and we hope that this case — and lessons from it — can prevent future injustices.
Lawyer Radha Natarajan;
Executive Director: New England Innocence Project;
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FINAL, FINAL WORD: "Since its inception, the Innocence Project has pushed the criminal legal system to confront and correct the laws and policies that cause and contribute to wrongful convictions. They never shied away from the hard cases — the ones involving eyewitness identifications, confessions, and bite marks. Instead, in the course of presenting scientific evidence of innocence, they've exposed the unreliability of evidence that was, for centuries, deemed untouchable." So true!
Christina Swarns: Executive Director: The Innocence Project;
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YET ANOTHER FINAL WORD:
David Hammond, one of Broadwater's attorneys who sought his exoneration, told the Syracuse Post-Standard, "Sprinkle some junk science onto a faulty identification, and it's the perfect recipe for a wrongful conviction.
https://deadline.com/2021/11/alice-sebold-lucky-rape-conviction-overturned-anthony-broadwater-12348801
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