Live updates: Kenneth Smith execution scheduled for 6 p.m. – Montgomery Advertiser

The American flag seen behind barbed wire at Holman Correctional Facility on Oct. 22, 2019.

Editor’s note: Reporter Evan Mealins was in Atmore, Alabama, on Thursday to witness the execution of Kenneth Eugene Smith, who was sentenced to death by judicial override for the 1988 murder-for-hire of Elizabeth Dorlene Sennett. Authorities believe Sennett’s husband, preacher Charles Sennett Sr., arranged the murder to collect insurance payments for his debts. The following are timestamped events as they were reported on Thursday.

Thursday, 11:20 p.m.: State halts execution

Alabama called off Thursday night’s execution of Kenneth Eugene Smith just 40 minutes before his death warrant was to expire at midnight.

Smith, 57, was scheduled to be executed by lethal injection at 6 p.m. Thursday at Holman Correctional Facility in Atmore, Alabama, for the contract killing of a preacher’s wife. But a series of court decisions delayed the start of his execution past 10 p.m., when the U.S. Supreme Court vacated a stay in the case.

Media representatives were put on a van at 10:32 p.m., shortly after the Supreme Court vacated the stay, to travel the less than five-minute drive to Holman Correctional Facility to witness Smith’s execution. But the van stayed parked outside the media center at nearby Fountain Correctional Facility.

About 40 minutes later, a prison officer’s radio alerted her to “stand down,” and media witnesses were unloaded from the van.

This is the second execution attempt in as many months that Alabama has failed to carry out. The state called off Alan Eugene Miller’s scheduled Sept. 22 execution minutes before midnight as it failed to establish the necessary intravenous lines for the lethal injection.

Officials with the Alabama Department of Corrections said they would address the media Thursday night or early Friday, ADOC spokesperson Kelly Betts said.

Thursday, 10:22 p.m.: Supreme Court vacates stay, clearing way for execution

The U.S. Supreme Court vacated the U.S. 11th Circuit Court of Appeal’s stay, clearing the execution of Kenneth Eugene Smith. Justices Elena Kagan, Sonia Sotomayor and Ketanji Brown Jackson would deny the state’s application, according to the order.

The justices did not provide a written decision.

The 11th Circuit granted the stay just before 8 p.m. The state’s death warrant to execute Smith expires at midnight.

Thursday, 9:07 p.m.: Smith’s lawyers reply in U.S. Supreme Court

Smith’s attorneys continued to push back against the state’s argument that Smith should have sought a stay earlier, pointing out that he filed for a preliminary injunction — which, like a stay, asks the state to halt an execution — in his first complaint.

Smith’s attorneys say that the state’s arguments are based on the notion that he should have filed a request for a stay when he filed his complaint, before Alabama had set his execution date, or after his suit was dismissed in district court, at which point there was no claim in which to seek relief.

“Mr. Smith is not at fault for the improper dismissal of his complaint. Nor is he at fault for any delay,” Smith’s attorneys wrote.

Smith’s lawyers also criticized the state for challenging Smith’s evidence, including testimony from Alan Miller, Dr. Joel Zivot and the autopsy of Joe Nathan James, Jr. They say Smith was denied the opportunity for discovery after his claim was dismissed.

“Defendant should not be rewarded for running out the discovery clock,” Smith’s attorneys said.

More:Department of Corrections denies request for Joe Nathan James Jr. execution records

Thursday, 8:22 p.m.: State appeals to U.S. Supreme Court

With less than four hours before Smith’s death warrant expires at midnight, the Alabama Attorney General’s Office appealed the 11th Circuit’s ruling granting a stay of Smith’s execution to the U.S.. Supreme Court. The AG’s office once again attacked Smith’s timing in filing his request for a stay and preliminary injunction, calling it “gamesmanship” and “a gambit.”

Smith’s attorneys and the 11th Circuit Court, however, found that Smith had asked for injunctive relief from the beginning: his very first complaint contained a request for a preliminary injunction.

The state’s 43-page request to vacate the stay also argues that the state should not face undue federal interference in carrying out the death penalty. “… [T]he Court has also repeatedly recognized that ‘equity must be sensitive to the State’s strong interest in enforcing its criminal judgement without undue interference from the federal courts,'” the AG’s office wrote.

Thursday, 7:57 p.m.: 11th Circuit grants stay of Smith’s execution

The U.S. 11th Circuit Court granted Smith’s request for a stay of his execution. The court sided with Smith in his claims that he has diligently pursued his claims and sought a preliminary injunction before the day of his scheduled execution.

“Smith has continuously sought to rectify that dismissal since then and has pursued his claims diligently through the district court and here. We further conclude that the other factors favor granting a stay,” Judges Charles Wilson, Jill Pryor and Britt Grant wrote.

About Smith’s crimes and earlier appeals

Prosecutors said Smith and two other men killed Elizabeth Dorlene Sennett in 1988 after her husband, preacher Charles Sennett Sr., arranged the murder to collect insurance payments for his debts.

Prosecutors said Charles Sennett Sr. hired Billy Gray Williams, one of his tenants, to have his wife killed. Williams recruited John Forrest Parker and Smith, paying them $1,000 each while pocketing $1,000 for himself. Court documents show that Elizabeth Sennett was beaten and stabbed eight times at her home in Cherokee, a rural town in Colbert County.

Charles Sennett Sr. died by suicide a week later after learning he had been named a suspect in the case.

Parker was executed by lethal injection in 2010. In news reports, Parker is quoted in his last words as telling Elizabeth Sennett’s sons, “I’m sorry. I don’t ever expect you to forgive me. I really am sorry.”

Williams was sentenced to life without parole and died in state custody on Nov. 22, 2020, according to the Alabama Department of Corrections.

Smith’s attorneys requested a stay of his execution in the U.S. Middle District of Alabama in August, claiming that complications at recent executions put him at an intolerable risk of cruel and unusual punishment and that he was not fully informed of his option to elect nitrogen hypoxia. U.S. District Judge R. Austin Huffaker Jr. denied his request for a stay.

Smith later appealed to the U.S. 11th Circuit Court of Appeals and the U.S. Supreme Court. In his application for a stay to the U.S. Supreme Court, Smith’s attorneys argued that his death sentence was unconstitutional because he could not be sentenced to death by judicial override today.

Thursday, 6:29 p.m.: Smith’s attorneys try another appeal to 11th Circuit

After Smith’s motion for a stay was denied in the district court, his attorneys appealed the ruling to the 11th Circuit. Smith’s attorneys are asking the court to grant the stay that the district court denied, and to keep that stay in place until it has time to rule on Smith’s request for a preliminary injunction based on his Eighth Amendment claims.

The 11th Circuit earlier Thursday found that Smith plausibly pleaded “he will face superadded pain as the execution team attempts to gain IV access.”

Smith’s attorneys argued against the state’s claim that his requests for a stay were not timely. Smith’s attorneys planned to file a motion for a preliminary injunction, but they said the court dismissed Smith’s case before they were able to get necessary information through discovery.

“After the court scheduled oral argument on the motion to dismiss, Mr. Smith served discovery and moved to expedite discovery and set a scheduling order for Mr. Smith’s anticipated preliminary injunction motion,” his attorneys wrote.

“There is an intolerable risk that Mr. Smith will be subjected to torture, cruelty, and substantial pain as evidenced by the State’s most recent execution attempts, even though he was deprived of the choice to elect nitrogen hypoxia. The last two execution attempts resulted in violations of rights and a complete disregard for human dignity. While the public indisputably has an interest in ensuring that sentences are carried out, that interest does not extend to executing Mr. Smith in violation of his Eighth Amendment rights.”

Thursday, 5:55 p.m.: Judge denies Smith’s motions for stay and preliminary injunction

After Smith’s case was remanded to him from the U.S. 11th Circuit, U.S. District Judge R. Austin Huffaker denied Smith’s motions for a stay and preliminary injunction of his execution by lethal injection. Huffaker agreed with the state that Smith “inexcusably delayed” filing his motion.

“The Court agrees with the Commissioner that Smith inexcusably delayed filing his motion for a stay and finds that the motion is due to be denied because the equities weigh against the granting of a stay,” Huffaker wrote.

Smith’s attorneys filed a notice to the district court of their plan to appeal the ruling.

Thursday, 5:28 p.m.: ADOC shares Smith’s last meals, visitors

Smith was visited by family members Wednesday and Thursday, according to a list of his activities shared by the Alabama Department of Corrections.

Several family members, Smith attorney Robert Grass, and Smith’s spiritual adviser, Dan Blocker, visited Smith at Holman on Thursday. Smith refused breakfast on Thursday.

Thursday, 3:45 p.m.: Smith’s attorneys seek emergency stay of execution

Smith’s attorneys filed with the U.S. District Court for the Middle District of Alabama an emergency motion for a stay and a motion for a preliminary injunction of Smith’s pending execution. Huffaker held a telephone conference at 3:45 p.m. to discuss the motions with Smith’s attorney, Andy Johnson, and attorneys for the state, Richard Anderson and Thomas Wilson.

“The Eleventh Circuit’s … decision compels this Court to enter a stay of execution to afford Mr. Smith the opportunity to litigate his preliminary injunction motion on a full record,” Smith’s attorneys wrote in the emergency motion for a stay.

Huffaker will review the motion for a stay and motion for preliminary injunction and said during the phone conference that he will rule on the motions “shortly.”

The Alabama Attorney General’s Office in an opposing brief called Smith’s motion for a preliminary injunction “sheer, cynical maneuvering,” accusing his attorneys of waiting until the last minute to file in order to increase the chances of Smith’s execution being delayed. Smith had on Monday requested injunctive relief — which would halt his execution — from the 11th Circuit, but never from the Middle District court, the AG’s office noted.

“In sum, “[t]he people of [Alabama], the surviving victims of Mr. [Smith’s] crimes, and others like them deserve better” than last-minute attempts to abuse the judicial process to force the State to delay a lawful execution,” the AG’s office wrote.

Thursday, 2:58 p.m.: 11th Circuit reverses, remands case to district court

A three-judge panel voted 2-1 to send Smith’s case back to the U.S. District Court for the Middle District of Alabama, which it said erred in not allowing Smith to file an amended complaint in his lawsuit against the state. The case is back before Huffaker.

The 11th Circuit wrote Smith “plausibly alleged” that ADOC will have “extreme difficulty” in accessing his veins.

The judges quoted Dr. Joel Zivot, an anesthesiologist who provided an expert declaration in Smith’s case, writing that Smith’s “risks [for] a failed intravenous attempt are very likely quite similar in circumstance to the recent failed attempt at IV access of” Alan Miller.

“After reviewing Smith’s proposed amended complaint de novo, we conclude that he pleaded sufficient facts to plausibly support an Eighth Amendment method-of-execution claim that is not barred by the applicable statute of limitations, and thus amendment would not have been futile,” the court wrote. It continued that Smith “plausibly pleaded that, considering ADOC’s inability to establish difficult IVs swiftly and successfully in the past, he will face superadded pain as the execution team attempts to gain IV access.”

Judge Britt Grant dissented, writing that Smith’s claims should be time-barred since ADOC has long struggled to timely establish IV access, beginning with Doyle Lee Hamm in 2018.

“But unfortunately for everyone involved, the Department’s problems in quickly establishing IV access for lethal injection are nothing new,” Grant wrote. Grant also said the district court’s order “prohibiting” deviations from the state’s execution protocol mooted Smith’s claims that the risk of deviations from that protocol were intolerable.

Thursday, 12:45 p.m.: Former Gov. Don Siegelman protests execution

Former Gov. Don Siegelman is asking Alabama residents to call Gov. Kay Ivey to stop Smith’s execution.

In the email sent Thursday, Siegelman said Ivey should temporarily halt executions while the state figures out how to prevent “the missteps in recent attempts at lethal injections.”

Former Gov. Don Siegelman at Brown Chapel in Selma, Ala., on March 3, 2019.

Siegelman, who was governor of Alabama from 1999 to 2003, also said the Legislature should consider whether the 2017 ban on judicial overrides — such an override in 1996 put Smith on death row instead of the jury’s preference of life in prison — should be retroactive.

“This just doesn’t make sense: Is it moral to execute someone based on a law Alabama has now repealed?” he asked in his email.

Siegelman was the last Democrat to serve as governor in Alabama. While he was in office, the state executed eight death row inmates, including Lynda Lyon Block, the first woman to be executed in Alabama since 1957.

Convicted in 2006 on charges of bribery and obstruction of justice, he served a total of five years in federal prison before his release in February 2017. He appeared in Montgomery in late 2017 and said he planned to work on criminal justice issues.

Thursday a.m.: Smith refuses to comply with vein examination

In a court filing Thursday morning, Holman Correctional Facility Warden Terry Raybon said Smith had refused to comply with a vein examination prior to his scheduled execution.

“I am not going to give you all any trouble, but I am not going to participate in this,” Smith is said to have told Raybon.

Huffaker had ordered the ADOC to “strictly follow” its execution protocol, which calls for an examination of the condemned inmate’s veins in the days before his execution.

“Defendant believes that the inability to conduct the vein examination due to Defendant’s refusal to cooperate with ADOC personnel should not be considered a violation of this Court’s order,” Attorney General Steve Marshall wrote.

Alan Eugene Miller, whose scheduled Sept. 22 execution was called off as the execution team failed to set two IVs for the lethal injection, also refused to allow staff to examine his veins before his execution, citing a preliminary injunction barring his execution by lethal injection that was later overturned.

Wednesday, 5:30 p.m.: U.S. Supreme Court declines to halt execution over ‘judicial override’

The U.S. Supreme Court Wednesday evening denied Smith’s application to stay his execution, clearing the way for his lethal injection Thursday night.

Smith was first convicted in 1989 and sentenced to death. His sentence was overturned on appeal, and a jury in 1996 voted 11-1 to sentence Smith to life in prison without the possibility of parole. The trial judge overrode the jury’s decision and imposed the death penalty.

When Alabama abolished judicial override in 2017, it did not apply to previous sentences.

The U.S. Supreme Court denied the application at 5:30 p.m. Wednesday night, a little more than 24 hours before Smith’s scheduled execution. The application for a stay was presented to Justice Clarence Thomas who referred the application to the rest of the court. The justices did not provide an explanation of their decision and did not list any dissenting justices.

Smith’s attorneys submitted the request for a stay to the court on Monday.

“If Mr. Smith’s trial had occurred today, he could not have been eligible for execution. Nor would he be subject to execution anywhere else in the United States, as every state that once permitted the practice of judicial override has abandoned it,” Smith’s attorneys wrote to the U.S. Supreme Court.

Wednesday, 1:30 p.m.: Smith’s attorneys argue before 11th Circuit

Smith’s attorney, Robert Grass, argued before the U.S. 11th Circuit Court of Appeals at 1:30 p.m. Wednesday, arguing that difficulties at recent executions and execution attempts made it likely that Alabama would subject Smith to an unnecessarily cruel execution in violation of the Eighth Amendment. The 11th Circuit had not issued a ruling as of Thursday morning.

During oral arguments, one of three judges asked Thomas Wilson, a deputy solicitor general representing the state in Smith’s litigation, how many times it could poke an inmate in attempts to establish IV access. Wilson did not provide an answer.

Evan Mealins is the justice reporter for the Montgomery Advertiser. Contact him at emealins@gannett.com or follow him on Twitter @EvanMealins.

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