The Alabama Murders - Part 5: Cruel and Unusual

0:00Cut through the noise every week with the Intercept Briefing as we tackle the most urgent issues of the moment. We are living in a moment with an authoritarian government that will weaponize this moment either way. You have these right-wing forces that smell blood, they smell weakness, and they are going after everyone who doesn't comply. There's an entire right-wing media machine aimed at pushing disinformation around breaking news events. Listen wherever you get your podcasts.

0:36Bushkin.

0:42Previously on Revisionist History. I think there was a pressure to have a method that looked more humane than electrocution and lethal gas. On that van, when I go back to the hotel where the other people had been in there praying with his family, I have to go in and tell them, you know, John's gone. It was peaceful. He didn't appear to suffer. This is how lethal injection actually kills you. It kills you by burning your lungs up. And you're also paralyzed, so you can't complain that this is happening.

1:26Good afternoon, everybody. Thank you for being here. Hope everybody had a wonderful holiday. If I haven't seen you since then, call this press conference today because I believe the people of Alabama deserve an explanation on where things stand and where I stand with regard to capital punishment in our state. It's early December 2022. Montgomery, Alabama. Steve Marshall, the state's attorney general, is holding a press conference, standing at the podium, flanked by the Alabama and American flags. What occurred on November 17th was a travesty, but not for the reasons that many death penalty opponents and death row sympathizers would have the public to believe.

2:12My name is Malcolm Globwell. You're listening to The Alabama Murders, our series on the Elizabeth Sinek case. This is Episode 5, Cruel and Unusual. It's about the second of her assailants, Kenny Smith, and what was done to him in the name of justice. The travesty of November 17th.

2:41Kenny Smith was 22 at the time of Elizabeth Sennett's murder. He had a girlfriend and two young children. He was working in a factory. He was slight, skinny, dark hair, thick, moon-shaped eyebrows. He was drunk a lot and high, but always smiling. They would come over to my house a lot, and Kenny would just be grinning, because Michael would be sitting in the back seat, in his car seat, but Kenny would be high and, you know, he would be drinking. This is Linda Smith, Kenny's mom, talking with a local reporter named Lee Hedgespeth. Lee has covered the Kenny Smith case and knows his family well. What kind of drunk was Kenny?

3:25He was a happy drunk. Yeah. It's hard to think of Kenny as anything other than happy. I know, yeah. I mean, what you're saying is what you get with him. On the evening after the attack on Elizabeth's Senate, Smith's best friend came over to his house. They went out to get beer. Kenny's hand was swollen. He had it wrapped in a bandage. On the way to the store, Kenny kept saying, I messed up, I messed up. He wouldn't say why. Then, back at home, he started crying. His mother lived close by. In the days that followed, before the police caught up to him, he went to see her. And Kenny, you know, like I said, he would come over during that time.

4:11I mean, I look back on the times that he would come over, and he would be kind of distant, you know. And he would just, I mean, it's just like, it was something he wanted to tell me, but, you know, he never did. So when do you find out that he's implicated in some way? Well, I find out one afternoon when he calls me. I think he just got home from work and he called me and he said, Mom, can you come pick up Michael? And I said, well, I'm washing my hair right now. I said, I can't right this minute. And he said, well, Mom, can you come? He said, the police are here. and I just thought it was, you know, for pot or drugs or something like that.

5:06And I said, well, you know, I'll be over there, you know, in just a minute. Of course, it didn't take me long to get to their house. And when I drove up over there in that driveway, I bet you there was 10 cars out in front. Kenny Smith met the same fate as his friend John Parker, who you heard about in the last episode. Smith was charged with murder, convicted, sentenced by the jury to life without parole by a vote of 11 to 1, and then his judge did the same thing John Parker's judge did, overrode the jury's decision and sentenced him to death. He got sent to home in prison and stayed there for decades, appealing his sentence, delaying the inevitable, until November 17, 2022, when the event that the Attorney General of the state of Alabama called a travesty happened.

5:58It's been a great deal of media coverage, both local and national, about what happened in Kenny Smith's execution chamber. Much of that coverage has seemingly been openly sympathetic to Smith and his cause, even with some going so far as to advocate for the abolishment of the death penalty. And on what basis exactly? Because a cold-blooded convicted killer complains about the prodding and poking of a small IV line. Really? Podding and poking with a needle? Prodding and poking with a needle. Let's start there. The state of Alabama has a detailed set of instructions for how executions are to be carried out in their prisons.

6:52A protocol. The protocol was not supposed to be a public document, but Alabama was forced to disclose it during a death penalty court case. It's 41 pages of dry, precise language, stipulating every step of the process. When a condemned prisoner is supposed to be moved to a special holding cell, when he gets his last meal, what he gets to have in his cell, the people who are allowed to attend the execution, where the victim's family goes, where the offenders group goes, things like that. The execution team is made up of about a dozen people. It has a captain. The team is supposed to do a walkthrough in the week leading up to the execution, batting practice, if you will, to make sure they have the killing procedure down pat.

7:39As you may remember from the last episode, the seed of the idea behind lethal injection came from Ronald Reagan, who said, why don't we just execute people the same way we put down horses? To use the veterinarian's euphemism, put them to sleep. Clean, quick, professional. Something that appears painless. Instead of all the messiness of the electric chair. That's very much the spirit of the Alabama Protocol. What was so, I think, effective about lethal injection and sinister is the fact that when you observe an execution with lethal injection generally, it's a pretty bloodless event. Not much happens.

8:23It appears that a person kind of closes their eyes. Maybe you could imagine that they fall asleep and then they're dead. Joel Zivitt, the intensive care specialist from Emory University in Atlanta, who fell into death penalty work a few years ago. So this was a breakthrough in terms of the witness experience, because every other kind execution method that had ever occurred before then, it was quite a lot more graphic. But lethal injection seemed to solve the problem of being outwardly peaceful. And that's why I think lethal injection took hold. And on top of that, of course, there was this kind of impersonation of a medical act.

9:06There was the use of terminology of medicine and even the use of physicians and other medical people, which gave this kind of extra impression, you know, that this was legitimate, an endorsed kind of activity. Which brings us to the portion of the protocol at issue on the evening of November 17th, 2022. It's in Section B, Part 1, Clause A. Quote, the IV team will be escorted into the execution chamber to start the IV. The heart monitor leads will be applied to the condemned inmate. If the condemned inmate's veins make obtaining venous access difficult or problematic, qualified medical personnel may perform a central line procedure as set forth in Section 2 of Appendix B.

9:55ADOC Lethal Injection Execution Procedure A central line procedure involves inserting a long, thin, flexible tube into a large vein, like the jugular vein in the neck or the subclavian vein in the chest or the femoral vein in the thigh. So you try for the arm, the normal way, and if you fail, you go for a big vein. That's the plan. Only in real life, things aren't always so straightforward as outlined in Section B, Part 1, Clause A. In the case of Kenny Smith and in other cases, there have been these initial problems in finding a vein. Yeah, I want to talk about this with you, Malcolm. Can you talk about this?

10:36Because as a non-medical person, I'm puzzled. I don't understand this. Sure, yeah. So walk me through, why is that hard? Alabama was the poster child of failure for this in an odd kind of cluster of cases. And to answer your question directly, why is it hard? Well, it's hard because in order to put an intravenous into a vein, You know, it requires a certain level of skill and it also requires some cooperation. You know, it hurts to stick someone with a needle. So in someone who is sort of young and fit and well and well hydrated and relaxed, you know, that the chance of getting a vein in a person like that is quite high.

11:25You know, in someone who's dehydrated, terrified, had been sick, had been in prison for two decades, you know, it becomes a lot harder. Plus, you're also giving it over to people who are not expert. Okay, you know, an anesthesiologist in good standing is not going to spend their Wednesdays over at the, you know, state corrections, sticking IVs in people for execution. It's not something that we do. And people who, you know, to learn to do an intravenous is a technical skill. It can be learned. But I think also the people who are doing it themselves are nervous. Alabama won't reveal exactly who is on the execution team, what their training is, how much experience they have.

12:14But it's safe to say this isn't a team full of doctors, since doctors have to take an oath to do no harm. and hooking someone up to an IV that will transport lethal drugs is definitely doing harm. That's Zivit's point. These are prison employees or outside contractors. It's not the anesthesiologist from the nearest teaching hospital. You know, there are some ways of making it more likely than not to succeed. But, you know, what is taught either in nursing school or as an EMT or as a doctor cannot be lifted into the death chamber. Like, it's not the same place. These people are not patients, you know?

12:53They're not collaborators to you. In some states with the death penalty, putting in the IV is done in full view of the witnesses to the execution. But in Alabama, it's done before the witnesses are invited into the execution chamber. Which means that any outsider who is there to see the execution, the families and friends and reporters, are forced to guess how the IV process is going. The executions are supposed to start at 6. The witnesses are all sequestered in a holding room away from the execution site. And if it gets to be 7 p.m. or 7.30 or 9 p.m. and the witnesses haven't yet been picked up by the bus to go take them to the execution chamber, then everyone starts to wonder, is there a problem?

13:42This is exactly what happened in the summer of 2022, while Kenny Smith was still appealing his sentence. A condemned inmate at home named Joe Nathan James was set to be executed. Everything with James ran late. Afterwards, the state insisted the procedure had gone according to plan, but Zivitt was suspicious. He asked to perform a second autopsy, and what he found was, in a word, gruesome. Consider yourself warned. I was able to get his body, and I worked with a pathologist in Alabama and went there. And with him, we performed this second autopsy. And I saw in his body evidence of multiple attempts at intravenous.

14:32And some of these things, you could see bruising, which meant that they were kind of getting in and getting out of a vein. and there was some bleeding under the skin. And there was, these were both on, you know, on multiple spots on his arms, up and down both arms. And then there was also evidence of something called a cut down. And a cut down is where you take a knife to the skin and you open the skin to reveal, you know, a vein beneath that you couldn't otherwise see or feel. It's kind of an old style technique and it's been replaced by ultrasound. and the protocol at the time does not provide for the possibility of a cut down and also the cut down along the edges of it had blood which again meant that he had to have been alive and bleeding for this to have taken place so somehow they got some iv in him but it took them hours to do it so So picture, you know, Joe Nathan James lying there, strapped down, you know, not cooperative, as they poke and poke and poke him.

15:40And they finally just take a knife to his forearm to open up his forearm to try to get a vein there. And that, so that was Joe.

15:54Then came Alan Miller, two months later. Under Alabama law, once a defendant has been convicted of a capital crime, he or she is given a death warrant. A warrant is a writ issued by the court which lays out the facts of the conviction, the specific offense, the judgment of the court, and the time and place of execution, which in Alabama is a purpose-built facility on the campus of Homan Prison in Atmore. At the time, once a date had been set, the execution had to take place by midnight. So they start at 6 p.m. and give themselves six hours. With Alan Miller, they ran out of time, gave up. The state had to come back and kill him on another day.

16:38Then came Kenny Smith.

16:58Cut through the noise every week with the Intercept Briefing as we tackle the most urgent issues of the moment. We are living in a moment with an authoritarian government that will weaponize this moment either way. You have these right-wing forces that smell blood. They smell weakness, and they are going after everyone who doesn't comply. There's an entire right-wing media machine aimed at pushing disinformation around breaking news events. Listen wherever you get your podcasts. Tell me your impressions of Kenny. What was he like? Kenny, I obviously didn't know him when he was a 22-year-old person at the time of the events for which he was convicted.

17:44But he truly was an example. And I know this is going to sound trite and a cliche, but he really got religion figuratively and literally. You know, in prison, he was a force for good. This is Robert Grass, one of Kenny Smith's lawyers, the one who had been with him the longest. He's a litigator for a prestigious corporate law firm in New York City. He represents pharmaceutical companies. But he does pro bono death penalty work on the side. He started representing Kenny Smith in 2005. How many times over the course of 20 years did you go to Alabama? I don't have an exact number, but many. Holman Prison, where Smith was held, is in the southern part of the state.

18:42Grass was in New York. So that's New York to Atlanta, Atlanta to Mobile, rent a car in Mobile, drive an hour to Atmore. He made that journey for close to two decades. I really felt as if we developed a friendship. You know, I really would have liked to have had the opportunity to interact with him under different circumstances. this. Grass is older, lean, dark suit, gray hair, Ivy League degree, cum laude law school graduate. He probably bills out at some astronomical number. Whenever I read about some complicated legal negotiation that goes on into the wee hours of the morning, I imagine it's because someone like Robert Grass is involved.

19:28As measured and dispassionate and implacable at 3 a.m. as they were at three in the afternoon. You have to listen very closely when he talks. He doesn't broadcast his feelings. He sends out Morse code signals. Talk a little bit more about your friendship. It's an unlikely friendship. Yeah. I, you know, we obviously grew up in different circumstances. Different circumstances. Morse code. I've had other experiences with some folks on death row where I, you know, didn't feel the same bond. But Kenny, as I said, by the time I knew him, was just a decent man, incredibly gracious, and really seemed to have the best he could, given the environment he was in, to have been leading a productive life in that environment.

20:42In the fall of 2022, Smith and his legal team suffered a serious setback. Smith was finally given a death warrant, and the warrant set the date of the execution. November 17, 2022. But those two botched execution cases, Alan Miller and Joe Nathan James, gave Grass one more chance. The Supreme Court has long supported the idea that states can execute prisoners if they wish. But they have insisted that executions have to be done the right way. And what happened to Joe Nathan James and to Alan Miller didn't seem like it fit any definition of the right way. So Smith's lawyers sued. The way Alabama is practicing lethal injection is cruel and unusual punishment.

21:29The case was dismissed. Grass appealed to the 11th Circuit in Atlanta. Arguments were heard on November 16th, the day before Smith's death warrant. Grass went directly from the hearing to the prison. Then I went to Atmore, which is where Holman is, visited with Kenny that morning. We were still waiting for the 11th Circuit's decision. And that day became a real rollercoaster of emotions. Grass was in a hotel room a mile or two from the prison. At 8 p.m., Grass heard that the prison guards at Holman had taken Kenny out of his cell and were preparing him for execution. But that wasn't right. His appeal was still up in the air.

22:14Then Grass got another call. The 11th Circuit had ruled in Kenny's favor. The execution was off. At which point, the state of Alabama appealed to the U.S. Supreme Court. It was now after 8 p.m. And in the meantime, I'm kind of watching the clock tick because the death warrant expired at midnight. So I'm hoping to reach that point without this going forward. But at about a quarter after 10 or so, got a call from the emergency clerk at the United States Supreme Court, sometimes referred to as the death clerk because a lot of the emergencies involve capital cases. but who said, there's no easy way to say this.

23:07And so I knew from that preparatory remark what was coming. The Supreme Court ruled in favor of Alabama. One of the reporters, who was at Holman Prison covering the story, emailed Grass to say they were moving the witnesses to the death chamber. Grass sat in his hotel room, waiting to hear what happened. Nothing. Silence. The next morning, he learned why.

23:40So, he was taken out of his cell, thinking that his execution was imminent, strapped to a gurney, and nothing is happening, and he's asking, you know, the corrections officers who are with him, what's going on? And they, you know, tell him, they don't know um and then when they finally got going you know they've got three members of an iv team um none of whom are identified to him there were other people in the execution chamber with them that were not identified to him they're you know jabbing him with a needle trying to find the vein, which they weren't able to do. Then they tried something called a central line procedure to kind of stick a needle under his collarbone and reach one of his central veins.

24:43But again, they didn't tell him what they were doing, what was going on. They just kind of put a surgical gown over him. You know, one of the IV team members came back into the room in surgical garb and, you know, Kenny is asking these people what they're doing. No one is telling them. I'm going to read from a report on that evening commissioned by Grass and his team. It includes a very detailed description of what Kenny said happened to him in the execution chamber. He recalled seeing a clear plastic sheet over his chest with an open center. He saw that the man had a syringe in his hand, and he unbuttoned Mr.

25:26Smith's shirt and injected a yellow liquid into his chest. The man said, you will feel something cool. And the man slid a long needle into his chest. He inserted the needle, and as Kenny perceived it, moved the needle around while it was inserted in his chest. Mr. Smith noted that he, quote, lost all composure, unquote, at this point, describing, everything became surreal, everything went out the window. Mr. Smith became terrified that he was being injected with a substance that would render him unable to communicate, something that he knew would violate an existing court order. He was again panicked that he would not be able to say his final words to his family and the victim's family, given what he heard had happened in a previous execution.

26:13The man who had been injecting him in the chest and the IV team all stepped back. Mr. Smith tried to gather himself and then said that they stepped back up and the man from behind his shoulder had a large gauge needle with a large cylinder. Mr. Smith said he, quote, freaked out, unquote, demanding that someone call his lawyer. Next, Deputy Warden Woods put his hands on Mr. Smith on both sides of his head and said, quote, this is for your own good, unquote, pulling his head to the side. Mr. Smith then recalled searing pain as he was injected under his collarbone. He said, it took my breath away.

26:54And he recalled that he was gasping and trying to get away by bucking up off the table. Mr. Smith recounted that he believed the man tried approximately five times to get this large needle into a vein under his collarbone. By the time this was done, after three and a half or four hours being strapped to a gurney, he was unable to stand, walk, unbutton his shirt, change his clothes, do any of that without assistance. It was now almost midnight. Kenny couldn't stand. He asked for a wheelchair. They refused. He sat outside the chamber until the guards picked him up by the arms and carried him to the infirmary.

27:50I can't help but think about the execution team in this moment, assuming they'd be able to carry out the most overwhelming of tasks on the pretense that it's a clean, professional, humane exercise, only to suddenly realize they can't do it. They're over their heads, and they can't hide. They're stuck in the execution chamber until midnight. For reasons I can't fully explain, every time I think of the night of November 17th, I think of the lines from an old Graham Parker song. The doctor gets nervous completing the service. He's all rubber gloves and no head. He fumbles the light switch. It's just another minor hitch.

28:30Wishes to God he was dead. After a night like that, How could you not wish to God you were dead?

29:06Right-wing forces that smell blood, they smell weakness, and they are going after everyone who doesn't comply. There's an entire right-wing media machine aimed at pushing disinformation around breaking news events. Listen wherever you get your podcasts. Kenny Smith's failed execution was on a Thursday. The following Monday, the governor of Alabama, Kay Ivey, paused all pending executions in the state and ordered a top-to-bottom review of the state's capital punishment protocol. And then, two and a half weeks after that, came Steve Marshall's press conference. Good afternoon, everybody. Call this press conference today because...