MONTGOMERY, Ala. (WIAT) — An order by a federal district court has cleared the way for the execution of Willie B. Smith this Thursday, Oct. 21.

District Court Judge Emily Marks issued an order Sunday denying Smith a preliminary injunction: a court order that would have delayed his execution until a disability claim regarding his mental capacity could be considered at trial. 

Smith, who has an IQ of 70, was convicted of the 1991 murder of Sharma Ruth Johnson, the sister of a Birmingham police detective. Smith’s attorneys claim prison officials violated his rights under the Americans with Disabilities Act when they did not provide him a reasonable accommodation to allow him to understand he had a 30-day period to opt into execution by nitrogen suffocation.

An execution using the method, which involves replacing oxygen needed to breathe with nitrogen gas, has never been carried out in the United States. Execution through nitrogen suffocation was approved by the Alabama Legislature in 2018, making Alabama the third state in the country — including Oklahoma and Mississippi — to have authorized its use.

Marks, a Trump appointee, is the same lower court judge that previously dismissed Smith’s disability claim on technical grounds. An appeals court vacated that dismissal and ordered Judge Marks to reconsider. This move, clearing the way for Smith’s lethal injection on Thursday, was her response. 

Prison officials have limited press access to Smith’s execution, which will take place at Holman Correctional Facility in Atmore, Alabama. Media access is being restricted, and prison officials attempted to deny Smith the 6 witnesses he requested be present, citing concerns about COVID-19. A federal defender for the state said in a later hearing that Smith’s designated witnesses will be allowed to attend only if they sign a waiver.

Smith’s lawyers have already filed a notice of appeal to the Eleventh Circuit Court of Appeals.