MONTGOMERY, Ala. (WIAT) — The State of Alabama has agreed not to conduct a “cutdown” procedure or use intramuscular sedatives during the scheduled lethal injection of Kenneth Eugene Smith on Nov. 17.
In a brief filed in federal court this week, lawyers for the state attorney general’s office wrote that a lawsuit by Smith is due to be dismissed because, in part, Alabama will agree not to perform a “cutdown” or inject Smith with intramuscular sedatives during the execution process.
A complaint filed by Smith in August alleges that the state’s prolonged execution of Joe Nathan James presents new evidence that suggests his own execution could result in a violation of the U.S. Constitution.
James was executed in July for the 1994 murder of Faith Hall against her family’s wishes. The inmate was unresponsive throughout the execution, including as the public portion of the process began and a prison official asked James for his final words.
An independent autopsy of James conducted by Dr. Joel Zivot and first reported by the Atlantic’s Elizabeth Bruenig concluded that a “cutdown” had been performed on the condemned inmate. The outdated, rudimentary process involved slicing an individual’s skin to gain easy access to veins.
“To the extent that Smith’s references to a ‘change in Defendants’ lethal injection process’ can be read as requesting an injunction against the alleged ‘cutdown’ and sedation that Smith claims occurred in the execution of Joe Nathan James, Defendants are prepared to moot his complaint,” the state wrote in its filing.
Despite the stipulation, lawyers in the case would not concede that they performed a cutdown on James prior to his death. The lawyers called the Atlantic’s reporting “sensational” but “short on facts.”
“The article describes, among other things, a second autopsy – mostly through the speculations of Dr. Joel Zivot, a doctor well-known in ‘the anti-capital-punishment advocacy domain,'” the filing said.
Zivot, who serves as an associate professor at Emory University, said he would not respond to Alabama’s claims through the media.
“I owe a duty to the court to reserve my reply to my testimony at trial,” Zivot said Wednesday.
Jeffrey Goldberg, editor-in-chief of The Atlantic, said that the magazine stands by Bruenig’s reporting.
“We stand by Elizabeth Bruenig’s reporting,” Goldberg said. “We invite Alabama officials to answer any of the questions we have put to them.”
In 1996, Kenneth Eugene Smith was convicted in a murder-for-hire plot that led to the death of Elizabeth Dorlene Sennett in her Colbert County home. Court records show that Sennett’s husband, a reverend who later took his own life, hired a man named Billy Williams to kill his wife. Williams, in turn, hired Smith and another man, John Parker, to stage a burglary and kill Elizabeth. They carried out their plan, killing Elizabeth Sennett, in March 1988.
Williams was convicted of his role in the murder and sentenced to life in prison without parole. Parker, too, was convicted of Sennett’s murder and was executed in 2010.
As for Smith, a jury recommended by vote of 11 to 1 that he should receive a sentence of life without parole for his role in Sennett’s death, but a judge overrode that verdict and sentenced him to execution.
“If Smith’s trial had occurred today, he would not be eligible for execution,” a federal appeals court wrote of Smith’s case in 2021.
Alabama abandoned an attempt to execute another inmate, Alan Miller, earlier this month after prison staff had difficulty accessing Miller’s veins.