Judge dismisses lawsuit over upcoming lethal injection in Alabama

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MONTGOMERY, Ala — A federal judge dismissed an inmate’s claim seeking to block his upcoming execution in Alabama because of reported problems at a recent lethal injection.

The judge on Sunday granted Alabama’s request to dismiss the lawsuit brought by Kenneth Eugene Smith, agreeing that Smith waited too long to file the challenge. But U.S. District Judge R. Austin Huffaker Jr. also warned Alabama’s prison commissioner to strictly follow established protocol when officials attempt to put Smith to death next month.

“Sanctions will be swift and serious if counsel and the Commissioner do not honor or abide by their representations and stipulations,” Huffaker wrote.

Smith is set to be executed by lethal injection Nov. 17 after being convicted in the murder-for-hire killing of Elizabeth Dorlene Sennett, 45.

Smith’s attorneys pointed to a July execution, which an anti-death penalty group claims was botched, to argue that Alabama’s lethal injection process creates a risk of cruel and unusual punishment.

The July 28 execution of Joe Nathan James Jr. was carried out more than three hours after the U.S. Supreme Court denied a request for a stay. State officials later acknowledged the execution was delayed because of difficulties in establishing an intravenous line, but did not specify how long it took.

A doctor who witnessed a private autopsy paid for by an anti-death penalty group said it appeared officials might have attempted to perform a “cutdown,” a procedure in which the skin is opened to allow a visual search for a vein.

Huffaker noted that Corrections Commissioner John Hamm “represents in his brief and during oral argument that the ADOC did not employ a cutdown procedure or intramuscular sedation during the James execution and denies any present intent to employ any such procedure in the future.”

Huffaker ruled that Smith missed the time frame to challenge Alabama’s lethal injection process.

Smith missed the 2018 deadline to request execution by nitrogen hypoxia, an execution method that Alabama has authorized but not developed a process to use. Smith’s attorneys argued that the state violated his due process rights by not providing him information necessary to make a knowing and voluntary waiver of his nitrogen hypoxia election right in 2018.

His attorneys argue that Smith did not know nitrogen hypoxia “would not be implemented for years, if ever.” Huffaker said that complaint also could not overcome a “clear statute-of-limitations hurdle.”

Prosecutors said Smith was one of two men paid $1,000 to kill Sennett on behalf of her husband, the Rev. Charles Sennett, who was deeply in debt and wanted to collect on insurance. Smith maintained it was the other man who killed Sennett, according to court documents.

Smith was initially convicted in 1989, and a jury voted 10-2 to recommend a death sentence, which a judge imposed. His conviction was overturned on appeal in 1992.

He was retried and convicted again in 1996. This time, the jury recommended a life sentence by a vote of 11-1, but a judge overrode the jury’s recommendation and sentenced Smith to death. Alabama no longer allows a judge to override a jury’s recommendation.