Judge paves way for Alabama execution, calls actions of AG reckless, inexcusable

Published 6:48 am Saturday, September 25, 2021

A federal judge on Friday paved the way for Alabama to proceed with a lethal injection next month, but also reprimanded the state attorney general’s office for giving false information to the court during the litigation centered on forms given to death row inmates for selecting an execution method.

Chief U.S. District Judge Emily C. Marks dismissed a lawsuit that argued the state failed to give Willie Smith, who has an IQ below 75, required help under the Americans with Disabilities Act in filling out forms that affected the timing of his execution. Smith is scheduled to be executed on Oct. 21 by lethal injection for the 1991 kidnapping and murder of 22-year-old Sharma Ruth Johnson in Birmingham.

After Alabama authorized nitrogen hypoxia as an execution method, the state gave death row inmates a brief window to select that as their execution method. The state has not yet developed a protocol for using nitrogen hypoxia and is not setting execution dates for inmates who requested it. Smith did not turn in a form selecting nitrogen. His attorneys argued that the state was required by law to help intellectually disabled inmates like Smith with the form.

Marks dismissed the claim, saying the form was not required by state law and that Smith could have written on his own to request nitrogen.

Marks ruled that the “form was not required, directed, or sanctioned” by state law and “for the entire month of June 2018, both before and after this form was distributed, Smith had the ability to opt into execution by nitrogen hypoxia through any writing he chose.”

Smith’s attorney indicated they will appeal.

“The court’s dismissal of our complaint on jurisdictional grounds does not reject the merits of our claim, which is that the Department of Corrections, when it distributed an opt in form for a method of execution, created a program without providing an accommodation to Mr. Smith, who is cognitively disabled. We are anticipating appealing this decision and continuing to fight for Mr. Smith,” federal defender John Palombi wrote in an email.

Marks also issued an order formally reprimanding the Office of the Alabama Attorney General Steve Marshall and Assistant Attorney General Lauren Simpson over false information given to the court.

Simpson had previously told the court that the warden of Holman Prison made the decision herself to hand out the forms. However, the judge noted that Warden Cynthia Stewart in 2018 testified that she was instructed to do so.

“Although she could not recall who gave her the instruction, she acknowledged it would have been someone above her in the chain of command,” Marks wrote.

Simpson was fined $1,500. Marks wrote that the misrepresentation was inexcusable although she did not think Simpson acted maliciously.

“The Court finds that the improper conduct here was reckless, particularly given that this is a case involving the death penalty; it was not an isolated event but rather occurred across two written filings and was stated orally at a hearing,” Marks wrote.