Category: Death Penalty

First Nitrogen Hypoxia Execution Completed

by · Jan 26, 2024 9:04 am

The first execution by nitrogen hypoxia was completed yesterday, as Alabama finally executed paid hit-man Kenneth Smith for the murder of Elizabeth Sennett 35 years ago. The hit men stabbed Mrs. Sennett and beat her with a fireplace tool in her home in Colbert County, Alabama. See this story at al.com, published in 2022 and updated yesterday. They had been hired by her husband, who self-executed before he could be charged.

As I have noted several times on this blog, hypoxia is painless, as I know from personal experience in Air Force flight training. Unconsciousness would normally be quick, but one thing we cannot control is the inmate’s resistance by holding his breath. That is apparently what happened yesterday. The AP reporter who witnessed the execution reports that Smith shook the gurney for about two minutes. Some of this was likely voluntary movement while conscious, and some may have been involuntary movement while unconscious. This was followed by several minutes of heavy breathing.*

The WSJ has this story, with video clips from Alabama DOC Commissioner John Hamm and Jeff Hood, identified as Smith’s “spiritual advisor.” Continue reading . . .

Be Careful What You Ask For

by · Oct 4, 2023 1:55 pm

From August last year until last month, Alabama murderer Kenneth Eugene Smith waged a legal battle to require the state to use nitrogen hypoxia, not lethal injection, to execute him. He won. The U.S. District Court for the Middle District of Alabama issued this order on September 20.

The order notes, “In no fewer than two hearings before this Court, Plaintiff has confirmed that nitrogen hypoxia is his chosen and preferred method of execution.” The order says, “Defendants …  are permanently ENJOINED from executing Kenneth Eugene Smith by lethal injection. Sanctions will be swift and serious if this injunction is violated.” Because Alabama intends to carry out the execution by Smith’s preferred method, the court dismissed the case except for any proceedings to enforce the injunction.

So, the Alabama AG goes to the Alabama Supreme Court with a motion to set an execution date. You know what happens next, right? Continue reading . . .

Florida Executes Double Murderer

by · Oct 4, 2023 10:59 am

Michael Duane Zack, a Florida man who murdered two women in 1996, was executed by lethal injection Tuesday night.  Brendan Farrington of the Associated Press reports that Zack’s attorneys sought a last-minute stay arguing that he suffered from fetal alcohol syndrome and post-traumatic stress disorder, which was rejected by the U.S. Supreme Court Monday.   A Florida Supreme Court decision upholding Zack’s conviction and death sentence describes the brutal murders of Laura Rosillo and Ravonne Smith. Continue reading . . .

Texas To Execute Double Murderer

by · Mar 7, 2023 11:14 am

A Dallas murderer who killed his estranged wife and her  6-year-old daughter in 2009, faces execution by lethal injection later today.  Juan Lozano of the Associated Press reports that Gary Green decided to kill his wife, Lovetta Armstead and her three children after she informed him that she sought to annul their recent marriage.  On the day of the murders Green wrote Armstead that “there will be five lives taken today me being the fifth.”  A July 2021 decision by the U.S. Court of Appeals for the Fifth Circuit describes the murders.  On September 21, 2009 Green went to Armstead’s home and stabbed her more than two dozen times.  He then drowned the 6-year-old girl in the bathtub, before stabbing 9-year-old Jerrett, who talked Green out of killing him and his 12-year-old brother.  At trial Jerrett recounted that he “told Green because we’re too little to die and we won’t tell anybody about it.”   The overwhelming evidence of guilt, including Green’s confession, resulted in an unanimous jury finding him guilty of capital murder. UPDATE:  Green died without incident at 7:07 PM Tuesday night.

Continue reading . . .

Comedians in Jail and the Right to Counsel

by · Dec 30, 2022 8:12 pm

The WaPo has this story about a strange case on the U.S. Supreme Court’s Jan. 6 conference list.

A Texas inmate filmed as part of a Comedy Central roast by comedian Jeff Ross while in jail is appealing his case to the U.S. Supreme Court, arguing that the stand-up’s footage was improperly used to sentence him to death for attacking an elderly married couple.

Gabriel Hall was awaiting trial for a high-profile capital murder charge when Ross, known as the “Roastmaster General” for his insult comedy, was invited to Brazos County Jail and interviewed Hall and other inmates in 2015.

Though it never aired, the video was later subpoenaed and presented to the jury by the prosecutor, who argued Hall did not show remorse four years after the 2011 killing. But Hall’s legal team has argued that the taping happened without his lawyers’ knowledge and violated the inmate’s Sixth Amendment right to counsel. Continue reading . . .

Missouri Executes Cop Killer

by · Nov 30, 2022 3:20 pm

A Missouri felon, who executed a St. Louis police officer in 2005, was put to death by lethal injection yesterday.  Jim Salter of the Associated Press reports that the state Supreme Court had twice denied to stay Kevin Johnson’s execution and the Governor refused to grant him clemency.   Johnson was on probation for beating his girlfriend when on July 5 police officers, including Sergent William McEntee, came to his house to investigate the ownership of a vehicle he allegedly possessed.  As officers approached the house Johnson told his 12-year-old brother to run next door to his grandmother’s home.  Facts presented in the Missouri Supreme Court’s 2013 decision denying habeas corpus relief indicate that once the brother, who had congenital hear disease, got next door he had a seizure and died later in the hospital.  While officers attended to the boy and called an ambulance, McEntee kept the grandmother from entering the house.  The officers eventually left the neighborhood, but hours later Sergent McEntee returned to investigate a report of illegal fireworks.  As he was in his patrol car talking to some teens, Johnson approached saying. “you killed my brother’ and shot McEntee five times.

Continue reading . . .

Alabama Execution Update

by · Nov 18, 2022 10:21 am

Alabama hit man Kenneth Eugene Smith got a (hopefully brief) respite from his execution yesterday. The U.S. Court of Appeals for the Eleventh Circuit granted a stay on a different issue than the one noted in this post. The Supreme Court vacated the stay, three Justices dissenting, but the warrant expired at midnight, and the execution team was not able to find a suitable vein in that time.

Execution warrants that are good for one calendar day only are an old tradition, but there is no need for such a limitation. In an era where many judges are prone to issue last-minute stays, whether they are legally justified or not, a one-day window needlessly changes quickly reversed stays into longer ones in practice, as the date-setting machinery must be restarted. This is also very stressful for victims’ families, who often travel to the execution site believing that they are finally going to see long-overdue justice done, only to have it snatched away at the last minute.

States are gradually doing away with the one-day rule. California has a 10-day window, enacted by initiative. Continue reading . . .

A Bad Week For Murderers

by · Nov 17, 2022 2:19 pm

This is a bad week for murderers. I previously noted that the Supreme Court turned down the stay application of Alabama hired hit man Kenneth Smith. He is scheduled for execution at 6:00 p.m. CST. This morning Oklahoma executed Richard Fairchild for the torture and murder of a 3-year-old boy. AP story here; Supreme Court denial here.

Yesterday Arizona executed double murderer Murray Hooper. AP story here. Supreme Court denials here and here.

Also yesterday, Texas executed Stephen Barbee for the murders of his pregnant ex-girlfriend and her 7-year-old son. AP reports: Continue reading . . .

Judicial Override, the Sixth Amendment, and Retroactivity

by · Nov 16, 2022 9:55 am

Sentencing a murderer to death generally requires three decisions in the United States today: (1) a factual finding that the defendant is guilty of the highest degree of murder; (2) a further factual finding that an additional aggravating factor is true;* and (3) a discretionary decision that death is the appropriate punishment for this murder and this murderer, considering both aggravating and mitigating factors.

The first decision must be made by a jury under the Sixth Amendment, unless the defendant waives that right. In Ring v. Arizona, the Supreme Court held that the second decision must also be made by a jury, though it previously held the opposite multiple times. The third decision may be vested in a judge (or panel of judges) or a jury by state law. Only Nebraska currently vests the decision in judges.

If a state can vest the decision in the judge entirely, can it also have a jury make a recommendation but still leave the final decision with the judge no matter what the jury recommends? Of course. If a state has such a system but decides to change it and make the jury’s life-sentence recommendation binding, does the U.S. Constitution require that it make that change retroactive, overturning final judgments entered under the old system? Of course not.

Yet that question is before the Supreme Court today in the case of hired hit man Kenneth Eugene Smith. [Update: Stay denied without comment or dissent.] Continue reading . . .