(C) Daily Montanan This story was originally published by Daily Montanan and is unaltered. . . . . . . . . . . Federal court allows Alabama to execute inmate with nitrogen gas – Daily Montanan [1] ['Ralph Chapoco', 'More From Author', '- January'] Date: 2024-01-11 A federal judge Wednesday denied an Alabama death row inmate’s challenge to execution by nitrogen suffocation, a method never used on a human being. U.S. District Court Judge R. Austin Huffaker ruled that Kenneth Eugene Smith, whose execution is scheduled for Jan. 25, did not meet the burden the law required to stop it. “Although Smith has plausibly alleged claims such that they survive dismissal at the motion to dismiss stage, he has failed to show a substantial likelihood of success on their merits,” Huffaker wrote in the order. The decision allows the state to move forward with Smith’s planned execution using a protocol that the Alabama Department of Corrections developed in August. But an appeal is likely. A message seeking comment was left Wednesday with Robert Grass, Smith’s attorney. The Alabama Supreme Court allowed the state to proceed with the execution in November. The Department of Corrections proposes placing a mask over Smith’s face that will expose him to pure nitrogen gas for 15 minutes, or for up to 2 minutes after an EKG machine shows him flatlining. It would be the first use of the execution method in the world. The method has been used to euthanize animals, but the American Veterinary Medical Association generally discourages its use and recommends that animals be sedated first. The DOC protocol does not indicate if a person executed by the method will receive an sedative prior to exposure to nitrogen. The Alabama Legislature approved the execution method in 2018. Oklahoma and Mississippi have also adopted nitrogen gas as a method of death, though neither state has carried out an execution with the method. Smith’s attorneys argued that death by nitrogen could needlessly prolong his death or result in complications prior to death, including a stroke, a sensation of suffocation or choking or a persistent vegetative state. The attorneys also argued that the mask placed on his face may not fit; that oxygen could infiltrate the mask, and that the mask may be filled with air from the room, which would increase the pain he felt just before his death. Smith also said he suffers from post-traumatic stress disorder and depression from a failed attempt to execute him by lethal injection in November 2022. The Alabama Attorney General’s Office argued the risks were theoretical and do not rise to the level of substantial risk of pain when compared to the alternatives that he proposed. Huffaker agreed. “(Smith’s) evidence and allegations amount to speculation, at best ‘scientific controversy,’” Huffaker wrote. Smith also argued that wearing the mask would violate his First Amendment rights because it would not allow him to pray audibly. Rev. Jeff Hood, Smith’s spiritual advisor, has sued the department, saying the method could put him in danger and make it difficult to minister to Smith during the execution. The Attorney General’s Office said the mask will not dislodge should Smith decide to pray so that others may hear him. Huffaker wrote that Smith did not rebut the argument. “While Smith’s evidence does suggest that it is possible that his audible prayer could dislodge the mask during his execution to some extent, Smith has failed to meet the requisite burden required for this court to issue a preliminary injunction,” the judge wrote. Smith was sentenced to death for his role in the 1988 murder of Elizabeth Sennett. Smith and two other men were hired by Rev. Charles Sennett to kill his wife in order to collect insurance on her. Rev. Sennett died by suicide a week later. Smith said he participated in an assault on Sennett but did not mean to kill her. A jury voted to sentence Smith to life without parole. The trial judge overruled the jury and sentenced Smith to death. “With today’s order, Alabama is an important step closer to holding Kenneth Smith accountable for the heinous murder-for-hire slaying of an innocent woman, Elizabeth Sennett,” said Attorney General Steve Marshall in a press release. “Smith has avoided his lawful death sentence for over 35 years, but the court’s rejection today of Smith’s speculative claims removes an obstacle to finally seeing justice done.” Several groups, including officials with the United Nations, have publicly expressed their concerns regarding Alabama’s plan to execute Smith by nitrogen hypoxia, asking state officials to reconsider. This story was originally produced by the Alabama Reflector which is part of States Newsroom, a network of news bureaus, including the Daily Montanan, supported by grants and a coalition of donors as a 501c(3) public charity. [END] --- [1] Url: https://dailymontanan.com/2024/01/11/federal-court-allows-alabama-to-execute-inmate-with-nitrogen-gas/ Published and (C) by Daily Montanan Content appears here under this condition or license: Creative Commons CC BY-NC-ND 4.0. via Magical.Fish Gopher News Feeds: gopher://magical.fish/1/feeds/news/montanan/