Transcript of The Alabama Murders - Part 5: Cruel and Unusual

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Previously on Revisionist History. I think there was a pressure to have a method that looked more humane than electrocution and lethal gas.

On that van, when I go back to the hotel where the other people had been in there praying with his family, I have to go in and tell them, John's gone.

It was peaceful.

He didn't appear to have suffered.

This is how lethal injection actually kills you. It kills you by burning your lungs up. You're also paralyzed, so you can't complain that this is happening.

Good afternoon, everybody. Thank you for being here. Hope everybody had a wonderful holiday. If I haven't seen you since then, call this press conference today because I believe the people of Alabama deserve an explanation on where things stand and where I stand with regard to capital punishment in our state.

It's early December 2022, Montgomery, Alabama. Steve Marshall, the State's Attorney General, is holding a press conference, standing at the podium, flanked by the Alabama and American flags.

What occurred on November 17th was a travesty, but not for the reasons that many death penalty opponents and death row sympathizers would have the public to believe.

My name is Malcolm Gladwell. You're listening to the Alabama Murders, our series on the Elizabeth Senate case. This is episode 5, Cruel and Unusual. It's about the second of her assailants, Kenny Smith, and what was done to him in the name of justice. The Travesty of November 17th. Kenny Smith was 22 at the time of Elizabeth Senate's murder. He had a girlfriend and two young children. He was working in a factory. He was slight, skinny, dark hair, thick, moon-shaped eyebrows. He was drunk a lot and high, but always smiling.

They would come over to my house a lot, and he would just be grinning because Michael would be sitting in the back seating his car seat, but Kenny would be high. He would be drinking.

This is Linda Smith, Kenny's mom, talking with a local reporter named Lee Hedgesbeth. Lee has covered the Kenny Smith case and knows his family well.

What drunk was Kenny?

He was a happy drunk. Yeah.

It's hard to think of Kenny as anything I know. I know. Yeah.

I know.

I don't have to get lucky all the time. Yeah.

I mean, what you're saying is what you get with him.

On the evening after the attack on Elizabeth's Senate, Smith's best friend came over to his house. They went out to get beer. Kenny's hand was swollen. He had it wrapped in a bandage. On the way to the store, Kenny kept saying, I messed up, I messed up. He wouldn't say why. Then back at home, he started crying. His mother lived close by. In the days that followed, before the police caught up to him, he went to see her.

And Kenny, like I said, he would come over during that time. I mean, I look back on the times that he would come over And he would be distant. And he would just... I mean, it's just like it was just like... It was something he wanted to tell me, but he never did.

So when do you find out that he's implicated in some way?

Well, I find out one afternoon when he calls me. I think he just got home from work, and he called me and he said, Mom, can you come pick up Michael? And I said, Well, I'm washing my hair right now. I said, I can't right this minute. And he said, Well, Mom, can you come? He said, The police are here. And I just thought it was for pot or drugs or something like that. And I said, Well, I'll be over there in just a minute. Of course, it didn't take me long to get to their house. And when I drove up over there in that driveway, I bet you there was 10 cars out in front.

Kenny Smith met the same fate as his friend John Parker, who you heard about in the last episode. Smith was charged with murder convicted, sentenced by the jury to life without parole by a vote of 11 to 1. And then his judge did the same thing John Parker's judge did, overrode the jury's decision and sentenced him to death. He got sent to home in prison and stayed there for decades, appealing his sentence, delaying the inevitable until November 17th, 2022, when the event that the attorney general of the State of Alabama called a travesty happened.

It's been a great deal of media coverage, both local and national, about what happened in Kenny Smith's Execution Chamber. Much of that coverage has seemingly been openly sympathetic to Smith and his cause, even with some going so far as to advocate for the abolishment of the death penalty. On what basis exactly? Because a cold-blooded, convicted killer complains about the prodding and poking of a small IV line. Really? Podding and poking with a needle?

Proding and poking with a needle. Let's start there. The state of Alabama has a detailed set of instructions for how executions are to be carried out in their prisons, a protocol. The protocol was not supposed to be a public document, but Alabama was forced to disclose it during a death penalty court case. It's 41 pages of dry, precise language stipulating every step of the process. When a condemned prisoner is supposed to be moved to a special holding cell, when he gets his last meal, what he gets to have in his cell, the people who are allowed to attend the execution, where the victim's family goes, where the offender's group goes, things like that. The execution team is made up of about a dozen people. It has a captain. The team is supposed to do a walkthrough in the week leading up to the execution, batting practice, if you will, to make sure they have the killing procedure down pat. As you may remember from the last episode, the seed of the idea behind lethal injection came from Ronald Reagan, who said, Why don't we just execute people the same way we put down horses? To use the veterinarian's euphemism, put them to sleep.

Clean, quick, professional. Something that appears painless. Instead of all the messiness of the electric chair. That's very much the spirit of the Alabama Protocol.

What was so, I think, effective about lethal injection and sinister is the fact that when When you observe an execution with lethal injection, generally, it's a pretty bloodless event. Not much happens. It appears that a person closes their eyes. Maybe you could imagine that they fall asleep, and then they're dead.

Joel Zivet, the intensive care specialist from Emory University in Atlanta, who fell into death penalty work a few years ago.

This was a breakthrough in terms of the witness experience, because every other execution method that had ever occurred before then, it was quite a lot more graphic. But lethal injection seemed to solve the problem of being outwardly peaceful. And that's why I think lethal injection took hold. And on top of that, of course, there was this impersonation of a medical act. There was the use of terminology of medicine and even the use of physicians and other medical people, which gave this extra impression that this was legitimate and endorsed activity.

Which brings us to the portion of the protocol at issue on the evening of November 17th, 2022. It's in Section B, Part One, Clause A. The IV team will be escorted into the execution chamber to start the IV. The heart monitor leads will be applied to the condemned inmate. If the condemned inmate these veins make obtaining venous access difficult or problematic, qualified medical personnel may perform a central line procedure as set forth in Section 2 of Appendix B, ADOC, Lethal Injection Execution Procedure. A central line procedure involves inserting a long, thin, flexible tube into a large vein, like the jugular vein in the neck or the subclavian vein in the chest or the femoral vein in the thigh. So you try for the arm, the normal way, and if you fail, you go for a big vein. That's the plan. Only in real life, things aren't always so straightforward as outlined in Section B Part One Clause A. In the case of Kenny Smith and in another cases, there have been these initial problems in finding a vein.

Yeah. I want to talk about this with you, Malcolm.

Can you talk about this? Because as a nonmedical person, I'm puzzled. I don't understand this. Sure. Yeah. So walk me through why is that hard?

Alabama was the poster child of failure for this in an odd cluster of cases. And to answer your question directly, why is it hard? Well, it's hard because in order to put an intravenous into a vein, it requires a certain level of skill, and it also requires some cooperation. It hurts to stick someone with a needle. In someone who that is young and fit and well-hydrated and relaxed, that the chance of getting a vein in a person like that is quite high. In someone who's dehydrated, terrified, had been sick, had been in prison for two decades, it becomes a lot harder. Plus, you're also giving it over to people who are not experts. An anesthesiologist in good standing is not going spend their Wednesdays over at the state corrections, sticking IVs in people for execution. It's not something that we do. People who to learn to do an intravenous is a technical skill. It can be learned. But I think also the people who are doing it themselves are nervous.

Alabama won't reveal exactly who is on the execution team, what their training is, how much experience they have. But it's safe to say this isn't a team full of doctors, since doctors have to take an oath to do no harm. Hooking someone up to an IV that will transport lethal drugs is definitely doing harm. That's Zivet's point. These are prison employees or outside contractors. It's not the anesthesiologist from the nearest teaching hospital.

There are some ways of making it more likely than not to succeed. But what is taught either in nursing school or as an EMT or as a doctor cannot be lifted into the death chamber. It's not the same place. If these people are not patients, they're not collaborators to you.

In some states with the death penalty, putting in the IV is done in full view of the witnesses to the execution. But in Alabama, it's done before the witnesses are invited into the execution chamber, which means that any outsider who is there to see the execution, the families and friends and reporters, are forced to guess how the IV process is going. The executions are supposed to start at 6: 00. The witnesses are all sequestered in a holding room away from the execution site. If it gets to be 07: 00 PM or 07: 30 PM or 09: 00 PM, and the witnesses haven't yet been picked up by the bus to go take them to the execution chamber, then everyone starts to wonder, Is there a problem? This is exactly what happened In the summer of 2022, while Kenny Smith was still appealing his sentence, a condemned inmate at home named Jonathon James was set to be executed. Everything with James ran late. Afterwards, the state insisted that procedure had gone according to plan, but Zivet was suspicious. He asked to perform a second autopsy, and what he found was, in a word, gruesome. Consider yourself warned.

I was able to get his body, and I worked with a pathologist in Alabama and went there. And with him, we performed this second autopsy, and I saw in his body evidence of multiple attempts at intravenuses. Some of these things you could see bruising, which meant that they were getting in and getting out of a vein, and there were some bleeding under the skin. These were both on multiple spots on his arms, up and down, both arms. And then there was also evidence of something called a cut-down. And a cut-down is where you take a knife to the skin and you open the skin to reveal a vein beneath that you couldn't otherwise see or feel. It's an old style technique and it's been replaced by ultrasound. And the protocol at the time does not provide for the possibility of a cut down. Also, the cut down along the edges of it had blood, which again meant that he had to have been alive and bleeding for this to have taken place. Somehow they got some IV in him, but it took them Hours to do it. So picture Joe Nathan James lying there, strapped down, not cooperative, as they poke and poke and poke him, and they finally just take a knife to his forearm to open up his forearm to try to get a vein there.

And so that was Joe.

Then came Alan Miller, two months later. Under Alabama law, once a defendant has been convicted of a capital crime, he or she is given a death warrant. A warrant is a rite issued by the court, which lays out the facts of the conviction, the specific offense, the judgment of the court, and the time and place of execution, which in Alabama is a purpose-built facility on the campus of home and prison in Atmore. At the time, once a date had been set, the execution had to take place by midnight. So they start at 6: 00 PM and give themselves 6 hours. With Alan Miller, they ran out of time, gave up. The state had to come back and kill him on another day. Then came Kenny Smith.

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Tell me your impressions of Kenny. What was he like?

Kenny, I obviously didn't know him when he was a 22-year-old person at the time of the events for which he was convicted. But he truly was an example, and I know this is going to sound trite and a cliché, but he really got religion figuratively and literally. In prison, he was a force for good.

This is Robert Grass, one of Kenny Smith's lawyers, the one who had been with him the longest. He's a litigator for a prestigious corporate law firm in New York City. He represents pharmaceutical companies, but he does pro bono death penalty work on the side. He started representing Kenny Smith in 2005. How many times over the course of 20 years did you go to Alabama?

I don't have an exact number, but many.

Home and prison where Smith was held is in the Southern part of the state. Grass was in New York. So that's New York to Atlanta, Atlanta to Mobile, rent a car in Mobile, drive an hour to Atmore. He made that journey for close to two decades.

I really felt as if we developed a friendship I really would have liked to have had the opportunity to interact with him under different circumstances.

Grass is older, lean, dark suit, gray hair, Ivy lead degree, Cumlaude law school graduate. He probably bills out at some astronomical number. Whenever I read about some complicated legal negotiation that goes on into the wee hours of the morning, I imagine it's because someone like Robert Grass is involved. As measured and dispassionate and implacable at 3: 00 AM as they were at 3: 00 in the afternoon. You have to listen very closely when he talks. He doesn't broadcast his feelings. He sends out Morse code signals. Talk a little bit more about your friendship. It's an unlikely friendship.

Yeah. We obviously grew up in different circumstances.

Different circumstances. Morse code.

I've had other experiences with some folks on death row where I didn't feel the same bond. But Kenny, as I said, by the time I knew him, was just a decent man, incredibly gracious, and really seemed to have the best he could, given the environment he was in, to have been leading a productive life in that environment.

In the fall of 2022, Smith and his legal team suffered a serious setback. Smith was finally given a death warrant, and the warrant set the date of the execution, November 17th, 2022. But those two botched execution cases, Alan Miller and Joe Nathan James, gave Grass one more chance. The Supreme Court has long supported the idea that states can execute prisoners if they wish, but they have insisted that executions have to be done the right way. And what happened to Joe Nathan James and Alan Miller didn't seem like it fit any definition of the right way. So Smith's lawyer sued. The way Alabama is practicing lethal injection is cruel and unusual punishment. The case was dismissed. Grass appealed to the 11th Circuit in Atlanta. Arguments were heard on November 16th, the day before Smith's death warrant. Grass went directly from the hearing to the prison.

Then I went to Atmore, which is where Holman is, visited with Kenny that morning. We were still waiting for the 11th Circuit's decision, and that day became a real roller coaster of emotions.

Grass was in a hotel room a mile or two from the prison. At 08: 00 PM, Grass heard that the prison guards at Holman had taken Kenny out of his cell and were preparing him for execution. But that wasn't right. His appeal was still up in the air. Then, Grass got another call. The 11th Circuit had ruled in Kenny's favor. The execution was off, at which point, the State of Alabama appealed to the US Supreme Court. It was now after 08: 00 PM.

And in the meantime, I'm watching the clock tick because the death warrant expired at midnight. So I'm hoping to reach that point without this going forward. But at about a quarter after 10: 00 or so, got a call from the emergency clerk at the United States Supreme Court, sometimes referred to as the Death clerk, because a lot of the emergencies involved capital cases, but who said, There's no easy way to say this. And so I knew from that preparatory remark what was coming.

The Supreme Court ruled in favor of Alabama. One of the reporters who was at home in prison covering the story, emailed Grass to say they were moving the witnesses to the death chamber. Grass sat in his hotel room waiting to hear what happened. Nothing. Silence. The next morning, he learned why.

So he was taken out of his cell, thinking that his execution was imminent, strapped to a girney, and nothing is happening. And he's asking the corrections officers who are with him, What's going on? And they tell them they don't know. And then when they finally got going, they've got three members of an IV team, none of whom are identified to him. There were other people in the execution chamber with him that were not identified to him. They're jabbing him with a needle, trying to find a vein, which they weren't able to do. Then they tried something called a central line procedure to stick a needle under his collarbone and reach one of his central veins. But again, they didn't tell what they were doing, what was going on. They just put a surgical gown over him. One of the IV team members came back into the room in surgical garb. Kenny is asking these people what they're doing. No one is telling them.

I'm going to read from a report on that evening commissioned by Grass and his team. It includes a very detailed description of what Kenny said happened to him in the execution He recalled seeing a clear plastic sheet over his chest with an open center. He saw that the man had a syringe in his hand, and he unbuttoned Mr Smith's shirt and injected a yellow liquid into his chest. The man said, You will feel something cool. And the man slid a long needle into his chest. He inserted the needle, and as Kenny perceived it, moved the needle around while it was inserted in his chest. Mr Smith noted he, Lost all composure, at this point describing, Everything became surreal. Everything went out the window. Mr. Smith became terrified that he was being injected with a substance that would render him unable to communicate, something that he knew would violate an existing court order. He was again panicked that he would not be able to say his final words to his family and the victim's family, given what he heard had happened in a previous execution. The man who had been injecting him in the chest and the Ivy team all stepped back.

Mr. Smith tried to gather himself and then said that they stepped back up and the man from behind his shoulder had a large gage needle with a large cylinder. Mr. Smith said he, Freaked out, demanding that someone call his lawyer. Next, Deputy Warden-Woods put his hands on Mr. Smith on both sides of his head and said, This is for your own good, pulling his head to the side. Mr. Smith then recalled searing pain as he was injected under his collarbone. He said, It took my breath away. And he recalled that he was gasping and trying to get away by bucking up off the table. Mr. Smith recounted that he believed the man tried approximately five times to get this large needle into a vein under his collarbone.

By the time this was done, that After three and a half or four hours being strapped to a girney, he was unable to stand, walk, unbutton his shirt, change his clothes, do any of that without assistance.

It was now almost midnight. Kenny couldn't stand. He asked for a wheelchair. They refused. He sat outside the chamber until the guards picked him up by arms and carried him to the infirmary. I can't help but think about the execution team in this moment, assuming they'd be able to carry out the most overwhelming of tasks. On the pre tense that it's a clean, professional, humane exercise, only to suddenly realize they can't do it. They're over their heads, and they can't hide. They're stuck in the execution chamber until midnight. For reasons I I can't fully explain. Every time I think of the night of November 17th, I think of the lines from an old Graham Parker song, The doctor gets nervous completing the service. He's all rubber gloves and no head. He fumbles the light switch. It's just another minor hitch. Wishes to God he was dead. After a night like that, how could you not wish to God you were dead? He had 30 agents ready to go with shotguns and rifles and you name it. Five, six White people. Push me in the car.

I'm going, what the hell?

Basically, your stay-at-home moms were picking up these large amounts of heroine.

All you got to do is receive the package.

Don't have to open it.

Just accept it.

She was very upset, crying. Once I saw the gun, I tried to take his hand, and I saw the flash of light.

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Kenny Smith's failed execution was on a Thursday. The following Monday, the governor of Alabama, K. Ivy, paused all pending executions in the state and ordered a top to bottom review of the state's capital punishment protocol. And then, two and a half weeks after that, came Steve Marshall's press conference.

Good afternoon, everybody. Call this press conference today because- Attorney General's office, Montgomery, Alabama, flags on both sides of the podium.

Alabama's highest ranking legal officer seeks to set the record straight. And what was on his mind? That six-hour window that home in prison had given itself to get someone ready to be executed. Why were they starting so late in the day? He was letting murderers and their lawyers gain the system.

So if If you're a defense lawyer representing an inmate, you simply know that you have to push the clock back as far as possible. I think we saw that occur with the last two executions.

Not to mention the prisoners themselves. They weren't helping matters.

But let's also acknowledge that inmates themselves have responsibility here, not just in the delay that's occurred, but I think you've seen in pleatings that we have where inmates are resisting the efforts to put that IB line in, which obviously makes it more difficult.

Can you believe it? The condemned prisoners are not cooperating with their executioners. A reporter raises his hand. Is there anything the state legislature could do, like maybe adding another method of execution or increasing that window to 48 or 72 hours? Yes, yes, Marshall says. That is the issue here. We just don't have long enough.

Although we have a 24-hour period right now, but really, in actuality, we have a six-hour window based upon policies the Department of Corrections have been in place long before the current Commissioner, long before Governor Ivie or myself. I'm sure that's one of the things that they will look at as part of their review.

I'm sure that's one of the things they will look at as part of their review. Sure enough, It was. The governor's top to bottom review turned out to be a new rule that said the guards at home in prison would have until the following morning to complete their service. Six more hours to poke and prod and take a knife and peel back flesh and dig around the collarbone and manage the rising sense of shame and self-loathing and revulsion that comes from being asked to do a job without really knowing how to do a job.

It's been a great deal of media coverage, both local and national, about what happened in Kenny Smith's Execution Chamber. Much of that coverage has seemingly been openly sympathetic to Smith and his cause, even with some going so far as to advocate for the abolishment of the death penalty. And on what basis exactly? Because a cold-blooded, convicted killer complains about the prodding and poking of a small IV line. Really? Podding and poking with a needle?

As the moral failure cascade gains momentum, indifference turns to cruelty. And through all of this, Kenny Smith was back in his cell, still alive. What do you do after the state has tried to kill you and failed? If the state botches the attempt the first time around, does that disqualify them from trying again? Robert Grass and the rest of Kenny Smith's legal team realized they needed someone to do an assessment of Kenny's condition before they could do anything else. They needed someone who knew what it might be like to be strapped to a girney for three and a half hours while a group of people in surgical garb stabbed them with needles. So they called Kate Portefield. Coming up on Revisionist's History.

One of the people on the team who he didn't know says to him, It's over, and I'll be praying for you. So these kinds of moments for Kenny were just unmanageable afterwards. They were unmanageable moments with other humans.

I guess it started after Kenny was born. What I think is he was doing stuff, and he was thinking I was. He was jealous. Yeah. But I wasn't. I had a kid to raise.

He really got me. He made me really pause and think a lot, Kenny Smith, because watching someone only start from a place of love after something so horrible, I had never seen that before.

Revision's History is produced by Lucy Sullivan, Ben Nadaf Hafri, and Nina Bird Lawrence. Additional reporting by Ben Nadaf Hafri and Lee Hedgesbeth. Our editor is Karen Shakerji. Fact-checking by Kate Furby. Our executive producer is Jacob Smith. Engineering by Nina Bird Lawrence. Production support from Luc LeMonde. Original scoring by Louise Guerra with Paul Brainard and Jimmy Baud. Sound design and additional music by Jake Gorsky. I'm Malcolm Glabo. You can get this entire season now, ad free, by subscribing to Revisionist History on Pushkin Plus. Sign up on the show page on Apple Podcasts or at pushkin. Fm/plus. Pushkin Plus subscribers can access ad-free episodes, full audiobooks, exclusive binges, and bonus content for all Pushkin shows.

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