Execution Stayed for Man Whose Jury Voted 11-1 to Spare Him

All 12 jurors agreed to convict Kenneth Eugene Smith in the 1988 murder of a pastor’s wife in Alabama, but when it came time to recommend a sentence, 11 of them voted to spare him and instead send him to prison for life.

But the judge overruled the jury and sentenced Mr. Smith to death, a practice that Alabama banned in 2017 and that is no longer allowed anywhere in the United States. That ban did not apply to prior cases, however, and Mr. Smith, 57, was set to be executed on Thursday evening at a prison in southwest Alabama.

Some two hours after the execution had been set to proceed, though, an appellate court granted a stay, throwing the execution into doubt. It was still possible that the Supreme Court, which a day earlier rejected a request by Mr. Smith’s lawyers to intervene, could allow the execution to proceed, though the state’s death warrant was to expire at midnight.

The appeals court’s order halting the execution was based on a claim unrelated to the jury’s vote on the sentence, part of a series of legal issues Mr. Smith’s lawyers were raising in a last-minute effort to save his life.

Mr. Smith was convicted in 1996 of murdering Elizabeth Dorlene Sennett, the pastor’s wife, after her husband arranged to pay Mr. Smith and another man $1,000 each to kill her. The husband killed himself a week after the murder, and the other hired hit man was executed in 2010.

At his sentencing proceeding, Mr. Smith’s lawyers noted that he was 22 years old at the time of the crime and had been “neglected and deprived” in his childhood. Other mitigating factors included that Mr. Smith was remorseful, had no significant criminal history and had conducted himself well in jail. Eleven jurors voted for a life sentence with no parole.

But the judge in the case, N. Pride Tompkins, said that the aggravating factors in the case outweighed those issues: Mr. Smith had been paid for the crime, and he had ample opportunity to back out of the murder-for-hire plan but went along with it anyway. Jurors, he said, had heard an “emotional appeal” from Mr. Smith’s mother. Overruling the jury, he imposed the death sentence.

Alabama is one of four states — in addition to Delaware, Florida and Indiana — that ever allowed judges to overrule jurors who recommended against a death sentence, according to the Death Penalty Information Center. All of those states have since outlawed the practice or had it declared illegal by courts.

Mr. Smith’s lawyers argued to the U.S. Supreme Court that carrying out a death sentence despite a jury recommending life in prison constituted cruel and unusual punishment.

Lawyers for Alabama contended, in part, that lower courts had properly dismissed his appeals, noting that the law at the time allowed the judge to overrule the jury’s recommendation.

The Supreme Court did not give any reasons for its decision not to halt the execution. On Thursday, Mr. Smith’s lawyers pursued a series of last-minute appeals.

In one of those appeals, his lawyers said that the execution should be temporarily halted while they argued that Alabama’s recent problems administering lethal injections showed that Mr. Smith could be subjected to an illegally “cruel” death. An appellate court agreed the execution should be halted until a court could consider those claims more fully.

In July, prison officials struggled for hours to find a suitable vein in order to execute Joe Nathan James, and a private autopsy suggested that one of his arms had been cut during the process, according to court records. The problem was first reported in The Atlantic.

Prison officials ultimately killed Mr. James by lethal injection, but months later, there was a similar problem finding a suitable vein in another man, Alan Eugene Miller, leading officials to call off the execution shortly before midnight, when the death warrant was to expire. It has not yet been rescheduled.

Mr. Smith’s scheduled execution was to be the fourth this week across the country. Two men were executed on Wednesday, in Arizona and Texas, and a third was executed in Oklahoma on Thursday morning.

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