The Alabama Murders - Part 7: The Second Warrant

150 years ago, they were hunting us down to kill us and now they're hunting down immigrants to deport them. This is First America, the true story of how the United States came to be and how we got to this present moment. Listen to First America, anywhere you get your podcasts, push can plus subscribers can hear ad free episodes early before their release to the public. Your support helps independent teams like ours continue to make the shows that you enjoy. Head to the First America show on Apple Podcasts or pushkin.fm/plus to sign up. Pushkin. Previously on Revisionist History. My wife just been murdered in my home, I could tell you nothing, my mind's gone, but he knew everything in detail. That's a red flag. I can't remember how soon they figured out that the preacher had finished the job and all that, but it was pretty obvious, pretty quick. I just don't think some of these people that were on the jury, they didn't want that to be on their conscious, rest their life, put somebody into the death penalty. 35 years. That's how wrong Elizabeth and its family waited for justice to occur. 35 long years. He was just having severe nightmares of being executed over and over. He sort of came out of the depression and then the second execution came up. So at some point during your conversations with him, he gets his second warrant. Yeah. Minisa. So we got a second warrant in November, a year later, for a January execution. So they take you, as soon as they give you the warrant, by the way, this is another particularly cruel thing. This is a man who's been 34 years. He has a cell. He's, you know, they call it their house, their cell. So his house was nice. You know, he had his stuff in there. And once they take you to the warden and tell you they don't take you back to your cell, that's it. You get put in the death chamber cell, which is this totally isolated cell. Very hard. Kate Porterfield, the psychologist hired by Kenny Smith's legal team. Once he was given the second warrant and taken to the death chamber, did you lose contact with him? No, no. We were able to talk. We talked up until about, I think we talked up until about December. And then he got very, you know, he turned his attention to facing what was probably going to happen. So lawyers were working very hard to still stop it. I testified in a hearing about what I believed was going to happen to him with his post-traumatic stress if he had to go through this again. And I testified, which I believe to be true that this man was going to go into a state of such severe symptomatic PTSD as to be really just devastated, you know, to be taken into that same thing again was going to just be catastrophic to his psyche. Kruele and unusual. Yeah, well, and those words, Kruele and unusual is like the legal term. And so what I was saying is this man's going to be absolutely devastated within his psyche and disorganized and completely symptomatic because he's got a severe condition that you guys did to him, by the way, that was brought about by what was done. So this was not a guy who had PTSD before this. Do you remember the first contact you had with him after he got his warrant? I mean, I remember some of it. I mean, he was very focused on fighting, you know, he was very focused on fighting it. And he was very worried about his family. He was super worried about his mom and his grandson and his wife. So he was very focused on them. And he also said, you know, I've had the greatest lawyers, we're going to keep fighting this. I mean, look, he was anxious. He was really starting to fall apart, but he was also trying to be focused on hope. My name is Malcolm Grabble. You're listening to the Alabama murders. This is the final episode in our series. We started with the murder of Elizabeth Senet on Kundug Cemetery Road. And now we're going to end with what happened in Kenny Smith's last days. The bizarre and grotesque final act to the Senate cascade with a state of Alabama endeavored to figure out and justify another way of executing Kenny Smith. This is episode seven, the second warrant. Just over a month before Kenny Smith's second execution date, his legal team made one last big push to save his life. A lawsuit heard in US District Court in Montgomery, Alabama, Kenneth Eugene Smith, V John Q. Ham. Ham, the defendant is the commissioner of the Alabama Department of Corrections bulldog of a guy, maybe six feet bald, white mustache and go T dark suit, white shirt, red tie. If you're curious about him, you can find him on YouTube where he's a regular. He's the person in Alabama State government whose job it is to stand up at press conferences and announce that one of his prisons has just executed another person. By one of the Alabama's three and four, the night state of Alabama carried out an execution of James Barber about lethal injection at Williams A.O. in Paris. He answers questions about how things went. How many IVs did you need to have in it too? And let's the world know they've done their job well. We carried out a successful one execution on the headmaid's great part. John Q. Ham. This is who Kenny Smith's legal team is up against. The basis of their appeal was a new method that Alabama intended to use on Kenny Smith. Having lost confidence in the ability of its execution team to find one of Kenny Smith's veins, the state decided instead to strap him to a gurney, put a mask over his face, and pump him full of nitrogen gas. A method that had never been used in a judicial execution before in the United States, or for that matter, anywhere. They were attempting to make history. And in response, Kenny Smith's lawyers argued that the use of an untested method like nitrogen asphyxiation would violate the eighth amendment prohibition against cruel and unusual punishment. They wanted a preliminary injunction. Tell me a little bit about nitrogen gas. It's not in its pure form, it's not used in medical situations. This is Joel Zivett, the Atlanta anesthesiologist who we've heard from many times in this series. In the air we breathe, air is actually a mixture of about 79% or 80% nitrogen and 20-21% oxygen. Why don't we breathe pure oxygen? If the atmosphere of the earth was pure oxygen, it would be on fire, and there would be no life. So to make it kind of work in the body, we have to water it down so to speak with nitrogen gas. We breathe in oxygen, which keeps us alive, mixed in with enough nitrogen to make it safe. Nitrogen is inert, it just passes in and out of the body. Like it doesn't kind of hurt to inhale it. But what it does do is that it doesn't light the fire of life. It doesn't support the cellular combustion that is required with oxygen. So it's like putting the candle under the glass and the candle eventually uses up all the oxygen and nothing remains. So the theory was that because nitrogen gas was not noxious, it could be given to someone as a kind of method of gas execution, there would not be so troubling to them because they would breathe it and not know it and that they would then lose consciousness and die. All you needed was some pure industrial grade nitrogen gas and a tight-fitting mask. That was the theory. And the great appeal of nitrogen to a state like Alabama, where the execution teams were not always up to the challenge of executing people the conventional way. But in practice, there are complications. Like if some oxygen seeps into your mask while you're being fed nitrogen, then you could end up in a vegetative state, alive, but brain dead. There's also the possibility since pure nitrogen makes people nauseous, that the prisoner being executed could throw up in their mask and choke to death, which achieves the same end, but inducing someone to his fixate on their own vomit is not a Supreme Court approved method of execution as yet. So the in lethal injection, you know, once the vein is calculated and the drugs are flowing, it's hard to stop, okay, you can't kind of block your own vein or do something. But in gas execution, you have to participate in your own demise by breathing, okay? So the first thing that you're going to do is as you hold your breath, okay, because you don't want to breathe. So now you're holding your breath, you're holding your breath. And as you hold your breath, your own carbon dioxide gas, which is something that we normally exhale and is sort of finally regulated starts to rise. And it's the rising of carbon dioxide that is very uncomfortable when you hold your breath, it makes you want to take a breath. So that starts to, at some point you can't stand it, okay? And you've got to take a breath. So you breathe in at that point, you breathe in this nitrogen gas that, you know, has a very different kind of impact on what's happened to you because by virtue of holding your breath, it dilates the blood vessels in the brain, okay? So now you've got this slush of nitrogen gas that's traveling, you know, at volume into your brain. That may be why you have a seizure. And it seems to create a cascade of other kinds of physiologic changes, none of which is instantaneous unconsciousness followed by death. The effectiveness of nitrogen gas as a youth-nizing agent has actually been extensively studied in animals. A group of researchers in Zurich, for example, recently took 60 rats, implanted them with biomedical sensors, divided them into groups each with a different lethal method. Carbon dioxide, a powerful anesthetic called isofluorane, carbon monoxide, and nitrogen. They euthanized all the animals, videotaped their final moments, necropsied the bodies, and collected cardiovascular, respiratory, neural, biochemical, histological, and behavioral data. Their conclusion? Carbon monoxide and nitrogen resulted in longer times to loss of consciousness, induced seizures before loss of consciousness, increased stress levels, and caused higher lung damage. Therefore, carbon monoxide and nitrogen are not humane alternatives and should not be used for euthanasia. They weren't talking about the applicability of their findings to human beings. They were simply addressing their colleagues who use lab animals for research purposes. They were telling them, "Even the smallest and most despised of animals deserve some degree of consideration, please don't use nitrogen. A rat deserves a better way to die." So this was the point of the final lawsuit. Kenny Smith-Layers wanted to know had John Hamm and his colleagues thought about this new method of killing people with anything like the rigor of the lab rat community. 150 years ago, they were hunting us down to kill us, and now they're hunting down immigrants to deport them. This is First America, the true story of how the United States came to be, and how we got to this present moment. Listen to First America, anywhere you get your podcasts. Pushkin+ subscribers can hear ad-free episodes early before their release to the public. December 20th, 2023. It's a month before Kenny Smith's second execution date. John Cueham took to stand in the morning. He began by laying out Alabama's proposed protocol. They would be using, he said, the same execution chamber as the lethal injection attempt. The same gurney. The execution team would have the same captain. 10 of the 12 members of the execution team would be the same. Each step of the protocol would be the same. The only difference would be no ivy this time. Just a mask hooked up to a canister of pure nitrogen. The cross-examination was handled by one of Kenny Smith's lawyers, Andrew Burns Johnson, out of Birmingham. Can you tell the court what deliberation you had relating to what to do in the circumstance of vomiting in the mask when nitrogen is being applied? Answer. We just had conversations about, like I said, sitting around hypotheticals. So we sat around and we came up with those ideas or excuse me, the side effects, so what we would do in that situation. Question. Did you consider that vomiting in a mask could cause asphyxiation? Answer. Yes, sir. Question. Did you consult with any medical personnel about how to lessen that risk? Answer. No, sir. Did you talk to any medical personnel about how to alleviate that risk? No, sir. Did you talk to any medical personnel about what to do in that situation as it's happening to prevent asphyxiation? I did not. I can only imagine what was going through the mind of Kenny Smith's lawyer in that moment. Is it bafflement? Disbelief? I mean, for goodness sake, a research team in Zurich went to enormous effort to figure out whether nitrogen was worthy of lab rats. Could the Alabama State Department of Corrections, an organization with a budget of over $700 million, really just be winging it? Wait, we're not finished. Question. Okay, you certainly had medical personnel available to you to ask that question. Answer. I could have sought out medical advice, yes. Question. Okay. Did the state have medical personnel involved in this process of developing this protocol that you signed? Answer. The Department of Corrections did not have medical personnel involved. Question. Were you ever involved in meetings with medical personnel where the issue of vomiting in the mask was discussed at all? Answer. No, sir. Question. Have you had an opportunity to review the declarations of the experts in this case who talk about the effects of vomiting in the mask? Answer. I have not. This goes on and on, by the way. Other witnesses from the state of Alabama get called. Has anyone thought about what would happen if outside air came into the mask? No. Where did you get that mask, by the way? Well, they don't really make masks for execution purposes, do they? So we're using an industrial mask. The kind that a construction worker might use. We did some internet research. Literally, the person who the state asked to figure out the mask question, who they brought to the hearing to support their case, admitted that it never used these kinds of masks, had no expertise in the characteristics of these masks, and knew what he knew because he'd spend some time online. Kenny Smith's lawyer then brings up the testimony of a previous witness, who had stressed the importance of the mask fitting perfectly so no outside air would leak in and asks John Q Ham about it. Question. So in order to be properly placed, one would have to ensure that there's no outside air coming in. Answer. That was his opinion. Question. Okay, assuming his opinion is correct, what's done in the execution chamber to make sure that no outside air gets under the mask? Answer. Well, that's hypothetical on his opinion being correct. Question. Even so, what is done to make sure no outside air comes in? Answer. I don't know specifically what the team captain does to make sure the air does not get in, but I'm sure they do practice quite regular. Question. Do you agree with me there's nothing in the protocol that would let us know what's going to happen to make sure there's a proper fit? Answer. That is correct. Later in the day, Kate Portafield was called to the stand. She had spent more than a year assessing Kenny Smith. She had submitted her report to the court. She probably knew more than anyone at that moment what he was feeling and how he was doing and how he might react to being re-executed by the same crew on the same gurney in the same execution chamber as the first go round. But do you know what she was asked at the beginning of her cross examination by the attorney for the Alabama Department of Corrections? Had she properly accounted for the possibility that Kenny might be mullingering? What if all that PTSD stuff that he claimed was about being jabbed with needles for three and a half hours was just him faking it. A long technical discussion follows about how you can tell if someone's actually faking it. And from there, the questioning moved to the vomit issue. And astonishingly, oh gosh, the focus of that hearing, this is how, where the legal system sometimes is just, you can't make it up, this stuff that becomes the issue. Because he had to have a mask over his face to get the gas for nitrogen, hypoxia, execution, and sorry, the details of this are gross. His lawyers argued he is, because of his post-traumatic stress, going to possibly throw up. And if he throws up in his mask, it's going to be, you know, he could get his fixated that way. Now, of course you are listening and thinking, this is so, like, talk about absurd, right? So I was asked to testify about his post-traumatic stress and his nausea, which was one of his symptoms. And you know, I was asked to testify, would he throw up if they put a mask on his face and tried to kill him? Which, you know, it's just incredible to be asked that in a court of law. And I had to say, you know, I'm not a medical doctor, first of all, so I can't speak to the gastrointestinal system and what it does. I can tell you as a psychologist from this kind of severe post-traumatic stress and the fact that Mr. Smith's had really severe nausea and subvalmating, there is a high likelihood that could happen. Yes, because he's going to go into a serious state of distress. But it kind of boiled down to whether or not he would, you know, vomit as whether he could stop this. And they, you know, the judge said, the judge said, don't let him eat eight hours before. That's what they did move the last meal earlier. And with that, Kenny's fate was set. In the months leading up to his execution date, Kenny Smith began to put his affairs in order. In his words, he loved up when everybody. He named his witnesses. He wanted his family there, his mom, his wife, his sons, his spiritual advisor, his lawyer, Robert Grass. So tell me about that evening. So I arrived, I was supposed to go to the prison five, so I got there at five. Everyone on the list arrived at home in prison on the afternoon of January 25th. The corrections department gathered them and put them in a van to drive to the execution chamber. At some points, it started to rain and you could hear on the roof, you know, you could hear the rain falling on the roof. The empty their pockets, no watches, no phones. At 652, one of the drivers of the van got a phone call. It was moving time. A police car with flashing lights led the way through a gate at the back of the prison from there to a holding room, another wait, maybe an hour. Lee Hedgebeth, the local reporter who did some interviews for us, was there. So was Kenny Smith's mom, Linda. He survived that first attempt. Did you think there was any chance that he would survive the second time? You know, I really didn't. I don't know. Part of me thought we might all die because they didn't know what they were doing. It was the first time I'd ever been done. Yeah. You know, he's got a mask that leaks. Now I just knew that that was going to be it. And when he said, when he said, I'm coming, they're coming to get me. And you know, we stood our good paths. You know, the life that's thing he said was, I love you, mom. I got to go. So the last time he saw him was when I was there in front of him and they come and get him. Do you remember is that what he said to you then, too? What do you remember what you said to him? I told him I loved him too. He said, I know, mom. And then I just can't get that picture out of my head when he's, they're welcoming back in. He went back and he was just smiling. Yeah. That sounds me. At some point, everyone was led to the witness room. A curtain was drawn by the windows. There were four seats in the front, which we took. There was a box of tissues to my right near the window sill or on a window sill. And then a little after that, they opened the curtain. We could see Kenny strapped to a gurney. He was strapped across his chest. His arms were strapped to the side. And he was wearing a mask. The warden entered the room. He read the death warrant. He asked Kenny if he had, if he wanted to make a statement, which he did. So they put the microphone, they unscrewed a valve to the mask. They put the microphone there and he made his statement warden and left the room. What did he say? He said something along the lines of that Alabama was taking a step backwards that evening. And he said, I love you all. I'm going with peace and I forget exactly what it was, but it was something along those lines. The warden left the room and then they started the procedure or at least at that's what it seemed like. Pretty ugly to watch because Kenny, they had been saying all along that Kenny would be unconscious in seconds, less than a minute. And this would be a painless thing. I'm not a medical person. I can't opine on what happened. The only one who can tell us if he experienced pain is not here to describe it. But what I observed anyhow did not look like what Alabama had advertised because there were violent seizure type movements. It's kind of as best he could against the constraints you could see as head come back and violently come forward and violently go back. You could see his fist clenched in his arms, straining against the restraints. And as I said, I didn't have my watch and I wasn't cognizant if there was a clock in the room, but I can tell you that that went on. That was minutes, not seconds, that that appeared to be going on. There was what appeared to be gasping for air. After that for again, another period of minutes, not seconds. At some point you could see him fall back into the gurney and lay there. Then they escorted us out of the witness room, took us back, put us back in the van and brought us back to the parking lot where we had gathered. And that was that even. Can you describe your feelings when he was over? It's hard to describe. You know, that was about 18 years of effort that ended up being unsuccessful. I felt awful about that. I felt awful for. For Kenny, I felt awful. For Kenny's wife is children, his mother is extended family. He had, you know, grandchildren by that point. He says nephews, the point of the 18 years of representation was basically to avoid to prevent that moment. Do you miss him? I do. I actually, you know, I think about him. His birthday was July 4th. So I was thinking about him then and I think about him often. Can you tell me a little bit more about. Sorry. I'm sorry, you know, I wish I could. Every time I tell this story, I wish I could tell it with a different ending and a different beginning for that matter. We'll be right back. [Music] 150 years ago, they were hunting us down to kill us and now they're hunting down immigrants to deport them. Listen to First America anywhere you get your podcasts. Pushkin plus subscribers can hear ad-free episodes early before their release to the public. Good night. The State of Alabama started carrying out the execution of Kennedy Jean Smith by night shooting the podcast. The WMC Home and Corrections Facility at Smith was executed for the 1988 Capitol murder of Elizabeth Dorelene Senate and Calvert County. After it was all over, John Cueham, the Commissioner of the Alabama Department of Corrections, hella press conference as he always does. Podium, big banner right behind him with the words, "Professionalism, integrity, accountability." Charles and Elizabeth Senates' two sons stand off to the side. Commissioner, a Mr. Smith appeared to shake and ride on the gunry for at least two minutes at the start of the execution. Was that expected? Peer that one Smith was holding this breath as long as he could. And then there's also information out there. He struggled against his restraints a little bit, but there's some involuntary movement and some agnol breathing, so that was all expected and it's in the side effects that we've seen or researched on oxygen and epoxy. So nothing was out of the word of what we were expecting. Nothing out of the ordinary. Just what they were expecting. Then more questions. He appeared conscious for the first several minutes. Do you agree with that? The Attorney General's Office in Fort Kroilings said they thought that Nighthorkin would cause a lack of consciousness within seconds. I don't know. I couldn't really see his face from where I was sitting. Y'all might have had a better view of that. Anything that's implemented this month? Method for future and remains on death. That's not hard. This is the state law for the state of Alabama that Nighthorkin epox is one of the three methods of execution. So if the inmates choose it, then that's the method we were used. Then came a press release from the Alabama Attorney General's Office. Alabama has achieved something historic. It went on. Despite the international effort by activists, to undermine and disparage our state's justice system and to deny justice to the victims of heinous murders, our proven method offers a blueprint for other states and a warning to those who would contemplate shedding innocent blood. This is an important night for Liz's Senate's family, for justice and for the rule of law in our great nation. A man has an affair and in his madness sees no alternative but to kill his wife. He recruits two troubled young men who take the fall. Both of those men are redeemed while in prison. They discover their capacity to love and to be loved, but that is of no concern for the state of Alabama, which executes the first by setting his lungs on fire and executes the second twice, first in spirit, and then in fact. Letting him convulse on the gurney because no one bothered to check whether a method that is not even worthy of lab rats was a good idea for human beings. The cascade begins in obliviousness, then proceeds from indifference to cruelty and ends in revision. When a senior elected official of an American state looks back over a 36-year-long cascade of moral failure and declares without irony, Alabama has achieved something historic. Do you remember the last conversation you have with them? We still were very much talking about what his options were and legally, and I didn't know it was going to be my last conversation with him. Once it got very close to the warrant, I had said, I'm here, anybody would like me to do anything to assist with this post-traumatic stress or anything. Please contact me. He started to really have to focus on what he was about to do, what was about to happen to him. I wrote him a letter at the end and I sent it to him. I just wrote him a little paragraph and I just said that what it had meant to work with him. They gave it to him, I guess, the day before and I just said, your spirit is just irrepressible. I did say I liked this because it was true of Kenny. I said, your ability to build relationships behind walls is nothing less than miraculous because that's really what I felt about him. He built relationships, real ones with his loved ones. And that's not easy. It's not easy when we're not in prison. Where were you when he was finally executed? I was home. So I have this thing I do where I talk to the lawyers always before and say, we're all being stuff and obviously if anyone needs me. Then I usually tell my kids, we're going to light a candle and we light a candle for the person. Usually I put something pretty with the candle and then take a picture of it and I always send the picture of the candle to the lawyers and just say, I'm remembering Kenny right now and whatever he's going through. Then I usually have a glass of wine and feel like shit. What are you thinking, May I ask? [silence] I'm sorry. [silence] It's a lot to think about. And you know the normal thing we do, we make meaning, right? Is we think about other losses, we think about what the person's family went through, you think what you would go through if that was happening. So this is what being a human is. It's like when you put your mind in this place, it's a lot. It's a lot. [music] Revisionist History is produced by Lucy Sullivan, Bended Af Hafre and Nina Bird Lawrence. Additional reporting by Bended Af Hafre and Lee Hedgebeth. Our editor is Karen Schikurgy, fact checking by Kate Furby. Our executive producer is Jacob Smith, production support from Luke Clemon. Engineering by Nina Bird Lawrence, original music was composed, arranged, and recorded by Luis Guerra with additional composition and recording by Paul Brainerd. Drums by Jimmy Bott, sound design and additional music by Jake Gorski, cover out for the season was designed by Sean Carney, and special thanks to a whole host of people who helped us out. The good folks at Audible who came to our table reads, Tali Amlin, Randy Susskin, at the Equal Justice Initiative in Montgomery, who helped us out with research, Mike Cooley, of the Drive-by Truckers, and a Pushkin, Greta Cohn, Jacob Weisberg, Sarah Nicks, Nicole Optinbosh, Jasmine Fustino, Christina Sullivan, Amy Gaines McQuade, Grace Ross, Eric Sandler, Morgan Ratner, Kira Posey, Jordan McMillan, Jake Flanagan, Owen Miller, Faraday Grunge, and Sarah Pugare. I'm Malcolm Gladwell. Pushkin Plus subscribers can hear ad-free episodes early before they're released to the public. Head to the First America Show on Apple Podcasts or pushkin.fm/plus to sign up.