I am not in favor of the death penalty, largely because in putting a person to death, the state is doing exactly what it is punishing. Further, complicated fact situations and inequitable representation make the death penalty problematic even for those who have no theoretical objections.
The latest example is the killing of Ronald Smith in Alabama on December 8. Twenty-two years ago, Mr. Smith killed Casey Wilson, a cashier at Circle C convenience store in Huntsville, Alabama. Mr. Smith was apparently driving around and drinking with two friends when they decided to rob the store. During Smith’s trial, he claimed that before the robbery he had drunk 32 ounces of gin, his codefendants claimed he had drunk only 1/2 of a beer. Smith entered the store; pistol whipped Mr. Wilson and forced Mr. Wilson into the rest room. Once there, he shot Mr. Wilson in the arm. Smith then fumbled with the cash register and the safe before he returned to the restroom and killed Mr. Wilson.
Smith was apprehended after a few months, largely as the result of bragging about the murder to his girlfriend. Once arrested, Smith waived the right to an attorney and confessed. Smith was convicted of capital murder. Alabama’s laws are favorable toward the death penalty. Citizens who oppose the death penalty are not allowed on potential death penalty cases. Unlike most states, Alabama allows a divided jury to impose a death penalty so long as ten jurors vote to impose it. In Smith’s case, the jury voted 7 to 5 against the death penalty.
The trial judge, C Lynwood Smith, Jr., overruled the jury and imposed the death penalty. Until this year, three states allowed judges to overrule a jury and impose the death penalty. On January 12, the US Supreme Court ruled Florida’s law unconstitutional in Hurst v. Florida. Delaware’s State Supreme Court struck down a similar rule in August on state constitutional grounds. As of now only Alabama allows a judge to overrule a jury decision and impose the death penalty.
Why didn’t the Supreme Court strike down Smith’s penalty or why hasn’t Alabama followed a clear Supreme Court ruling? The answer tells us more about the penalty of being poor than it does about logic or reason.
After Smith was convicted, he appealed his sentence. One of his arguments on appeal was that the judge erred in not instructing the jury on lesser offenses, since Smith claimed he was intoxicated at the time of the murder. The Alabama Court of Appeals and the Supreme Court of Alabama upheld the conviction and the sentence. On October 2, 2000, the United States Supreme Court denied cert. Under Alabama procedural rules, Smith had one year to appeal.
Smith had trouble locating a lawyer willing to take his case pro bono and the state does not pay for counsel beyond the first appeal of right. Tennessee attorney William Massey agreed to represent Smith in July 2001. Because Massey was not admitted in Alabama, Alabama attorney C. Wade Johnson agreed to act as local counsel.
Although it is unclear which attorney filed, the petition was filed improperly without either the required $154 fee or a motion to proceed as an indigent. The clerk returned the petition on October 15, and it was not refiled until February 6, 2002.
The petition was denied as untimely and eventually became final on July 15, 2005. Four days later, Smith filed a federal habeas petition. The Alabama federal district court dismissed the habeas petition because neither it nor the earlier appeal was filed within the one-year statute of limitations. The Eleventh Circuit Court of Appeals affirmed on December 28, 2012.
The appellate court’s majority opinion and Judge Rosemary Barkett’s dissent reveal the inequity involved when a client is held accountable for the actions and inactions of their attorney. Especially when the prisoner cannot afford an attorney, prisoners have no control or supervision over their lawyer whom they rarely are able to choose or even meet.
In dissent, Judge Barkett pointed out that “from the beginning of his so-called representation of Smith, Johnson was on probation for a public intoxication conviction and was actively abusing prescription drugs and crystal methamphetamine.” Within months of taking Smith’s case, Johnson was charged with nine counts of possession of a controlled substance. The Alabama State Bar placed him on disability inactive status.
Massey, Smith’s other attorney, never sought the right to appear in Alabama for Smith’s case, which nullified any filings he could have submitted to the court. Yet the Eleventh Circuit held Smith had not been abandoned by counsel and was bound by the actions and inactions of Johnson and Massey.
It is despicable that the court relied so heavily on the statute of limitations (usually justified by lapses of memory over time) in a capital case and in a case that took twenty two years from crime to punishment.
Smith’s lawyers made a last minute appeal to the Supreme Court citing the sixth amendment ban on cruel and unusual punishment and the probability that Alabama law was unconstitutional after Hurst. The Supreme Court was unable to muster the five votes required to stay an execution. Recall that the Supreme Court is missing a justice following Congress’s decision that presidents are not allowed to make appointments in their final year in office.
It took 34 minutes for Smith to die during which time witnesses state he struggled and gasped. Alabama utilized midazolam for the execution despite botched executions in other states that have tried it: Arizona, Florida, Oklahoma, and Ohio. Midazolam is supposed to make inmates lose consciousness so that they cannot feel the effects of the undeniably torturous drugs that follow. But midazolam has repeatedly failed to work.
Smith’s lawyers challenges to the use of midazolam were denied because in Alabama, as in a few other states, the lower courts have adopted a sinister standard for challenging lethal injection. The court will consider the challenge only if the inmate suggests an alternative method for their own execution.
Smith asked for death by firing squad, believing it would be less painful than the midazolam protocol. Alabama rejected a firing squad because its law doesn't provide for it. Adding insult to injury seems an inadequate explanation.
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|Allen L. Jasson|