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The Alabama Murders - Part 5: Cruel and Unusual · Revisionist History

• 0:15
  Speaker 1: Pushkin previously on revisionist history. I think there was a
• 0:25
  Speaker 1: pressure to have a method that looked more humane than
• 0:28
  Speaker 1: electrocution and lethal gas on.
• 0:31
  Speaker 2: That van and I go back to the hotel where
• 0:33
  Speaker 2: the other people had been in there praying with his family,
• 0:38
  Speaker 2: and I have to go in and tell him.
• 0:39
  Speaker 3: You know, John's gone, and.
• 0:40
  Speaker 2: He was peaceful.
• 0:42
  Speaker 4: He didn't appear to suffer. This is how lethal injection
• 0:46
  Speaker 4: actually kills you. It kills you by burning your lungs up,
• 0:50
  Speaker 4: and you're also paralyzed, so you can't complain that this
• 0:55
  Speaker 4: is happening.
• 1:05
  Speaker 3: Good afternoon, everybody, Thank you for being here. I hope
• 1:08
  Speaker 3: everybody had a one full holiday. If I haven't seen
• 1:10
  Speaker 3: you since, then call this press conference today because I
• 1:13
  Speaker 3: believe that people of Alabama deserve an explanation on where
• 1:17
  Speaker 3: things stand and where I stand with regard to capital
• 1:21
  Speaker 3: punishment in our state.
• 1:23
  Speaker 5: It's early December twenty twenty two, Montgomery, Alabama. Steve Marshall,
• 1:28
  Speaker 5: the state's attorney General, is holding a press conference standing
• 1:32
  Speaker 5: at the podium flanked by the Alabama and American flags.
• 1:36
  Speaker 3: What occurred on November seventeenth was a travesty, but not
• 1:40
  Speaker 3: for the reasons that many death penalty opponents and death
• 1:43
  Speaker 3: row sympathizers would have the public to believe.
• 1:51
  Speaker 5: My name is Malcolm Gladwell. You're listening to the Alabama
• 1:55
  Speaker 5: Murders our series on the Elizabeth Sennet case. This is
• 2:00
  Speaker 5: episode five, Cruel and Unusual. It's about the second of
• 2:04
  Speaker 5: her assailants, Kenny Smith, and what was done to him
• 2:07
  Speaker 5: in the name of justice travesty of November seventeenth. Kenny
• 2:21
  Speaker 5: Smith was twenty two at the time of Elizabeth sentence murderer.
• 2:24
  Speaker 5: He had a girlfriend and two young children. He was
• 2:27
  Speaker 5: working in a factory. He was slight, skinny, dark hair, thick,
• 2:32
  Speaker 5: moon shaped eyebrows. He was drunk a lot and high,
• 2:36
  Speaker 5: but all was smiling.
• 2:38
  Speaker 2: They would come over to my house a lot and
• 2:40
  Speaker 2: Keenie would it would just be granted because Michael will
• 2:43
  Speaker 2: be sitting in the back seat in his car seat,
• 2:46
  Speaker 2: and that Kenny would be high. You know, they would
• 2:50
  Speaker 2: be drinking.
• 2:52
  Speaker 5: This is Linda Smith, Kenny's mom, talking with a local
• 2:55
  Speaker 5: reporter named Lee Hedgepeth. Lee has covered the Kenny Smith
• 2:58
  Speaker 5: case and knows his family. Well, what kind of drunk.
• 3:02
  Speaker 2: Was skinny Hey with a happy drunk? Yeah, it's hard
• 3:07
  Speaker 2: to think of Kenny is anything. Yeah, yeah, I mean
• 3:13
  Speaker 2: what you're saying is what you get with him.
• 3:18
  Speaker 5: On the evening after the attack on Elizabeth Sennett, Smith's
• 3:22
  Speaker 5: best friend came over to his house. They went out
• 3:24
  Speaker 5: to get beer. Kenny's hand was swollen. He hit it
• 3:28
  Speaker 5: wrapped in a bandage. On the way to the store,
• 3:30
  Speaker 5: Kenny kept saying, I messed up. I messed up. He
• 3:33
  Speaker 5: wouldn't say why. Then back at home he started crying.
• 3:37
  Speaker 5: His mother lived close by. In the days that followed
• 3:41
  Speaker 5: before the police caught up to him, he went to
• 3:43
  Speaker 5: see her.
• 3:44
  Speaker 2: And Kenny, you know, like I said, he would come
• 3:47
  Speaker 2: over during that time. I mean I look back on
• 3:51
  Speaker 2: the times that he would come over and uh, he
• 3:56
  Speaker 2: would be kind of distant, you know, and he would
• 4:00
  Speaker 2: just I mean, it's disliked. It was something he wanted
• 4:05
  Speaker 2: to tail me, but you know he never did. So
• 4:10
  Speaker 2: when do you find out that he's implicated.
• 4:13
  Speaker 1: In some way?
• 4:15
  Speaker 2: Well I find out one afternoon when he calls me, oh,
• 4:20
  Speaker 2: thank you just got home from work and they came
• 4:23
  Speaker 2: and he said, Mom, can you come pick up Michael?
• 4:27
  Speaker 2: And I said, well, I'm washing my hair right now.
• 4:30
  Speaker 2: I said, I can't write this minute, and he said, well, Mom,
• 4:36
  Speaker 2: can you come? He said, the police are here, and
• 4:40
  Speaker 2: I just thought it was, you know, for pot or
• 4:42
  Speaker 2: drugs or something like that, and I said, well, you know,
• 4:47
  Speaker 2: I'll be over there, you know, and just a mente.
• 4:49
  Speaker 2: Of course, it didn't take me long to get to
• 4:50
  Speaker 2: their house. And when I drove up over there in
• 4:54
  Speaker 2: that driveway, I bet you there was ten ten cars
• 4:57
  Speaker 2: out in front.
• 5:01
  Speaker 5: Kenny Smith met the same fate as his friend John Parker,
• 5:04
  Speaker 5: who you heard about in the last episode. Smith was
• 5:07
  Speaker 5: charged with murder, can victed, sentenced by the jury to
• 5:11
  Speaker 5: life without pearl by a vote of eleven to one,
• 5:14
  Speaker 5: and then his judge did the same thing John Parker's
• 5:17
  Speaker 5: judge did, overrode the jury's decision and sentenced him to death.
• 5:22
  Speaker 5: He got sent to home in prison and stayed there
• 5:25
  Speaker 5: for decades, appealing his sentence, delaying the inevitable until November seventeenth,
• 5:31
  Speaker 5: twenty twenty two, when the event that the Attorney General
• 5:34
  Speaker 5: of the State of Alabama called a travesty happened.
• 5:38
  Speaker 3: It's been a great deal of media coverage, both local
• 5:40
  Speaker 3: and national, about what happened in Kenney Smith's execution chamber.
• 5:47
  Speaker 3: Much of that coverage has seemingly been openly sympathetic to
• 5:50
  Speaker 3: Smith and his cause, even with some going so far
• 5:54
  Speaker 3: as to advocate for the abolishment of the death penalty.
• 5:59
  Speaker 3: And on what basis exactly because a cold blooded, convicted
• 6:04
  Speaker 3: killer complains about the prodding and poking of a small
• 6:09
  Speaker 3: abvy line really potting and poking with a needle.
• 6:17
  Speaker 5: Prodding and poking with a needle, Let's start there. The
• 6:24
  Speaker 5: state of Alabama has a detailed set of instructions for
• 6:27
  Speaker 5: how executions are to be carried out in their prisons,
• 6:31
  Speaker 5: a protocol. The protocol was not supposed to be a
• 6:34
  Speaker 5: public document, but Alabama was forced to disclose it during
• 6:38
  Speaker 5: a death Bentley court case. It's forty one pages of dry,
• 6:42
  Speaker 5: precise language stipulating every step of the process. When a
• 6:47
  Speaker 5: condemned prisoner is supposed to be moved to a special
• 6:50
  Speaker 5: holding cell, when he gets his last meal, what he
• 6:53
  Speaker 5: gets to have in his cell, The people who are
• 6:55
  Speaker 5: allowed to attend the execution, where the victim's family goes,
• 7:00
  Speaker 5: where the offenders group goes, things like that. The execution
• 7:05
  Speaker 5: team is made up of about a dozen people. It
• 7:07
  Speaker 5: is a captain. The team is supposed to do a
• 7:10
  Speaker 5: walk through in the week leading up to the execution,
• 7:12
  Speaker 5: batting practice, if you will, to make sure they have
• 7:15
  Speaker 5: the killing procedure down pat As you may remember from
• 7:20
  Speaker 5: the last episode, the seed of the idea behind lethal
• 7:23
  Speaker 5: injection came from Ronald Reagan, who said, why don't we
• 7:26
  Speaker 5: just execute people the same way we put down horses,
• 7:30
  Speaker 5: to use the veterinarian's' euphemism, put them to sleep, clean, quick, professional,
• 7:35
  Speaker 5: something that appears painless instead of all the messiness of
• 7:39
  Speaker 5: the electric chair. That's very much the spirit of the
• 7:42
  Speaker 5: Alabama protocol.
• 7:45
  Speaker 4: What was so I think effective about lethal injection and
• 7:51
  Speaker 4: sinister is the fact that when you observe an execution
• 7:55
  Speaker 4: with lethal injection, generally it's a pretty bloodless event. Not
• 8:01
  Speaker 4: much happens. It appears that a person kind of closes
• 8:04
  Speaker 4: their eyes. Maybe you can imagine that they fall asleep,
• 8:08
  Speaker 4: and then they're dead.
• 8:10
  Speaker 5: Jill Zivitt the intensive care specialist from Emory University in
• 8:14
  Speaker 5: Atlanta who fell into death boalty work a few years ago.
• 8:18
  Speaker 4: So this was a breakthrough in terms of the witness
• 8:22
  Speaker 4: experience because every other kind of execution method that had
• 8:26
  Speaker 4: ever occurred before then, you know, it was quite a
• 8:29
  Speaker 4: lot more graphic, but lethal injection seemed to solve the
• 8:34
  Speaker 4: problem of being outwardly peaceful, and that's why I think
• 8:39
  Speaker 4: lethal injection took cold. And on top of that, of course,
• 8:41
  Speaker 4: there was this kind of impersonation of a medical act.
• 8:45
  Speaker 4: There was the use of terminology of medicine and even
• 8:49
  Speaker 4: the use of physicians and other medical people which gave
• 8:53
  Speaker 4: this kind of extra impression. You know that this was legitimate,
• 8:58
  Speaker 4: an endorsed kind of activity.
• 9:02
  Speaker 5: Which brings us to the portion of the protocol at issue.
• 9:05
  Speaker 5: On the evening of November seventeenth, twenty twenty two, in
• 9:09
  Speaker 5: Section B Part one, Clause A quote, the IV team
• 9:14
  Speaker 5: will be escorted into the execution chamber to start the IV.
• 9:18
  Speaker 5: The heart monitor leads will be applied to the condemned inmate.
• 9:22
  Speaker 5: If the condemned inmates veins make obtaining venus access difficult
• 9:26
  Speaker 5: or problematic, qualified medical personnel may perform a central line
• 9:30
  Speaker 5: procedure as set forth in section two of Appendix B
• 9:34
  Speaker 5: ADEOC Lethal injection execution procedure. A central line procedure involves
• 9:42
  Speaker 5: inserting a long, thin, flexible tube into a large vein,
• 9:46
  Speaker 5: like the jugular vein in the neck or the subclavian
• 9:49
  Speaker 5: vein in the chest or the femoral vein in the thigh.
• 9:52
  Speaker 5: So you try for the arm the normal way, and
• 9:54
  Speaker 5: if you fail, you go for a big vein. That's
• 9:57
  Speaker 5: the plan. Only in real life things aren't always so straightforward,
• 10:02
  Speaker 5: as outlined in Section B, Part one, Clause A in
• 10:07
  Speaker 5: a case of Kenny Smith and in other cases, there
• 10:09
  Speaker 5: have been these initial problems in finding a vein.
• 10:12
  Speaker 4: Yeah, I want to talk about this with you.
• 10:14
  Speaker 5: You talk about this because I yeah, as a non
• 10:17
  Speaker 5: medical person, I'm I'm puzzled. I don't understand this.
• 10:22
  Speaker 4: Sure, Yeah, So you walked me through.
• 10:24
  Speaker 5: Why why is that hard?
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  Speaker 4: Alabama, you know, was the poster child of failure for
• 10:30
  Speaker 4: this in a in an odd kind of cluster of cases.
• 10:33
  Speaker 4: And and to answer your question directly, why is it hard? Well,
• 10:38
  Speaker 4: it's hard because in order to put an intravenous into
• 10:41
  Speaker 4: a vein, you know, it requires a certain you know,
• 10:44
  Speaker 4: level of skill, and it also requires some cooperation. You know,
• 10:50
  Speaker 4: it hurts to stick someone with a needle. So in
• 10:52
  Speaker 4: someone who is sort of young and fit and well
• 10:56
  Speaker 4: uh and well hydrated and relaxed, you know that the
• 11:01
  Speaker 4: chance of getting a vein and a person like that
• 11:03
  Speaker 4: is quite high. You know, uh in someone who's who's
• 11:07
  Speaker 4: dehydrated terriff I had been sick, had been in prison
• 11:11
  Speaker 4: for two decades. You know, it becomes a lot harder.
• 11:15
  Speaker 4: Plus you're also giving it over to people who are
• 11:18
  Speaker 4: not expert. Okay, you know, an antiseesiologist in good standing
• 11:22
  Speaker 4: is not going to spend their wednesdays over at the
• 11:26
  Speaker 4: you know, State corrections Sticking ivs in people for execution,
• 11:31
  Speaker 4: it's not something that we do and people who you know,
• 11:35
  Speaker 4: to learn to do in intervenous is a technical skill.
• 11:39
  Speaker 4: It can be learned, but I think also the people
• 11:43
  Speaker 4: who are doing it themselves are nervous.
• 11:46
  Speaker 5: Alabama won't reveal exactly who is on the execution team,
• 11:50
  Speaker 5: what their training is, how much experience they have, but
• 11:53
  Speaker 5: it's safe to say this isn't a team full of doctors,
• 11:56
  Speaker 5: since doctors have to take an oath to do no harm,
• 11:59
  Speaker 5: and hooking someone up to an IV that will transport
• 12:02
  Speaker 5: lethal drugs is definitely doing harm. That's as if it's point,
• 12:07
  Speaker 5: these are prison employees side contractors. It's not the anesthesiologist
• 12:12
  Speaker 5: from the nearest teaching hospital.
• 12:14
  Speaker 4: You know, there are some ways of making it more
• 12:16
  Speaker 4: likely than not to succeed. But you know what is
• 12:19
  Speaker 4: taught either in nursing school or as an emt or
• 12:22
  Speaker 4: as a doctor cannot be lifted into the death chamber
• 12:27
  Speaker 4: like it's not the same place. If these people are
• 12:30
  Speaker 4: not patients, you know, they're not collaborators to you.
• 12:36
  Speaker 5: In some states with the death penalty, putting in the
• 12:38
  Speaker 5: IVY is done in full view of the witnesses to
• 12:41
  Speaker 5: the execution, but in Alabama it's done before the witnesses
• 12:45
  Speaker 5: are invited into the execution chamber, which means that any
• 12:49
  Speaker 5: outsider who is there to see the execution, the families
• 12:52
  Speaker 5: and friends and reporters, are forced to guess how the
• 12:55
  Speaker 5: IVY process is going. The executioners are supposed to start
• 12:59
  Speaker 5: at six the witnesses are all sequestered in a holding
• 13:03
  Speaker 5: room away from the execution side, and if it gets
• 13:06
  Speaker 5: to be seven pm or seven thirty or nine pm
• 13:10
  Speaker 5: and the witnesses haven't yet been picked up by the
• 13:12
  Speaker 5: bus to go take them to the execution chamber, then
• 13:15
  Speaker 5: everyone starts to wonder is there a problem. This is
• 13:22
  Speaker 5: exactly what happened in the summer of twenty twenty two
• 13:25
  Speaker 5: while Kenny Smith was still appealing his sentence, a condemned
• 13:29
  Speaker 5: inmate at home and named Joe Nathan James was set
• 13:32
  Speaker 5: to be executed. Everything with James ran late afterwards. The
• 13:38
  Speaker 5: state insisted the procedure had gone according to plan, but
• 13:41
  Speaker 5: Zivid was suspicious. He asked to perform a second autopsy,
• 13:46
  Speaker 5: and what he found was, in a word, gruesome, Consider
• 13:50
  Speaker 5: yourself warned.
• 13:53
  Speaker 4: I was able to get his body, and I worked
• 13:56
  Speaker 4: with a pathologist in Alabama and went there and with him,
• 14:02
  Speaker 4: you know, we've performed this second autopsy, and I saw
• 14:06
  Speaker 4: in his body evidence of, you know, multiple attempts at
• 14:10
  Speaker 4: intravenouses and some of these things, you know, you could
• 14:14
  Speaker 4: see bruising, which meant that they were you know, kind
• 14:17
  Speaker 4: of getting in and getting out of a van. And
• 14:19
  Speaker 4: there was some bleeding under the skin, and there was
• 14:21
  Speaker 4: these were both on you know, on multiple spots on
• 14:23
  Speaker 4: his arms, up and down, both arms. And then there
• 14:26
  Speaker 4: was also evidence of something called a cutdown. And a
• 14:30
  Speaker 4: cutdown is where you take a knife to the skin
• 14:33
  Speaker 4: and you open the skin to reveal, you know, a
• 14:36
  Speaker 4: vein beneath that that you couldn't otherwise see or feel.
• 14:42
  Speaker 4: It's kind of an old style technique and it's been
• 14:44
  Speaker 4: replaced by ultrasound, and the protocol at the time does
• 14:50
  Speaker 4: not provide for the possibility of a cutdown. And also
• 14:55
  Speaker 4: the cut down along the edges of it had blood,
• 14:59
  Speaker 4: which again meant that he had to have been alive
• 15:02
  Speaker 4: and bleeding for this to have taken place. So somehow
• 15:06
  Speaker 4: they got some ivy in him, but it took them
• 15:08
  Speaker 4: hours to do it. So picture you know, Joe, Nathan
• 15:12
  Speaker 4: James lying there, strapped down, you know, not cooperative as
• 15:17
  Speaker 4: they poke and poke and poke him and finally just
• 15:20
  Speaker 4: take a knife to his forearm to open up his
• 15:23
  Speaker 4: forearm to try to get a vein there and that
• 15:27
  Speaker 4: so that was Joe.
• 15:33
  Speaker 5: Then came Alan Miller two months later. Under Alabama law,
• 15:37
  Speaker 5: once a defendant has been convicted of a capital crime,
• 15:40
  Speaker 5: he or she is given a death warrant. A warrant
• 15:43
  Speaker 5: is a writ issued by the court which lays out
• 15:46
  Speaker 5: the facts of the conviction, the specific offense, the judgment
• 15:49
  Speaker 5: of the court, and the time and place of execution,
• 15:52
  Speaker 5: which in Alabama is a purpose built facility on the
• 15:55
  Speaker 5: campus of Home and Prison in Atmore at the time,
• 15:59
  Speaker 5: once a date had been set, the execution had to
• 16:02
  Speaker 5: take place by midnight, so they start at six pm
• 16:07
  Speaker 5: and give themselves six hours with Alan Miller. They ran
• 16:11
  Speaker 5: at a time, gave up, the state had to come
• 16:14
  Speaker 5: back and kill him on another day. Then came Kenny Smith.
• 16:38
  Speaker 5: Tell me your impressions of Kenny.
• 16:40
  Speaker 2: What was he like?
• 16:42
  Speaker 6: Kenny? I obviously didn't know him when he was a
• 16:47
  Speaker 6: twenty two year old person at the time of the
• 16:51
  Speaker 6: events for which he was convicted. But he truly was
• 16:58
  Speaker 6: an example. And I know this is going to sound
• 17:02
  Speaker 6: right and a cliche, but he really got religion figuratively
• 17:12
  Speaker 6: and literally. You know, in prison he was a force
• 17:17
  Speaker 6: for good.
• 17:19
  Speaker 5: This is Robert Grass, one of Kenny Smith's lawyers, the
• 17:22
  Speaker 5: one who had been with him the longest. He's a
• 17:24
  Speaker 5: litigator for a prestigious corporate law firm in New York City.
• 17:28
  Speaker 5: He represents pharmaceutical companies, but he does pro bono death
• 17:31
  Speaker 5: penalty work on the side. He started representing Kenny Smith
• 17:35
  Speaker 5: in two thousand and five. How many times over the
• 17:39
  Speaker 5: course of twenty years did you go to Alabama?
• 17:42
  Speaker 6: I don't have an exact number, but.
• 17:46
  Speaker 4: Many.
• 17:47
  Speaker 5: Home in prison where Smith was held is in the
• 17:50
  Speaker 5: southern part of the state. Grass was in New York,
• 17:53
  Speaker 5: so that's New York to Atlanta, Atlanta to Mobile, ran
• 17:57
  Speaker 5: a car in mobile drive an hour to add more,
• 18:00
  Speaker 5: he made that journey for close to two decades.
• 18:03
  Speaker 6: I really felt as if we developed a friendship, I
• 18:09
  Speaker 6: really would have liked to have had the opportunity to
• 18:15
  Speaker 6: interact with them under different circumstances.
• 18:19
  Speaker 5: Grass is older, lean, dark suit, gray hair, ivy, lead
• 18:23
  Speaker 5: degree cum laude, law school graduate. He probably builds out
• 18:27
  Speaker 5: at some astronomical number. Whenever I read about some complicated
• 18:31
  Speaker 5: legal negotiation that goes on into the wee hours of
• 18:33
  Speaker 5: the morning, I imagine it's because someone like Robert Grass
• 18:36
  Speaker 5: is involved as measured and dispassionate and implacable at three
• 18:41
  Speaker 5: AM as they were at three in the afternoon. You
• 18:44
  Speaker 5: have to listen very closely when he talks. He doesn't
• 18:47
  Speaker 5: broadcast his feelings. He sends out morse code signals. Talk
• 18:52
  Speaker 5: a little bit more about your friendship. It's an unlikely friendship.
• 18:58
  Speaker 6: Yeah, you know, we obviously grew up in.
• 19:06
  Speaker 5: Different circumstances, different circumstances, morse code.
• 19:12
  Speaker 6: I've had other experiences with some folks on death Throw
• 19:16
  Speaker 6: where I, you know, didn't feel the same bond. But Kenny,
• 19:23
  Speaker 6: as I said by the time I knew him, was
• 19:30
  Speaker 6: just a decent man, incredibly gracious, and really seemed to
• 19:37
  Speaker 6: have the best he could given the environment he was
• 19:43
  Speaker 6: in to have been leading a productive life in that environment.
• 19:52
  Speaker 5: In the fall of twenty twenty two, Smith and his
• 19:54
  Speaker 5: legal team suffered a serious setback. Smith was finally given
• 19:59
  Speaker 5: a death warrant, and the warrant set the date of
• 20:01
  Speaker 5: the execution November seventeenth, twenty twenty two. But those two
• 20:07
  Speaker 5: botched execution cases, Alan Miller and Joe Nathan James, gave
• 20:11
  Speaker 5: Grass one more chance. The Supreme Court has long supported
• 20:15
  Speaker 5: the idea the states can execute prisoners if they wish,
• 20:19
  Speaker 5: but they have insisted that executions have to be done
• 20:22
  Speaker 5: the right way, and what happened to Joe Nathan James
• 20:25
  Speaker 5: and to Alan Miller didn't seem like it fit any
• 20:28
  Speaker 5: definition of the right way. So Smith's lawyers sued, the
• 20:32
  Speaker 5: way Alabama is practicing lethal injection is cruel and unusual punishment.
• 20:38
  Speaker 5: The case was dismissed. Grass appealed to the Eleventh Circuit
• 20:41
  Speaker 5: in Atlanta. Arguments were heard on November sixteenth, the day
• 20:45
  Speaker 5: before Smith's death warrant. Grass went directly from the hearing
• 20:50
  Speaker 5: to the prison.
• 20:51
  Speaker 6: Then I went to at Moore, which is where Holman
• 20:54
  Speaker 6: is visited with Kenny. That morning, we were still waiting
• 20:58
  Speaker 6: for the Eleventh Circuit's decision, and that day became a
• 21:03
  Speaker 6: real rollercoaster of emotions.
• 21:07
  Speaker 5: Grass was in a hotel room a mile or two
• 21:10
  Speaker 5: from the prison. At eight pm, Grass heard that the
• 21:13
  Speaker 5: prison guards at home and had taken Kenny out of
• 21:16
  Speaker 5: his cell and were preparing him for execution. But that
• 21:20
  Speaker 5: wasn't right. His appeal was still up in the air.
• 21:23
  Speaker 5: Then Grass got another call. The Eleventh Circuit had ruled
• 21:26
  Speaker 5: in Kenny's favor. The execution was off, at which point
• 21:30
  Speaker 5: the State of Alabama appealed to the US Supreme Court.
• 21:34
  Speaker 5: It was now after eight.
• 21:35
  Speaker 6: PM, and in the meantime, I'm kind of watching the
• 21:39
  Speaker 6: clock tick because the death warn't expired at midnight, so
• 21:45
  Speaker 6: I'm hoping to reach that point without this going forward.
• 21:51
  Speaker 6: But at about a quarter after ten or so, got
• 21:59
  Speaker 6: a call from the emergency clerk at the United States
• 22:03
  Speaker 6: Supreme Court, sometimes referred to as the death Clerk because
• 22:07
  Speaker 6: a lot of the emergency involve capital cases. But who said,
• 22:14
  Speaker 6: there's no easy way to say this, and so I
• 22:17
  Speaker 6: knew from that preferatory remark what was coming.
• 22:22
  Speaker 5: The Supreme Court ruled in favor of Alabama. One of
• 22:27
  Speaker 5: the reporters, who was at home in prison covering the story,
• 22:30
  Speaker 5: emailed Grass to say they were moving the witnesses to
• 22:33
  Speaker 5: the death chamber. Grass sat in his hotel room waiting
• 22:37
  Speaker 5: to hear what happened. Nothing, silence. The next morning he
• 22:45
  Speaker 5: learned why.
• 22:48
  Speaker 6: So he was taken out of his cell, thinking that
• 22:55
  Speaker 6: his execution was imminent, strapped to a gurney, and nothing
• 23:01
  Speaker 6: is happening. And he's asking, you know, the corrections officers
• 23:05
  Speaker 6: who are with them, what's going on, and they, you know,
• 23:09
  Speaker 6: tell him they don't know. And then when they finally
• 23:15
  Speaker 6: got going, you know, they've got three members of an
• 23:19
  Speaker 6: IV team, none of whom are identified to him. There
• 23:24
  Speaker 6: are other people in the execution chamber with him that
• 23:27
  Speaker 6: were not identified to him. They're you know, jabbing him
• 23:32
  Speaker 6: with a needle trying to find a vein, which they
• 23:36
  Speaker 6: weren't able to do. Then they tried something called a
• 23:43
  Speaker 6: central line procedure to kind of stick a needle under
• 23:48
  Speaker 6: his collarbone and reach one of his central veins. But
• 23:52
  Speaker 6: again they didn't tell him what they were doing. What
• 23:55
  Speaker 6: was going on. They just kind of put a surgical
• 23:58
  Speaker 6: gown over him. You know, one of the IV team
• 24:02
  Speaker 6: members came back into the room in surgical garb, and
• 24:06
  Speaker 6: you know, Kenny is asking these people what's what they're doing.
• 24:11
  Speaker 6: No one is telling them.
• 24:14
  Speaker 5: I'm going to read from a report on that evening,
• 24:16
  Speaker 5: commissioned by Grass and his team. It includes a very
• 24:19
  Speaker 5: detailed description of what Kenny said happened to him in
• 24:23
  Speaker 5: the execution chamber. He recalled seeing a clear plastic sheet
• 24:28
  Speaker 5: over his chest with an open center. He saw that
• 24:31
  Speaker 5: the man had a stringe in his hand, and he
• 24:34
  Speaker 5: unbuttoned mister Smith's shirt and injected a yellow liquid into
• 24:37
  Speaker 5: his chest. The man said, you will feel something cool,
• 24:41
  Speaker 5: and the man slid a long needle into his chest.
• 24:45
  Speaker 5: He inserted the needle and as Kenny perceived it, moved
• 24:48
  Speaker 5: the needle around while it was inserted in his chest.
• 24:52
  Speaker 5: Mister Smith noted that he quote lost all composure at
• 24:56
  Speaker 5: this point, describing everything became surreal, Everything went out the window.
• 25:02
  Speaker 5: Mister Smith became terrified that he was being injected with
• 25:05
  Speaker 5: a substance that would render him unable to communicate some
• 25:09
  Speaker 5: that he knew would violate an existing court order. He
• 25:12
  Speaker 5: was again panicked that he would not be able to
• 25:14
  Speaker 5: say his final words to his family and the victim's family,
• 25:18
  Speaker 5: given what he heard had happened in a previous execution.
• 25:23
  Speaker 5: The man who had been injecting him in the chest
• 25:25
  Speaker 5: and the IVY team all stepped back. Mister Smith tried
• 25:29
  Speaker 5: to gather himself and then said that they stepped back
• 25:31
  Speaker 5: up and the man from behind his shoulder had a
• 25:34
  Speaker 5: large gage needle with a large cylinder. Mister Smith said
• 25:38
  Speaker 5: he quote freaked out, quote demanding that someone call his lawyer. Next,
• 25:43
  Speaker 5: Deputy Warden Woods put his hands on mister Smith on
• 25:47
  Speaker 5: both sides of his head and said, quote this is
• 25:50
  Speaker 5: for your own good, pulling his head to the side.
• 25:54
  Speaker 5: Mister Smith then recalled searing pain as he was injected
• 25:59
  Speaker 5: under his collarbone. He said it took my breath away,
• 26:03
  Speaker 5: and he recalled that he was gasping and trying to
• 26:07
  Speaker 5: get away by bucking up off the table. Mister Smith
• 26:10
  Speaker 5: recounted that he believed the man tried approximately five times
• 26:14
  Speaker 5: to get this large needle into a vein under his collarbone.
• 26:20
  Speaker 6: By the time this was done, that after three and
• 26:24
  Speaker 6: a half or four hours being strapped to a gurney.
• 26:28
  Speaker 6: You know, he was unable to stand, walk, unbutton his shirt,
• 26:37
  Speaker 6: you know, change his clothes, do any of that without assistance.
• 26:43
  Speaker 5: It was now almost midnight. Ken, he couldn't stand. He
• 26:47
  Speaker 5: asked for a wheelchair, they refused. He sat outside the
• 26:51
  Speaker 5: chamber until the guards picked him up by the arms
• 26:54
  Speaker 5: and carried him to the infirmary. I can't help but
• 27:00
  Speaker 5: think about the execution team in this moment, assuming they'd
• 27:04
  Speaker 5: be able to carry out the most overwhelming of tasks
• 27:07
  Speaker 5: on the pretense that it's a clean, professional, humane exercise,
• 27:13
  Speaker 5: only to suddenly realize they can't do it. They're over
• 27:17
  Speaker 5: their heads, and they can't hide. They're stuck in the
• 27:20
  Speaker 5: execution chamber until midnight for reasons I can't fully explain.
• 27:25
  Speaker 5: Every time I think of the night of November seventeenth,
• 27:27
  Speaker 5: I think of the lines from an old Graham Parker song.
• 27:30
  Speaker 5: The doctor gets nervous completing the service. He's all rubber
• 27:34
  Speaker 5: gloves and no head. He fumbles the light switch. It's
• 27:37
  Speaker 5: just another minor hitch. Wishes to God he was dead.
• 27:44
  Speaker 5: After a night like that, how could you not wish
• 27:47
  Speaker 5: to God you were dead. Kenny's miss failed execution was
• 28:06
  Speaker 5: on a Thursday. The following Monday, the Governor of Alabama, Kivy,
• 28:11
  Speaker 5: paused all pending executions in the state and ordered a
• 28:15
  Speaker 5: top to bottom review of the state's capital punishment protocol.
• 28:19
  Speaker 5: And then two and a half weeks after that came
• 28:22
  Speaker 5: Steve Marshall's press conference.
• 28:24
  Speaker 3: Good after me, everybody call this press conference today because.
• 28:28
  Speaker 5: Attorney General's Office Montgomery, Alabama flags on both sides of
• 28:32
  Speaker 5: the podium, Alabama's highest ranking legal officer. Seeks to set
• 28:37
  Speaker 5: the record straight. And what was on his mind that
• 28:41
  Speaker 5: six hour window that home and Prison had given itself
• 28:44
  Speaker 5: to get someone ready to be executed. Why were they
• 28:47
  Speaker 5: starting so late in today? It was letting murderers and
• 28:50
  Speaker 5: their lawyers gain the system.
• 28:52
  Speaker 3: So if you're a defense lawyer representing an inmate, you
• 28:55
  Speaker 3: simply know that you have to push the clock back
• 28:57
  Speaker 3: as far as possible. I think we saw that occur
• 28:59
  Speaker 3: with the last two executions.
• 29:01
  Speaker 5: No form not to mention the prisoners themselves, they weren't
• 29:04
  Speaker 5: helping matters.
• 29:05
  Speaker 3: But let's also acknowledge that inmates themselves have responsibility here,
• 29:09
  Speaker 3: not just in the delay that's occurred. But I think
• 29:12
  Speaker 3: you've seen impletings that we have where inmates are resisting
• 29:15
  Speaker 3: the efforts to put that IVY line in, which obviously
• 29:19
  Speaker 3: makes it more difficult.
• 29:20
  Speaker 5: Can you believe it the condemned prisoners are not cooperating
• 29:25
  Speaker 5: with their executioners. A reporter raises his hand. Is there
• 29:31
  Speaker 5: anything the state legislature could do, like maybe adding another
• 29:35
  Speaker 5: method of execution or increasing that window to forty eight
• 29:38
  Speaker 5: or seventy two hours? Yes, yes, Marshall says, that is
• 29:43
  Speaker 5: the issue here. We just don't have long.
• 29:45
  Speaker 3: Enough now, although we have a twenty four hour period
• 29:48
  Speaker 3: right now, but really an actuality have a six hour
• 29:50
  Speaker 3: window based upon policies and department corrections having in place
• 29:54
  Speaker 3: long before the current commissioner, long before Governor Iby or myself.
• 29:58
  Speaker 3: And I'm sure that's one of the things that they
• 29:59
  Speaker 3: will look at as part of their review.
• 30:02
  Speaker 5: I'm sure that's one of the things they will look
• 30:04
  Speaker 5: at as part of their review. And sure enough it was.
• 30:10
  Speaker 5: The Governor's top to bottom review turned out to be
• 30:12
  Speaker 5: a new rule that said the guards at home in
• 30:15
  Speaker 5: prison would have until the following morning to complete their service,
• 30:19
  Speaker 5: six more hours to poke and prod and take a
• 30:21
  Speaker 5: knife and peel back flesh and dig around the collarbone,
• 30:25
  Speaker 5: and manage the rising sense of shame and self loathing
• 30:29
  Speaker 5: and revulsion that comes to being asked to do a
• 30:31
  Speaker 5: job without really knowing how to do a job.
• 30:35
  Speaker 3: It's been a great deal of media coverage, both local
• 30:37
  Speaker 3: and national, about what happened in Kenney Smith's execution chamber.
• 30:44
  Speaker 3: Much of that coverage has seemingly been openly sympathetic to
• 30:47
  Speaker 3: Smith and his cause, even with some going so far
• 30:51
  Speaker 3: as to advocate for the abolishment of the death penalty.
• 30:56
  Speaker 3: And on what basis exactly because a cold blooded, convicted
• 31:01
  Speaker 3: killer complains about the prodding and poking of a small
• 31:06
  Speaker 3: ivy line really potting and poking with a needle.
• 31:17
  Speaker 5: As the moral failure cascade gains momentum, indifference turns to cruelty.
• 31:24
  Speaker 5: And through all of this, Kenny Smith was back in
• 31:27
  Speaker 5: his cell, still alive. What do you do after the
• 31:33
  Speaker 5: state has tried to kill you and failed? If the
• 31:36
  Speaker 5: state botches the attempt the first time around, does that
• 31:39
  Speaker 5: disqualify them from trying again? Robert Grass and the rest
• 31:43
  Speaker 5: of Kenny Smith's legal team realized they needed someone to
• 31:46
  Speaker 5: do an assessment of Kenny's condition before they could do
• 31:49
  Speaker 5: anything else. They needed someone who knew what it might
• 31:53
  Speaker 5: be like to be strapped to a gurney for three
• 31:55
  Speaker 5: and a half hours while a group of people in
• 31:58
  Speaker 5: surgical garb stabbed them with needles. So they called Kate
• 32:04
  Speaker 5: Porterfield coming up on Revisionist History.
• 32:19
  Speaker 1: One of the people on the team, who he didn't know,
• 32:22
  Speaker 1: says to him, it's over and I'll be praying for you.
• 32:26
  Speaker 1: So these kinds of moments for Kenny were just unmanageable. Afterwards,
• 32:33
  Speaker 1: they were unmanageable moments with other humans.
• 32:36
  Speaker 2: I guess it started after Kenny was born. What I
• 32:39
  Speaker 2: think is he was doing stuff and A was thinking
• 32:45
  Speaker 2: I was, you know, right, and he was jealous. Yeah,
• 32:49
  Speaker 2: but I wasn't you know, I had a kidom rise.
• 32:53
  Speaker 1: He really kind of got me. He made me really
• 32:58
  Speaker 1: pause and think a lot, Kenny Smith, because watching someone
• 33:01
  Speaker 1: only start from a place of love after something so
• 33:04
  Speaker 1: horrible was I've never seen that before.
• 33:12
  Speaker 5: Revision's History is produced by Lucy Sullivan, Ben the Daph Haffrey,
• 33:16
  Speaker 5: and Nina Bird Lawrence. Additional reporting by Benda Daph Haffrey
• 33:20
  Speaker 5: and Lee Hedgepeth. Our editor is Karen Schakerji. Fact checking
• 33:24
  Speaker 5: by Kate Furby. Our executive producer is Jacob Smith, engineering
• 33:28
  Speaker 5: by Nina Bird Lawrence, production support from Luke Clemond, original
• 33:33
  Speaker 5: scoring by Luis Kerra with Paul Brainard and Jimmy Bodd.
• 33:37
  Speaker 5: Sound design and additional music by Jake Gorsky. I'm Malcolm Glabo.
• 33:57
  Speaker 5: You can get this entire season now add free by
• 34:01
  Speaker 5: subscribing to Revision's history on Pushkin Plus, sign up on
• 34:05
  Speaker 5: the show page on Apple Podcasts, or at pushkin slash Plus.
• 34:11
  Speaker 5: Pushkin Plus subscribers can access ad free episodes, full audiobooks,
• 34:17
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