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The Alabama Murders - Part 7: The Second Warrant · Revisionist History

• 0:15
  Speaker 1: Pushkin previously on Revisionist History.
• 0:25
  Speaker 2: Had my wife just been murdered in my home, I
• 0:27
  Speaker 2: could tell you nothing. My mind's gone. But he knew
• 0:31
  Speaker 2: everything in detail. That's a red flag.
• 0:35
  Speaker 3: I can't remember how soon they figured out that, you know,
• 0:39
  Speaker 3: the preacher had sent us the job and all that,
• 0:42
  Speaker 3: but it was, you know, it was pretty obvious, pretty quick.
• 0:46
  Speaker 4: I just don't think some of these people that were
• 0:49
  Speaker 4: on the jury, they didn't want that to be on
• 0:51
  Speaker 4: their conscious the rest of their life. Putting somebody into
• 0:56
  Speaker 4: the death penalty.
• 0:58
  Speaker 5: Thirty five years, that's how long Elizabethsonnett's family waited for
• 1:04
  Speaker 5: justice to occur.
• 1:05
  Speaker 2: Thirty five long years.
• 1:09
  Speaker 6: He was just having severe nightmares of being executed over
• 1:14
  Speaker 6: and over. He sort of came out of a depression
• 1:16
  Speaker 6: and then the second execution came up.
• 1:31
  Speaker 2: So at some point during your conversations with him, he
• 1:33
  Speaker 2: gets his second warrant.
• 1:35
  Speaker 1: Yeah, when is that?
• 1:38
  Speaker 6: So he got a second warrant in November a year
• 1:41
  Speaker 6: later for January execution. So you know, they take you
• 1:46
  Speaker 6: as soon as they give you the warrant. By the way,
• 1:47
  Speaker 6: this is another particularly cruel thing. This is the man
• 1:50
  Speaker 6: who's been thirty four years. He has a cell. He's
• 1:52
  Speaker 6: you know, they call it their house, their cell. So
• 1:54
  Speaker 6: his house was nice, you know, he had his stuff
• 1:56
  Speaker 6: in there. And once they take you to the warden
• 1:59
  Speaker 6: and tell you they don't take you back to your cell,
• 2:00
  Speaker 6: that's it. You get put in the death chamber cell,
• 2:04
  Speaker 6: which is this totally isolated cell.
• 2:07
  Speaker 1: Very hard.
• 2:09
  Speaker 2: Kate Portererfield, the psychologist hired by Kenny Smith's legal team,
• 2:15
  Speaker 2: once he was given the second warrant and taken to
• 2:17
  Speaker 2: the death chamber, did you lose contact with him?
• 2:20
  Speaker 7: No?
• 2:20
  Speaker 1: No, we were able to talk.
• 2:21
  Speaker 6: We talked up until about I think we talked up
• 2:23
  Speaker 6: until about December, and then he got very you know,
• 2:28
  Speaker 6: he turned his attention to facing what was probably going
• 2:32
  Speaker 6: to happen. His lawyers were working very hard to still
• 2:35
  Speaker 6: stop it. I testified in the hearing about what I
• 2:38
  Speaker 6: believed was going to happen to him with his post
• 2:40
  Speaker 6: traumatic stress if he had to go through this again.
• 2:43
  Speaker 6: And I testified, which I believed to be true, that
• 2:47
  Speaker 6: this man was going to go into a state of
• 2:49
  Speaker 6: such severe symptomatic PTSD as to be really just devastated,
• 2:57
  Speaker 6: you know, to be taken into that same thing again
• 2:59
  Speaker 6: was going to just be you know, catastrophic to his psyche. Yeah, well,
• 3:05
  Speaker 6: and those words cruel and unusuals like the legal term.
• 3:07
  Speaker 6: And so what I was saying is this man's going
• 3:10
  Speaker 6: to be absolutely devastated within his psyche and disorganized and
• 3:15
  Speaker 6: completely symptomatic because he's got a severe condition that you
• 3:20
  Speaker 6: guys did to him, by the way, that was brought
• 3:21
  Speaker 6: about by what was done.
• 3:23
  Speaker 1: So this was not a guy who had PTSD before this.
• 3:28
  Speaker 2: Do you remember the first contact you had with him
• 3:30
  Speaker 2: after he got.
• 3:31
  Speaker 1: His warrant, I mean, I remember some of it. I mean,
• 3:35
  Speaker 1: he was very focused on fighting.
• 3:36
  Speaker 6: You know, he was very focused on fighting it, and
• 3:38
  Speaker 6: he was very worried about his family.
• 3:39
  Speaker 1: He was super worried about his mom.
• 3:42
  Speaker 6: And his grandson and his wife. So he was very
• 3:48
  Speaker 6: focused on them. And he also said, you know, I've
• 3:53
  Speaker 6: had the greatest lawyers. We're going to keep fighting this.
• 3:56
  Speaker 6: I mean, look, he was anxious, he was really starting
• 3:58
  Speaker 6: to fall apart, but he was also trying to be
• 4:01
  Speaker 6: focused on hope.
• 4:10
  Speaker 2: My name is Malcolm Gladwell. You're listening to the Alabama Murders.
• 4:14
  Speaker 2: This is the final episode in our series. We started
• 4:18
  Speaker 2: with the murder of Elizabeth Senate on Coon Dog Cemetery Road.
• 4:22
  Speaker 2: And now we're going to end with what happened in
• 4:24
  Speaker 2: Kenny Smith's last days, the bizarre and grotesque final act
• 4:29
  Speaker 2: to the Senate cascade, with the State of Alabama endeavored
• 4:32
  Speaker 2: to figure out and justify another way of executing Kenny Smith.
• 4:39
  Speaker 2: This is episode seven, the Second Warrant. Just over a
• 4:59
  Speaker 2: month before Kenny Smith's second execution date, his legal team
• 5:03
  Speaker 2: made one last big push to save his life. A
• 5:06
  Speaker 2: lawsuit heard in US History Court in Montgomery, Alabama, Kenneth
• 5:11
  Speaker 2: Eugene Smith v. John Q. Ham Ham. The defendant is
• 5:16
  Speaker 2: the commissioner of the Alabama Department of Corrections. Bulldog of
• 5:20
  Speaker 2: a guy, maybe six feet bald, white mustache and go tee,
• 5:24
  Speaker 2: dark suit, white shirt, red tie. If you're curious about him,
• 5:28
  Speaker 2: you can find him on YouTube, where he's a regular.
• 5:33
  Speaker 2: He's the person in Alabama state government whose job it
• 5:36
  Speaker 2: is to stand up at press conferences and announce that
• 5:39
  Speaker 2: one of his prisons has just executed another person about.
• 5:43
  Speaker 4: One of the Alabama spring Born the night State of
• 5:47
  Speaker 4: Alabama carried out excuse of James Barber by lethal injection
• 5:51
  Speaker 4: at Williams a Hold Prison.
• 5:54
  Speaker 2: He answers questions about how things went emny IVS.
• 5:58
  Speaker 1: Did you need the heavy any too?
• 6:00
  Speaker 4: We had too, So there were three stays to six minutes.
• 6:04
  Speaker 2: And let's the world know they've done their job well.
• 6:07
  Speaker 4: So we carried out successful law in execution of the
• 6:11
  Speaker 4: man's break.
• 6:12
  Speaker 5: Ut and.
• 6:19
  Speaker 2: John Q. Ham this is who Kenny Smith's legal team
• 6:24
  Speaker 2: is up against. The basis of their appeal was a
• 6:28
  Speaker 2: new method that Alabama intended to use on Kenny Smith.
• 6:32
  Speaker 2: Having lost confidence in the ability of its execution team
• 6:35
  Speaker 2: to find one of Kenny Smith's vans, the state decided
• 6:39
  Speaker 2: instead to strap him to a gurney, put a mask
• 6:42
  Speaker 2: over his face, and pump him full of nitrogen gas,
• 6:46
  Speaker 2: a method that had never been used in a judicial
• 6:49
  Speaker 2: execution before in the United States, or for that matter, anywhere.
• 6:54
  Speaker 2: They were attempting to make history, and in response, Kenny
• 6:58
  Speaker 2: Smith's lawyers argued that the use of an untested method
• 7:01
  Speaker 2: like nitrogen asphyxiation would violate the Eighth Amendment prohibition against
• 7:06
  Speaker 2: cruel and unusual punishment. Wanted a preliminary injunction. Tell me
• 7:14
  Speaker 2: a little bit about nitrogen gas.
• 7:17
  Speaker 8: It's not in its pure form. It's not used you
• 7:20
  Speaker 8: know in medical situations.
• 7:22
  Speaker 2: This is joel' zivid, the Atlanta and the caesiologist who
• 7:26
  Speaker 2: we've heard from many times in this series.
• 7:28
  Speaker 8: You know, in the air we breathe, it airs actually
• 7:32
  Speaker 8: is a mixture of about seventy nine percent or eighty
• 7:37
  Speaker 8: percent nitrogen and twenty twenty nine percent oxygen. Why don't
• 7:41
  Speaker 8: we breathe pure oxygen? If the atmosphere of the Earth
• 7:45
  Speaker 8: was pure oxygen, it would be on fire and there
• 7:48
  Speaker 8: would be no life. So to make it kind of
• 7:51
  Speaker 8: work in the body, we have to water it down,
• 7:54
  Speaker 8: so to speak, with nitrogen gas.
• 7:57
  Speaker 2: We breathe in oxygen, which keeps us alive, mixed in
• 8:00
  Speaker 2: with enough nitrogen to make it safe. Nitrogen is inert.
• 8:04
  Speaker 2: It just passes in and out of the body.
• 8:07
  Speaker 8: Like it doesn't kind of hurt to inhale it. But
• 8:12
  Speaker 8: what it does do is that it doesn't you know,
• 8:15
  Speaker 8: it doesn't light the fire of life. It doesn't support
• 8:20
  Speaker 8: the cellular combustion that is required with oxygen. So it's
• 8:25
  Speaker 8: like putting the candle, you know, under the glass, and
• 8:28
  Speaker 8: the candle eventually uses up all the oxygen and nothing remains.
• 8:33
  Speaker 8: So the theory was that because nitrogen gas was not noxious,
• 8:39
  Speaker 8: it would be it could be given to someone as
• 8:42
  Speaker 8: a kind of, you know, method of gas execution that
• 8:46
  Speaker 8: would not be so troubling to them because they would
• 8:50
  Speaker 8: breathe it and not know it, and that they would
• 8:54
  Speaker 8: then lose consciousness and die.
• 8:59
  Speaker 2: All you needed was some pure industrial grade nitrogen gas
• 9:03
  Speaker 2: and a type fitting mask. That was the theory and
• 9:07
  Speaker 2: the great appeal of nitrogen to state like Alabama, where
• 9:10
  Speaker 2: the execution teams were not always up to the challenge
• 9:13
  Speaker 2: of executing people the conventional way. But in practice there
• 9:18
  Speaker 2: are complications, like if some oxygen seeps into your mask
• 9:22
  Speaker 2: while you're being fed nitrogen, then you could end up
• 9:25
  Speaker 2: in a vegetative state, alive but brain dead. There's also
• 9:29
  Speaker 2: the possibility, since pure nitrogen makes people nauseous, that the
• 9:34
  Speaker 2: prisoner being executed could throw up in their mask and
• 9:37
  Speaker 2: choke to death, which achieves the same end but inducing
• 9:41
  Speaker 2: someone to asphyxiate on their own vomit is not a
• 9:44
  Speaker 2: Supreme Court approved method of execution as yet.
• 9:49
  Speaker 8: So in lethal injection, you know, once the vein is
• 9:53
  Speaker 8: canulated and the drugs are flowing, it's hard to stop. Okay,
• 9:58
  Speaker 8: you can't kind of block your own vein or do something.
• 10:02
  Speaker 8: But in gas execution, you have to participate in your
• 10:08
  Speaker 8: own demand by breathing. Okay, So the first thing that
• 10:13
  Speaker 8: you're going to do is as you hold your breath, okay,
• 10:17
  Speaker 8: because you don't want to breathe. So now you're holding
• 10:20
  Speaker 8: your breath. You're holding your breath, and as you hold
• 10:22
  Speaker 8: your breath, your own carbon dioxide gas, which is something
• 10:28
  Speaker 8: that we normally exhale and is sort of finely regulated,
• 10:31
  Speaker 8: starts to rise. And it's the rising of carbon dioxide
• 10:35
  Speaker 8: that is very uncomfortable when you hold your breath. It
• 10:37
  Speaker 8: makes you want to take a breath, So that starts
• 10:40
  Speaker 8: to at some point you can't stand it, okay, and
• 10:43
  Speaker 8: you've got to take a breath, so you breathe in.
• 10:45
  Speaker 8: At that point, you breathe in. This nitrogen gas that
• 10:48
  Speaker 8: you know, has a very different kind of impact on
• 10:53
  Speaker 8: what's happened to you because by virtue of holding your breath,
• 10:58
  Speaker 8: it dilates the blood vessels in the brain. Okay, So
• 11:01
  Speaker 8: now you've got this flush of nitrogen gas that's traveling,
• 11:06
  Speaker 8: you know, at volume into your brain. That may be
• 11:10
  Speaker 8: why you have a seizure, and it seems to create
• 11:14
  Speaker 8: a cascade of other kinds of physiologic changes. None of
• 11:19
  Speaker 8: which this instantaneous unconsciousness followed by death.
• 11:29
  Speaker 2: The effectiveness of nitrogen gas as an euthanizing agent has
• 11:32
  Speaker 2: actually been extensively studied in animals. A group of researchers
• 11:36
  Speaker 2: in Zurich, for example, recently took sixty rats, implanted them
• 11:41
  Speaker 2: with biomedical sensors, divided them into groups, each with a
• 11:44
  Speaker 2: different lethal method carbon dioxide, a powerful anesthetic called isofluorane,
• 11:51
  Speaker 2: carbon monoxide, and nitrogen. They euthanized all the animals, videotaped
• 11:58
  Speaker 2: their final moments, necropsied the bodies, and collected cardiovascular, respiratory, neural, biochemical, histological,
• 12:07
  Speaker 2: and behavioral data. Conclusion, carbon monoxide and nitrogen resulted in
• 12:14
  Speaker 2: longer times to loss of consciousness, induced seizures before loss
• 12:18
  Speaker 2: of consciousness, increased stress levels, and caused higher lung damage. Therefore,
• 12:24
  Speaker 2: carbon monoxide and nitrogen are not humane alternatives and should
• 12:30
  Speaker 2: not be used for euthanasia. They weren't talking about the
• 12:35
  Speaker 2: applicability of their findings to human beings. They were simply
• 12:39
  Speaker 2: addressing their colleagues who used lab animals for research purposes.
• 12:43
  Speaker 2: They were telling them even the smallest and most despised
• 12:47
  Speaker 2: of animals deserves some degree of consideration. Please don't use nitrogen.
• 12:52
  Speaker 2: A rat deserves a better way to die. So this
• 12:56
  Speaker 2: was the point of the final lawsuit. Kenny Smith's lawyers
• 13:00
  Speaker 2: wanted to know had John Hamm and his colleagues thought
• 13:03
  Speaker 2: about this new method of killing people with anything like
• 13:06
  Speaker 2: the rigor of the lab racy. December twentieth, twenty twenty three,
• 13:32
  Speaker 2: it's a month before Kenny Smith's second execution date. John Q.
• 13:37
  Speaker 2: Ham took the stand in the morning. He began by
• 13:40
  Speaker 2: laying out Alabama's proposed protocol they would be using, he said,
• 13:45
  Speaker 2: the same execution chamber as a lethal injection attempt, the
• 13:49
  Speaker 2: same gurney, the execution team would have the same captain.
• 13:53
  Speaker 2: Ten of the twelve members of the execution team would
• 13:55
  Speaker 2: be the same. Each step of the protocol would be
• 13:58
  Speaker 2: the same. The only difference would be no IV this time,
• 14:02
  Speaker 2: just a mask hooked up to a canister of pure nitrogen.
• 14:06
  Speaker 2: The cross examination was handled by one of any Smith's lawyers,
• 14:10
  Speaker 2: Andrew Burns Johnson out of Birmingham. Can you tell the
• 14:15
  Speaker 2: court what deliberation you had relating to what to do
• 14:17
  Speaker 2: in the circumstance of vomiting in the mask? When nitrogen
• 14:21
  Speaker 2: is being applied. Answer, we just had conversations about, like
• 14:27
  Speaker 2: I said, sitting around hypotheticals. So we sat around and
• 14:31
  Speaker 2: we came up with those ideas or excuse me, the
• 14:34
  Speaker 2: side effects. So what we would do in that situation?
• 14:38
  Speaker 2: Question did you consider that vomiting in a mask could
• 14:41
  Speaker 2: cause asphyxiation? Answer? Yes, sir. Question did you consult with
• 14:47
  Speaker 2: any medical personnel about how to lessen that risk? Answer? No, sir.
• 14:52
  Speaker 2: Did you talk to any medical personnel about how to
• 14:55
  Speaker 2: alleviate that risk? No, sir. Did you talk to any
• 14:59
  Speaker 2: medical personnel about what to do in that situation as
• 15:02
  Speaker 2: it's happening to prevent asphyxiation? I did not. I can
• 15:11
  Speaker 2: only imagine what was going through the mind of Kenny
• 15:13
  Speaker 2: Smith's lawyer in that moment. Is it bafflement, disbelief? I mean,
• 15:18
  Speaker 2: for goodness sake, a research team in Zurich went to
• 15:22
  Speaker 2: enormous effort to figure out whether nitrogen was worthy of
• 15:25
  Speaker 2: lab rats. Could the Alabama State Department of Corrections, an
• 15:29
  Speaker 2: organization with a budget of over seven hundred million dollars,
• 15:34
  Speaker 2: really just be winging it? Wait, we're not finished. Question, Okay,
• 15:41
  Speaker 2: you certainly had medical personnel available to you to ask
• 15:45
  Speaker 2: that question? Answer, I could have sought out medical advice. Yes.
• 15:50
  Speaker 2: Question okay, did the state have medical personnel involved in
• 15:54
  Speaker 2: this process of developing this protocol that you signed? Answer?
• 15:59
  Speaker 2: The Department of Corrections did not have medical personnel involved.
• 16:04
  Speaker 2: Question were you ever involved in meetings with medical personnel
• 16:08
  Speaker 2: with the issue ofvomiting in the mask was discussed at all? Answer? No, sir.
• 16:15
  Speaker 2: Question have you had an opportunity to review the declarations
• 16:18
  Speaker 2: of the experts in this case who talk about the
• 16:21
  Speaker 2: effects of vomiting in the mask? Answer? I have not.
• 16:29
  Speaker 2: This goes on and on. By the way, other witnesses
• 16:32
  Speaker 2: from the state of Alabama get called. Has anyone thought
• 16:35
  Speaker 2: about what would happen if outside air came into the mask?
• 16:39
  Speaker 8: No?
• 16:40
  Speaker 2: Where did you get that mask? By the way, Well,
• 16:43
  Speaker 2: they don't really make masks for execution purposes, do they?
• 16:46
  Speaker 2: So we're using an industrial mask, the kind that a
• 16:49
  Speaker 2: construction worker might use. We did some internet research. Literally,
• 16:54
  Speaker 2: the person who the state asked to figure out the
• 16:56
  Speaker 2: mask question, who they brought to the hearing to support
• 17:00
  Speaker 2: their case, admitted that he never used these kinds of masks,
• 17:04
  Speaker 2: had no expertise in the characteristics of these masks, and
• 17:08
  Speaker 2: knew what he knew because he'd spend some time online.
• 17:11
  Speaker 2: Kenny Smith's lawyer then brings up the testimony of a
• 17:14
  Speaker 2: previous witness who'd stress the importance of the mask fitting
• 17:18
  Speaker 2: perfectly so no outside air would leak in, and asks
• 17:22
  Speaker 2: John q Ham about it. Question, So, in order to
• 17:26
  Speaker 2: be properly placed, one would have to ensure that there's
• 17:29
  Speaker 2: no outside air coming in? Answer? That was his opinion.
• 17:35
  Speaker 2: Question okay, assuming his opinion is correct, what's done in
• 17:39
  Speaker 2: the execution chamber to make sure that no outside air
• 17:42
  Speaker 2: gets under the mask? Answer? Well, that's hypothetical on his
• 17:47
  Speaker 2: opinion being correct. Question even so, what is done to
• 17:51
  Speaker 2: make sure no outside air comes in? Answer? I don't
• 17:56
  Speaker 2: know specifically what the team captain does to make sure
• 17:58
  Speaker 2: the air does not get in, but I'm sure they
• 18:02
  Speaker 2: do practice quite regular Question. Do you agree with me?
• 18:06
  Speaker 2: There's nothing in the protocol that would let us know
• 18:08
  Speaker 2: what's going to have happened to make sure there's a
• 18:10
  Speaker 2: proper fit. Answer that is correct. Later in the day,
• 18:16
  Speaker 2: Kate Porterfield was called to the stand. She had spent
• 18:19
  Speaker 2: more than a year assessing Kenny Smith. She had submitted
• 18:23
  Speaker 2: her report to the court. She probably knew more than
• 18:26
  Speaker 2: anyone at that moment what he was feeling and how
• 18:28
  Speaker 2: he was doing, and how he might react to being
• 18:31
  Speaker 2: re executed by the same crew on the same journey
• 18:34
  Speaker 2: in the same execution chamber as the first go round.
• 18:38
  Speaker 2: But do you know what she was asked at the
• 18:39
  Speaker 2: beginning of her cross examination by the attorney for the
• 18:42
  Speaker 2: Alabama Department of Corrections. Had she properly accounted for the
• 18:47
  Speaker 2: possibility that Kenny might be malingering? What if all that
• 18:51
  Speaker 2: PTSD stuff that he claimed was about being jabbed with
• 18:54
  Speaker 2: needles for three and a half hours was just him
• 18:57
  Speaker 2: faking it? A long technical discussion follows about how you
• 19:01
  Speaker 2: can tell if someone's actually faking it, and from there
• 19:05
  Speaker 2: the questioning moved to the vomit.
• 19:07
  Speaker 6: Issue, and astonishingly, oh gosh, the focus of that hearing
• 19:14
  Speaker 6: this is how what where the legal system sometimes is
• 19:17
  Speaker 6: just you can't make it up?
• 19:18
  Speaker 1: This stuff that they that.
• 19:20
  Speaker 6: Becomes the issue because he had to have a mask
• 19:24
  Speaker 6: over his face to get the gas for nitrogen hypoxia execution,
• 19:29
  Speaker 6: and sorry, the details of this are gross, his lawyers argued,
• 19:35
  Speaker 6: he is because of his post traumatic stress, going to
• 19:38
  Speaker 6: possibly throw up, and if he throws up in his mask,
• 19:41
  Speaker 6: it's going to be you know, he could get asphixiated
• 19:43
  Speaker 6: that way. Now of course you are listening and thinking
• 19:47
  Speaker 6: this is so like talk about absurd, right.
• 19:50
  Speaker 1: So I was asked to testify.
• 19:52
  Speaker 6: About his post traumatic stress and his nausea, which was
• 19:55
  Speaker 6: one of his symptoms. And you know, I was asked
• 20:00
  Speaker 6: to testify would he throw up if they put a
• 20:04
  Speaker 6: mask on his face and try to kill him, which
• 20:08
  Speaker 6: you know, it's just incredible to be asked that in
• 20:15
  Speaker 6: a court of law. And I had to say, you know,
• 20:18
  Speaker 6: I'm not a medical doctor first of all, so I
• 20:20
  Speaker 6: can't speak to the gastro intestinal system and what it does.
• 20:24
  Speaker 6: I can tell you as a psychologist from this kind
• 20:26
  Speaker 6: of severe post traumatic stress and the fact that mister
• 20:28
  Speaker 6: Smith's had really severe nausea and so vomiting, there is
• 20:32
  Speaker 6: a high likelihood that could happen, Yes, because he's going
• 20:34
  Speaker 6: to go into a serious state of distress.
• 20:38
  Speaker 1: But it kind of boiled down to whether or not
• 20:40
  Speaker 1: he would.
• 20:41
  Speaker 6: You know, vomit, as whether they could stop this, and they,
• 20:47
  Speaker 6: you know, the judge said, the judge said, don't let
• 20:51
  Speaker 6: him eat eight hours before.
• 20:54
  Speaker 1: That's what they did move the last meal earlier.
• 20:58
  Speaker 2: And with that Kenny's fate was said. In the months
• 21:06
  Speaker 2: leading up to his execution date, Kenny Smith began to
• 21:09
  Speaker 2: put his affairs in order. In his words, he loved
• 21:13
  Speaker 2: up on everybody. He named his witnesses. He wanted his
• 21:17
  Speaker 2: family there, his mom, his wife, his sons, his spiritual advisor,
• 21:22
  Speaker 2: his lawyer, Robert Grass. So tell me about that evening.
• 21:26
  Speaker 9: So I arrived. I was supposed to go to the
• 21:33
  Speaker 9: prison at five, So I got there at five.
• 21:38
  Speaker 2: Everyone on the list arrived at home in prison on
• 21:40
  Speaker 2: the afternoon of January twenty fifth. The corrections department gathered
• 21:44
  Speaker 2: them and put them in a van to drive to
• 21:47
  Speaker 2: the execution chamber.
• 21:49
  Speaker 9: At some point it started to rain and you could
• 21:51
  Speaker 9: hear on the roof, you know, you could hear the
• 21:54
  Speaker 9: rain falling on the roof.
• 21:59
  Speaker 2: They emptied their pockets, no watches, no phones. At six
• 22:04
  Speaker 2: point fifty two, one of the drivers of the van
• 22:06
  Speaker 2: got a phone call. It was moving time. A police
• 22:10
  Speaker 2: car with flashing lights led the way through a gate
• 22:13
  Speaker 2: at the back of the prison. From there to a
• 22:15
  Speaker 2: holding room. Another wait, maybe an hour. Lee Hedgebeth, the
• 22:20
  Speaker 2: local reporter who did some interviews for US was there,
• 22:24
  Speaker 2: so was Kenny Smith's mom, Linda.
• 22:28
  Speaker 5: He'd survived that first attempt, Did you think there was
• 22:31
  Speaker 5: any chance that he would survive the second time?
• 22:35
  Speaker 1: You know, I really didn't. Good you, I don't know.
• 22:47
  Speaker 5: Part of me thought we might all die because they
• 22:51
  Speaker 5: didn't know what they were doing. It was the first
• 22:53
  Speaker 5: time it had ever been done. Yeah, you know, he's
• 22:55
  Speaker 5: got a mask that leaks, and.
• 23:00
  Speaker 7: I don't know, somehow I just knew that that was
• 23:05
  Speaker 7: that was going to be it. And when he well,
• 23:09
  Speaker 7: he said when he seen him coming there, said well, Mom,
• 23:12
  Speaker 7: they're coming to get me, and you know, we said
• 23:18
  Speaker 7: our good pies, and you know, the laughing thing he
• 23:22
  Speaker 7: said was I love you, Mom, I gotta go.
• 23:30
  Speaker 5: So the last time he saw him was when I
• 23:33
  Speaker 5: was there in my room and they come and get him.
• 23:36
  Speaker 5: Do you remember is that what he said to you then? Too?
• 23:42
  Speaker 5: What do you remember what she said to him?
• 23:45
  Speaker 7: I told him I loved him too. He said, I know, Mom.
• 23:53
  Speaker 7: And then I just can't get that picture out of
• 23:56
  Speaker 7: my head when he's they're walking him back and he
• 24:02
  Speaker 7: looked back and he was just smiling. Yeah, that haunts me.
• 24:10
  Speaker 2: At some point, everyone was led to the witness room.
• 24:15
  Speaker 9: A curtain was drawn by the windows. There were four
• 24:18
  Speaker 9: seats in the front which we took. There was a
• 24:23
  Speaker 9: box of tissues to my right near the window sill,
• 24:30
  Speaker 9: or on a window sill, and then a little after
• 24:40
  Speaker 9: that they opened the curtain. We could see Kenny strapped
• 24:48
  Speaker 9: to a gurney, who was strapped across his chest. His
• 24:51
  Speaker 9: arms were strapped to the side, and he was wearing
• 24:57
  Speaker 9: a mask. The warden entered the room. He read the
• 25:02
  Speaker 9: death warrant. He asked Kenny if he had if you
• 25:08
  Speaker 9: want to make a statement, which he did, so they
• 25:13
  Speaker 9: put the microphone. They unscrewed a valve to the mask.
• 25:19
  Speaker 9: They put the microphone near him, and he made his statement.
• 25:23
  Speaker 9: Warden then left the room.
• 25:25
  Speaker 2: What did he say?
• 25:29
  Speaker 9: He said something along the lines of that Alabama was
• 25:33
  Speaker 9: taking a step backwards that evening, and he said, I
• 25:38
  Speaker 9: love you all, I'm going with peace, and I forget
• 25:44
  Speaker 9: exactly what it was, but it was something along those lines.
• 25:51
  Speaker 9: The warden left the room and then they started the procedure,
• 25:57
  Speaker 9: or at least that's what it seemed like. And that was,
• 26:06
  Speaker 9: you know, pretty ugly to watch because Kenny, they had
• 26:12
  Speaker 9: been saying all along that Kenny would be unconscious and
• 26:16
  Speaker 9: you know seconds, you know, less than a minute, and
• 26:19
  Speaker 9: this would be a painless thing. I'm not a medical person.
• 26:25
  Speaker 9: I can't opine on the on what happened. The only
• 26:29
  Speaker 9: one who can tell us if he experienced pain is
• 26:32
  Speaker 9: not here to describe it. But what I observed anyhow,
• 26:39
  Speaker 9: did not look like what Alabama had advertised, because there
• 26:44
  Speaker 9: were violent seizure type movements. You know, it's kind of
• 26:54
  Speaker 9: as best he could against the constraints. You could see
• 26:57
  Speaker 9: his head come back and violently come forward and violently
• 27:01
  Speaker 9: go back. You could see his fist clenched in his arms,
• 27:07
  Speaker 9: straining against the restraints. And as I said, I didn't
• 27:12
  Speaker 9: have my watch, and I wasn't cognizant if there was
• 27:17
  Speaker 9: a clock in the room. But I can tell you
• 27:19
  Speaker 9: that that went on, you know, that was minutes, not seconds,
• 27:22
  Speaker 9: that that appeared to be going on. There's was what
• 27:26
  Speaker 9: appeared to be gasping for air. After that, for again
• 27:33
  Speaker 9: another period of you know, minutes, not nott seconds. At
• 27:45
  Speaker 9: at some point you could see him kind of fall
• 27:50
  Speaker 9: back into you know, into the gurney and and lay there.
• 27:59
  Speaker 9: Then they escorted us out of the witness room, took
• 28:04
  Speaker 9: us back, put us back in the van, and brought
• 28:06
  Speaker 9: us back to the parking lot where we had gathered.
• 28:11
  Speaker 9: And that was that evening.
• 28:23
  Speaker 2: Can you describe your feelings when it was over.
• 28:32
  Speaker 5: It's hard to.
• 28:35
  Speaker 9: Describe.
• 28:35
  Speaker 6: You know.
• 28:36
  Speaker 9: That was about eighteen years of effort that ended up
• 28:43
  Speaker 9: being unsuccessful. I felt awful about that. I felt awful for.
• 28:55
  Speaker 10: For Kenny.
• 28:56
  Speaker 9: I felt awful for Kenny's wife, his children, his mother,
• 29:02
  Speaker 9: his extended family. He had, you know, grandchildren by that point,
• 29:07
  Speaker 9: niece's nephews. The point of the eighteen years of representation
• 29:15
  Speaker 9: was basically to avoid, to prevent that moment.
• 29:20
  Speaker 2: Do you miss him?
• 29:24
  Speaker 9: I do? I Actually, you know, I think about him.
• 29:30
  Speaker 9: His birthday was July fourth, so I was thinking about
• 29:37
  Speaker 9: him then and I think about him often.
• 29:55
  Speaker 2: Can you tell me a little bit more about Sorry?
• 30:00
  Speaker 9: I'm sorry, you know, I wish I could. Every time
• 30:04
  Speaker 9: I tell this story, I wish I could tell it
• 30:06
  Speaker 9: with a.
• 30:06
  Speaker 10: Different ending and a different beginning. For that matter, we'll
• 30:19
  Speaker 10: be right back, good night.
• 30:36
  Speaker 4: State of Alabama started carrying out the execution of Kennethy
• 30:40
  Speaker 4: Gene Smith by nitrogenpoxia at the WILLIAMS. Holman Correction Facility
• 30:44
  Speaker 4: of Smith was executed for the nineteen eighty eight capital
• 30:48
  Speaker 4: murder of Elizabeth Orleans Senate in Calvert County.
• 30:54
  Speaker 2: After it was all over, John Q. Haam, the Commissioner
• 30:57
  Speaker 2: of the Alabama Department of Corrections, held a press conference
• 31:01
  Speaker 2: as he always does, podium, big banner right behind him
• 31:04
  Speaker 2: with the words professionalism, integrity, accountability, Charles and Elizabeth sentences.
• 31:11
  Speaker 2: Two sons stand off to the side.
• 31:15
  Speaker 7: Commissioner mister Smith appeared to shake him ride on the
• 31:18
  Speaker 7: gurry for at least two minutes at the start of
• 31:20
  Speaker 7: the execution.
• 31:22
  Speaker 4: Was that expected period that one Smith was holding his
• 31:26
  Speaker 4: breath as long as he could, and then there's also
• 31:30
  Speaker 4: information out there he struggled against his restraints a little bit,
• 31:35
  Speaker 4: but there's some involuntary movement and some agniballe breathing. So
• 31:39
  Speaker 4: that was all expected. And then the side effects that
• 31:43
  Speaker 4: we've seen of researched on lecrogen the box here. So
• 31:47
  Speaker 4: nothing was out of the order of what.
• 31:48
  Speaker 2: We were expecting, nothing out of the ordinary, just what
• 31:52
  Speaker 2: they were expecting. Then more questions.
• 31:57
  Speaker 5: He appeared conscious for the first several minutes.
• 31:59
  Speaker 3: Do you agree with that?
• 32:00
  Speaker 7: The Attorney General's Office in Port Filing said they thought
• 32:03
  Speaker 7: with Migraten would cost a lack of consciousness within seconds.
• 32:08
  Speaker 2: I don't know.
• 32:08
  Speaker 4: I couldn't really see his face from where I was sitting.
• 32:12
  Speaker 2: Y'all might have had a better view.
• 32:13
  Speaker 8: Of that anytimes to implement this method for future and
• 32:17
  Speaker 8: mains on Destoh.
• 32:19
  Speaker 4: That's this is a state law for the state of Alabama.
• 32:22
  Speaker 4: That nation POxy is one of the three methods of execution.
• 32:26
  Speaker 4: So thenmates choose it, then that's the method we will use.
• 32:30
  Speaker 2: Then, came a press release from the Alabama Attorney General's Office.
• 32:35
  Speaker 2: Alabama has achieved something historic. It went on despite the
• 32:40
  Speaker 2: international effort by activists to undermine and disparage our states
• 32:44
  Speaker 2: justice system and to deny justice to the victims of
• 32:47
  Speaker 2: heinous murders. Our proven method offers a blueprint for other
• 32:52
  Speaker 2: states and a warning to those who would contemplate shedding
• 32:55
  Speaker 2: innocent blood. This is an important night for Liz Senett's family,
• 33:01
  Speaker 2: for justice and for the rule of law in our
• 33:04
  Speaker 2: great nation. As an affair, and in his madness, sees
• 33:11
  Speaker 2: no alternative but to kill his wife, he recruits two
• 33:14
  Speaker 2: troubled young men who take the fall. Both of those
• 33:18
  Speaker 2: men are redeemed. While in prison, they discover their capacity
• 33:21
  Speaker 2: to love and to be loved. But that is of
• 33:23
  Speaker 2: no concern for the state of Alabama, which executes the
• 33:27
  Speaker 2: first by setting his lungs on fire, and executes the
• 33:30
  Speaker 2: second twice, first in spirit and then in fact letting
• 33:36
  Speaker 2: him combulse on the gurney, because no one bothered to
• 33:39
  Speaker 2: check whether a method that is not even worthy of
• 33:41
  Speaker 2: lab rats was a good idea for human beings. The
• 33:46
  Speaker 2: cascade begins in obliviousness, then proceeds from indifference to cruelty,
• 33:52
  Speaker 2: and ends in revision when a senior elected official of
• 33:57
  Speaker 2: an American state looks back over a thirty six year
• 34:01
  Speaker 2: long cascade of moral failure and declares, without irony, Alabama
• 34:08
  Speaker 2: has achieved something historic. Do you remember the last conversation
• 34:25
  Speaker 2: you had with them.
• 34:27
  Speaker 6: We still were very much talking about what his options
• 34:29
  Speaker 6: were and legally, and I didn't know it was going
• 34:31
  Speaker 6: to be my last conversation with him, you know. So
• 34:34
  Speaker 6: once it got very close to the warrant, I had said,
• 34:38
  Speaker 6: you know, I'm here. Anybody would like me to do
• 34:41
  Speaker 6: anything to assist with this post traumatic stress or anything,
• 34:45
  Speaker 6: please contact me, you know, And but he started to
• 34:48
  Speaker 6: really have to focus on what he was about to do.
• 34:51
  Speaker 6: You know what was about to happen to him. So
• 34:52
  Speaker 6: I wrote him a letter at the end, and I
• 34:55
  Speaker 6: sent it to him. I just wrote him a little
• 34:57
  Speaker 6: paragraph and I just said that what it had meant
• 35:00
  Speaker 6: to work with him. They gave it to him, I
• 35:02
  Speaker 6: guess the day before, and I just said, you know,
• 35:04
  Speaker 6: your spirit is just you know, irrepressible, and you're I
• 35:08
  Speaker 6: did say I liked this because it was true with Kenny.
• 35:11
  Speaker 6: I said, your ability to build relationships behind walls is
• 35:16
  Speaker 6: nothing less than miraculous. Because that's really what I felt
• 35:20
  Speaker 6: about him. You know, he built relationships, real ones with
• 35:24
  Speaker 6: his loved ones.
• 35:26
  Speaker 1: M and that's not easy. It's not easy when we're
• 35:30
  Speaker 1: not in prison.
• 35:32
  Speaker 2: You know, where were you when he was finally executed.
• 35:38
  Speaker 1: Oh? I was home.
• 35:41
  Speaker 6: So I I have this thing I do where I
• 35:45
  Speaker 6: you know, I talked to the lawyers always before and
• 35:47
  Speaker 6: say we're all.
• 35:48
  Speaker 1: Being stuff and obviously if anyone needs me, and then.
• 35:52
  Speaker 6: I usually tell my kids and we're going to light
• 35:54
  Speaker 6: a candle, and we light a candle for the person.
• 35:56
  Speaker 6: And usually I put some something pretty with the candle
• 36:00
  Speaker 6: and then take a picture of it. And I always
• 36:03
  Speaker 6: send the picture of the candle to the lawyers and
• 36:05
  Speaker 6: just say, you know, I'm remembering Kenny right now and
• 36:08
  Speaker 6: whatever he's going going through. And then I usually have
• 36:14
  Speaker 6: a glass of wine and feel like shit, what are
• 36:30
  Speaker 6: you thinking?
• 36:30
  Speaker 1: May I ask?
• 36:51
  Speaker 6: I'm sorry. Right, it's a lot to think about. And
• 37:38
  Speaker 6: you know, the normal thing we do we make meaning, right,
• 37:42
  Speaker 6: is we think about other losses.
• 37:43
  Speaker 1: Think.
• 37:44
  Speaker 6: You think about what the person's family went through. You
• 37:46
  Speaker 6: think what you would go through if that was happening,
• 37:49
  Speaker 6: you know. So it's this is what being a human is.
• 37:51
  Speaker 6: It's like when you put your mind in this place,
• 37:55
  Speaker 6: it's a lot. It's a lot.
• 38:49
  Speaker 2: Revisionist History is produced by Lucy Sullivan, Benda daff Haffrey,
• 38:53
  Speaker 2: and Nina Bird Lawrence. Additional reporting by Benda daff Haffrey
• 38:57
  Speaker 2: and Lee Hedgebeth. Our editor is Karen Schakerji, fact checking
• 39:01
  Speaker 2: by Kate Furby. Our executive producer is Jacob Smith. Production
• 39:05
  Speaker 2: support from Luke Klement, Engineering by Nina Bird Lawrence. Original
• 39:11
  Speaker 2: music was composed, arranged, and recorded by Luis Querra, with
• 39:14
  Speaker 2: additional composition and recording by Paul Brainerd. Drums by Jimmy Bott,
• 39:19
  Speaker 2: sound design and additional music by Jake Gorsky. Cover art
• 39:22
  Speaker 2: for the season was designed by Sean Karney and special
• 39:25
  Speaker 2: thanks to a whole host of people who helped us out.
• 39:29
  Speaker 2: The good folks at Audible who came to our table
• 39:31
  Speaker 2: reads Tali Emlin, Randy Suskin at the Equal Justice Initiative
• 39:36
  Speaker 2: in Montgomery who helped us out with research, Mike Cooley
• 39:39
  Speaker 2: of the Drive By Truckers and at Pushkin, Greta Cone,
• 39:43
  Speaker 2: Jacob Weisberg, Sarah Nix, Nicole opten Bosch, Jasmine Faustino, Christina Sullivan,
• 39:50
  Speaker 2: Amy Gaines, McQuaid, Grace Ross, Eric Sandler, Morgan Ratner, Kira Posey,
• 39:55
  Speaker 2: Jordan McMillan, Jake Flanagan, Owen Miller, Fara de Grange, and
• 39:59
  Speaker 2: Sarah Buguer. H'm Malcolm glava
• 40:09
  Speaker 1: O