WEBVTT - The Alabama Murders - Part 7: The Second Warrant 0:00:15.356 --> 0:00:23.876 Pushkin previously on Revisionist History. 0:00:25.156 --> 0:00:27.996 Had my wife just been murdered in my home, I 0:00:27.996 --> 0:00:31.756 could tell you nothing. My mind's gone. But he knew 0:00:31.836 --> 0:00:34.076 everything in detail. That's a red flag. 0:00:35.316 --> 0:00:39.316 I can't remember how soon they figured out that, you know, 0:00:39.436 --> 0:00:42.396 the preacher had sent us the job and all that, 0:00:42.516 --> 0:00:45.956 but it was, you know, it was pretty obvious, pretty quick. 0:00:46.956 --> 0:00:48.996 I just don't think some of these people that were 0:00:49.036 --> 0:00:51.756 on the jury, they didn't want that to be on 0:00:51.796 --> 0:00:56.276 their conscious the rest of their life. Putting somebody into 0:00:56.316 --> 0:00:57.116 the death penalty. 0:00:58.236 --> 0:01:04.316 Thirty five years, that's how long Elizabethsonnett's family waited for 0:01:04.556 --> 0:01:05.396 justice to occur. 0:01:05.996 --> 0:01:08.756 Thirty five long years. 0:01:09.996 --> 0:01:14.036 He was just having severe nightmares of being executed over 0:01:14.076 --> 0:01:16.076 and over. He sort of came out of a depression 0:01:16.356 --> 0:01:18.156 and then the second execution came up. 0:01:31.036 --> 0:01:33.636 So at some point during your conversations with him, he 0:01:33.716 --> 0:01:35.196 gets his second warrant. 0:01:35.396 --> 0:01:36.276 Yeah, when is that? 0:01:38.396 --> 0:01:41.676 So he got a second warrant in November a year 0:01:41.756 --> 0:01:46.356 later for January execution. So you know, they take you 0:01:46.396 --> 0:01:47.916 as soon as they give you the warrant. By the way, 0:01:47.916 --> 0:01:50.036 this is another particularly cruel thing. This is the man 0:01:50.036 --> 0:01:52.076 who's been thirty four years. He has a cell. He's 0:01:52.436 --> 0:01:54.276 you know, they call it their house, their cell. So 0:01:54.396 --> 0:01:56.556 his house was nice, you know, he had his stuff 0:01:56.556 --> 0:01:59.116 in there. And once they take you to the warden 0:01:59.156 --> 0:02:00.636 and tell you they don't take you back to your cell, 0:02:00.676 --> 0:02:04.276 that's it. You get put in the death chamber cell, 0:02:04.356 --> 0:02:06.236 which is this totally isolated cell. 0:02:07.156 --> 0:02:08.036 Very hard. 0:02:09.556 --> 0:02:13.316 Kate Portererfield, the psychologist hired by Kenny Smith's legal team, 0:02:15.436 --> 0:02:17.716 once he was given the second warrant and taken to 0:02:17.756 --> 0:02:19.716 the death chamber, did you lose contact with him? 0:02:20.036 --> 0:02:20.276 No? 0:02:20.276 --> 0:02:21.276 No, we were able to talk. 0:02:21.436 --> 0:02:23.596 We talked up until about I think we talked up 0:02:23.676 --> 0:02:28.676 until about December, and then he got very you know, 0:02:28.756 --> 0:02:32.476 he turned his attention to facing what was probably going 0:02:32.556 --> 0:02:35.596 to happen. His lawyers were working very hard to still 0:02:35.756 --> 0:02:38.916 stop it. I testified in the hearing about what I 0:02:38.916 --> 0:02:40.556 believed was going to happen to him with his post 0:02:40.596 --> 0:02:42.436 traumatic stress if he had to go through this again. 0:02:43.236 --> 0:02:47.636 And I testified, which I believed to be true, that 0:02:47.676 --> 0:02:49.436 this man was going to go into a state of 0:02:49.476 --> 0:02:56.916 such severe symptomatic PTSD as to be really just devastated, 0:02:57.236 --> 0:02:59.436 you know, to be taken into that same thing again 0:02:59.556 --> 0:03:05.876 was going to just be you know, catastrophic to his psyche. Yeah, well, 0:03:05.916 --> 0:03:07.996 and those words cruel and unusuals like the legal term. 0:03:07.996 --> 0:03:09.956 And so what I was saying is this man's going 0:03:10.036 --> 0:03:14.316 to be absolutely devastated within his psyche and disorganized and 0:03:15.476 --> 0:03:20.036 completely symptomatic because he's got a severe condition that you 0:03:20.076 --> 0:03:21.636 guys did to him, by the way, that was brought 0:03:21.676 --> 0:03:22.916 about by what was done. 0:03:23.596 --> 0:03:26.116 So this was not a guy who had PTSD before this. 0:03:28.436 --> 0:03:30.956 Do you remember the first contact you had with him 0:03:30.956 --> 0:03:31.676 after he got. 0:03:31.476 --> 0:03:34.956 His warrant, I mean, I remember some of it. I mean, 0:03:35.196 --> 0:03:36.556 he was very focused on fighting. 0:03:36.556 --> 0:03:38.276 You know, he was very focused on fighting it, and 0:03:38.316 --> 0:03:39.676 he was very worried about his family. 0:03:39.716 --> 0:03:41.676 He was super worried about his mom. 0:03:42.916 --> 0:03:48.876 And his grandson and his wife. So he was very 0:03:48.876 --> 0:03:53.436 focused on them. And he also said, you know, I've 0:03:53.436 --> 0:03:55.436 had the greatest lawyers. We're going to keep fighting this. 0:03:56.476 --> 0:03:58.636 I mean, look, he was anxious, he was really starting 0:03:58.636 --> 0:04:01.036 to fall apart, but he was also trying to be 0:04:01.116 --> 0:04:09.316 focused on hope. 0:04:10.356 --> 0:04:13.676 My name is Malcolm Gladwell. You're listening to the Alabama Murders. 0:04:14.196 --> 0:04:18.716 This is the final episode in our series. We started 0:04:18.756 --> 0:04:21.836 with the murder of Elizabeth Senate on Coon Dog Cemetery Road. 0:04:22.436 --> 0:04:24.356 And now we're going to end with what happened in 0:04:24.436 --> 0:04:28.996 Kenny Smith's last days, the bizarre and grotesque final act 0:04:29.356 --> 0:04:32.676 to the Senate cascade, with the State of Alabama endeavored 0:04:32.676 --> 0:04:37.116 to figure out and justify another way of executing Kenny Smith. 0:04:39.036 --> 0:04:59.596 This is episode seven, the Second Warrant. Just over a 0:04:59.636 --> 0:05:03.236 month before Kenny Smith's second execution date, his legal team 0:05:03.436 --> 0:05:06.876 made one last big push to save his life. A 0:05:06.956 --> 0:05:11.556 lawsuit heard in US History Court in Montgomery, Alabama, Kenneth 0:05:11.676 --> 0:05:16.876 Eugene Smith v. John Q. Ham Ham. The defendant is 0:05:16.916 --> 0:05:20.756 the commissioner of the Alabama Department of Corrections. Bulldog of 0:05:20.796 --> 0:05:24.556 a guy, maybe six feet bald, white mustache and go tee, 0:05:24.676 --> 0:05:28.556 dark suit, white shirt, red tie. If you're curious about him, 0:05:28.796 --> 0:05:31.196 you can find him on YouTube, where he's a regular. 0:05:33.916 --> 0:05:36.796 He's the person in Alabama state government whose job it 0:05:36.876 --> 0:05:39.476 is to stand up at press conferences and announce that 0:05:39.516 --> 0:05:44.156 one of his prisons has just executed another person about. 0:05:43.916 --> 0:05:47.116 One of the Alabama spring Born the night State of 0:05:47.156 --> 0:05:50.796 Alabama carried out excuse of James Barber by lethal injection 0:05:51.396 --> 0:05:53.076 at Williams a Hold Prison. 0:05:54.156 --> 0:05:58.396 He answers questions about how things went emny IVS. 0:05:58.516 --> 0:06:00.196 Did you need the heavy any too? 0:06:00.396 --> 0:06:03.836 We had too, So there were three stays to six minutes. 0:06:04.476 --> 0:06:07.436 And let's the world know they've done their job well. 0:06:07.796 --> 0:06:11.396 So we carried out successful law in execution of the 0:06:11.676 --> 0:06:12.676 man's break. 0:06:12.636 --> 0:06:13.036 Ut and. 0:06:19.996 --> 0:06:24.796 John Q. Ham this is who Kenny Smith's legal team 0:06:24.916 --> 0:06:28.476 is up against. The basis of their appeal was a 0:06:28.516 --> 0:06:31.596 new method that Alabama intended to use on Kenny Smith. 0:06:32.556 --> 0:06:35.676 Having lost confidence in the ability of its execution team 0:06:35.836 --> 0:06:39.516 to find one of Kenny Smith's vans, the state decided 0:06:39.556 --> 0:06:42.876 instead to strap him to a gurney, put a mask 0:06:42.956 --> 0:06:45.956 over his face, and pump him full of nitrogen gas, 0:06:46.596 --> 0:06:49.156 a method that had never been used in a judicial 0:06:49.196 --> 0:06:54.076 execution before in the United States, or for that matter, anywhere. 0:06:54.956 --> 0:06:58.876 They were attempting to make history, and in response, Kenny 0:06:58.876 --> 0:07:01.836 Smith's lawyers argued that the use of an untested method 0:07:01.916 --> 0:07:06.676 like nitrogen asphyxiation would violate the Eighth Amendment prohibition against 0:07:06.676 --> 0:07:14.516 cruel and unusual punishment. Wanted a preliminary injunction. Tell me 0:07:14.516 --> 0:07:16.836 a little bit about nitrogen gas. 0:07:17.996 --> 0:07:20.596 It's not in its pure form. It's not used you 0:07:20.596 --> 0:07:22.236 know in medical situations. 0:07:22.876 --> 0:07:26.076 This is joel' zivid, the Atlanta and the caesiologist who 0:07:26.156 --> 0:07:28.156 we've heard from many times in this series. 0:07:28.756 --> 0:07:32.596 You know, in the air we breathe, it airs actually 0:07:32.796 --> 0:07:37.356 is a mixture of about seventy nine percent or eighty 0:07:37.396 --> 0:07:41.596 percent nitrogen and twenty twenty nine percent oxygen. Why don't 0:07:41.636 --> 0:07:45.356 we breathe pure oxygen? If the atmosphere of the Earth 0:07:45.436 --> 0:07:48.956 was pure oxygen, it would be on fire and there 0:07:48.956 --> 0:07:51.516 would be no life. So to make it kind of 0:07:51.516 --> 0:07:54.516 work in the body, we have to water it down, 0:07:54.596 --> 0:07:56.556 so to speak, with nitrogen gas. 0:07:57.436 --> 0:08:00.676 We breathe in oxygen, which keeps us alive, mixed in 0:08:00.716 --> 0:08:04.436 with enough nitrogen to make it safe. Nitrogen is inert. 0:08:04.596 --> 0:08:06.716 It just passes in and out of the body. 0:08:07.316 --> 0:08:11.836 Like it doesn't kind of hurt to inhale it. But 0:08:12.396 --> 0:08:15.836 what it does do is that it doesn't you know, 0:08:15.876 --> 0:08:19.916 it doesn't light the fire of life. It doesn't support 0:08:20.196 --> 0:08:25.636 the cellular combustion that is required with oxygen. So it's 0:08:25.716 --> 0:08:28.516 like putting the candle, you know, under the glass, and 0:08:28.556 --> 0:08:32.436 the candle eventually uses up all the oxygen and nothing remains. 0:08:33.676 --> 0:08:38.796 So the theory was that because nitrogen gas was not noxious, 0:08:39.276 --> 0:08:42.316 it would be it could be given to someone as 0:08:42.356 --> 0:08:46.636 a kind of, you know, method of gas execution that 0:08:46.756 --> 0:08:50.516 would not be so troubling to them because they would 0:08:50.556 --> 0:08:54.476 breathe it and not know it, and that they would 0:08:54.556 --> 0:08:58.196 then lose consciousness and die. 0:08:59.356 --> 0:09:02.996 All you needed was some pure industrial grade nitrogen gas 0:09:03.396 --> 0:09:07.676 and a type fitting mask. That was the theory and 0:09:07.756 --> 0:09:10.756 the great appeal of nitrogen to state like Alabama, where 0:09:10.796 --> 0:09:13.796 the execution teams were not always up to the challenge 0:09:13.836 --> 0:09:18.196 of executing people the conventional way. But in practice there 0:09:18.196 --> 0:09:22.636 are complications, like if some oxygen seeps into your mask 0:09:22.836 --> 0:09:25.556 while you're being fed nitrogen, then you could end up 0:09:25.596 --> 0:09:29.876 in a vegetative state, alive but brain dead. There's also 0:09:29.916 --> 0:09:34.156 the possibility, since pure nitrogen makes people nauseous, that the 0:09:34.196 --> 0:09:37.716 prisoner being executed could throw up in their mask and 0:09:37.796 --> 0:09:41.716 choke to death, which achieves the same end but inducing 0:09:41.756 --> 0:09:44.356 someone to asphyxiate on their own vomit is not a 0:09:44.396 --> 0:09:48.236 Supreme Court approved method of execution as yet. 0:09:49.956 --> 0:09:53.796 So in lethal injection, you know, once the vein is 0:09:53.876 --> 0:09:58.876 canulated and the drugs are flowing, it's hard to stop. Okay, 0:09:58.916 --> 0:10:01.956 you can't kind of block your own vein or do something. 0:10:02.436 --> 0:10:08.476 But in gas execution, you have to participate in your 0:10:08.516 --> 0:10:13.476 own demand by breathing. Okay, So the first thing that 0:10:13.556 --> 0:10:17.116 you're going to do is as you hold your breath, okay, 0:10:17.156 --> 0:10:20.156 because you don't want to breathe. So now you're holding 0:10:20.196 --> 0:10:22.756 your breath. You're holding your breath, and as you hold 0:10:22.796 --> 0:10:28.196 your breath, your own carbon dioxide gas, which is something 0:10:28.196 --> 0:10:31.076 that we normally exhale and is sort of finely regulated, 0:10:31.436 --> 0:10:35.076 starts to rise. And it's the rising of carbon dioxide 0:10:35.116 --> 0:10:37.356 that is very uncomfortable when you hold your breath. It 0:10:37.396 --> 0:10:40.116 makes you want to take a breath, So that starts 0:10:40.116 --> 0:10:43.356 to at some point you can't stand it, okay, and 0:10:43.396 --> 0:10:45.676 you've got to take a breath, so you breathe in. 0:10:45.716 --> 0:10:48.756 At that point, you breathe in. This nitrogen gas that 0:10:48.916 --> 0:10:52.236 you know, has a very different kind of impact on 0:10:53.676 --> 0:10:57.676 what's happened to you because by virtue of holding your breath, 0:10:58.196 --> 0:11:01.596 it dilates the blood vessels in the brain. Okay, So 0:11:01.676 --> 0:11:06.516 now you've got this flush of nitrogen gas that's traveling, 0:11:06.756 --> 0:11:10.316 you know, at volume into your brain. That may be 0:11:10.436 --> 0:11:14.556 why you have a seizure, and it seems to create 0:11:14.596 --> 0:11:19.316 a cascade of other kinds of physiologic changes. None of 0:11:19.356 --> 0:11:23.436 which this instantaneous unconsciousness followed by death. 0:11:29.076 --> 0:11:32.516 The effectiveness of nitrogen gas as an euthanizing agent has 0:11:32.556 --> 0:11:36.796 actually been extensively studied in animals. A group of researchers 0:11:36.796 --> 0:11:40.996 in Zurich, for example, recently took sixty rats, implanted them 0:11:41.036 --> 0:11:44.916 with biomedical sensors, divided them into groups, each with a 0:11:44.956 --> 0:11:51.236 different lethal method carbon dioxide, a powerful anesthetic called isofluorane, 0:11:51.876 --> 0:11:58.836 carbon monoxide, and nitrogen. They euthanized all the animals, videotaped 0:11:58.876 --> 0:12:06.876 their final moments, necropsied the bodies, and collected cardiovascular, respiratory, neural, biochemical, histological, 0:12:07.156 --> 0:12:14.036 and behavioral data. Conclusion, carbon monoxide and nitrogen resulted in 0:12:14.156 --> 0:12:18.636 longer times to loss of consciousness, induced seizures before loss 0:12:18.636 --> 0:12:24.076 of consciousness, increased stress levels, and caused higher lung damage. Therefore, 0:12:24.436 --> 0:12:30.436 carbon monoxide and nitrogen are not humane alternatives and should 0:12:30.436 --> 0:12:35.916 not be used for euthanasia. They weren't talking about the 0:12:35.956 --> 0:12:39.356 applicability of their findings to human beings. They were simply 0:12:39.356 --> 0:12:43.116 addressing their colleagues who used lab animals for research purposes. 0:12:43.596 --> 0:12:47.276 They were telling them even the smallest and most despised 0:12:47.276 --> 0:12:51.636 of animals deserves some degree of consideration. Please don't use nitrogen. 0:12:52.356 --> 0:12:56.676 A rat deserves a better way to die. So this 0:12:56.916 --> 0:13:00.116 was the point of the final lawsuit. Kenny Smith's lawyers 0:13:00.116 --> 0:13:03.556 wanted to know had John Hamm and his colleagues thought 0:13:03.596 --> 0:13:06.876 about this new method of killing people with anything like 0:13:06.916 --> 0:13:32.876 the rigor of the lab racy. December twentieth, twenty twenty three, 0:13:32.956 --> 0:13:37.276 it's a month before Kenny Smith's second execution date. John Q. 0:13:37.476 --> 0:13:40.356 Ham took the stand in the morning. He began by 0:13:40.476 --> 0:13:44.796 laying out Alabama's proposed protocol they would be using, he said, 0:13:45.236 --> 0:13:49.276 the same execution chamber as a lethal injection attempt, the 0:13:49.316 --> 0:13:52.796 same gurney, the execution team would have the same captain. 0:13:53.276 --> 0:13:55.796 Ten of the twelve members of the execution team would 0:13:55.836 --> 0:13:58.796 be the same. Each step of the protocol would be 0:13:58.836 --> 0:14:02.116 the same. The only difference would be no IV this time, 0:14:02.556 --> 0:14:05.916 just a mask hooked up to a canister of pure nitrogen. 0:14:06.756 --> 0:14:10.156 The cross examination was handled by one of any Smith's lawyers, 0:14:10.676 --> 0:14:15.076 Andrew Burns Johnson out of Birmingham. Can you tell the 0:14:15.116 --> 0:14:17.876 court what deliberation you had relating to what to do 0:14:17.996 --> 0:14:21.796 in the circumstance of vomiting in the mask? When nitrogen 0:14:21.876 --> 0:14:26.956 is being applied. Answer, we just had conversations about, like 0:14:27.036 --> 0:14:31.516 I said, sitting around hypotheticals. So we sat around and 0:14:31.556 --> 0:14:34.516 we came up with those ideas or excuse me, the 0:14:34.556 --> 0:14:36.876 side effects. So what we would do in that situation? 0:14:38.356 --> 0:14:41.756 Question did you consider that vomiting in a mask could 0:14:41.756 --> 0:14:47.076 cause asphyxiation? Answer? Yes, sir. Question did you consult with 0:14:47.116 --> 0:14:51.916 any medical personnel about how to lessen that risk? Answer? No, sir. 0:14:52.756 --> 0:14:55.276 Did you talk to any medical personnel about how to 0:14:55.316 --> 0:14:59.236 alleviate that risk? No, sir. Did you talk to any 0:14:59.236 --> 0:15:02.236 medical personnel about what to do in that situation as 0:15:02.236 --> 0:15:11.356 it's happening to prevent asphyxiation? I did not. I can 0:15:11.436 --> 0:15:13.636 only imagine what was going through the mind of Kenny 0:15:13.676 --> 0:15:18.716 Smith's lawyer in that moment. Is it bafflement, disbelief? I mean, 0:15:18.956 --> 0:15:21.716 for goodness sake, a research team in Zurich went to 0:15:22.036 --> 0:15:24.676 enormous effort to figure out whether nitrogen was worthy of 0:15:25.196 --> 0:15:29.796 lab rats. Could the Alabama State Department of Corrections, an 0:15:29.916 --> 0:15:33.676 organization with a budget of over seven hundred million dollars, 0:15:34.436 --> 0:15:41.596 really just be winging it? Wait, we're not finished. Question, Okay, 0:15:41.916 --> 0:15:45.076 you certainly had medical personnel available to you to ask 0:15:45.156 --> 0:15:49.516 that question? Answer, I could have sought out medical advice. Yes. 0:15:50.636 --> 0:15:54.876 Question okay, did the state have medical personnel involved in 0:15:54.876 --> 0:15:58.676 this process of developing this protocol that you signed? Answer? 0:15:59.436 --> 0:16:03.116 The Department of Corrections did not have medical personnel involved. 0:16:04.316 --> 0:16:07.876 Question were you ever involved in meetings with medical personnel 0:16:08.076 --> 0:16:14.116 with the issue ofvomiting in the mask was discussed at all? Answer? No, sir. 0:16:15.076 --> 0:16:18.636 Question have you had an opportunity to review the declarations 0:16:18.636 --> 0:16:21.116 of the experts in this case who talk about the 0:16:21.156 --> 0:16:25.716 effects of vomiting in the mask? Answer? I have not. 0:16:29.356 --> 0:16:32.596 This goes on and on. By the way, other witnesses 0:16:32.596 --> 0:16:35.476 from the state of Alabama get called. Has anyone thought 0:16:35.476 --> 0:16:38.556 about what would happen if outside air came into the mask? 0:16:39.076 --> 0:16:39.156 No? 0:16:40.116 --> 0:16:43.276 Where did you get that mask? By the way, Well, 0:16:43.516 --> 0:16:46.396 they don't really make masks for execution purposes, do they? 0:16:46.676 --> 0:16:49.476 So we're using an industrial mask, the kind that a 0:16:49.516 --> 0:16:54.436 construction worker might use. We did some internet research. Literally, 0:16:54.556 --> 0:16:56.916 the person who the state asked to figure out the 0:16:56.956 --> 0:17:00.076 mask question, who they brought to the hearing to support 0:17:00.116 --> 0:17:03.836 their case, admitted that he never used these kinds of masks, 0:17:04.276 --> 0:17:08.116 had no expertise in the characteristics of these masks, and 0:17:08.196 --> 0:17:10.756 knew what he knew because he'd spend some time online. 0:17:11.996 --> 0:17:14.836 Kenny Smith's lawyer then brings up the testimony of a 0:17:14.876 --> 0:17:18.276 previous witness who'd stress the importance of the mask fitting 0:17:18.316 --> 0:17:22.036 perfectly so no outside air would leak in, and asks 0:17:22.156 --> 0:17:26.396 John q Ham about it. Question, So, in order to 0:17:26.436 --> 0:17:29.796 be properly placed, one would have to ensure that there's 0:17:29.796 --> 0:17:34.636 no outside air coming in? Answer? That was his opinion. 0:17:35.156 --> 0:17:39.476 Question okay, assuming his opinion is correct, what's done in 0:17:39.476 --> 0:17:42.556 the execution chamber to make sure that no outside air 0:17:42.636 --> 0:17:47.116 gets under the mask? Answer? Well, that's hypothetical on his 0:17:47.236 --> 0:17:51.716 opinion being correct. Question even so, what is done to 0:17:51.756 --> 0:17:56.036 make sure no outside air comes in? Answer? I don't 0:17:56.036 --> 0:17:58.716 know specifically what the team captain does to make sure 0:17:58.716 --> 0:18:01.316 the air does not get in, but I'm sure they 0:18:02.116 --> 0:18:06.636 do practice quite regular Question. Do you agree with me? 0:18:06.676 --> 0:18:08.516 There's nothing in the protocol that would let us know 0:18:08.556 --> 0:18:10.116 what's going to have happened to make sure there's a 0:18:10.116 --> 0:18:16.516 proper fit. Answer that is correct. Later in the day, 0:18:16.716 --> 0:18:19.756 Kate Porterfield was called to the stand. She had spent 0:18:19.916 --> 0:18:22.996 more than a year assessing Kenny Smith. She had submitted 0:18:23.036 --> 0:18:25.996 her report to the court. She probably knew more than 0:18:26.076 --> 0:18:28.916 anyone at that moment what he was feeling and how 0:18:28.916 --> 0:18:31.356 he was doing, and how he might react to being 0:18:31.476 --> 0:18:34.396 re executed by the same crew on the same journey 0:18:34.916 --> 0:18:37.676 in the same execution chamber as the first go round. 0:18:38.316 --> 0:18:39.876 But do you know what she was asked at the 0:18:39.876 --> 0:18:42.836 beginning of her cross examination by the attorney for the 0:18:42.876 --> 0:18:47.076 Alabama Department of Corrections. Had she properly accounted for the 0:18:47.116 --> 0:18:51.396 possibility that Kenny might be malingering? What if all that 0:18:51.516 --> 0:18:54.796 PTSD stuff that he claimed was about being jabbed with 0:18:54.836 --> 0:18:57.356 needles for three and a half hours was just him 0:18:57.676 --> 0:19:01.916 faking it? A long technical discussion follows about how you 0:19:01.916 --> 0:19:04.916 can tell if someone's actually faking it, and from there 0:19:05.436 --> 0:19:07.556 the questioning moved to the vomit. 0:19:07.356 --> 0:19:13.676 Issue, and astonishingly, oh gosh, the focus of that hearing 0:19:14.916 --> 0:19:17.196 this is how what where the legal system sometimes is 0:19:17.276 --> 0:19:18.556 just you can't make it up? 0:19:18.716 --> 0:19:20.316 This stuff that they that. 0:19:20.276 --> 0:19:24.396 Becomes the issue because he had to have a mask 0:19:24.476 --> 0:19:29.636 over his face to get the gas for nitrogen hypoxia execution, 0:19:29.836 --> 0:19:34.356 and sorry, the details of this are gross, his lawyers argued, 0:19:35.076 --> 0:19:37.996 he is because of his post traumatic stress, going to 0:19:38.036 --> 0:19:41.036 possibly throw up, and if he throws up in his mask, 0:19:41.196 --> 0:19:43.556 it's going to be you know, he could get asphixiated 0:19:43.636 --> 0:19:47.276 that way. Now of course you are listening and thinking 0:19:47.356 --> 0:19:49.196 this is so like talk about absurd, right. 0:19:50.276 --> 0:19:53.196 So I was asked to testify. 0:19:52.756 --> 0:19:55.356 About his post traumatic stress and his nausea, which was 0:19:55.396 --> 0:20:00.796 one of his symptoms. And you know, I was asked 0:20:00.836 --> 0:20:04.196 to testify would he throw up if they put a 0:20:04.196 --> 0:20:07.476 mask on his face and try to kill him, which 0:20:08.516 --> 0:20:15.156 you know, it's just incredible to be asked that in 0:20:15.196 --> 0:20:17.916 a court of law. And I had to say, you know, 0:20:18.796 --> 0:20:20.596 I'm not a medical doctor first of all, so I 0:20:20.636 --> 0:20:24.276 can't speak to the gastro intestinal system and what it does. 0:20:24.316 --> 0:20:26.436 I can tell you as a psychologist from this kind 0:20:26.436 --> 0:20:28.876 of severe post traumatic stress and the fact that mister 0:20:28.876 --> 0:20:32.396 Smith's had really severe nausea and so vomiting, there is 0:20:32.436 --> 0:20:34.756 a high likelihood that could happen, Yes, because he's going 0:20:34.836 --> 0:20:37.756 to go into a serious state of distress. 0:20:38.716 --> 0:20:40.836 But it kind of boiled down to whether or not 0:20:40.996 --> 0:20:42.076 he would. 0:20:41.996 --> 0:20:47.756 You know, vomit, as whether they could stop this, and they, 0:20:47.876 --> 0:20:51.116 you know, the judge said, the judge said, don't let 0:20:51.196 --> 0:20:52.636 him eat eight hours before. 0:20:54.436 --> 0:20:56.636 That's what they did move the last meal earlier. 0:20:58.876 --> 0:21:06.076 And with that Kenny's fate was said. In the months 0:21:06.156 --> 0:21:09.196 leading up to his execution date, Kenny Smith began to 0:21:09.236 --> 0:21:13.036 put his affairs in order. In his words, he loved 0:21:13.116 --> 0:21:17.196 up on everybody. He named his witnesses. He wanted his 0:21:17.196 --> 0:21:22.076 family there, his mom, his wife, his sons, his spiritual advisor, 0:21:22.076 --> 0:21:25.876 his lawyer, Robert Grass. So tell me about that evening. 0:21:26.676 --> 0:21:33.316 So I arrived. I was supposed to go to the 0:21:33.356 --> 0:21:36.316 prison at five, So I got there at five. 0:21:38.196 --> 0:21:40.676 Everyone on the list arrived at home in prison on 0:21:40.716 --> 0:21:44.916 the afternoon of January twenty fifth. The corrections department gathered 0:21:44.956 --> 0:21:47.396 them and put them in a van to drive to 0:21:47.436 --> 0:21:48.516 the execution chamber. 0:21:49.116 --> 0:21:51.916 At some point it started to rain and you could 0:21:51.956 --> 0:21:54.356 hear on the roof, you know, you could hear the 0:21:54.436 --> 0:21:55.796 rain falling on the roof. 0:21:59.796 --> 0:22:04.436 They emptied their pockets, no watches, no phones. At six 0:22:04.436 --> 0:22:06.636 point fifty two, one of the drivers of the van 0:22:06.716 --> 0:22:10.236 got a phone call. It was moving time. A police 0:22:10.236 --> 0:22:13.116 car with flashing lights led the way through a gate 0:22:13.156 --> 0:22:15.356 at the back of the prison. From there to a 0:22:15.396 --> 0:22:20.316 holding room. Another wait, maybe an hour. Lee Hedgebeth, the 0:22:20.356 --> 0:22:23.396 local reporter who did some interviews for US was there, 0:22:24.076 --> 0:22:28.116 so was Kenny Smith's mom, Linda. 0:22:28.716 --> 0:22:31.516 He'd survived that first attempt, Did you think there was 0:22:31.556 --> 0:22:33.636 any chance that he would survive the second time? 0:22:35.716 --> 0:22:47.356 You know, I really didn't. Good you, I don't know. 0:22:47.756 --> 0:22:51.196 Part of me thought we might all die because they 0:22:51.196 --> 0:22:53.036 didn't know what they were doing. It was the first 0:22:53.036 --> 0:22:55.356 time it had ever been done. Yeah, you know, he's 0:22:55.356 --> 0:22:57.116 got a mask that leaks, and. 0:23:00.716 --> 0:23:04.276 I don't know, somehow I just knew that that was 0:23:05.676 --> 0:23:09.396 that was going to be it. And when he well, 0:23:09.396 --> 0:23:11.476 he said when he seen him coming there, said well, Mom, 0:23:12.516 --> 0:23:18.556 they're coming to get me, and you know, we said 0:23:18.596 --> 0:23:22.876 our good pies, and you know, the laughing thing he 0:23:22.916 --> 0:23:26.556 said was I love you, Mom, I gotta go. 0:23:30.356 --> 0:23:33.036 So the last time he saw him was when I 0:23:33.196 --> 0:23:36.476 was there in my room and they come and get him. 0:23:36.636 --> 0:23:39.716 Do you remember is that what he said to you then? Too? 0:23:42.716 --> 0:23:44.396 What do you remember what she said to him? 0:23:45.196 --> 0:23:53.876 I told him I loved him too. He said, I know, Mom. 0:23:53.916 --> 0:23:56.356 And then I just can't get that picture out of 0:23:56.396 --> 0:24:01.236 my head when he's they're walking him back and he 0:24:02.236 --> 0:24:07.036 looked back and he was just smiling. Yeah, that haunts me. 0:24:10.996 --> 0:24:15.236 At some point, everyone was led to the witness room. 0:24:15.596 --> 0:24:18.756 A curtain was drawn by the windows. There were four 0:24:18.796 --> 0:24:23.676 seats in the front which we took. There was a 0:24:23.716 --> 0:24:29.796 box of tissues to my right near the window sill, 0:24:30.756 --> 0:24:40.276 or on a window sill, and then a little after 0:24:40.356 --> 0:24:48.396 that they opened the curtain. We could see Kenny strapped 0:24:48.396 --> 0:24:50.876 to a gurney, who was strapped across his chest. His 0:24:51.116 --> 0:24:56.596 arms were strapped to the side, and he was wearing 0:24:57.316 --> 0:25:02.476 a mask. The warden entered the room. He read the 0:25:02.556 --> 0:25:08.796 death warrant. He asked Kenny if he had if you 0:25:08.836 --> 0:25:13.636 want to make a statement, which he did, so they 0:25:13.636 --> 0:25:19.196 put the microphone. They unscrewed a valve to the mask. 0:25:19.396 --> 0:25:23.036 They put the microphone near him, and he made his statement. 0:25:23.876 --> 0:25:25.276 Warden then left the room. 0:25:25.556 --> 0:25:28.436 What did he say? 0:25:29.836 --> 0:25:33.076 He said something along the lines of that Alabama was 0:25:33.156 --> 0:25:38.436 taking a step backwards that evening, and he said, I 0:25:38.476 --> 0:25:44.196 love you all, I'm going with peace, and I forget 0:25:44.236 --> 0:25:46.916 exactly what it was, but it was something along those lines. 0:25:51.476 --> 0:25:57.596 The warden left the room and then they started the procedure, 0:25:57.996 --> 0:26:03.836 or at least that's what it seemed like. And that was, 0:26:06.636 --> 0:26:12.676 you know, pretty ugly to watch because Kenny, they had 0:26:12.676 --> 0:26:15.956 been saying all along that Kenny would be unconscious and 0:26:16.876 --> 0:26:18.916 you know seconds, you know, less than a minute, and 0:26:19.036 --> 0:26:25.276 this would be a painless thing. I'm not a medical person. 0:26:25.516 --> 0:26:29.716 I can't opine on the on what happened. The only 0:26:29.756 --> 0:26:32.676 one who can tell us if he experienced pain is 0:26:32.716 --> 0:26:39.596 not here to describe it. But what I observed anyhow, 0:26:39.756 --> 0:26:44.116 did not look like what Alabama had advertised, because there 0:26:44.156 --> 0:26:53.476 were violent seizure type movements. You know, it's kind of 0:26:54.636 --> 0:26:57.796 as best he could against the constraints. You could see 0:26:57.796 --> 0:27:01.796 his head come back and violently come forward and violently 0:27:01.876 --> 0:27:06.276 go back. You could see his fist clenched in his arms, 0:27:07.756 --> 0:27:12.676 straining against the restraints. And as I said, I didn't 0:27:12.716 --> 0:27:17.556 have my watch, and I wasn't cognizant if there was 0:27:17.596 --> 0:27:19.756 a clock in the room. But I can tell you 0:27:19.836 --> 0:27:22.796 that that went on, you know, that was minutes, not seconds, 0:27:22.876 --> 0:27:26.476 that that appeared to be going on. There's was what 0:27:26.596 --> 0:27:33.236 appeared to be gasping for air. After that, for again 0:27:33.316 --> 0:27:42.516 another period of you know, minutes, not nott seconds. At 0:27:45.876 --> 0:27:50.836