WEBVTT - The Alabama Murders - Part 5: Cruel and Unusual 0:00:15.356 --> 0:00:25.396 Pushkin previously on revisionist history. I think there was a 0:00:25.436 --> 0:00:28.276 pressure to have a method that looked more humane than 0:00:28.516 --> 0:00:31.276 electrocution and lethal gas on. 0:00:31.196 --> 0:00:33.756 That van and I go back to the hotel where 0:00:33.876 --> 0:00:37.836 the other people had been in there praying with his family, 0:00:38.196 --> 0:00:39.556 and I have to go in and tell him. 0:00:39.596 --> 0:00:40.716 You know, John's gone, and. 0:00:40.796 --> 0:00:42.236 He was peaceful. 0:00:42.356 --> 0:00:46.116 He didn't appear to suffer. This is how lethal injection 0:00:46.756 --> 0:00:50.396 actually kills you. It kills you by burning your lungs up, 0:00:50.916 --> 0:00:55.556 and you're also paralyzed, so you can't complain that this 0:00:55.676 --> 0:00:56.236 is happening. 0:01:05.556 --> 0:01:08.116 Good afternoon, everybody, Thank you for being here. I hope 0:01:08.116 --> 0:01:10.516 everybody had a one full holiday. If I haven't seen 0:01:10.556 --> 0:01:13.716 you since, then call this press conference today because I 0:01:13.716 --> 0:01:17.276 believe that people of Alabama deserve an explanation on where 0:01:17.316 --> 0:01:21.196 things stand and where I stand with regard to capital 0:01:21.196 --> 0:01:22.396 punishment in our state. 0:01:23.676 --> 0:01:28.676 It's early December twenty twenty two, Montgomery, Alabama. Steve Marshall, 0:01:28.916 --> 0:01:32.516 the state's attorney General, is holding a press conference standing 0:01:32.556 --> 0:01:35.916 at the podium flanked by the Alabama and American flags. 0:01:36.236 --> 0:01:40.716 What occurred on November seventeenth was a travesty, but not 0:01:40.956 --> 0:01:43.796 for the reasons that many death penalty opponents and death 0:01:43.876 --> 0:01:47.036 row sympathizers would have the public to believe. 0:01:51.836 --> 0:01:55.036 My name is Malcolm Gladwell. You're listening to the Alabama 0:01:55.116 --> 0:01:59.996 Murders our series on the Elizabeth Sennet case. This is 0:02:00.036 --> 0:02:04.636 episode five, Cruel and Unusual. It's about the second of 0:02:04.676 --> 0:02:07.356 her assailants, Kenny Smith, and what was done to him 0:02:07.676 --> 0:02:21.036 in the name of justice travesty of November seventeenth. Kenny 0:02:21.036 --> 0:02:23.956 Smith was twenty two at the time of Elizabeth sentence murderer. 0:02:24.436 --> 0:02:27.116 He had a girlfriend and two young children. He was 0:02:27.156 --> 0:02:31.876 working in a factory. He was slight, skinny, dark hair, thick, 0:02:32.076 --> 0:02:35.796 moon shaped eyebrows. He was drunk a lot and high, 0:02:36.236 --> 0:02:37.156 but all was smiling. 0:02:38.116 --> 0:02:39.956 They would come over to my house a lot and 0:02:40.156 --> 0:02:43.556 Keenie would it would just be granted because Michael will 0:02:43.596 --> 0:02:46.356 be sitting in the back seat in his car seat, 0:02:46.516 --> 0:02:50.396 and that Kenny would be high. You know, they would 0:02:50.436 --> 0:02:50.956 be drinking. 0:02:52.156 --> 0:02:55.476 This is Linda Smith, Kenny's mom, talking with a local 0:02:55.516 --> 0:02:58.916 reporter named Lee Hedgepeth. Lee has covered the Kenny Smith 0:02:58.996 --> 0:03:02.756 case and knows his family. Well, what kind of drunk. 0:03:02.596 --> 0:03:07.836 Was skinny Hey with a happy drunk? Yeah, it's hard 0:03:07.876 --> 0:03:13.436 to think of Kenny is anything. Yeah, yeah, I mean 0:03:13.916 --> 0:03:18.716 what you're saying is what you get with him. 0:03:18.916 --> 0:03:22.236 On the evening after the attack on Elizabeth Sennett, Smith's 0:03:22.236 --> 0:03:24.796 best friend came over to his house. They went out 0:03:24.796 --> 0:03:28.116 to get beer. Kenny's hand was swollen. He hit it 0:03:28.156 --> 0:03:30.716 wrapped in a bandage. On the way to the store, 0:03:30.796 --> 0:03:33.676 Kenny kept saying, I messed up. I messed up. He 0:03:33.676 --> 0:03:37.156 wouldn't say why. Then back at home he started crying. 0:03:37.956 --> 0:03:41.276 His mother lived close by. In the days that followed 0:03:41.396 --> 0:03:43.556 before the police caught up to him, he went to 0:03:43.596 --> 0:03:44.236 see her. 0:03:44.956 --> 0:03:47.036 And Kenny, you know, like I said, he would come 0:03:47.036 --> 0:03:51.596 over during that time. I mean I look back on 0:03:51.676 --> 0:03:56.116 the times that he would come over and uh, he 0:03:56.196 --> 0:04:00.876 would be kind of distant, you know, and he would 0:04:00.956 --> 0:04:05.396 just I mean, it's disliked. It was something he wanted 0:04:05.436 --> 0:04:10.636 to tail me, but you know he never did. So 0:04:10.796 --> 0:04:13.836 when do you find out that he's implicated. 0:04:13.276 --> 0:04:13.876 In some way? 0:04:15.356 --> 0:04:20.156 Well I find out one afternoon when he calls me, oh, 0:04:20.436 --> 0:04:23.636 thank you just got home from work and they came 0:04:23.716 --> 0:04:27.356 and he said, Mom, can you come pick up Michael? 0:04:27.476 --> 0:04:30.916 And I said, well, I'm washing my hair right now. 0:04:30.996 --> 0:04:36.116 I said, I can't write this minute, and he said, well, Mom, 0:04:36.156 --> 0:04:40.076 can you come? He said, the police are here, and 0:04:40.156 --> 0:04:42.356 I just thought it was, you know, for pot or 0:04:42.636 --> 0:04:47.516 drugs or something like that, and I said, well, you know, 0:04:47.556 --> 0:04:49.516 I'll be over there, you know, and just a mente. 0:04:49.516 --> 0:04:50.956 Of course, it didn't take me long to get to 0:04:50.996 --> 0:04:53.996 their house. And when I drove up over there in 0:04:54.036 --> 0:04:57.276 that driveway, I bet you there was ten ten cars 0:04:57.796 --> 0:04:58.476 out in front. 0:05:01.036 --> 0:05:03.916 Kenny Smith met the same fate as his friend John Parker, 0:05:04.156 --> 0:05:07.436 who you heard about in the last episode. Smith was 0:05:07.516 --> 0:05:11.076 charged with murder, can victed, sentenced by the jury to 0:05:11.156 --> 0:05:13.556 life without pearl by a vote of eleven to one, 0:05:14.436 --> 0:05:17.116 and then his judge did the same thing John Parker's 0:05:17.196 --> 0:05:21.516 judge did, overrode the jury's decision and sentenced him to death. 0:05:22.556 --> 0:05:25.116 He got sent to home in prison and stayed there 0:05:25.116 --> 0:05:31.076 for decades, appealing his sentence, delaying the inevitable until November seventeenth, 0:05:31.116 --> 0:05:34.476 twenty twenty two, when the event that the Attorney General 0:05:34.516 --> 0:05:37.716 of the State of Alabama called a travesty happened. 0:05:38.316 --> 0:05:40.916 It's been a great deal of media coverage, both local 0:05:40.996 --> 0:05:46.196 and national, about what happened in Kenney Smith's execution chamber. 0:05:47.356 --> 0:05:50.756 Much of that coverage has seemingly been openly sympathetic to 0:05:50.836 --> 0:05:54.556 Smith and his cause, even with some going so far 0:05:54.636 --> 0:05:58.436 as to advocate for the abolishment of the death penalty. 0:05:59.356 --> 0:06:04.116 And on what basis exactly because a cold blooded, convicted 0:06:04.276 --> 0:06:09.636 killer complains about the prodding and poking of a small 0:06:09.956 --> 0:06:16.276 abvy line really potting and poking with a needle. 0:06:17.236 --> 0:06:24.316 Prodding and poking with a needle, Let's start there. The 0:06:24.316 --> 0:06:27.356 state of Alabama has a detailed set of instructions for 0:06:27.436 --> 0:06:30.396 how executions are to be carried out in their prisons, 0:06:31.076 --> 0:06:34.316 a protocol. The protocol was not supposed to be a 0:06:34.356 --> 0:06:38.116 public document, but Alabama was forced to disclose it during 0:06:38.116 --> 0:06:42.036 a death Bentley court case. It's forty one pages of dry, 0:06:42.436 --> 0:06:47.596 precise language stipulating every step of the process. When a 0:06:47.676 --> 0:06:50.156 condemned prisoner is supposed to be moved to a special 0:06:50.156 --> 0:06:53.636 holding cell, when he gets his last meal, what he 0:06:53.676 --> 0:06:55.956 gets to have in his cell, The people who are 0:06:55.996 --> 0:06:59.716 allowed to attend the execution, where the victim's family goes, 0:07:00.156 --> 0:07:04.876 where the offenders group goes, things like that. The execution 0:07:05.036 --> 0:07:07.796 team is made up of about a dozen people. It 0:07:07.916 --> 0:07:10.156 is a captain. The team is supposed to do a 0:07:10.236 --> 0:07:12.396 walk through in the week leading up to the execution, 0:07:12.916 --> 0:07:15.556 batting practice, if you will, to make sure they have 0:07:15.596 --> 0:07:20.116 the killing procedure down pat As you may remember from 0:07:20.156 --> 0:07:23.076 the last episode, the seed of the idea behind lethal 0:07:23.116 --> 0:07:26.756 injection came from Ronald Reagan, who said, why don't we 0:07:26.836 --> 0:07:29.596 just execute people the same way we put down horses, 0:07:30.356 --> 0:07:35.516 to use the veterinarian's' euphemism, put them to sleep, clean, quick, professional, 0:07:35.756 --> 0:07:38.996 something that appears painless instead of all the messiness of 0:07:39.036 --> 0:07:42.436 the electric chair. That's very much the spirit of the 0:07:42.476 --> 0:07:43.796 Alabama protocol. 0:07:45.676 --> 0:07:50.716 What was so I think effective about lethal injection and 0:07:51.036 --> 0:07:55.796 sinister is the fact that when you observe an execution 0:07:55.996 --> 0:08:01.076 with lethal injection, generally it's a pretty bloodless event. Not 0:08:01.276 --> 0:08:04.876 much happens. It appears that a person kind of closes 0:08:04.916 --> 0:08:07.876 their eyes. Maybe you can imagine that they fall asleep, 0:08:08.516 --> 0:08:09.476 and then they're dead. 0:08:10.476 --> 0:08:14.196 Jill Zivitt the intensive care specialist from Emory University in 0:08:14.236 --> 0:08:17.556 Atlanta who fell into death boalty work a few years ago. 0:08:18.396 --> 0:08:22.236 So this was a breakthrough in terms of the witness 0:08:22.356 --> 0:08:26.236 experience because every other kind of execution method that had 0:08:26.276 --> 0:08:29.236 ever occurred before then, you know, it was quite a 0:08:29.236 --> 0:08:34.236 lot more graphic, but lethal injection seemed to solve the 0:08:34.316 --> 0:08:39.156 problem of being outwardly peaceful, and that's why I think 0:08:39.276 --> 0:08:41.716 lethal injection took cold. And on top of that, of course, 0:08:41.756 --> 0:08:45.556 there was this kind of impersonation of a medical act. 0:08:45.716 --> 0:08:49.396 There was the use of terminology of medicine and even 0:08:49.436 --> 0:08:53.556 the use of physicians and other medical people which gave 0:08:53.716 --> 0:08:57.716 this kind of extra impression. You know that this was legitimate, 0:08:58.556 --> 0:09:01.076 an endorsed kind of activity. 0:09:02.156 --> 0:09:05.116 Which brings us to the portion of the protocol at issue. 0:09:05.156 --> 0:09:09.236 On the evening of November seventeenth, twenty twenty two, in 0:09:09.316 --> 0:09:14.396 Section B Part one, Clause A quote, the IV team 0:09:14.596 --> 0:09:18.196 will be escorted into the execution chamber to start the IV. 0:09:18.876 --> 0:09:22.036 The heart monitor leads will be applied to the condemned inmate. 0:09:22.396 --> 0:09:26.076 If the condemned inmates veins make obtaining venus access difficult 0:09:26.196 --> 0:09:30.116 or problematic, qualified medical personnel may perform a central line 0:09:30.116 --> 0:09:33.276 procedure as set forth in section two of Appendix B 0:09:34.196 --> 0:09:42.116 ADEOC Lethal injection execution procedure. A central line procedure involves 0:09:42.236 --> 0:09:45.836 inserting a long, thin, flexible tube into a large vein, 0:09:46.356 --> 0:09:48.956 like the jugular vein in the neck or the subclavian 0:09:49.036 --> 0:09:51.556 vein in the chest or the femoral vein in the thigh. 0:09:52.156 --> 0:09:54.676 So you try for the arm the normal way, and 0:09:54.716 --> 0:09:57.876 if you fail, you go for a big vein. That's 0:09:57.876 --> 0:10:02.516 the plan. Only in real life things aren't always so straightforward, 0:10:02.756 --> 0:10:07.156 as outlined in Section B, Part one, Clause A in 0:10:07.156 --> 0:10:09.516 a case of Kenny Smith and in other cases, there 0:10:09.516 --> 0:10:11.916 have been these initial problems in finding a vein. 0:10:12.436 --> 0:10:14.556 Yeah, I want to talk about this with you. 0:10:14.556 --> 0:10:17.316 You talk about this because I yeah, as a non 0:10:17.396 --> 0:10:21.516 medical person, I'm I'm puzzled. I don't understand this. 0:10:22.356 --> 0:10:24.516 Sure, Yeah, So you walked me through. 0:10:24.316 --> 0:10:25.436 Why why is that hard? 0:10:25.876 --> 0:10:30.276 Alabama, you know, was the poster child of failure for 0:10:30.316 --> 0:10:33.436 this in a in an odd kind of cluster of cases. 0:10:33.956 --> 0:10:37.676 And and to answer your question directly, why is it hard? Well, 0:10:38.116 --> 0:10:41.476 it's hard because in order to put an intravenous into 0:10:41.556 --> 0:10:44.756 a vein, you know, it requires a certain you know, 0:10:44.916 --> 0:10:49.636 level of skill, and it also requires some cooperation. You know, 0:10:50.116 --> 0:10:52.876 it hurts to stick someone with a needle. So in 0:10:52.996 --> 0:10:55.956 someone who is sort of young and fit and well 0:10:56.436 --> 0:11:01.236 uh and well hydrated and relaxed, you know that the 0:11:01.356 --> 0:11:03.236 chance of getting a vein and a person like that 0:11:03.396 --> 0:11:07.676 is quite high. You know, uh in someone who's who's 0:11:07.916 --> 0:11:11.916 dehydrated terriff I had been sick, had been in prison 0:11:11.996 --> 0:11:15.596 for two decades. You know, it becomes a lot harder. 0:11:15.676 --> 0:11:18.836 Plus you're also giving it over to people who are 0:11:18.836 --> 0:11:22.756 not expert. Okay, you know, an antiseesiologist in good standing 0:11:22.836 --> 0:11:26.076 is not going to spend their wednesdays over at the 0:11:26.316 --> 0:11:30.956 you know, State corrections Sticking ivs in people for execution, 0:11:31.276 --> 0:11:35.716 it's not something that we do and people who you know, 0:11:35.796 --> 0:11:38.796 to learn to do in intervenous is a technical skill. 0:11:39.316 --> 0:11:43.236 It can be learned, but I think also the people 0:11:43.236 --> 0:11:45.676 who are doing it themselves are nervous. 0:11:46.996 --> 0:11:50.596 Alabama won't reveal exactly who is on the execution team, 0:11:50.756 --> 0:11:53.836 what their training is, how much experience they have, but 0:11:53.916 --> 0:11:56.836 it's safe to say this isn't a team full of doctors, 0:11:56.876 --> 0:11:59.236 since doctors have to take an oath to do no harm, 0:11:59.516 --> 0:12:02.116 and hooking someone up to an IV that will transport 0:12:02.236 --> 0:12:06.756 lethal drugs is definitely doing harm. That's as if it's point, 0:12:07.356 --> 0:12:12.076 these are prison employees side contractors. It's not the anesthesiologist 0:12:12.316 --> 0:12:13.836 from the nearest teaching hospital. 0:12:14.476 --> 0:12:16.396 You know, there are some ways of making it more 0:12:16.556 --> 0:12:19.836 likely than not to succeed. But you know what is 0:12:19.916 --> 0:12:22.516 taught either in nursing school or as an emt or 0:12:22.516 --> 0:12:26.716 as a doctor cannot be lifted into the death chamber 0:12:27.036 --> 0:12:30.636 like it's not the same place. If these people are 0:12:30.676 --> 0:12:34.076 not patients, you know, they're not collaborators to you. 0:12:36.156 --> 0:12:38.636 In some states with the death penalty, putting in the 0:12:38.676 --> 0:12:41.116 IVY is done in full view of the witnesses to 0:12:41.196 --> 0:12:45.596 the execution, but in Alabama it's done before the witnesses 0:12:45.676 --> 0:12:49.436 are invited into the execution chamber, which means that any 0:12:49.436 --> 0:12:52.516 outsider who is there to see the execution, the families 0:12:52.556 --> 0:12:55.316 and friends and reporters, are forced to guess how the 0:12:55.356 --> 0:12:59.156 IVY process is going. The executioners are supposed to start 0:12:59.196 --> 0:13:03.156 at six the witnesses are all sequestered in a holding 0:13:03.236 --> 0:13:06.396 room away from the execution side, and if it gets 0:13:06.476 --> 0:13:10.036 to be seven pm or seven thirty or nine pm 0:13:10.316 --> 0:13:12.796 and the witnesses haven't yet been picked up by the 0:13:12.836 --> 0:13:15.796 bus to go take them to the execution chamber, then 0:13:15.876 --> 0:13:22.556 everyone starts to wonder is there a problem. This is 0:13:22.636 --> 0:13:25.396 exactly what happened in the summer of twenty twenty two 0:13:25.476 --> 0:13:28.996 while Kenny Smith was still appealing his sentence, a condemned 0:13:29.036 --> 0:13:32.076 inmate at home and named Joe Nathan James was set 0:13:32.116 --> 0:13:38.116 to be executed. Everything with James ran late afterwards. The 0:13:38.156 --> 0:13:41.356 state insisted the procedure had gone according to plan, but 0:13:41.516 --> 0:13:46.236 Zivid was suspicious. He asked to perform a second autopsy, 0:13:46.836 --> 0:13:50.836 and what he found was, in a word, gruesome, Consider 0:13:50.836 --> 0:13:51.556 yourself warned. 0:13:53.076 --> 0:13:56.796 I was able to get his body, and I worked 0:13:56.796 --> 0:14:01.956 with a pathologist in Alabama and went there and with him, 0:14:02.156 --> 0:14:05.876 you know, we've performed this second autopsy, and I saw 0:14:06.196 --> 0:14:10.396 in his body evidence of, you know, multiple attempts at 0:14:10.436 --> 0:14:14.636 intravenouses and some of these things, you know, you could 0:14:14.676 --> 0:14:17.476 see bruising, which meant that they were you know, kind 0:14:17.476 --> 0:14:19.156 of getting in and getting out of a van. And 0:14:19.156 --> 0:14:21.076 there was some bleeding under the skin, and there was 0:14:21.396 --> 0:14:23.596 these were both on you know, on multiple spots on 0:14:23.676 --> 0:14:26.356 his arms, up and down, both arms. And then there 0:14:26.396 --> 0:14:30.236 was also evidence of something called a cutdown. And a 0:14:30.316 --> 0:14:32.796 cutdown is where you take a knife to the skin 0:14:33.116 --> 0:14:36.516 and you open the skin to reveal, you know, a 0:14:36.636 --> 0:14:40.876 vein beneath that that you couldn't otherwise see or feel. 0:14:42.196 --> 0:14:44.396 It's kind of an old style technique and it's been 0:14:44.436 --> 0:14:50.236 replaced by ultrasound, and the protocol at the time does 0:14:50.276 --> 0:14:55.836 not provide for the possibility of a cutdown. And also 0:14:55.876 --> 0:14:59.436 the cut down along the edges of it had blood, 0:14:59.996 --> 0:15:02.436 which again meant that he had to have been alive 0:15:02.556 --> 0:15:06.356 and bleeding for this to have taken place. So somehow 0:15:06.396 --> 0:15:08.516 they got some ivy in him, but it took them 0:15:08.716 --> 0:15:12.516 hours to do it. So picture you know, Joe, Nathan 0:15:12.636 --> 0:15:17.596 James lying there, strapped down, you know, not cooperative as 0:15:17.636 --> 0:15:20.156 they poke and poke and poke him and finally just 0:15:20.436 --> 0:15:22.916 take a knife to his forearm to open up his 0:15:23.036 --> 0:15:27.876 forearm to try to get a vein there and that 0:15:27.996 --> 0:15:29.876 so that was Joe. 0:15:33.516 --> 0:15:37.436 Then came Alan Miller two months later. Under Alabama law, 0:15:37.636 --> 0:15:40.356 once a defendant has been convicted of a capital crime, 0:15:40.676 --> 0:15:43.556 he or she is given a death warrant. A warrant 0:15:43.596 --> 0:15:46.236 is a writ issued by the court which lays out 0:15:46.276 --> 0:15:49.676 the facts of the conviction, the specific offense, the judgment 0:15:49.716 --> 0:15:52.036 of the court, and the time and place of execution, 0:15:52.556 --> 0:15:55.916 which in Alabama is a purpose built facility on the 0:15:55.956 --> 0:15:59.156 campus of Home and Prison in Atmore at the time, 0:15:59.516 --> 0:16:02.876 once a date had been set, the execution had to 0:16:02.916 --> 0:16:07.076 take place by midnight, so they start at six pm 0:16:07.316 --> 0:16:11.636 and give themselves six hours with Alan Miller. They ran 0:16:11.716 --> 0:16:14.756 at a time, gave up, the state had to come 0:16:14.796 --> 0:16:19.556 back and kill him on another day. Then came Kenny Smith. 0:16:38.596 --> 0:16:40.116 Tell me your impressions of Kenny. 0:16:40.116 --> 0:16:40.716 What was he like? 0:16:42.636 --> 0:16:47.436 Kenny? I obviously didn't know him when he was a 0:16:47.476 --> 0:16:51.116 twenty two year old person at the time of the 0:16:51.156 --> 0:16:58.116 events for which he was convicted. But he truly was 0:16:58.676 --> 0:17:01.996 an example. And I know this is going to sound 0:17:02.116 --> 0:17:12.116 right and a cliche, but he really got religion figuratively 0:17:12.396 --> 0:17:16.916 and literally. You know, in prison he was a force 0:17:17.196 --> 0:17:18.036 for good. 0:17:19.116 --> 0:17:22.276 This is Robert Grass, one of Kenny Smith's lawyers, the 0:17:22.276 --> 0:17:24.756 one who had been with him the longest. He's a 0:17:24.796 --> 0:17:27.716 litigator for a prestigious corporate law firm in New York City. 0:17:28.116 --> 0:17:31.996 He represents pharmaceutical companies, but he does pro bono death 0:17:31.996 --> 0:17:35.396 penalty work on the side. He started representing Kenny Smith 0:17:35.556 --> 0:17:39.796 in two thousand and five. How many times over the 0:17:39.836 --> 0:17:41.716 course of twenty years did you go to Alabama? 0:17:42.236 --> 0:17:44.236 I don't have an exact number, but. 0:17:46.156 --> 0:17:46.436 Many. 0:17:47.716 --> 0:17:50.036 Home in prison where Smith was held is in the 0:17:50.116 --> 0:17:53.316 southern part of the state. Grass was in New York, 0:17:53.756 --> 0:17:56.996 so that's New York to Atlanta, Atlanta to Mobile, ran 0:17:57.116 --> 0:17:59.316 a car in mobile drive an hour to add more, 0:18:00.156 --> 0:18:02.676 he made that journey for close to two decades. 0:18:03.676 --> 0:18:09.196 I really felt as if we developed a friendship, I 0:18:09.276 --> 0:18:15.276 really would have liked to have had the opportunity to 0:18:15.276 --> 0:18:19.196 interact with them under different circumstances. 0:18:19.396 --> 0:18:23.516 Grass is older, lean, dark suit, gray hair, ivy, lead 0:18:23.596 --> 0:18:27.196 degree cum laude, law school graduate. He probably builds out 0:18:27.236 --> 0:18:31.236 at some astronomical number. Whenever I read about some complicated 0:18:31.276 --> 0:18:33.756 legal negotiation that goes on into the wee hours of 0:18:33.756 --> 0:18:36.756 the morning, I imagine it's because someone like Robert Grass 0:18:36.796 --> 0:18:41.476 is involved as measured and dispassionate and implacable at three 0:18:41.516 --> 0:18:44.636 AM as they were at three in the afternoon. You 0:18:44.716 --> 0:18:47.636 have to listen very closely when he talks. He doesn't 0:18:47.716 --> 0:18:52.316 broadcast his feelings. He sends out morse code signals. Talk 0:18:52.316 --> 0:18:57.236 a little bit more about your friendship. It's an unlikely friendship. 0:18:58.796 --> 0:19:04.676 Yeah, you know, we obviously grew up in. 0:19:06.196 --> 0:19:11.956 Different circumstances, different circumstances, morse code. 0:19:12.356 --> 0:19:16.836 I've had other experiences with some folks on death Throw 0:19:16.956 --> 0:19:23.156 where I, you know, didn't feel the same bond. But Kenny, 0:19:23.236 --> 0:19:28.036 as I said by the time I knew him, was 0:19:30.156 --> 0:19:36.996 just a decent man, incredibly gracious, and really seemed to 0:19:37.236 --> 0:19:43.156 have the best he could given the environment he was 0:19:43.196 --> 0:19:48.596 in to have been leading a productive life in that environment. 0:19:52.076 --> 0:19:54.636 In the fall of twenty twenty two, Smith and his 0:19:54.756 --> 0:19:59.196 legal team suffered a serious setback. Smith was finally given 0:19:59.196 --> 0:20:01.876 a death warrant, and the warrant set the date of 0:20:01.916 --> 0:20:07.196 the execution November seventeenth, twenty twenty two. But those two 0:20:07.276 --> 0:20:11.516 botched execution cases, Alan Miller and Joe Nathan James, gave 0:20:11.636 --> 0:20:15.836 Grass one more chance. The Supreme Court has long supported 0:20:15.836 --> 0:20:18.916 the idea the states can execute prisoners if they wish, 0:20:19.436 --> 0:20:21.916 but they have insisted that executions have to be done 0:20:22.196 --> 0:20:25.476 the right way, and what happened to Joe Nathan James 0:20:25.476 --> 0:20:28.036 and to Alan Miller didn't seem like it fit any 0:20:28.036 --> 0:20:32.436 definition of the right way. So Smith's lawyers sued, the 0:20:32.476 --> 0:20:37.356 way Alabama is practicing lethal injection is cruel and unusual punishment. 0:20:38.116 --> 0:20:41.436 The case was dismissed. Grass appealed to the Eleventh Circuit 0:20:41.476 --> 0:20:45.356 in Atlanta. Arguments were heard on November sixteenth, the day 0:20:45.396 --> 0:20:49.436 before Smith's death warrant. Grass went directly from the hearing 0:20:50.036 --> 0:20:50.636 to the prison. 0:20:51.676 --> 0:20:54.836 Then I went to at Moore, which is where Holman 0:20:54.996 --> 0:20:58.796 is visited with Kenny. That morning, we were still waiting 0:20:58.876 --> 0:21:03.716 for the Eleventh Circuit's decision, and that day became a 0:21:03.756 --> 0:21:06.636 real rollercoaster of emotions. 0:21:07.716 --> 0:21:10.156 Grass was in a hotel room a mile or two 0:21:10.156 --> 0:21:13.436 from the prison. At eight pm, Grass heard that the 0:21:13.476 --> 0:21:16.276 prison guards at home and had taken Kenny out of 0:21:16.316 --> 0:21:20.476 his cell and were preparing him for execution. But that 0:21:20.676 --> 0:21:23.116 wasn't right. His appeal was still up in the air. 0:21:23.756 --> 0:21:26.916 Then Grass got another call. The Eleventh Circuit had ruled 0:21:26.916 --> 0:21:30.716 in Kenny's favor. The execution was off, at which point 0:21:30.956 --> 0:21:33.716 the State of Alabama appealed to the US Supreme Court. 0:21:34.516 --> 0:21:36.116 It was now after eight. 0:21:35.956 --> 0:21:39.836 PM, and in the meantime, I'm kind of watching the 0:21:39.916 --> 0:21:45.556 clock tick because the death warn't expired at midnight, so 0:21:45.636 --> 0:21:51.236 I'm hoping to reach that point without this going forward. 0:21:51.796 --> 0:21:59.516 But at about a quarter after ten or so, got 0:21:59.516 --> 0:22:03.756 a call from the emergency clerk at the United States 0:22:03.836 --> 0:22:07.596 Supreme Court, sometimes referred to as the death Clerk because 0:22:07.956 --> 0:22:12.516 a lot of the emergency involve capital cases. But who said, 0:22:14.116 --> 0:22:17.836 there's no easy way to say this, and so I 0:22:17.916 --> 0:22:21.636 knew from that preferatory remark what was coming. 0:22:22.956 --> 0:22:27.676 The Supreme Court ruled in favor of Alabama. One of 0:22:27.716 --> 0:22:30.436 the reporters, who was at home in prison covering the story, 0:22:30.756 --> 0:22:33.116 emailed Grass to say they were moving the witnesses to 0:22:33.156 --> 0:22:37.716 the death chamber. Grass sat in his hotel room waiting 0:22:37.756 --> 0:22:45.436 to hear what happened. Nothing, silence. The next morning he 0:22:45.516 --> 0:22:46.796 learned why. 0:22:48.596 --> 0:22:55.196 So he was taken out of his cell, thinking that 0:22:55.916 --> 0:23:01.676 his execution was imminent, strapped to a gurney, and nothing 0:23:01.916 --> 0:23:05.636 is happening. And he's asking, you know, the corrections officers 0:23:05.636 --> 0:23:08.596 who are with them, what's going on, and they, you know, 0:23:09.356 --> 0:23:15.396 tell him they don't know. And then when they finally 0:23:15.876 --> 0:23:19.116 got going, you know, they've got three members of an 0:23:19.236 --> 0:23:24.396 IV team, none of whom are identified to him. There 0:23:24.396 --> 0:23:27.796 are other people in the execution chamber with him that 0:23:27.876 --> 0:23:32.076 were not identified to him. They're you know, jabbing him 0:23:32.196 --> 0:23:36.796 with a needle trying to find a vein, which they 0:23:36.836 --> 0:23:42.996 weren't able to do. Then they tried something called a 0:23:43.476 --> 0:23:48.236 central line procedure to kind of stick a needle under 0:23:48.276 --> 0:23:52.316 his collarbone and reach one of his central veins. But 0:23:52.396 --> 0:23:55.476 again they didn't tell him what they were doing. What 0:23:55.636 --> 0:23:57.996 was going on. They just kind of put a surgical 0:23:58.636 --> 0:24:01.996 gown over him. You know, one of the IV team 0:24:02.156 --> 0:24:06.836 members came back into the room in surgical garb, and 0:24:06.916 --> 0:24:11.876 you know, Kenny is asking these people what's what they're doing. 0:24:11.996 --> 0:24:13.596 No one is telling them. 0:24:14.156 --> 0:24:16.196 I'm going to read from a report on that evening, 0:24:16.476 --> 0:24:19.636 commissioned by Grass and his team. It includes a very 0:24:19.676 --> 0:24:22.996 detailed description of what Kenny said happened to him in 0:24:23.036 --> 0:24:28.716 the execution chamber. He recalled seeing a clear plastic sheet 0:24:28.836 --> 0:24:31.876 over his chest with an open center. He saw that 0:24:31.916 --> 0:24:34.076 the man had a stringe in his hand, and he 0:24:34.156 --> 0:24:37.476 unbuttoned mister Smith's shirt and injected a yellow liquid into 0:24:37.476 --> 0:24:41.036 his chest. The man said, you will feel something cool, 0:24:41.996 --> 0:24:44.836 and the man slid a long needle into his chest. 0:24:45.636 --> 0:24:48.956 He inserted the needle and as Kenny perceived it, moved 0:24:48.956 --> 0:24:51.436 the needle around while it was inserted in his chest. 0:24:52.516 --> 0:24:56.916 Mister Smith noted that he quote lost all composure at 0:24:56.916 --> 0:25:02.036 this point, describing everything became surreal, Everything went out the window. 0:25:02.796 --> 0:25:05.916 Mister Smith became terrified that he was being injected with 0:25:05.956 --> 0:25:08.916 a substance that would render him unable to communicate some 0:25:09.316 --> 0:25:12.596 that he knew would violate an existing court order. He 0:25:12.676 --> 0:25:14.716 was again panicked that he would not be able to 0:25:14.796 --> 0:25:18.356 say his final words to his family and the victim's family, 0:25:18.876 --> 0:25:22.116 given what he heard had happened in a previous execution. 0:25:23.116 --> 0:25:25.156 The man who had been injecting him in the chest 0:25:25.556 --> 0:25:29.196 and the IVY team all stepped back. Mister Smith tried 0:25:29.236 --> 0:25:31.796 to gather himself and then said that they stepped back 0:25:31.876 --> 0:25:34.476 up and the man from behind his shoulder had a 0:25:34.556 --> 0:25:38.396 large gage needle with a large cylinder. Mister Smith said 0:25:38.436 --> 0:25:43.556 he quote freaked out, quote demanding that someone call his lawyer. Next, 0:25:43.956 --> 0:25:47.116 Deputy Warden Woods put his hands on mister Smith on 0:25:47.156 --> 0:25:50.716 both sides of his head and said, quote this is 0:25:50.796 --> 0:25:54.916 for your own good, pulling his head to the side. 0:25:54.916 --> 0:25:59.076 Mister Smith then recalled searing pain as he was injected 0:25:59.156 --> 0:26:03.196 under his collarbone. He said it took my breath away, 0:26:03.916 --> 0:26:07.076 and he recalled that he was gasping and trying to 0:26:07.076 --> 0:26:10.956 get away by bucking up off the table. Mister Smith 0:26:10.996 --> 0:26:14.596 recounted that he believed the man tried approximately five times 0:26:14.636 --> 0:26:17.916 to get this large needle into a vein under his collarbone. 0:26:20.076 --> 0:26:24.036 By the time this was done, that after three and 0:26:24.116 --> 0:26:28.636 a half or four hours being strapped to a gurney. 0:26:28.716 --> 0:26:36.876 You know, he was unable to stand, walk, unbutton his shirt, 0:26:37.676 --> 0:26:42.116 you know, change his clothes, do any of that without assistance. 0:26:43.556 --> 0:26:47.156