JUST IN :Federal panel hears appeal of pending nitrogen hypoxia execution

An Alabama death row inmate is making 11th-hour arguments in an attempt to stop or delay his Jan. 25 execution, which will be the nation’s first using oxygen deprivation.

(CN) — Six days from now, an Alabama death row convict will be put to death via nitrogen hypoxia, making him the first person in history to do so. He presented his case to the 11th Circuit Court of Appeals on Friday in an attempt to reverse a district court decision from January 10 that authorized the method.

Attorney Robert Grass claimed on behalf of Kenneth Eugene Smith, who was found guilty in 1996 of killing someone in 1988, that the district court “abused its discretion” in rejecting Smith’s request for relief from cruel and unusual punishment and that it had “committed legal error” in dismissing Smith’s equal protection claim.

The 14th Amendment should protect Smith from execution while his appeals are pending, Grass offered, while the state argued Smith’s appeals have already been exhausted. The flurry of petitions he has filed since his execution date was set in November are not appeals, but rather successive petitions that amount to a “legal runaround,” according to Alabama Solicitor General Edmond LaCour, who added Smith is simply attempting to delay the inevitable.

Separately, attorneys argued over whether the execution would violate Smith’s Eighth Amendment protections.

Grass noted 20 other death row inmates in the state have exhausted their appeals, yet Smith was moved to the front of the line. He suggested state officials did so to prevent Smith’s litigation from subjecting potential discovery to public scrutiny.

Smith was convicted in 1996 in the 1988 stabbing death of Elizabeth Dorlene Sennett. Smith was hired by Sennett’s husband to commit the murder, as the husband was in debt and wanted Sennett’s life insurance benefits. Although a jury recommended a life sentence for Smith by a vote of 11-1, the trial judge handed down the death penalty in a practice known as judicial override, which has since been outlawed in the state.

Notably, this is the state’s second effort to execute Smith following the termination of his lethal injection in November 2022 due to officials’ prolonged and unsuccessful search for a viable vein, which lasted more than four hours.

Smith then informed the Alabama Department of Corrections that he would rather be put to death by the experimental nitrogen hypoxia technique. Theoretically, Smith will receive 100% nitrogen while having a respirator-style mask put over his mouth and nose. Expert experts testifying for the state said that the procedure would knock a patient out in under forty seconds and cause death in less than fifteen.

Nitrogen hypoxia has been used successfully for assisted suicides, but never for executions, Grass said Friday. He said the state has not alleviated concerns the mask may leak or that the execution may be interrupted by Smith’s physical response, which could leave him in a persistent vegetative state.

The three-judge panel that heard the appeal spent a significant portion of the hearing asking about the function of the mask itself, and questioning whether a hood or closed-room environment may be more effective. If Smith vomits during the procedure, Grass noted, it may interfere with the administration of lethal gas, causing Smith to suffer needlessly.

U.S. Circuit Judge Charles R. Wilson, a Bill Clinton appointee, asked LaCour whether the state would proceed with the execution if Smith did indeed vomit during the procedure. LaCour said the state’s protocol is to briefly remove the mask if the airway is obstructed, then replace it until the time of administration has expired.

The court record has been substantially blacked, making the state’s procedure for the method—which was created specifically for Smith’s execution—unavailable for public inspection. However, the information that has been made public indicates that the nitrogen will only be given for a maximum of 15 minutes; LaCour assured us that this process would not be stopped, even if Smith throws up or struggles while having the treatment.

LaCour referred to the process as “the most painless humane method of execution known to man,” noting that Smith had personally supported its use. Other expert witnesses included Dr. Philip Nitschke, who has stated in public that the procedure is safe and effective and has testified that it is neither unusual nor cruel.

Reluctantly revealing a previously redacted section of the protocol, LaCour said that Smith would receive between 70 and 90 liters of nitrogen each minute in a bit of a glimpse behind the scenes. He continued, “That rate is significantly higher than the standard rate of 15 liters per minute that is administered in assisted suicides.”

After 35 years, LaCour said, “it’s time to give [Smith] the sentence he has asked for and earned.”

U.S. Circuit Judge Jill A. Pryor, appointed by Barack Obama, and U.S. Circuit Judge Britt C. Grant, appointed by Donald Trump, were also members of the three-judge panel.