Pushkin previously on Revisionist History.

Had my wife just been murdered in my home, I could tell you nothing.

My mind's gone.

But he knew everything in detail.

That's a red flag.

I can't remember how soon they figured out that, you know, the preacher had sent us the job and all that, but it was, you know, it was pretty obvious, pretty quick.

I just don't think some of these people that were on the jury, they didn't want that to be on their conscious the rest of their life.

Putting somebody into the death penalty.

Thirty five years, that's how long Elizabethsonnett's family waited for justice to occur.

Thirty five long years.

He was just having severe nightmares of being executed over and over.

He sort of came out of a depression and then the second execution came up.

So at some point during your conversations with him, he gets his second warrant.

Yeah, when is that?

So he got a second warrant in November a year later for January execution.

So you know, they take you as soon as they give you the warrant.

By the way, this is another particularly cruel thing.

This is the man who's been thirty four years.

He has a cell.

He's you know, they call it their house, their cell.

So his house was nice, you know, he had his stuff in there.

And once they take you to the warden and tell you they don't take you back to your cell, that's it.

You get put in the death chamber cell, which is this totally isolated cell.

Very hard.

Kate Portererfield, the psychologist hired by Kenny Smith's legal team, once he was given the second warrant and taken to the death chamber, did you lose contact with him?

No?

No, we were able to talk.

We talked up until about I think we talked up until about December, and then he got very you know, he turned his attention to facing what was probably going to happen.

His lawyers were working very hard to still stop it.

I testified in the hearing about what I believed was going to happen to him with his post traumatic stress if he had to go through this again.

And I testified, which I believed to be true, that this man was going to go into a state of such severe symptomatic PTSD as to be really just devastated, you know, to be taken into that same thing again was going to just be you know, catastrophic to his psyche.

Yeah, well, and those words cruel and unusuals like the legal term.

And so what I was saying is this man's going to be absolutely devastated within his psyche and disorganized and completely symptomatic because he's got a severe condition that you guys did to him, by the way, that was brought about by what was done.

So this was not a guy who had PTSD before this.

Do you remember the first contact you had with him after he got.

His warrant, I mean, I remember some of it.

I mean, he was very focused on fighting.

You know, he was very focused on fighting it, and he was very worried about his family.

He was super worried about his mom.

And his grandson and his wife.

So he was very focused on them.

And he also said, you know, I've had the greatest lawyers.

We're going to keep fighting this.

I mean, look, he was anxious, he was really starting to fall apart, but he was also trying to be focused on hope.

My name is Malcolm Gladwell.

You're listening to the Alabama Murders.

This is the final episode in our series.

We started with the murder of Elizabeth Senate on Coon Dog Cemetery Road.

And now we're going to end with what happened in Kenny Smith's last days, the bizarre and grotesque final act to the Senate cascade, with the State of Alabama endeavored to figure out and justify another way of executing Kenny Smith.

This is episode seven, the Second Warrant.

Just over a month before Kenny Smith's second execution date, his legal team made one last big push to save his life.

A lawsuit heard in US History Court in Montgomery, Alabama, Kenneth Eugene Smith v.

John Q.

Ham Ham.

The defendant is the commissioner of the Alabama Department of Corrections.

Bulldog of a guy, maybe six feet bald, white mustache and go tee, dark suit, white shirt, red tie.

If you're curious about him, you can find him on YouTube, where he's a regular.

He's the person in Alabama state government whose job it is to stand up at press conferences and announce that one of his prisons has just executed another person about.

One of the Alabama spring Born the night State of Alabama carried out excuse of James Barber by lethal injection at Williams a Hold Prison.

He answers questions about how things went emny IVS.

Did you need the heavy any too?

We had too, So there were three stays to six minutes.

And let's the world know they've done their job well.

So we carried out successful law in execution of the man's break.

Ut and.

John Q.

Ham this is who Kenny Smith's legal team is up against.

The basis of their appeal was a new method that Alabama intended to use on Kenny Smith.

Having lost confidence in the ability of its execution team to find one of Kenny Smith's vans, the state decided instead to strap him to a gurney, put a mask over his face, and pump him full of nitrogen gas, a method that had never been used in a judicial execution before in the United States, or for that matter, anywhere.

They were attempting to make history, and in response, Kenny Smith's lawyers argued that the use of an untested method like nitrogen asphyxiation would violate the Eighth Amendment prohibition against cruel and unusual punishment.

Wanted a preliminary injunction.

Tell me a little bit about nitrogen gas.

It's not in its pure form.

It's not used you know in medical situations.

This is joel' zivid, the Atlanta and the caesiologist who we've heard from many times in this series.

You know, in the air we breathe, it airs actually is a mixture of about seventy nine percent or eighty percent nitrogen and twenty twenty nine percent oxygen.

Why don't we breathe pure oxygen?

If the atmosphere of the Earth was pure oxygen, it would be on fire and there would be no life.

So to make it kind of work in the body, we have to water it down, so to speak, with nitrogen gas.

We breathe in oxygen, which keeps us alive, mixed in with enough nitrogen to make it safe.

Nitrogen is inert.

It just passes in and out of the body.

Like it doesn't kind of hurt to inhale it.

But what it does do is that it doesn't you know, it doesn't light the fire of life.

It doesn't support the cellular combustion that is required with oxygen.

So it's like putting the candle, you know, under the glass, and the candle eventually uses up all the oxygen and nothing remains.

So the theory was that because nitrogen gas was not noxious, it would be it could be given to someone as a kind of, you know, method of gas execution that would not be so troubling to them because they would breathe it and not know it, and that they would then lose consciousness and die.

All you needed was some pure industrial grade nitrogen gas and a type fitting mask.

That was the theory and the great appeal of nitrogen to state like Alabama, where the execution teams were not always up to the challenge of executing people the conventional way.

But in practice there are complications, like if some oxygen seeps into your mask while you're being fed nitrogen, then you could end up in a vegetative state, alive but brain dead.

There's also the possibility, since pure nitrogen makes people nauseous, that the prisoner being executed could throw up in their mask and choke to death, which achieves the same end but inducing someone to asphyxiate on their own vomit is not a Supreme Court approved method of execution as yet.

So in lethal injection, you know, once the vein is canulated and the drugs are flowing, it's hard to stop.

Okay, you can't kind of block your own vein or do something.

But in gas execution, you have to participate in your own demand by breathing.

Okay, So the first thing that you're going to do is as you hold your breath, okay, because you don't want to breathe.

So now you're holding your breath.

You're holding your breath, and as you hold your breath, your own carbon dioxide gas, which is something that we normally exhale and is sort of finely regulated, starts to rise.

And it's the rising of carbon dioxide that is very uncomfortable when you hold your breath.

It makes you want to take a breath, So that starts to at some point you can't stand it, okay, and you've got to take a breath, so you breathe in.

At that point, you breathe in.

This nitrogen gas that you know, has a very different kind of impact on what's happened to you because by virtue of holding your breath, it dilates the blood vessels in the brain.

Okay, So now you've got this flush of nitrogen gas that's traveling, you know, at volume into your brain.

That may be why you have a seizure, and it seems to create a cascade of other kinds of physiologic changes.

None of which this instantaneous unconsciousness followed by death.

The effectiveness of nitrogen gas as an euthanizing agent has actually been extensively studied in animals.

A group of researchers in Zurich, for example, recently took sixty rats, implanted them with biomedical sensors, divided them into groups, each with a different lethal method carbon dioxide, a powerful anesthetic called isofluorane, carbon monoxide, and nitrogen.

They euthanized all the animals, videotaped their final moments, necropsied the bodies, and collected cardiovascular, respiratory, neural, biochemical, histological, and behavioral data.

Conclusion, carbon monoxide and nitrogen resulted in longer times to loss of consciousness, induced seizures before loss of consciousness, increased stress levels, and caused higher lung damage.

Therefore, carbon monoxide and nitrogen are not humane alternatives and should not be used for euthanasia.

They weren't talking about the applicability of their findings to human beings.

They were simply addressing their colleagues who used lab animals for research purposes.

They were telling them even the smallest and most despised of animals deserves some degree of consideration.

Please don't use nitrogen.

A rat deserves a better way to die.

So this was the point of the final lawsuit.

Kenny Smith's lawyers wanted to know had John Hamm and his colleagues thought about this new method of killing people with anything like the rigor of the lab racy.

December twentieth, twenty twenty three, it's a month before Kenny Smith's second execution date.

John Q.

Ham took the stand in the morning.

He began by laying out Alabama's proposed protocol they would be using, he said, the same execution chamber as a lethal injection attempt, the same gurney, the execution team would have the same captain.

Ten of the twelve members of the execution team would be the same.

Each step of the protocol would be the same.

The only difference would be no IV this time, just a mask hooked up to a canister of pure nitrogen.

The cross examination was handled by one of any Smith's lawyers, Andrew Burns Johnson out of Birmingham.

Can you tell the court what deliberation you had relating to what to do in the circumstance of vomiting in the mask?

When nitrogen is being applied.

Answer, we just had conversations about, like I said, sitting around hypotheticals.

So we sat around and we came up with those ideas or excuse me, the side effects.

So what we would do in that situation?

Question did you consider that vomiting in a mask could cause asphyxiation?

Answer?

Yes, sir.

Question did you consult with any medical personnel about how to lessen that risk?

Answer?

No, sir.

Did you talk to any medical personnel about how to alleviate that risk?

No, sir.

Did you talk to any medical personnel about what to do in that situation as it's happening to prevent asphyxiation?

I did not.

I can only imagine what was going through the mind of Kenny Smith's lawyer in that moment.

Is it bafflement, disbelief?

I mean, for goodness sake, a research team in Zurich went to enormous effort to figure out whether nitrogen was worthy of lab rats.

Could the Alabama State Department of Corrections, an organization with a budget of over seven hundred million dollars, really just be winging it?

Wait, we're not finished.

Question, Okay, you certainly had medical personnel available to you to ask that question?

Answer, I could have sought out medical advice.

Yes.

Question okay, did the state have medical personnel involved in this process of developing this protocol that you signed?

Answer?

The Department of Corrections did not have medical personnel involved.

Question were you ever involved in meetings with medical personnel with the issue ofvomiting in the mask was discussed at all?

Answer?

No, sir.

Question have you had an opportunity to review the declarations of the experts in this case who talk about the effects of vomiting in the mask?

Answer?

I have not.

This goes on and on.

By the way, other witnesses from the state of Alabama get called.

Has anyone thought about what would happen if outside air came into the mask?

No?

Where did you get that mask?

By the way, Well, they don't really make masks for execution purposes, do they?

So we're using an industrial mask, the kind that a construction worker might use.

We did some internet research.

Literally, the person who the state asked to figure out the mask question, who they brought to the hearing to support their case, admitted that he never used these kinds of masks, had no expertise in the characteristics of these masks, and knew what he knew because he'd spend some time online.

Kenny Smith's lawyer then brings up the testimony of a previous witness who'd stress the importance of the mask fitting perfectly so no outside air would leak in, and asks John q Ham about it.

Question, So, in order to be properly placed, one would have to ensure that there's no outside air coming in?

Answer?

That was his opinion.

Question okay, assuming his opinion is correct, what's done in the execution chamber to make sure that no outside air gets under the mask?

Answer?

Well, that's hypothetical on his opinion being correct.

Question even so, what is done to make sure no outside air comes in?

Answer?

I don't know specifically what the team captain does to make sure the air does not get in, but I'm sure they do practice quite regular Question.

Do you agree with me?

There's nothing in the protocol that would let us know what's going to have happened to make sure there's a proper fit.

Answer that is correct.

Later in the day, Kate Porterfield was called to the stand.

She had spent more than a year assessing Kenny Smith.

She had submitted her report to the court.

She probably knew more than anyone at that moment what he was feeling and how he was doing, and how he might react to being re executed by the same crew on the same journey in the same execution chamber as the first go round.

But do you know what she was asked at the beginning of her cross examination by the attorney for the Alabama Department of Corrections.

Had she properly accounted for the possibility that Kenny might be malingering?

What if all that PTSD stuff that he claimed was about being jabbed with needles for three and a half hours was just him faking it?

A long technical discussion follows about how you can tell if someone's actually faking it, and from there the questioning moved to the vomit.

Issue, and astonishingly, oh gosh, the focus of that hearing this is how what where the legal system sometimes is just you can't make it up?

This stuff that they that.

Becomes the issue because he had to have a mask over his face to get the gas for nitrogen hypoxia execution, and sorry, the details of this are gross, his lawyers argued, he is because of his post traumatic stress, going to possibly throw up, and if he throws up in his mask, it's going to be you know, he could get asphixiated that way.

Now of course you are listening and thinking this is so like talk about absurd, right.

So I was asked to testify.

About his post traumatic stress and his nausea, which was one of his symptoms.

And you know, I was asked to testify would he throw up if they put a mask on his face and try to kill him, which you know, it's just incredible to be asked that in a court of law.

And I had to say, you know, I'm not a medical doctor first of all, so I can't speak to the gastro intestinal system and what it does.

I can tell you as a psychologist from this kind of severe post traumatic stress and the fact that mister Smith's had really severe nausea and so vomiting, there is a high likelihood that could happen, Yes, because he's going to go into a serious state of distress.

But it kind of boiled down to whether or not he would.

You know, vomit, as whether they could stop this, and they, you know, the judge said, the judge said, don't let him eat eight hours before.

That's what they did move the last meal earlier.

And with that Kenny's fate was said.

In the months leading up to his execution date, Kenny Smith began to put his affairs in order.

In his words, he loved up on everybody.

He named his witnesses.

He wanted his family there, his mom, his wife, his sons, his spiritual advisor, his lawyer, Robert Grass.

So tell me about that evening.

So I arrived.

I was supposed to go to the prison at five, So I got there at five.

Everyone on the list arrived at home in prison on the afternoon of January twenty fifth.

The corrections department gathered them and put them in a van to drive to the execution chamber.

At some point it started to rain and you could hear on the roof, you know, you could hear the rain falling on the roof.

They emptied their pockets, no watches, no phones.

At six point fifty two, one of the drivers of the van got a phone call.

It was moving time.

A police car with flashing lights led the way through a gate at the back of the prison.

From there to a holding room.

Another wait, maybe an hour.

Lee Hedgebeth, the local reporter who did some interviews for US was there, so was Kenny Smith's mom, Linda.

He'd survived that first attempt, Did you think there was any chance that he would survive the second time?

You know, I really didn't.

Good you, I don't know.

Part of me thought we might all die because they didn't know what they were doing.

It was the first time it had ever been done.

Yeah, you know, he's got a mask that leaks, and.

I don't know, somehow I just knew that that was that was going to be it.

And when he well, he said when he seen him coming there, said well, Mom, they're coming to get me, and you know, we said our good pies, and you know, the laughing thing he said was I love you, Mom, I gotta go.

So the last time he saw him was when I was there in my room and they come and get him.

Do you remember is that what he said to you then?

Too?

What do you remember what she said to him?

I told him I loved him too.

He said, I know, Mom.

And then I just can't get that picture out of my head when he's they're walking him back and he looked back and he was just smiling.

Yeah, that haunts me.

At some point, everyone was led to the witness room.

A curtain was drawn by the windows.

There were four seats in the front which we took.

There was a box of tissues to my right near the window sill, or on a window sill, and then a little after that they opened the curtain.

We could see Kenny strapped to a gurney, who was strapped across his chest.

His arms were strapped to the side, and he was wearing a mask.

The warden entered the room.

He read the death warrant.

He asked Kenny if he had if you want to make a statement, which he did, so they put the microphone.

They unscrewed a valve to the mask.

They put the microphone near him, and he made his statement.

Warden then left the room.

What did he say?

He said something along the lines of that Alabama was taking a step backwards that evening, and he said, I love you all, I'm going with peace, and I forget exactly what it was, but it was something along those lines.

The warden left the room and then they started the procedure, or at least that's what it seemed like.

And that was, you know, pretty ugly to watch because Kenny, they had been saying all along that Kenny would be unconscious and you know seconds, you know, less than a minute, and this would be a painless thing.

I'm not a medical person.

I can't opine on the on what happened.

The only one who can tell us if he experienced pain is not here to describe it.

But what I observed anyhow, did not look like what Alabama had advertised, because there were violent seizure type movements.

You know, it's kind of as best he could against the constraints.

You could see his head come back and violently come forward and violently go back.

You could see his fist clenched in his arms, straining against the restraints.

And as I said, I didn't have my watch, and I wasn't cognizant if there was a clock in the room.

But I can tell you that that went on, you know, that was minutes, not seconds, that that appeared to be going on.

There's was what appeared to be gasping for air.

After that, for again another period of you know, minutes, not nott seconds.

At at some point you could see him kind of fall back into you know, into the gurney and and lay there.

Then they escorted us out of the witness room, took us back, put us back in the van, and brought us back to the parking lot where we had gathered.

And that was that evening.

Can you describe your feelings when it was over.

It's hard to.

Describe.

You know.

That was about eighteen years of effort that ended up being unsuccessful.

I felt awful about that.

I felt awful for.

For Kenny.

I felt awful for Kenny's wife, his children, his mother, his extended family.

He had, you know, grandchildren by that point, niece's nephews.

The point of the eighteen years of representation was basically to avoid, to prevent that moment.

Do you miss him?

I do?

I Actually, you know, I think about him.

His birthday was July fourth, so I was thinking about him then and I think about him often.

Can you tell me a little bit more about Sorry?

I'm sorry, you know, I wish I could.

Every time I tell this story, I wish I could tell it with a.

Different ending and a different beginning.

For that matter, we'll be right back, good night.

State of Alabama started carrying out the execution of Kennethy Gene Smith by nitrogenpoxia at the WILLIAMS.

Holman Correction Facility of Smith was executed for the nineteen eighty eight capital murder of Elizabeth Orleans Senate in Calvert County.

After it was all over, John Q.

Haam, the Commissioner of the Alabama Department of Corrections, held a press conference as he always does, podium, big banner right behind him with the words professionalism, integrity, accountability, Charles and Elizabeth sentences.

Two sons stand off to the side.

Commissioner mister Smith appeared to shake him ride on the gurry for at least two minutes at the start of the execution.

Was that expected period that one Smith was holding his breath as long as he could, and then there's also information out there he struggled against his restraints a little bit, but there's some involuntary movement and some agniballe breathing.

So that was all expected.

And then the side effects that we've seen of researched on lecrogen the box here.

So nothing was out of the order of what.

We were expecting, nothing out of the ordinary, just what they were expecting.

Then more questions.

He appeared conscious for the first several minutes.

Do you agree with that?

The Attorney General's Office in Port Filing said they thought with Migraten would cost a lack of consciousness within seconds.

I don't know.

I couldn't really see his face from where I was sitting.

Y'all might have had a better view.

Of that anytimes to implement this method for future and mains on Destoh.

That's this is a state law for the state of Alabama.

That nation POxy is one of the three methods of execution.

So thenmates choose it, then that's the method we will use.

Then, came a press release from the Alabama Attorney General's Office.

Alabama has achieved something historic.

It went on despite the international effort by activists to undermine and disparage our states justice system and to deny justice to the victims of heinous murders.

Our proven method offers a blueprint for other states and a warning to those who would contemplate shedding innocent blood.

This is an important night for Liz Senett's family, for justice and for the rule of law in our great nation.

As an affair, and in his madness, sees no alternative but to kill his wife, he recruits two troubled young men who take the fall.

Both of those men are redeemed.

While in prison, they discover their capacity to love and to be loved.

But that is of no concern for the state of Alabama, which executes the first by setting his lungs on fire, and executes the second twice, first in spirit and then in fact letting him combulse on the gurney, because no one bothered to check whether a method that is not even worthy of lab rats was a good idea for human beings.

The cascade begins in obliviousness, then proceeds from indifference to cruelty, and ends in revision when a senior elected official of an American state looks back over a thirty six year long cascade of moral failure and declares, without irony, Alabama has achieved something historic.

Do you remember the last conversation you had with them.

We still were very much talking about what his options were and legally, and I didn't know it was going to be my last conversation with him, you know.

So once it got very close to the warrant, I had said, you know, I'm here.

Anybody would like me to do anything to assist with this post traumatic stress or anything, please contact me, you know, And but he started to really have to focus on what he was about to do.

You know what was about to happen to him.

So I wrote him a letter at the end, and I sent it to him.

I just wrote him a little paragraph and I just said that what it had meant to work with him.

They gave it to him, I guess the day before, and I just said, you know, your spirit is just you know, irrepressible, and you're I did say I liked this because it was true with Kenny.

I said, your ability to build relationships behind walls is nothing less than miraculous.

Because that's really what I felt about him.

You know, he built relationships, real ones with his loved ones.

M and that's not easy.

It's not easy when we're not in prison.

You know, where were you when he was finally executed.

Oh?

I was home.

So I I have this thing I do where I you know, I talked to the lawyers always before and say we're all.

Being stuff and obviously if anyone needs me, and then.

I usually tell my kids and we're going to light a candle, and we light a candle for the person.

And usually I put some something pretty with the candle and then take a picture of it.

And I always send the picture of the candle to the lawyers and just say, you know, I'm remembering Kenny right now and whatever he's going going through.

And then I usually have a glass of wine and feel like shit, what are you thinking?

May I ask?

I'm sorry.

Right, it's a lot to think about.

And you know, the normal thing we do we make meaning, right, is we think about other losses.

Think.

You think about what the person's family went through.

You think what you would go through if that was happening, you know.

So it's this is what being a human is.

It's like when you put your mind in this place, it's a lot.

It's a lot.

Revisionist History is produced by Lucy Sullivan, Benda daff Haffrey, and Nina Bird Lawrence.

Additional reporting by Benda daff Haffrey and Lee Hedgebeth.

Our editor is Karen Schakerji, fact checking by Kate Furby.

Our executive producer is Jacob Smith.

Production support from Luke Klement, Engineering by Nina Bird Lawrence.

Original music was composed, arranged, and recorded by Luis Querra, with additional composition and recording by Paul Brainerd.

Drums by Jimmy Bott, sound design and additional music by Jake Gorsky.

Cover art for the season was designed by Sean Karney and special thanks to a whole host of people who helped us out.

The good folks at Audible who came to our table reads Tali Emlin, Randy Suskin at the Equal Justice Initiative in Montgomery who helped us out with research, Mike Cooley of the Drive By Truckers and at Pushkin, Greta Cone, Jacob Weisberg, Sarah Nix, Nicole opten Bosch, Jasmine Faustino, Christina Sullivan, Amy Gaines, McQuaid, Grace Ross, Eric Sandler, Morgan Ratner, Kira Posey, Jordan McMillan, Jake Flanagan, Owen Miller, Fara de Grange, and Sarah Buguer.

H'm Malcolm glava

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