A lawyer for Kenneth Eugene Smith told a three-judge panel of the U.S. 11th Circuit Court of Appeals on Friday that Alabama’s plan for the first execution by nitrogen hypoxia next week carries uncertainties and risks of constitutional violations and should be blocked.

Attorney Robert Grass said there are multiple ways the execution could go wrong, such as the gas mask not fitting tightly enough and the possibility that Smith could choke on his own vomit.

Grass and Smith’s defense team are asking the appeals court to reverse the decision of U.S. District Judge Austin Huffaker Jr., who ruled Jan. 10 that the execution could proceed.

Huffaker found that “there is simply not enough evidence to find with any degree of certainty or likelihood that execution by nitrogen hypoxia under the Protocol is substantially likely to cause Smith superadded pain.”

Circuit Court Judges Britt Grant, Jill Pryor, and Charles Wilson said they would take Friday’s arguments under advisement. They did not immediately issue a ruling at the conclusion of the hearing.

Smith was twice convicted by juries for the murder-for-hire of Elizabeth Dorlene Sennett in her home in Colbert County in north Alabama in 1988. Sennett, a pastor’s wife, was beaten and stabbed repeatedly. Smith, who was hired by the victim’s husband to commit the slaying, confessed to his role in the crime and has been on death row since 1996.

Alabama tried to execute Smith by lethal injection in November 2022 but called off the procedure because it was unable to make the intravenous connections before the death warrant expired at midnight.

Smith filed a lawsuit seeking to stop the state from trying a second time to execute him by lethal injection, arguing that the state had an alternative in nitrogen hypoxia. At that time, the state had not announced it was ready to use the nitrogen hypoxia method, which the Legislature authorized in 2018 but that no state has ever used.

Then in August 2023, the attorney general’s office asked the Alabama Supreme Court to issue an order authorizing Smith’s execution by nitrogen hypoxia. At the same time, the state released for the first time a redacted protocol for nitrogen executions, which calls for the inmate to breathe only nitrogen through a mask, resulting in death from a lack of oxygen. · The protocol says nitrogen will be administered for 15 minutes, or five minutes following a flatline indication on the EKG, whichever is longer.

Smith, 58, is scheduled to die by nitrogen hypoxia sometime between 2 a.m. on Thursday, January 25, and 6 a.m. on Friday, January 26, at Holman Correctional Facility in Atmore.

Alabama Solicitor General Edmund LaCour said testimony of an expert hired by Smith’s defense team supports the state’s position that the new execution method will be swift and relatively painless. LaCour said the expert had witnessed dozens of suicides by nitrogen hypoxia.

“Alabama has adopted the most painless and humane method of execution known to man,” LaCour told the judges.

In a question to Grass, Smith’s attorney, Judge Wilson noted that the Smith has asked for the nitrogen method of execution in his lawsuit to block a second attempt by lethal injection.

“This is a method that he chose himself,” Wilson said. “The Supreme Court has said several times that you are not entitled to a painless execution but the constitution is violated if the execution in an of itself is cruel and unusual.”

Grass said Smith has not abandoned his position that nitrogen hypoxia is a viable alternative to lethal injection. But he said there are too many questions about how the state plans to do the procedure. Grass noted that the state spent five years developing the protocol but released no information about it until August. He said Smith’s defense team did not receive an unredacted protocol until late November.

“The department’s protocol for accomplishing that for the first time ever deserves more scrutiny than it’s received to date.” Grass told the judges.

Grass said if the mask does not have an air tight fit that breathable air will infiltrate, so that instead of quick unconsciousness and painless death, Smith will be at risk of delayed unconsciousness and consequences of oxygen deprivation that could include being put into a persistent vegetative state and suffering a stroke.

Grass also said the use of the mask could result in Smith choking on his own vomit. Grass said better methods for the nitrogen executions would be using a hood or a gas-tight chamber.

Wilson asked LaCour if the state’s protocol calls for the state to stop the execution if the condemned inmate vomited in the mask. LaCour said it did not.

“So if he vomits during the execution with the mask on, you’re telling me that the state will not stop the execution?” Wilson said. “They will permit him to choke on his vomit?”

LaCour said that possibility is remote.

“Your honor I don’t think there is substantial risk that he will be choking in his vomit, certainly not in way where he’s going to feel any pain because again, the onset of unconsciousness can be almost instantaneous if you go by experts testimony,” LaCour said. “And everyone seems to agree that’s going to be in a matter of seconds, not minutes.

“So, then what we’re looking at is, as the district court put it, an unlikely cascade of events that if everything goes precisely wrong, then, yes, there is some theoretical risk. But if some theoretical risk were enough to establish an 8th Amendment violation, then the death penalty would be nullified across the country.”

LaCour asked the judges to uphold Huffaker’s ruling that the execution could proceed.

“Often the coverage of these last-minute challenges to executions is on the premise that the only victim in these cases is the man who violently ended the life of his innocent victim,” LaCour said. “But I’d just like to remind the court it’s been 35 years since the murder of Elizabeth Sennett. Thirty-five years her family has had to wait for justice.

“It’s time he received the sentenced he asked for and that he has earned. For that reason we think the well supported factual findings of the district court and the court’s well-reasoned judgement should be affirmed.”

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