Smith's attorneys argued a federal judge wrongly dismissed a lawsuit last month involving the claims about his needing assistance under the federal disabilities act. But the state maintained it was the legally correct decision.
Wednesday's oral arguments centered on what, if any, obligations the state had in helping state inmates understand a brief window in which they could change their requested execution method.
“He will be executed by lethal injection in eight days if he does not prevail in this lawsuit,” attorney Spencer Hahn told the appellate panel Wednesday. “Mr. Smith had, and has, cognitive deficiencies such that he could not and can not make the decision to elect a method of execution without reasonable accommodation.”
Lethal injection is the main execution method used in Alabama. But after lawmakers authorized nitrogen hypoxia as an execution method in 2018, the new law gave death row inmates a 30-day window to select nitrogen hypoxia as their execution method.
The Federal Defenders for the Middle District of Alabama, who defend death row inmates but weren't representing Smith at the time, drafted an election form for their clients to request nitrogen. The prison warden later give every death row inmate a copy of the form.
Smith did not turn in a form selecting nitrogen. The state has not developed a procedure for using nitrogen as an execution method, and at least for now is not scheduling executions with nitrogen hypoxia.
In dismissing the lawsuit last month, a judge said that the "form was not required, directed, or sanctioned” by state law and “for the entire month of June 2018, both before and after this form was distributed, Smith had the ability to opt into execution by nitrogen hypoxia through any writing he chose.”
Smith's attorneys in their appeal questioned how an “inmate who has been segregated and locked-down; 23 hours a day for almost 30 years with, at best, an IQ of 72 could have and should have known about a change in Alabama law.”
Attorneys for the state have disputed that Smith is disabled.
The state has argued that the form was not required by state law and Smith never gave any indication that he wanted to request nitrogen.
Smith also had conversation with his then-lawyer in 2018 when the form was distributed, an attorney for the state told the judges.
“The evidence is he talked to his lawyer in June: Nothing,” Alabama solicitor general Edmund G. LaCour told the panel. “He did have access to assistance. It's plain as day."