A Montgomery federal judge on Friday formally reprimanded Alabama Attorney General Steve Marshall’s office and fined an assistant attorney general $1,500 involving a lawsuit filed by death row inmate Willie B. Smith III, who is set to be executed next month.
Marshall’s office said it would appeal the order.
Smith, who has filed three federal suits against the state and has an IQ under 75, alleged that his rights under the Americans with Disabilities Act were violated when he wasn’t given reasonable accommodations to fill out a form to choose whether he wants to be executed via nitrogen gas.
Smith’s attorneys claimed he didn’t fill out the form in time because of his disability, and contended that the form constituted a “service, program or activity.”
State Assistant Attorney General Lauren Simpson, acting on Marshall’s behalf, argued that the warden at the time at Holman Correctional Facility in Atmore decided on her own to send the forms to death row inmates.
But Chief U.S. District Court Judge Emily Marks said Simpson “asserted repeatedly a verifiable fact without evidentiary support,” adding that Simpson did not reach out to the warden.
The warden, however, testified in an unrelated case that she was instructed to hand out such forms, Marks said. And while she could not recall who gave her that order, “she acknowledged it would have been someone above her in the chain of command,” the judge wrote.
Marks found that Simpson did not make a “reasonable inquiry” into how the form was distributed.
“Accordingly, the court hereby formally reprimands Assistant Attorney General Lauren Simpson and the Office of the Alabama Attorney General Steve Marshall for their failures to comply” with court rules, Marks ruled.
Through a spokesman, Marshall defended Simpson and indicated his office would appeal Marks’ order.
“Lauren Simpson is well known in the legal community for her talent, professionalism, work ethic, and perhaps most importantly, her integrity,” said Marshall spokesman Mike Lewis. “We believe the court erred, and we will appeal this decision.”
In February, the state called off Smith’s execution on the night he was to have been put to death. The decision came after the U.S. Supreme Court maintained a lower court injunction, saying he could not be executed without his personal spiritual advisor present in the room with him.
The state at the time maintained only prison staff would be allowed in the room.
Alabama officials wrote in a court filing that the state recognized “its policy restricting access to the execution chamber to institutional chaplains was unlikely to survive further litigation” and “reached an agreement with Smith to allow his spiritual advisor to minister to him in the chamber.”
The Alabama Department of Corrections did not immediately respond to an email asking about the change in procedures.
Prosecutors said Smith abducted 22-year-old Sharma Ruth Johnson in Birmingham at gunpoint from an ATM, stole $80 from her and then took her to a cemetery where he shot her in the back of the head. The victim was the sister of a police detective.
“The murder of Ms. Johnson, which was committed during the course of a robbery and kidnapping, was as brutal as they come, and there is no doubt that Smith committed those offenses,” lawyers with the attorney general’s office wrote in the request to set the execution date.
The Alabama Supreme Court set an October execution date for Smith even though a judge has scheduled a 2022 trial on claims related to his intellectual capacity.
His lawyers have argued the state failed to give Smith, who has an IQ below 75, required assistance under the Americans with Disabilities Act in filling out forms that affected the timing of his execution.
“We are disappointed that the attorney general asked for and the Alabama Supreme Court set a date for Mr. Smith’s execution despite the fact that a lawsuit he filed two years ago is progressing through discovery and is set for trial early next year,” federal defender John Palombi wrote in an email.
Palombi added, “The state is attempting to moot this lawsuit out before his case can be heard. We will continue to fight against this premature attempt to execute Mr. Smith.”
The Alabama attorney general’s office has disputed that Smith’s rights were violated.
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