Gov. Bill Lee on Thursday issued a temporary reprieve to the execution of Oscar Franklin Smith approximately one hour before it was scheduled to go forward.
Lee cited an “oversight in preparation for lethal injection” in a statement released at 5:42 pm His announcement did not include further details on what the problem was.
The reprieve is set to last through June 1, after which point the Tennessee Supreme Court will be able to set a new date.
The Tennessee Department of Correction confirmed Thursday evening Smith would be taken off death watch and returned to his cell.
Smith, an Episcopalian, was in the middle of taking communion with his spiritual advisor when he heard word of the reprieve, his attorney, federal public defender Amy Harwell told The Tennessean. Harwell had been with Smith at his death watch cell from him at the time.
“It was obvious, physical relief just flooding over him,” she said. “He was thanking God this had stopped for now.”
Triple Murder Case:‘The boys were brutalized’: The triple murder case that sent Oscar Franklin Smith to death row
Call for immediate investigation
Another attorney with the federal public defender’s office, which represents Smith, called for an immediate independent review of what went wrong.
“The governor did the right thing by stopping what was sure to be the torture of our client. A thorough investigation should immediately take place by an independent entity,” attorney Kelley Henry told The Tennessean.
Henry said her team had demanded the prison hold on to all of the evidence in the case, including syringes and packaging, for further review. She suspects mishandling of the drugs used in the lethal injection may have been the problem.
The attorney had requested TDOC’s legal team provide proof ahead of the scheduled execution time that the drug cocktail met all testing standards, but told The Tennessean she had yet to receive a reply by the time the reprieve was issued.
Shortages of the drug states mix to execute prisoners have been reported for years.
The state had used pentobarbital, a barbiturate, but manufacturers have largely stopped selling the drug to anyone using it for executions.
By 2018, the state shifted to a new mix, relying on a three-drug mixture intended to put an offender to sleep before stopping the lungs and heart.
In practice, executions using the drugs in other states left offenders in clear, protracted agony, if not alive. During executions in Oklahoma, Arizona, Ohio and elsewhere, midazolam — the drug intended to render the offender unconscious — failed to work.
Smith is one of dozens of death row inmates who joined a lawsuit in 2018 arguing lethal injection amounts to state-sanctioned torture by creating the sensations of drowning and burning alive.
They argued using the controversial three-drug mix would violate constitutional bans on cruel and unusual punishment.
Smith on death row in 1989 slayings
Smith, 72, was scheduled to die by lethal injection Thursday at Riverbend Maximum Security Institution.
He was convicted of three counts of first-degree murder on the Oct. 1, 1989, killings of his estranged wife, Judith Robirds Smith, 35, and her sons from another marriage, Chad Burnett, 16, and Jason Burnett, 13.
Their brutal deaths took place inside a home on Lutie Court in Nashville’s Woodbine neighborhood.
State law allows condemned inmates sentenced to death for a crime that took place before 1999 to choose between electrocution and the state’s default execution method of lethal injection.
TDOC spokesperson Dorinda Carter said Smith chose not to select a method so he would die by lethal injection, the state’s default method.
Smith had asked his family members not to attend his execution, but prison officials said he spoke to his brother earlier in the day on the phone. They also said he spent most of the day sleeping before his spiritual advisor visited him at 3 pm
Smith, who has maintained innocence in the killings since his arrest, has been on death row for 32 years.
As of Thursday he was the oldest death row immate in Tennessee.
He was scheduled to be executed in June 2020 but had two execution dates rescheduled since the start of the coronavirus pandemic.
The family of Robirds Smith was heartbroken by the news.
Her cousin, Sandra Barnes of Modesto, California, said the news was “crazy” after she was informed of the reprieve by a Tennessean reporter.
“It’s opened up the wound again,” Barnes said. “That girl would give anyone the shirt off her back. She was so sweet, and so were her boys.”
Robirds Smith’s brother and sister were set to witness the execution on Thursday.
Bigger than one person
Death penalty opponents gathered Thursday at Nashville’s Second Presbyterian Church for a vigil awaiting news of Smith’s execution.
Their reactions to news of the reprieve were “mixed,” one person said. They spoke to The Tennessean in the wake of the news.
“Thankful that he’s not going to be executed tonight, to begin with. Frustrated that he got to this point within 60 minutes or so prior to it and they just figured that out,” said Susan Brantley, a Nashville resident and mental health counselor.
Stacy Rector, director of Tennesseans for Alternatives to the Death Penalty, told The Tennessean that their vigil was about more than just Smith’s case.
“One of the things we really want to help people understand is this is much bigger than one person on death row,” Rector said. “We just see ripple, ripple, ripple of the trauma of this and we know executions do not make us safer. They take resources, a lot of resources, far more than the alternative sentences that could be used for the things we know are working .”
Brantley said her thoughts were with the victim’s family, who has grieved “in limbo” for more than 30 years.
“They might have been hoping for a little bit of closure, maybe, I don’t know if another death can bring closure, but maybe they were hoping for that tonight and now they don’t have that. And so that angst continues for that family and that’s terribly sad. The whole situation is so sad on so many levels,” she said.
Lee denied clemency petition
Lee previously announced he would not intervene to stop the execution, denying clemency to the prisoner on Tuesday.
“After thorough consideration of Oscar Smith’s request for clemency and an extensive review of the case, the State of Tennessee’s sentence will stand, and I will not be intervening,” Lee wrote in an emailed statement.
Harwell responded to Lee’s decision Wednesday morning, calling his denial “extremely disappointing.”
“Mr. Smith has maintained his innocence of him for more than thirty years, “Harwell wrote in a statement. “The state has erected an insurmountable roadblock to Mr. Smith’s claims of innocence.
Lee’s temporary reprieve came an hour after the United States Supreme Court denied a push to stop Smith’s execution long enough for a further review of what he argues is vital new DNA evidence.
Lee’s Thursday decision is the first time he’s intervened in a capital case. The move parallels a 10-day reprieve issued by then-Gov. Bill Haslam in 2018 to properly prepare to execute Edmund Zagorski by electric chair.
Haslam issued his order three hours before Zagorski’s scheduled execution. Zagorski was executed Nov. 1, 2018.
Carter referred all further questions to the governor’s office. The governor’s office declined to release further details around 6:30 pm.
Harwell said Smith’s legal team would be reviewing what the next legal action would be.
Reach reporter Mariah Timms at [email protected] or 615-259-8344 and on Twitter @MariahTimms.
www.tennessean.com
George is Digismak’s reported cum editor with 13 years of experience in Journalism