Alabama Attorney General’s office reprimanded for ‘misrepresentation’ in Willie B. Smith III’s death penalty case

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(AP Photo/Sue Ogrocki, File)

BIRMINGHAM, Ala. (WIAT) — A federal judge on Friday formally reprimanded both the Office of the Alabama Attorney General Steve Marshall and Alabama Assistant Attorney General Lauren Simpson for a repeated “misrepresentation” made in a death penalty case.

In an order issued Friday, Judge Emily Marks called the “misrepresentation” in the case “inexcusable” and “reckless.” As part of the sanction, Assistant Attorney General Lauren Simpson will be required to pay a fine of $1,500.

The “misrepresentation” occurred in the case of Willie B. Smith, a death row inmate whose execution is scheduled for Oct. 21.

In a lawsuit, Smith claimed that his rights under the Americans with Disabilities Act were violated when state officials did not provide an accommodation that would have allowed him to understand a form circulated by prison staff that asked death row inmates whether they would like to “opt in” to execution via nitrogen hypoxia. Smith’s IQ, according to experts, is around 70. That lawsuit has now been dismissed.

Execution through the use of nitrogen hypoxia was approved by the state legislature in 2018. Only two other states, Oklahoma and Mississippi, allow the practice. An execution using the method, which involves replacing oxygen needed to breathe with nitrogen gas, has never been carried out in the United States.

According to Judge Marks, lawyers for the Alabama Attorney General’s Office repeatedly asserted, without evidence, that a form asking condemned inmates whether they would elect nitrogen hypoxia as their method of execution was circulated on the sole initiative of the warden of the facility at the time. The form was not circulated, they said, on orders of the state.

“Cynthia Stewart, who was then the Warden of Holman Correctional Facility, directed on her own initiative that a copy of the form be passed out to all death row inmates at the facility,” lawyers for the state in a filing earlier this year.

Stewart’s own testimony, however, contradicted this claim. In a court hearing in late August, Stewart testified that she was directed to circulate the form by a superior.

“The assertion” made by the state “was not, however, based on any conversation or communication with Cynthia Stewart,” Judge Marks wrote.

In a court hearing earlier this month, Simpson apologized for “misrepresentation” and asked Judge Marks to not hold Alabama Attorney General Steve Marshall liable for the error.

“The Attorney General did not make the representations,” she said. “They were representations that I made in oral argument and that I made in pleadings.”

“Well, I’m looking at the answer to the amended complaint,” the judge responded. “Steve Marshall’s name is on page one and it’s on page 9 where it reads, ‘Respectfully submitted, this the 25th day of February, Steve Marshall, Attorney General of Alabama, by Lauren Simpson.”

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