Tennessee Supreme Court Stays Prisoner’s Execution Because of Investigative Time Lost to Pandemic

The Tennessee Supreme Court has stayed the June 4, 2020 exe­cu­tion of death-row pris­on­er Oscar Franklin Smith (pic­tured) and resched­uled his exe­cu­tion for February 4, 2021. The order, issued on April 17, 2020, grant­ed a stay request filed by Smith’s lawyers, who had sought a post­pone­ment on the grounds that, because of the coro­n­avirus pan­dem­ic, they had lost ​“crit­i­cal time” for inves­ti­ga­tion in the case. 

In a March 18 Motion for Stay of Execution Due to COVID-19 Pandemic and an April 8 sup­ple­ment, Smith’s legal team wrote that the state’s Shelter in Place order to min­i­mize the fur­ther spread of the nov­el coro­n­avirus and dis­rup­tions to the court sys­tem had pre­vent­ed them from prop­er­ly prepar­ing Smith’s clemen­cy peti­tion and inves­ti­gat­ing his inno­cence claims. ​“Mr. Smith’s legal team con­tin­ue to abide by the orders of Nashville Mayor Cooper and Governor [Bill] Lee,” the sup­ple­men­tal plead­ing said. ​“But doing so has result­ed in the loss of crit­i­cal time need­ed to rep­re­sent Mr. Smith dur­ing this crucial period.”

The stay was the sixth in the nation grant­ed as a result of the pan­dem­ic. Texas courts had pre­vi­ous­ly stayed or resched­uled five exe­cu­tions that had been set to take place between mid-March and ear­ly June. The Texas Court of Criminal Appeals halt­ed three exe­cu­tions sched­uled for March and April ​“in light of the cur­rent health cri­sis and the enor­mous resources need­ed to address that emer­gency.” Texas tri­al courts sub­se­quent­ly post­poned two oth­er exe­cu­tions, one that had been sched­uled for April 29 and one sched­uled for June 3, the day before Smith’s now-stayed execution date.

Smith’s stay request invoked the pub­lic health risks asso­ci­at­ed with con­duct­ing pro­fes­sion­al­ly appro­pri­ate clemen­cy and inno­cence inves­ti­ga­tions in defi­ance of state emer­gency orders, and in bring­ing cor­rec­tions per­son­nel, eye­wit­ness, and lawyers for the par­ties into close con­tact in the con­fines of the prison to car­ry out an exe­cu­tion. In the three weeks between Smith’s fil­ing of his ini­tial stay motion and his sup­ple­ment, his lawyers wrote, COVID-19 cas­es had ​“bal­looned from 4,266 cas­es [in the U.S.] with 75 deaths to 374,329 cas­es … with 12,064 deaths.” In Tennessee, they had ​“risen from 78 cas­es with no relat­ed deaths to 4,132 con­firmed cas­es and 72 relat­ed deaths.” By April 16, the num­bers were 662,045 con­firmed cas­es in the U.S. with 28,998 deaths and 6,375 cas­es with 136 con­firmed deaths in Tennessee, accord­ing to the Johns Hopkins Coronavirus Resource Center.

Smith’s stay motion assert­ed that “[a] typ­i­cal clemen­cy effort con­sumes hun­dreds of hours of staff time, exten­sive trav­el as wit­ness­es relo­cate over time, and face to face inter­views.” Smith’s lawyers argued that a ​“short stay” was essen­tial because con­tin­u­ing the inves­ti­ga­tion nec­es­sary to mean­ing­ful­ly pre­pare and present Smith’s case for clemen­cy dur­ing the pan­dem­ic would be ​“irre­spon­si­ble and against the public’s inter­est,” while the alter­na­tive of fail­ing to pre­pare a clemen­cy peti­tion would crip­ple a vital stage of the legal process. ​“An inad­e­quate inves­ti­ga­tion and pre­sen­ta­tion deprives the con­demned of his rights and deprives the Governor of crit­i­cal infor­ma­tion nec­es­sary to car­ry out his most solemn duty,” the motion said.

The April 8 sup­ple­ment to the motion includ­ed a dec­la­ra­tion from Emily Olson-Gault, Director and Chief Counsel of the American Bar Association Death Penalty Representation Project, con­firm­ing Smith’s asser­tions about the impact of the coro­n­avirus on cap­i­tal defense prepa­ra­tion. ​“During the month of March 2020, I have spo­ken with cap­i­tal defend­ers and pro bono attor­neys all over the United States as they attempt to cope with the unprece­dent­ed sit­u­a­tion cre­at­ed by the COVID-19 glob­al pan­dem­ic,” Olson-Gault said. ​“My under­stand­ing from these con­ver­sa­tions is that most cap­i­tal defense teams are unable to con­duct the large major­i­ty of the inves­ti­ga­tion and expert work required in cap­i­tal rep­re­sen­ta­tion. This is due to restric­tions set in place by state and local gov­ern­ments, as well as depart­ments of cor­rec­tions and insti­tu­tion­al defend­er offices and law firms, out of a con­cern for pub­lic health and the wel­fare of employ­ees. As a result, the already extreme­ly lim­it­ed time avail­able to cap­i­tal teams has been trun­cat­ed sig­nif­i­cant­ly because of health con­cerns relat­ed to COVID-19.” Olson-Gault warned that these restric­tions endan­ger pris­on­ers’ con­sti­tu­tion­al rights. ​“When the already lim­it­ed time is fur­ther trun­cat­ed, whether by oper­a­tion of the legal sys­tem or by some­thing whol­ly exter­nal like a nat­ur­al dis­as­ter, coun­sel will not have ade­quate time to pre­pare their case and this, in turn, jeop­ar­dizes due process and fair­ness in capital cases.” 

Smith’s sup­ple­ment also argued a stay was nec­es­sary to avoid the pub­lic health dan­gers of car­ry­ing out an exe­cu­tion dur­ing the pan­dem­ic. ​“The risk of spread­ing the coro­n­avirus inside a penal insti­tu­tion is enor­mous,” it said. ​“An exe­cu­tion takes prison staff away from their day-to-day duties. Every staff mem­ber who is pulled away from his or her pri­ma­ry respon­si­bil­i­ty of keep­ing the insti­tu­tion safe rep­re­sents an oppor­tu­ni­ty for the virus to infil­trate the insti­tu­tion. Once inside a prison envi­ron­ment, the virus will spread like wild­fire.” The admis­sion of media and oth­er exe­cu­tion wit­ness­es, Smith’s lawyers wrote, ​“presents need­less addi­tion­al risk to the staff and the almost 800 inmates of Riverbend Maximum Security Institution,” where Tennessee conducts executions.

Four oth­er exe­cu­tions are cur­rent­ly sched­uled in the U.S. with dates pre­ced­ing Smith’s June date — two in Texas one in Missouri, and a legal­ly pre­ma­ture exe­cu­tion date in Pennsylvania that will be stayed for rea­sons unre­lat­ed to the coronavirus.

[This sto­ry was updat­ed on April 17 to reflect that the Tennessee Supreme Court had grant­ed Smith’s stay motion.]