Jan. 20 (UPI) -- Convicted murderer and hitman Kenneth Smith, scheduled to die Thursday in the nation's first nitrogen hypoxia execution, wants the U.S. 11th Circuit Court of Appeals to halt the procedure.
An attorney representing Smith, 58, on Friday told a three-judge appellate panel the execution should be called off due to potential constitutional violations and concerns that nitrogen hypoxia has too many uncertainties.
Attorney Robert Grass told the court Smith already survived an execution attempt in November 2022 when staff for the Alabama Department of Corrections couldn't establish a vein through which to administer a lethal injection despite trying for several hours.
The attempt was the third straight botched execution by the state's Department of Corrections and "inflicted actual physical and psychological pain" through repeated attempts to apply an IV through Smith's arms and hands while he was strapped to a gurney, Grass said.
Smith recently requested nitrogen hypoxia as the method of his execution, but Grass filed the writ of certiorari asking the federal appellate court to determine "does a second attempt to execute a condemned person following a single, cruelly willful attempt to execute that same person violate the prohibition against cruel and unusual punishments under the Eighth and 14th Amendments to the U.S. Constitution?"
During a hearing Friday, Grass told a three-judge panel that nitrogen hypoxia is an unproven method of execution that might go wrong due to an ill-fitting mask or by causing Smith to become ill and choke on his vomit, AL.com reported.
U.S. District Judge Austin Huffaker Jr. on Jan. 10 ruled the execution should continue as planned due to a lack of evidence showing nitrogen hypoxia posed any particular dangers. The method of execution requires the use of a mask to deliver pure nitrogen that causes the subject to pass out after about 40 seconds and die within 15 minutes.
Smith was convicted of murder for the 1988 beating and stabbing death of Elizabeth Sennett, whose husband hired Smith to kill her so he could collect a life insurance benefit to pay off debts.
A state jury voted 11-1 to recommend a sentence of life imprisonment for Smith, but the presiding judge overrode the recommendation and imposed the death penalty, Courthouse News reported.
The federal appellate court hearing concluded Friday with no immediate decision given.