Ohio will make it easier for a condemned inmate who lost his larynx to cancer to make a final statement at his execution, a gesture of flexibility the state argues is one more reason a federal judge should dismiss a lawsuit challenging Ohio's execution procedures.
Kenneth Smith is scheduled to die July 19 for his involvement in the slaying of a husband and wife in their Hamilton home in 1995 during a robbery. Since his incarceration, Smith, 45, had his larynx removed and uses an artificial voice box.
For the execution, the state will raise the head of the gurney where Smith will lie about four inches and let him keep one arm free to make it easier to use his voice box, according to an affidavit by Edwin Voorhies, South Regional Director for the Department of Rehabilitation and Correction.
It would be the first time an Ohio inmate has not been completely strapped down since the state resumed executions in 1999.
Smith will be able to use his free hand "to make a final statement, to help clear his throat, and to do other things which his condition requires," Voorhies said in the affidavit filed Friday in federal court in Columbus.
Attorneys for Smith and other inmates are challenging the constitutionality of Ohio's lethal injection procedure, arguing that, among other things, the use of a new drug, pentobarbital, remains unproven and could fail to put an inmate to death.
In recent years, federal courts have rejected most of the arguments against Ohio's injection process, based on a 2008 decision by the U.S. Supreme Court that upheld injection as a method in a Kentucky case.
The state argues that, with the exception of arguments about pentobarbital, death row inmates are making the same arguments that have previously been denied.
"Accordingly, for the reasons previously stated by the Court, those allegations as a matter of law cannot sustain relief," Charles Wille, an assistant Attorney General, argued in the court filing.
Smith's lawyers said Wednesday they were pleased the state is changing its policies to accommodate Smith. Attorney Carol Wright added that the defense still believes there are issues with Ohio's lethal injection process that need to be resolved.
In a February filing, the attorneys argued that the state still hasn't guaranteed that it can humanely insert a needle into inmates' arms to deliver the lethal drug.
The state's lethal injection procedures "present a substantial risk of serious physical and psychological pain to each Plaintiff," the lawyers argued.
Earlier this year, Ohio changed its policy to allow attorneys access to a phone if they believed something was going wrong during an execution. The state argues that further changes, such as allowing lawyers in the death chamber with an inmate, would disrupt the execution.
"Allowing an attorney to have close physical proximity to the inmate while the execution is conducted undoubtedly would prove distracting and even disquieting to the officials conducting the execution," the state said in Friday's filing.
Voorhies said one of the state's jobs is to prepare inmates for the finality of their situation, or "resignation point," an effort that last-minute access to lawyers wouldn't help.
On May 12, 1995, Smith and his brother, Randy Smith, went to the home of Lewis and Ruth Ray and argued about $2,500 that Kenneth Smith owed the couple, according to Attorney General records and the Ohio Supreme Court.
Kenneth Smith hit Lewis Ray in the head with a hammer, then slit his throat, while his brother choked Ruth Ray to death. A jury in a separate trial sentenced Randy Smith to 30 years to life.
Andrew Welsh-Huggins can be reached at http://twitter.com/(hash)!/awhcolumbus