Gov. Bill Lee denies clemency plea
Tennessee is scheduled to execute death row inmate Oscar Franklin Smith on Thursday night after the governor denied clemency for the prisoner.
Gov. Bill Lee announced Tuesday he would not intervene to stop the execution.
“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.
Race to stop the execution
In the race to stop his execution, Smith on Monday filed a lawsuit in federal court alleging his First Amendment rights are being violated by Tennessee courts refusing to hear his case.
Smith alleges there is DNA evidence in the case favorable to his claim of actual innocence in the brutal murders.
But he has exhausted his appeals through local criminal courts, appellate courts and the Tennessee Supreme Court on the legal argument he hopes will postpone his death.
“Thus, despite having evidence that proves that he is not the person who handled the murder weapon, Mr. Smith has been shut out of state court,” he argues.
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Smith, 72, is scheduled to die by lethal injection Thursday at Riverbend Maximum Security Institution.
Late Monday night he was moved into a cell next to the execution chamber and placed on death watch.
Smith has been on death row for 32 years for the 1989 killings of his estranged wife, Judith Robirds Smith, 35, and her two sons from a previous marriage, 16-year-old Chad Burnett and 13-year-old Jason Burnett.
New federal filings
The new filing takes the case out of state courts and into the Middle District of Tennessee federal jurisdiction. Tennessee state law allows defendants in certain circumstances to present new DNA evidence to the courts for review on the merits, not procedural basis of the argument.
Oscar Smith, through representation by federal public defenders Amy D. Harwell and Katherine M. Dix, says the courts have erred in blocking him from doing so.
“The court created an unconstitutional hurdle that renders the statutes toothless and ensures that petitioners cannot vindicate their liberty interests,” the filing says.
He has asked the court to immediately stay his execution and delay it until the courts hear a full case on the evidence revealed by new DNA testing.
But the state disagrees.
In a response filed Tuesday afternoon, the attorney general’s office argued the DNA appeal has been adequately addressed in the lower courts and the immediate stay should not be granted.
“Simply put, the presence of an unknown person’s DNA on the awl does not establish Plaintiff’s innocence. This is not an extraordinary case where a constitutional violation has resulted in the conviction of an innocent person,” the state wrote.
The suit names Gov. Bill Lee, Attorney General Herbert Slatery, Tennessee Department of Correction Interim Commissioner Lisa Helton and Riverbend Maximum Security Institution warden Tony Mays.
Attorneys for the state argued the new suit is asking the federal court to step outside its jurisdiction. They also argue that Smith’s suit improperly named the defendants, who in this case are not the ones who enforced the law’s application he is challenging.
“The last-minute nature of this motion combined with the State’s interest in the timely enforcement of its sentence weigh heavily against granting a stay of execution,” the state said.
Smith filed the federal suit a few hours after the Tennessee Supreme Court’s denial to hear the case exhausted his state court appeals.
A request for comment sent to the governor was not immediately returned.
Religious objection to autopsy
Smith has also asked the court to block Nashville’s medical examiner from performing an autopsy after his execution, based on his personal religious beliefs.
“Mr. Smith is a life-long, devout Christian and has a sincerely held religious belief that treating his body as described…would be a mutilation of his body amounting to a desecration in violation of his beliefs,” Smith wrote.
If there were no religious objections, Dr. Feng Li, Chief Medical Examiner for the State of Tennessee, said he would normally perform an autopsy on any person executed by the state. It’s his duty, he wrote in a sworn declaration filed in federal court Tuesday.
State law requires his oversight on deaths within the county, explicitly mentioning executed prisoners.
Unless there was a “report or claim of extraordinary information” that necessitated investigation by a full autopsy, a blood and other bodily fluid draw would likely be sufficient for examination, Li wrote
The fluids need to be drawn soon after death to avoid decaying that could damage the samples, Li said.
Smith’s attorneys argue governmental interest does not outweigh his right to express his religion.
A similar argument was raised in the case of Billy Ray Irick, who was executed on Aug. 9, 2018. In hearings The court allowed Li to perform the more limited version of examination but not a full autopsy.
Tennessee’s first execution since 2020
Smith’s death will mark the state’s first execution since 2020.
His execution date was initially set for June 2020, but was delayed twice because of the coronavirus pandemic. The April 21 date was scheduled in November.
As of Tuesday, Smith was one of 47 people on death row in the state. Tennessee has executed 139 people since 1916.
Smith is one of dozens of death row inmates who challenged Tennessee’s default execution method of lethal injection. State law allows inmates, sentenced to death for a crime that took place before 1999, to choose between electrocution and lethal injection.
Smith chose not to decide between the two methods, TDOC spokeswoman Dorinda Carter said. Without a decision, the default method is lethal injection.
Judith Robirds Smith and her teen sons were killed inside a home on Lutie Court in Nashville’s Woodbine neighborhood. Smith was shot in the neck and stabbed several times. Chad Burnett was shot in the left eye and then in the upper chest and left torso while his younger brother was stabbed in the neck and abdomen.
Oscar Smith, who was 40 at the time of the killings, allegedly threatened to kill his estranged wife on at least 12 occasions and threatened to kill the teens because he said she was better to them than she was to the twins they shared, coworkers said.
During the investigation, a bloody handprint — missing two fingers — was found on a bedsheet beside Robirds Smith’s body.
Smith, a machinist living in Robertson County who went by Frank, had recently filed for divorce and was missing two fingers. Before the triple murder, he was also engaged in a custody battle with Robirds Smith over their 3-year-old twin boys .Their mother had also filed multiple domestic violence charges against him in recent months — not only on her behalf, but also for her teen sons.
Natalie Neysa Alund is based in Nashville at The Tennessean and covers breaking news across the South for the USA TODAY Network. Reach her at nalund@tennessean.com and follow her on Twitter @nataliealund. Reach reporter Mariah Timms at mtimms@tennessean.com or 615-259-8344 and on Twitter @MariahTimms.
