IN THE SUPREME COURT OF ALABAMA

EX PARTE: WILLIE B. SMITH III )

)
WILLIE B. SMITH III, )
)
Petitioner, )
)
v. ) No. 1011228
)
STATE OF ALABAMA, )
)
Respondent. )

STATE OF ALABAMA’S OBJECTION TO SMITH’S MOTION TO

RESET EXECUTION DATE

Willie B. Smith (“Smith”) asks this Court to issue a stay 1 of

execution in his case, which would delay his February 11, 2021, execution

date, due to certain challenges presented by the COVID-19 pandemic.

Specifically, Smith asserts that this Court should issue a stay of

execution because 1) it would prevent the spread of COVID-19,

1. Smith repeatedly states that he is asking for a “rescheduling” of his

execution, not a stay. But as the Eleventh Circuit noted in Lecroy v.
United States, 975 F.3d 1192, 1196 (11th Cir. 2020), “[Smith] has failed
to explain how his pleading can sensibly be understood as anything
other than a request to stay his execution. As the Supreme Court has
explained, a stay operates by halting or postponing some portion of the
proceeding, or . . . temporarily divesting an order of enforceability. . . .
That is precisely the relief that [Smith] seeks. A stay by any other
means is still a stay.” (internal quotations and citations omitted.)
2) Alabama’s execution protocol is not safely designed to carry out an

execution during a pandemic, and 3) the pandemic is interfering with his

ability to prepare his case for clemency. For the following reasons,

Smith’s motion is due to be denied.

I. The Alabama Department of Corrections plans to

implement certain COVID-19 precautions to curb the spread
of COVID-19 during executions.

In paragraphs 6–22 of the motion at bar, Smith asserts that a stay

in his execution will prevent the spread of COVID-19 among the

witnesses and state officials. In paragraphs 23–31, Smith asserts that

Alabama’s execution protocol is not designed to safely carry out

executions during a pandemic. Before addressing

specific arguments contained within these paragraphs, the State initially

notes that the challenges presented by the COVID-19 pandemic cited by

Smith largely center around the Alabama Department of Correction’s

(“ADOC”) ability to limit COVID-19 exposure to family members,

witnesses, staff, media, and others who are expected to be involved in

Smith’s execution. None of these concerns touch Smith’s constitutional

rights. Thus, Smith lacks standing to make such claims.

2
 While protecting the health of witnesses and officials is an

important matter, Smith does not have a legally enforceable right to do

so. Ultimately, deciding who may be present at an execution is an

executive decision made by the agency responsible for carrying out

executions: the ADOC. Alabama law provides Smith only limited input

into how that decision is made. Pursuant to section 15-18-83 of the Code

of Alabama, the statute that provides for who “may” be present at an

execution, Smith may “request” that up to six “relatives or friends” be

present as witnesses. However, Smith’s ability to request that witnesses

attend is not a right to compel attendance. As this Court has explained

in other contexts, “the use of the word ‘may’ indicates a discretionary or

permissive act, rather than a mandatory act.” 2 The fact that an inmate

may request that persons be allowed to witness an execution does not

create any enforceable requirement that those persons be allowed to

attend regardless of other considerations.

Indeed, witnesses to any execution may decline to attend for any

number of reasons, but a witness’s inability to attend or personal decision

2. Swindle v. Remington, 291 So. 3d 439, 451 (Ala. 2019), reh'g

denied (May 24, 2019).

3
not to attend does not create a bar to the execution itself. For instance, if

a witness were unable to attend due to hospitalization, a work conflict,

or any number of other complications, Smith would not be entitled to a

stay of execution in order to allow that particular witness to attend.

Similarly, as the courts have recognized in other contexts, ADOC

has “compelling interests in [maintaining] security [and] safety” in its

institutions.3 Accordingly, ADOC has discretion to carry out section 15-

18-83 in a manner that is consistent with the security of its facilities, the

safety of the witnesses, and the orderliness and dignity of the proceeding.

Indeed, “the core power of the executive branch is to carry out

those legislative policies with a certain degree of executive discretion.” 4

As Smith acknowledges, ADOC routinely conducts security screening of

witnesses to prevent the introduction of prohibited items or security risks

into the prison. A witness who either refused to be cleared through

security or was unable to be cleared would not be allowed to attend an

execution. Similarly, ADOC may take steps to remove witnesses who

attempt to disturb the proceedings. For instance, during the execution of

3. Knight v. Thompson, 797 F.3d 934, 941 (11th Cir. 2015).

4. Opinion of the Justices, 892 So. 2d 332, 335 (Ala. 2004).

4
Holly Wood in 2010, two of Wood’s requested witnesses, his sisters, were

removed from the witness room after they began screaming, moving

chairs, and otherwise disturbing the proceedings.5 Nor can it be seriously

argued that section 15-18-83 would bar ADOC from exercising its

discretion by preventing a witness from attending if that witness had

expressed an intention to disturb the proceedings.

ADOC also has discretion to ensure that an execution is carried out

in a way that is consistent with current health concerns. ADOC’s current

COVID-19 precautions are analogous to its previous security

precautions. Just as with its security measures, while ADOC’s exercise

of its discretion to ensure that the execution is carried out in a manner

consistent with the safety of all participants may result in the exclusion

of a witness or witnesses requested by Smith, the fact remains that Smith

has no enforceable right to mandate the presence of any particular

witness. Rather, he has the right to request that designated persons

“may” be allowed to attend, subject to ADOC’s compelling interest in

5. Associated Press, Inmate Who Shot Former Girlfriend Executed,

ANNISTON STAR (Sept. 10, 2010, 12:01 AM),
https://www.andalusiastarnews.com/2010/09/10/inmate-who-shot-
former-girlfriend-executed.

5
maintaining the safety, security, and dignity of the proceeding. ADOC’s

reasonable health precautions, including temperature screening, rapid

testing, and capacity limitations, are squarely within its discretion to

ensure that the witnesses an inmate designates pursuant to section 15-

18-83 may be safely admitted to the witness rooms. Because section 15-

18-83 is written in permissive rather than mandatory terms, the

exclusion of a witness, whether through a positive test, high temperature,

or refusal to comply with social distancing requirements, would not

violate any legally enforceable right of the inmate.

Thus, rather than protect his own rights, the real object of Smith’s

motion is to delay the execution under the guise of protecting

his witnesses’ rights. But Smith only has standing to ask this Court to

intervene to protect his own rights, not the rights of others. As this Court

has observed, “[s]tanding . . . turns on “whether the party has been

injured in fact and whether the injury is to a legally protected right.”6 In

the present case, holding the execution as scheduled will not injure any

legally protected right of Smith himself. Consequently, to the extent that

6. State v. Prop. at 2018 Rainbow Drive known as Oasis, 740 So. 2d 1025,
1027 (Ala. 1999) (citations omitted) (emphasis in original).

6
Smith contends that holding the execution during the COVID-19

pandemic will either present risk of infection to others or prevent the

attendance of any particular person, he lacks standing to pursue any

remedy.

But even assuming Smith has standing to make such claims, these

claims are still due to be denied for the following reasons:

The State acknowledges that COVID-19 rates have been on the rise

in Alabama over the last few months. This fact cannot be denied.

However, Alabama is no longer operating under a stay-at-home order.

The State is open, and its agencies are expected to function. One of the

State’s functions is to ensure that justice is carried out in a timely fashion

by performing executions of those inmates on death row who have

exhausted their appeals. Recognizing that executions are one of its

essential functions, while also being cognizant of the challenges

presented by the COVID-19 pandemic, the ADOC plans to implement

certain COVID-19 precautions at William C. Holman Correctional

Facility (“Holman”) and Fountain Correctional Facility (“Fountain”)7

that will help curb the spread of COVID-19 during executions. These

7. Also referred to as “the Training Facility.”

7
precautions include:

Condemned Housing:

On the week of execution, the temperature of the Condemned will

be checked before he leaves the holding cell. If the Condemned has
a temperature of 100 degrees or higher, he will remain in the
holding cell until he receives medical care and it is determined that
he is not positive for COVID-19. If the temperature of the
Condemned is less than 100, he will be allowed to participate in
yard visitation.8

The Condemned will be required to wear a properly adjusted face

mask that covers the mouth and nose, as well as a face shield, from
the time he leaves the holding cell until the time he returns to the
holding cell.9

Upon leaving and returning to the holding cell, the condemned will
be required to wash his hands.10

The HVAC system’s filter for the Condemned’s holding cell will be
changed the day before the execution.11

Admission of Visitors to Holman Monday–Wednesday of Execution

Week:

Upon entering the facility each day during execution week:

o Visitors will be given a face mask and face shield. Both must
be worn at all times while visiting the facility. The face mask
must be properly adjusted to cover both the nose and mouth.
Neck gaiters, bandanas, kerchiefs, and the like will not be

8. Affidavit of Cheryl Price (Ex. A) at 3.

9. Id.
10. Id.
11. Id. at 6.

8
 allowed.12

o Visitors will be required to undergo daily “temperature

checks” upon entering the facility.13

If the visitor has a temperature of 100 degrees or higher,

that visitor will be denied access to the facility and
asked to leave the premises.14

If a visitor refuses a temperature check, that visitor will

be denied access to the facility and asked to leave the
premises.15

Upon the visitor’s first entrance into the facility, the visitor will
receive a COVID-19 rapid test.16

o If the visitor receives a positive test result, that visitor will be

denied access to the facility.17

o If the visitor receives a negative test result, the visitor will not
have to be re-tested for 72 hours if returning to the facility
during that 72-hour time period. A log of visitors will be
maintained during execution week noting negative test
results.18

o If a visitor refuses the COVID-19 rapid test, that visitor will

be denied access to the facility and asked to leave the
premises.19

12. Id. at 3.
13. Id.
14. Id.
15. Id.
16. Id.
17. Id.
18. Id. at 4.
19. Id. at 3.

9
Visitation Areas at Holman:

Before and after each visitation of the Condemned, the visitation

yard will be disinfected and sanitized.20

Hand sanitizer will be readily available in the visitation yard. 21

The number of visitors in the visitation area will be limited to

fifteen.22

Visitors will be socially distanced at six feet. 23

Both the face mask and face shield earlier provided to the visitors
must be worn at all times while in the visitation yard. The face
mask must be properly adjusted to cover both the nose and mouth.24

Day of Execution:

Media Center and Fountain

o The facility will be disinfected and sanitized before visitors

are allowed to enter the building.25

o Upon entering the facility:

Visitors will be given a face mask and face shield. Both

must be worn at all times while in the facility. The face
mask must be properly adjusted to cover both the nose
and mouth. Neck gaiters, bandanas, kerchiefs, and the
like will not be allowed.26

20. Id. at 4.
21. Id.
22. Id.
23. Id. at 4.
24. Id. at 3.
25. Id. at 4–5.
26. Id.

10
 Visitors will be required to undergo a “temperature
check” upon entering the facility.27

- If the visitor has a temperature of 100 degrees or

higher, that visitor will be denied access to
Holman and will be asked to leave.28

- If a visitor refuses a temperature check, that

visitor will be denied access to the facility and
asked to leave the premises.29

Visitors will receive a COVID-19 rapid test.30

- If the visitor receives a positive test result, that

visitor will be denied access to Holman and asked
to leave.31

- If a visitor refuses the COVID-19 rapid test, that

visitor will be denied access to the facility and
asked to leave the premises.32

o While in the facility:

Hand sanitizer will be made available.33

The visitors will remain socially distanced at six feet. 34

27. Id.
28. Id. at 5
29. Id.
30. Id. at 4–5.
31. Id. at 5.
32. Id.
33. Id. at 4–5.
34. Id.

11
 Van Transportation to Holman

o All vans used to transport visitors and witnesses to the

execution will be sanitized before and after each transport.35

o Passengers in each van are limited to two in an effort to

maintain proper social distancing.36

o Both the face mask and face shield earlier provided to the
visitors must be worn at all times while in the van. The face
mask must be properly adjusted to cover both the nose and
mouth.37

Witness Rooms at Holman

o Each witness room will be disinfected and sanitized before the

witnesses occupy the room.38

o Commissioner’s Witness Room: in addition to the

Commissioner, one other witness will be allowed in the
Commissioner’s witness room in accordance with proper
social distancing at six feet.39

o Condemned’s Witness Room: three persons will be allowed in

the Condemned’s witness room in an effort to maintain proper
social distancing at six feet. These individuals are limited to
a witness for the Condemned, a representative of the
Associated Press, and a Correctional Officer. 40

o Victim’s Witness Room – three persons will be allowed in the

Victim’s witness room in an effort to maintain proper social

35. Id. at 6
36. Id.
37. Id.
38. Id.
39. Id.
40. Id.

12
 distancing at six feet. These individuals are limited to two
witnesses for the victim and one Correctional Officer.41

o Both the face mask and face shield earlier provided to the
visitors must be worn at all times while in the witness rooms.
The face mask must be properly adjusted to cover both the
nose and mouth.42

Witness Rooms, Control Room, and Chamber

o The HVAC system’s filter for the Witness Rooms, Control

Room, and Chamber will be changed the day before the
execution.43

o The HVAC system will be activated the morning of the

execution, so that its fan runs continuously throughout the
day and night of the execution.44

While no precaution guarantees that one will not contract COVID-

19 as a result of Smith’s execution, the simple truth is that, while we are

living through a pandemic, the State of Alabama must find a way to

operate. As Smith aptly noted, there is no date certain for when every

person in Alabama and persons traveling to Alabama will receive a

COVID-19 vaccine.45 Until then, Alabamians and Alabama state agencies

must find a way to best function in accordance with Governor Kay Ivey’s

41. Id.
42. Id.
43. Id.
44. Id.
45. Motion to Reset Execution Date at 6–7.

13
current Safer-at-Home order and with the CDC guidelines. 46 The ADOC

has done this with its COVID-19 precautions. 47

Moreover, although Smith is correct that several states and the

federal government have granted stays due to COVID-19 concerns, Smith

fails to explain the context and ultimate result of these stays. Indeed,

Smith cites several executions out of Texas and Tennessee, and a sole

federal execution, that were stayed because of the COVID-19 pandemic.48

All of the Texas executions cited in paragraph 6 of Smith’s motion were

originally scheduled for March and April 202049—the first two months of

46. KAY IVEY, PROCLAMATION BY THE GOVERNOR (Jan. 21, 2021),

https://governor.alabama.gov/assets/2021/01/2021-01-21-22nd-
Supplemental-COVID-19-SOE.pdf; Protect Yourself, CDC (Jan. 27,
2021), https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-
sick/prevention.html.
47. The State notes that the standard under Governor Kay Ivey’s current
Safer-at-Home order is “reasonably practical.” In other words,
Alabama agencies must try to follow these guidelines to the extent
that it is reasonably practical to do so. See supra note 46. ADOC’s
COVID-19 precautions comply with these guidelines to the extent
that it is reasonably practical to do so.
48. Motion to Reset Execution Date at 8–9 n.26.
49. See In re Hummel, No. WR-81,578-02, 2020 WL 1268970, at *1 (Tex.
Crim. App. Mar. 16, 2020); In re Beatty, No. WR-59,939-04, 2020 WL
1329145, at *1 (Tex. Crim. App. Mar. 19, 2020); In re Hernandez,
No. WR-81,577-02, 2020 WL 1645052, at *1 (Tex. Crim. App. Apr. 1,
2020); Texas v. Carlos Trevino, No. 1997-CR-1717D (Bexar Co. Dist.
Ct. Apr. 15, 2020) https://files.deathpenaltyinfo.org/documents/

14
the national shutdown. Presumably, during this period, Texas had not

yet implemented any COVID-19 precautions for its executions. At least,

Smith has not cited to any such precautions. However, again, the ADOC

will be implementing COVID-19 precautions at Holman for Alabama’s

executions.50

Moreover, of the six Texas death-row inmates cited to by Smith,

only five received sixty-day stays of their execution date due to COVID-

19 specifically.51 These stays have since been lifted.52 As for Tracy Beatty,

Fabian Hernandez, and Carlos Trevino, Texas has yet to move forward

Trevino-Carlos-TX-Bexar-Cty-Order-Rescheduling-Execution-2020-
04-15.pdf.
Smith also cites In re Busby, No. WR-70,747-03, 2020 WL
2029306, at *1 (Tex. Crim. App. Apr. 27, 2020) as another example of
a Texas state execution delayed because of COVID-19. However, the
order in that case granting a sixty-day stay mentions nothing about
COVID-19. Smith likewise cites an article as confirmation that Billy
Joe Wardlow, a Texas death-row inmate, received a stay in his
execution due to COVID-19. Fourth Texas Execution Delayed in Midst
of Virus Outbreak, AP (April 6, 2020)
https://apnews.com/article/e2021b26e914e2edc8df25b609dc77c7.
Wardlow has since been executed. Jolie McCullogh, Texas Executes
Billy Wardlow, Who Was 18 When He Killed a Man, Experts Argued
That’s Too Young for a Death Sentence, TEX. TRIBUNE (July 8, 2020)
https://www.texastribune.org/2020/07/08/texas-execution-billy-
wardlow/.
50. See Ex. A at 3–6.
51. See supra note 49.
52. Id.

15
with these cases, but nothing prevents Texas from doing so. John

Hummel’s execution is currently scheduled for June 6, 2021. 53 The

execution of Edward Busby, the Texas death-row inmate who received a

sixty-day stay in his execution for unspecified reasons, is scheduled for

February 10, 2021.54 Billy Wardlow was executed after the sixty-day stay

was lifted in July 2020.55 Smith notably makes no claim that Wardlow’s

execution, specifically, resulted in an increase in COVID-19 cases.

As for the four Tennessee death-row inmates cited, Smith fails to

explain whether Tennessee has been able to implement any COVID-19

precautions for the state’s executions. If not, then a stay in those cases

may have been appropriate. However, again, the ADOC will be

implementing COVID-19 precautions at Holman that seek to comply

with the CDC guidelines and Governor Ivey’s current Safer-at-Home

order, and therefore, a stay is not necessary or appropriate in Smith’s

case. Finally, as for the federal death-row inmate who received a stay of

execution for her December 2020 execution date, she has since been

53. Upcoming Executions, DEATH PENALTY INFO. CTR. (Jan. 25, 2021),
http://www.deathpenaltyinfo.org/executions/upcoming-executions.
54. Id.
55. Id.

16
executed.56

Further, despite Smith’s claims otherwise, failure to grant a stay in

his case will not necessarily result in an increase in COVID-19 cases. In

paragraphs 8 and 9 of his motion, Smith claims that there has been an

increase in positive COVID-19 cases among the inmates and staff at

Federal Correctional Complex, Terre Haute (“Terre Haute”), as well as

among attorneys to, and advisors of, death row prisoners at Terre Haute.

According to Smith, this increase is “directly linked” to the thirteen

federal executions performed at Terre Haute over the last year. The

insinuation is that, similarly, there will be an increase of COVID-19 cases

among Holman staff and inmates, as well as among Smith’s attorneys

and advisors, if his execution is carried out in February.

Regarding the increase in COVID-19 cases among inmates and staff

at Terre Haute, Smith cites to no report, article, or document confirming

that the increase was caused by the thirteen executions performed at

Terre Haute over the past year. Put simply, correlation does not equal

causation.

Smith does, however, cite to several articles that link the

56. Id.

17
preparation and attendance of federal executions to the positive COVID-

19 cases among attorneys and advisors of Terre Haute death-row

inmates. One of these articles57 highlights the fact that two attorneys for

a federal inmate contracted COVID-19 while preparing for their client’s

clemency petition, while in the other article58 spiritual advisor to a

federal inmate claims that he contracted COVID-19 after attending a

federal execution. However, in neither article cited is there any evidence

of contact tracing or any other scientific data that would directly link

these positive cases to the preparation and attendance of the federal

execution.

Smith goes on to insinuate that his execution presents special

COVID-19 concerns because Holman already has active COVID-19 cases,

and because his execution will bring together individuals from Alabama,

Florida, New York, and Las Vegas.

57. Mariah Timms, Execution of Only Woman on Federal Death Row

Delayed After Her Tennessee-based Attorneys Contract COVID-19,
TENNESSEAN (Nov. 19, 2020), https://www.tennessean.com/story/
news/crime/2020/11/19/tennessee-lisa-montgomery-execution-
delayed-after-lawyers-contract-covid-19/6342960002/.
58. Federal Execution Team Members Test Positive for COVID-19 After
Orlando Hall Execution, DEATH PENALTY INFO. CTR. (Dec. 10, 2020),
https://deathpenaltyinfo.org/news/federal-execution-team-members-
test-positive-for-covid-19-after-orlando-hall-execution.

18
 The State acknowledges that ADOC reports that there are twelve

active COVID-19 cases at Fountain and three active cases at Holman.

However, again, executions are one of the ADOC’s essential functions,

and under the current order from Governor Ivey, Alabama must continue

to function. Therefore, in conjunction with Governor Ivey’s current Safer-

at-Home order and with the CDC guidelines, the ADOC will be

implementing COVID-19 precautions at Holman and Fountain for

executions.59

And while Smith’s execution will bring together individuals from

different states, all of whom come with different medical backgrounds,

the State notes that coming to Smith’s execution is a voluntary action.

Section 15-18-83 entitles Smith to “request” that up to six “relatives or

friends” be present to witness the execution. But again, Smith’s statutory

right to request that witnesses attend is not a right to compel attendance.

Thus, those who choose to travel to Alabama to witness Smith’s execution

do so at their own risk. This is just a simple fact of the reality we are all

living in with COVID-19.

59. See Ex. A at 3–6.

19
II. Smith’s claim that this Court should stay his execution
because the COVID-19 pandemic has prevented him from
preparing an adequate clemency petition is without merit.

Smith alternatively contends that this Court should stay his

execution because the COVID-19 pandemic has impaired his ability to

prepare an adequate clemency petition. His claim is without merit.

Smith first argues that the pandemic has prevented him from

developing evidence regarding his alleged “brain damage and resulting

neurological impairments” and Post-Traumatic Stress Disorder

(“PTSD”).60 To support this allegation, Smith relies on the Declaration of

Dr. Kristen Triebel.61 Because many of the statements in Dr. Triebel’s

declaration are refuted by the record or are unsupported by any evidence,

his argument is meritless.

Dr. Triebel avers that she and Dr. Daniel Marson were retained by

Smith’s Rule 32 counsel “to assess intellectual disability—not other

neuropsychological or psychological impairments pertinent in this

case.”62 She further avers that their evaluation of Smith was limited to

60. Motion to Reset Execution Date at 26.

61. Motion to Reset Execution Date, Ex. 8.
62. Id. ¶ 3.

20
his “intellectual ability.”63 That is not so.

Dr. Daniel Marson, a clinical neuropsychologist who is employed in

the Department of Neurology at the University of Alabama at

Birmingham, testified at Smith’s Rule 32 hearing that he was retained

by Smith’s postconviction counsel to conduct a neuropsychological

evaluation of Smith for the purpose of determining whether he suffers

from any cognitive deficits or personality issues, and if so, whether they

relate to any “possible neurologic injuries that he may have sustained.” 64

As Dr. Marson further testified on cross-examination, “I wasn’t really

charged with doing intellectual functioning testing. I was charged with

doing a neuropsychological evaluation, which as I explained is somewhat

different.”65

Dr. Marson was qualified as an expert in the field of

neuropsychology and brain-behavior relationships, and he explained that

neuropsychologists administer “very specific tests of discrete cognitive

abilities” and are “trained to understand what different kinds of cognitive

63. Id. ¶ 4.
64. R32 R. 117, 120, Smith v. State, CR-08-1583 (Ala. Crim. App. 2012).
65. Id. at 157–58.

21
deficits may represent in terms of different neurologic diseases.” 66 As part

of his evaluation of Smith, Dr. Marson and his then-neuropsychology

fellow, Dr. Triebel, visited Smith at Holman in 2007 and administered a

battery of neuropsychological tests to him.67 They administered “tests of

attention, tests of expressive language, tests of memory, visuospacial

abilities, fine motor function, executive function, and mood and

personality.”68

Dr. Marson testified that Smith has a “key deficit” in the area of

cognitive memory, which causes him to have “trouble learning new

material both in the verbal sphere and in the visual sphere,” but he

conceded that once Smith learns or “remembers something, he

remembers it well.”69 He testified that Smith’s executive functioning is

“mildly impaired,” which indicates that he has some degree of difficulty

in “planning, sequencing, self-monitoring, mental flexibility,” and other

goal-oriented behaviors.70

With regard to the tests that assess mood and personality,

66. Id. at 119, 121–22.

67. Id. at 120, 148–49.
68. Id. at 124.
69. Id. at 135–36, 153.
70. Id. at 139–41.

22
Dr. Marson stated that Smith “performed in the severely impaired

range.”71 He explained that Smith’s performance on those tests reveals

that he is “an individual who has a number of psychological problems

that date back to his childhood, to relationships in particular with his

father,” and that he suffers from depression.72 But Dr. Marson

nevertheless agreed on cross-examination that Smith’s scores ranged

from average to high average on many of the other tests that were

administered to him.73

Thus, Dr. Marson conducted a comprehensive neuropsychological

evaluation of Smith and testified as to his cognitive strengths and

weaknesses. Dr. Triebel’s assertions in her declaration that he limited

his evaluation to assessing whether Smith suffers from an “intellectual

disability” simply are inexplicable in light of the record. 74 And it is all the

stranger that Smith chose to present this Court with an affidavit from

Dr. Triebel, Dr. Marson’s “trainee” at the time of his evaluation.75 Indeed,

Dr. Marson currently serves as the Director Emeritus of the Alzheimer’s

71. Id. at 143.

72. Id. at 143–44.
73. Id. at 150–55.
74. Motion to Reset Execution Date, Ex. 8 ¶¶ 3–4.
75. Id. ¶ 2.

23
Disease Center at the University of Alabama in Birmingham and

presumably could have provided this Court with a much more accurate

affidavit.76

Moreover, Smith does not set forth any of the “new information”

that suggests that he might have “brain damage,” “neuropsychological

issues,” and PTSD or identify the additional tests that he believes need

to be conducted.77 Likewise, Dr. Triebel does not set forth any of the new

“data” and “information” that “suggest[s]” that Smith might have “brain

damage” and “symptoms of” PTSD, nor does she identify any additional

tests that should be administered to Smith.78

Smith entirely fails to show that he suffers from any cognitive,

neurological, or neuropsychological problems that have not already been

presented to and addressed by the state and federal courts, much less

that the pandemic has prevented him from developing evidence of such

that could be raised in his clemency petition. For that reason, this Court

should not stay his execution.

76. See Daniel C. Marson, UAB SCHOOL OF MED.,

apps.medicine.uab.edu/facultyDirectory/FacultyData.asp?FID=6440
(last visited Jan. 29, 2021).
77. Motion to Reset Execution Date at 26–27.
78. Motion to Reset Execution Date, Ex. 8 ¶¶ 4–5.

24
 Smith next contends that the pandemic has impaired his ability to

collect “materials” from his “family, friends, coworkers, and other third

parties with information” that will be relevant to his clemency

proceeding.79 This argument for staying Smith’s execution is wholly

unpersuasive.

To begin, Smith inexplicably fails to identify any of the persons

from whom these materials and information could be obtained or identify

the materials and information that those unidentified persons possess,

much less explain why any of it would be beneficial to his efforts to obtain

clemency. He further fails to explain why his counsel have been unable

to speak with those individuals over the telephone, arrange in-person

meetings with them, during which all parties could wear masks and

maintain appropriate social-distancing procedures, or have meetings

with them via Zoom or other technology.

In fact, Smith does not allege that his counsel have made any good-

faith effort to engage with and obtain information from those persons. He

instead insists, without any supporting evidence, that “it would be

irresponsible and against the public’s interest to conduct the necessary

79. Id. at 27–29.

25
in-person investigation during the pandemic.”80 Surely Smith’s bare

assertion that his counsel cannot gather evidence relevant to his

clemency proceeding until the pandemic is over is not sufficient to

warrant a stay of his execution.

Smith next contends that his counsel cannot engage in “clemency

efforts” without the ability to meet with him frequently in person, and he

adds that such meetings are all the more important because of his

“neurological deficits.”81 Smith relies on the declaration of Sara Romano,

a social worker, to support his assertion that he has “neurological

deficits.”82 Because she is neither a psychologist nor a psychiatrist, Ms.

Romano is not qualified to diagnose mental disorders or neurological or

developmental problems in Alabama, and this Court accordingly should

disregard her purported diagnosis.83 This Court also should reject

Smith’s strange and baseless assertion that his counsel cannot

“accomplish[]” any “clemency efforts” without meeting with him in-

80. Id. at 28.

81. Id. at 29.
82. Id. at 29 n.96; Motion to Reset Execution Date, Ex. 4 ¶ 2.
83. Brooks v. State, CR-16-1219, 2020 WL 3889028, at *17 (Ala. Crim.
App. July 10, 2020) (recognizing that a social worker “cannot legally
diagnose anyone in Alabama with a mental-health disorder”).

26
person and deny his request for a stay.

Smith next contends that his counsel cannot “monitor [his] mental

health” to ensure that he remains competent to be executed without in-

person visits before his execution.84 But of course, his counsel can speak

with him regularly by telephone and will have access to him during the

week of his execution.85 As such, this baseless assertion, which has

nothing to do with his claim that the pandemic has interfered with his

ability to prepare his clemency petition, should be soundly rejected.

Finally, Smith contends that he is entitled to a stay because his

counsel cannot adequately prepare his clemency petition during the week

of his execution.86 But his counsel could have started working on his

petition on July 2, 2020, the day on which the United States Supreme

Court denied certiorari on habeas review.87 Or they could have begun

work on his petition on October 27, 2020, the day on which the State

moved this Court to set his execution date. Regardless, Smith’s counsel

have had months to prepare his petition, and he has failed to show why

84. Motion to Reset Execution Date at 30.

85. Id.
86. Id.
87. Smith v. Dunn, 141 S. Ct. 188 (2020) (mem.).

27
the pandemic prevented them from doing so.

Smith entirely has failed to establish that the pandemic has

prevented him and his counsel from investigating and obtaining evidence

relevant to his clemency proceeding or from preparing an adequate

clemency petition. This Court should, therefore, deny Smith’s motion to

stay his execution.

For the foregoing reasons, Smith is not entitled to a stay of

execution and his motion is due to be denied.

28
 Conclusion

The State of Alabama respectfully requests that this Honorable

Court deny Smith’s motion to reset his execution.

Respectfully submitted,

Steve Marshall
Attorney General

s/ Morgan B. Shelton
Morgan B. Shelton
Assistant Attorney General

Henry M. Johnson
Richard D. Anderson
Assistant Attorneys General

29
 CERTIFICATE OF COMPLIANCE

Contemporaneously with this motion, Respondent has filed a

motion for permission to exceed the 2000-word limit for motions. On

January 27, 2021, this Court granted Petitioner permission to exceed the

word limit by 5000 words. Respondent respectfully requests the same.

The undersigned certifies that this motion complies with the font

requirements set forth in ALA. R. APP. P. 32(a)(7). This motion was

prepared in 14-point Century Schoolbook font.

30
 CERTIFICATE OF SERVICE

I hereby certify that on January 29, 2021, I electronically filed the

foregoing and served a copy of the foregoing on the attorneys for Smith

by electronic mail, addressed as follows:

Spencer J. Hahn, Esq.

Spencer_Hahn@fd.org

John Anthony Palombi, Esq.

John_Palombi@fd.org

Leslie S. Smith, Esq.

Leslie_Smith@fd.org

s/ Morgan B. Shelton
Morgan B. Shelton
Assistant Attorney General
Counsel of Record *

State of Alabama
Office of the Attorney General
501 Washington Avenue
Montgomery, Alabama 36130-0152
(334) 242-7300
Morgan.Shelton@AlabamaAG.gov

31
EXHIBIT
A