Attorneys for Tennessee Death Row Inmate Seeking Execution Stay Say They've Lost 'Critical' Time Due to Pandemic

The attorney for a Tennessee death row inmate seeking a stay of execution has said her team has lost "critical time" working on his case due to the ongoing coronavirus pandemic.

Oscar Franklin Smith, 70, is due to be executed on June 4 for the 1989 slayings of his estranged wife Judy Lynn Smith and her two sons, Chad and Jason Burnett.

Last month, Smith's attorneys filed a motion seeking to delay Smith's execution by six months, saying the severe disruptions to daily life during the COVID-19 outbreak had hindered their ability to prepare a clemency case for Smith, who has always maintained his innocence.

In an update to that filing this week, obtained by Newsweek, one of his attorneys argued that Smith's execution needs to be put on hold as cases of COVID-19, the disease caused by the novel coronavirus, have "ballooned" in Tennessee. The state has more than 4,300 confirmed cases and 79 deaths, according to the latest figures from the Tennessee Department of Health.

Kelley Henry, supervisory assistant federal public defender in Nashville, said the state has taken measures to mitigate the spread of the virus—but abiding by the shelter-in-place order has resulted in "the loss of critical time needed to represent Mr. Smith during this critical period."

She argued the state should follow the example set by Texas, which has so far stayed three executions due to the pandemic.

Oscar Smith
Attorneys for Oscar Smith have asked the Tennessee Supreme Court to delay his execution due to the coronavirus pandemic. Tennessee Department of Corrections

She added that a delay would "benefit the prison" as an execution taking place during a pandemic "presents needless additional risk" to the staff and inmates at Riverbend Maximum Security Institution, where Smith is housed.

"A stay of Mr. Smith's execution will benefit the prison at this time," Henry wrote in the motion. Additionally, she said the "execution protocol does not address the carrying out of executions in the time of the COVID-19 pandemic. Prison staff will require additional training in providing safeguards to protect witnesses to the execution, the media, lawyers for the state and defense, and others who will attend the execution."

The filing also included an affidavit from Emily Olson-Gault, the director and chief counsel of the American Bar association Death Penalty Representation Project, who said capital defenders and pro bono attorneys across the U.S. are finding it increasingly difficult to do their jobs during the coronavirus crisis.

"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," she 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."

She added that time is a "scarce resource" in all capital cases, but when the available time is limited further, it "jeopardizes due process and fairness."

Attorneys for Smith are unable to meet with their client and cannot carry out interviews to obtain information for his clemency petition, according to the original motion. A typical clemency effort consumes hundreds of hours of staff time and requires extensive travel to meet with witnesses and in-person interviews, it added.

"It would be irresponsible and against the public's interest to conduct the necessary investigation during this pandemic," Henry wrote. "Mr. Smith's team cannot conduct the work necessary to fulfill their obligation to him without putting themselves and others at risk."

Newsweek has contacted Tennessee Governor Bill Lee's office for comment.

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