Feb. 10 (UPI) -- A federal appeals court on Wednesday issued a preliminary injunction halting the lethal injection of an Alabama man unless the state allows him to have his spiritual adviser with him in the execution chamber.
Willie Smith III, 52, is set to die by lethal injection Thursday at the William C. Holman Correctional Facility in Atmore, Ala. He was sentenced to death in 1992 for the abduction, robbery and murder of Sharma Johnson, 22, in 1991.
The 11th U.S. Circuit Court of Appeals overturned a ruling earlier this month by U.S. District Judge Austin Huffaker Jr., who declined a stay saying Smith was unlikely to succeed on his argument that Alabama's policy prohibiting a spiritual adviser in the execution chamber violated his religious freedom.
"With the [Alabama Department of Corrections] policy currently in place, Pastor [Robert Paul] Wiley cannot be physically present with Smith during his execution," the appeals court wrote in its decision.
"This required change in the way Smith carries out his religious practices, directly resulting from the ADOC's policy, is enough for Smith to demonstrate the exercise of his religion is substantially burdened."
In a separate case, Smith's attorneys have also asked Huffaker to halt the execution on the grounds that their client is being forced to choose a single person to be in the witness room when he dies under Alabama's new COVID-19 protocols.
Smith's lawyers filed an amended complaint in the U.S. District Court in the Middle District of Alabama on Tuesday saying the execution should be halted because the state changed witness procedures less than two weeks before the execution date.
Under existing protocols, Alabama allowed death row inmates to have up to six individuals in the witness room. On Jan. 29, though, the Alabama Department of Corrections said it would allow Smith to have one witness, including a spiritual adviser.
"Under this new policy, Mr. Smith would have had to choose between his attorney, his spiritual adviser, and all his friends and family, including his wife, to be present when he dies," Smith's complaint reads.
The complaint said Spencer Hahn, one of Smith's attorneys, asked Alabama Assistant Attorney General Henry Johnson whether the size of the viewing room would be large enough to allow witnesses while maintaining social distancing during the pandemic. Johnson replied that "we expect that the execution protocol will be followed."
The amended complaint from Smith's team came after Huffaker declined an emergency stay of execution earlier Tuesday. The defense team sought the delay on the grounds that the state's COVID-19 protocol would prevent corrections officials from conducting a consciousness check to ensure he's properly sedated before proceeding with the execution.
Huffaker dismissed the request, saying the state's COVID-19 policy allows the executioner to remove their PPE to perform a consciousness check.
If Smith is put to death Thursday, his will be the first state execution in 218 days, the second-longest interval between state executions in nearly 40 years, according to the Death Penalty Information Center. He would be the fourth person executed this year after three federal executions under the Trump administration in January.