What happened when I tried to get Kenneth Smith's autopsy report

Alabama denied request on nation's first execution by nitrogen hypoxia. The reason why is laughable.

As Alabama prepares to execute Jamie Mills tonight, don’t expect the state to disclose all the facts that citizens are entitled to know about what happens in the death chamber.

A week after Alabama executed Kenneth Eugene Smith in an agonizing, 19-minutes-long nitrogen hypoxia “procedure,” I filed an open records request for his autopsy report.

This wasn’t to satisfy my own macabre curiosity. Autopsies performed by the Alabama Department of Forensic Sciences (ADFS) are “expressly public by statute,” and the autopsy report for Kenneth Eugene Smith is certainly in the public interest.

Citizens deserve to know the forensic outcome of a novel execution method, especially because state leaders had assured the courts Smith would not experience pain and would be dead in minutes. We know that didn’t happen.

Five media witnesses each described a horrific and protracted event, during which Smith convulsed and writhed on the gurney, heaving with deep, gasping breaths as he suffocated to death. Attorney General Steve Marshall declared the execution as “textbook,” and a “historic achievement.”

When I submitted my request for Smith’s autopsy report a week after his death, I had already obtained dozens of autopsies from ADFS in the last several years while tracking fatal overdoses, suicides and deadly assaults inside the Alabama Department of Corrections (ADOC), so I was familiar with the procedure.

I received a quick response via email from ADFS letting me know the report wasn’t yet available because the agency hadn’t completed it. This is typical. Depending on the cause and manner of death, autopsy reports can sometimes take several months.

When I’ve gotten responses from ADFS like this in the past, the agency has later emailed me a $20 invoice once the report is available. As soon as I submit the payment online, the autopsy report arrives in my email inbox.

That’s what I expected in Kenneth Smith’s death, so I marked February 8 on my calendar as the date I submitted my request before the report was ready, and figured I’d have to wait a month or two.

Fast forward to last week, almost four months after Alabama killed Kenneth Smith. I receive another letter from ADFS, but it’s not an invoice. It’s a letter informing me that my request is being returned, which is to say it’s being denied. And the reason cited makes zero sense.

According to ADFS, Kennth Smith’s autopsy report isn’t publicly available because Escambia County District Attorney Stephen Billy notified them that the case “remains under criminal investigation.”

But we already know ADOC officials carried out the execution and Alabama’s top prosecutor lauded it as an achievement.

Is Kenneth Smith’s execution being investigated as a possible criminal act? If so, who exactly is being investigated?

I was hoping to get more information about this alleged criminal investigation, but Mr. Billy and ADOC did not respond to my questions.

The case law ADFS cites in its denial letter, Stone v. Consolidated Publishing Company is from a 1981 case that outlined exemptions to Alabama’s open records law, including pending criminal investigations. It’s an often-cited reason for law enforcement agencies to deny access to public records and conveniently, impossible for an ordinary citizen to verify. We’re expected to just take their word for it.

But when governments use new and grotesque methods to kill citizens, the stakes are simply too high. Even Supreme Court Justice Sonya Sotomayor correctly pointed out that Alabama was using Kenneth Smith as a “guinea pig, to test a method of execution never attempted before.”

Of course they don’t want to release the full report on what that did to Kenneth’s body. But we need to know exactly what happened in Alabama’s death chamber on January 24, 2024.

I don’t want to just take them at their word. They’ve proven time and again, we shouldn’t believe them.