Trials & Litigation

Wrong assumption leads to $1,500 fine for prosecutor in case of death row inmate

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A federal judge has reprimanded an assistant attorney general in Alabama and ordered her personally to pay a $1,500 fine for making an incorrect statement in a case of a death row inmate.

Chief U.S. District Judge Emily Marks of the Middle District of Alabama reprimanded the prosecutor, Alabama Assistant Attorney General Lauren Simpson, and the state attorney general’s office, report and Bloomberg Law.

According to Mark’s Sept. 24 opinion and order, Simpson’s incorrect statement stemmed from an assumption that turned out to be wrong.

Simpson wrongly stated that a prison warden distributed a form about a different execution method, nitrogen hypoxia, on her own initiative.

Simpson’s statement countered an assertion by lawyers for death row inmate Willie B. Smith III that the prison system violated the Americans with Disabilities Act by failing to accommodate his intellectual disability, which prevented him from understanding the form and completing it by the deadline.

Simpson argued that there was no ADA violation because the prison warden’s distribution of the form on her own initiative meant that it wasn’t a “policy, protocol or program” for purposes of the Americans with Disabilities Act.

The warden said in a later deposition, however, that she was instructed to distribute the forms, and it must have been by her superiors. Simpson informed the court about the testimony that contradicted her earlier statement.

Simpson said she made the incorrect assumption that the warden was acting on her own because of three circumstances.

First, the Alabama Department of Corrections had not decided to distribute the form. Second, the department’s legal office was surprised that the form had been distributed. Third, the warden stated in an interrogatory response that she had directed distribution of the forms.

Simpson had made an incorrect assumption, without contacting the warden to verify its truth, Marks said.

“Counsel took known facts and built a narrative around them without making any effort to determine whether the ultimate story being told was accurate,” Marks wrote.

Marks said Simpson didn’t act maliciously, but her conduct was still “reckless” and “inexcusable.”

Marks nonetheless tossed Smith’s suit, which sought to bar the state of Alabama from executing him by any method other than nitrogen hypoxia before his ADA claim is decided. Marks ruled that Smith had no standing.

“Smith does not adequately allege, or prove, facts that show a sufficient likelihood that he will be concretely harmed by any ADA violation,” Marks wrote in a Sept. 24 opinion on jurisdiction.

The problem: Smith didn’t allege that he wanted to opt in to nitrogen hypoxia during a statutory window to act.

A spokesperson for Alabama Attorney General Steve Marshall told that Marks’ order would be appealed.

“Lauren Simpson is well known in the legal community for her talent, professionalism, work ethic and perhaps most importantly her integrity,” the spokesperson said. “We believe the court erred, and we will appeal this decision.”

The U.S. Supreme Court blocked Smith’s execution in February after lawyers for the inmate argued that he should be allowed to have a spiritual adviser in the death chamber. Alabama later reached an agreement with Smith to allow his spiritual adviser in the room, according to

The Alabama Supreme Court has set an Oct. 21 execution date. The case is Smith v. Dunn.

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