NASHVILLE, Tenn. (WTVF) — In a filing in federal court Monday, Oscar Franklin Smith's legal team contends new DNA evidence should be considered in his case, and a court not hearing those new findings would violate his First Amendment rights.
Smith — who is currently on death watch — is accused of killing his estranged wife, Judith Robirds Smith and her two sons Chad Burnett and Jason Burnett. In 1990, jurors sentenced him to death. Now 32 years later at 72, he is scheduled to die by execution Thursday night. His death will become the first since the pandemic in 2020. He is currently in the Riverbend Maximum Security Institution.
His legal team named Gov. Bill Lee, Attorney General Herbert Slatery, TDOC interim commissioner Lisa Helton and Riverbend Maximum Security Institution warden Tony Mays as defendants.
In the filing, his legal team wrote that Serological Research Institute reported unknown DNA on the murder weapon in the case. The DNA doesn't match Smith's, according to the filing.
"Thus, despite having evidence that proves that he is not the person who handled the murder weapon, Mr. Smith has been shut out of state court," the filing stated.
As such, his legal team has asked the court to stay the execution until the new evidence is heard. In an order by U.S. District Judge Aleta Trauger, the defendants in the case must respond to the emergency motion by 5 p.m.
The state answered that order, asking the judge to deny the temporary restraining order.
"Plaintiff waited until late evening on April 18, 2022, only three days before his execution date, to file a motion for a temporary restraining order," Slatery wrote. "The last-minute nature of this motion combined with the State’s interest in the timely enforcement of its sentence weigh heavily against granting a stay of execution"
The state also argued that new DNA evidence didn't mean Smith was innocent in the case.
"Simply put, the presence of an unknown person’s DNA on the awl does not establish plaintiff’s innocence," the state wrote. "This is not an extraordinary case where a constitutional violation has resulted in the conviction of an innocent person."
Slatery's office said he will not comment on pending litigation.
“After thorough consideration of Oscar Smith’s request for clemency and an extensive review of the case, the State of Tennessee’s sentence will stand, and I will not be intervening," Lee said early Tuesday evening.
