NASHVILLE, Tenn. (WTVF) — A federal judge denied death row inmate Oscar Franklin Smith an emergency motion that would have delayed his execution this week.
Smith filed for a temporary restraining order within the U.S. District Court of Middle Tennessee, where he cited new DNA evidence should be considered in his case. Per Smith's filings, he claimed previously untested DNA on the murder weapon didn't match his.
"It bears emphasizing that the plaintiff challenged his convictions and death sentence through direct appeal, post-conviction, federal habeas proceedings, and additional state court challenges before requesting — and receiving — DNA analysis of the evidence," Judge Aleta Trauger wrote in the 23-page decision. He presented that evidence to the state courts, at both the trial level and on appeal."
Smith 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.
"The state courts considered the evidence, presumed that it was favorable to the plaintiff, and concluded, based on their application of state law, that the plaintiff was not entitled to pursue additional relief," Trauger said. "These facts, viewed in the light most favorable to the plaintiff, are simply not sufficient to establish a violation of his rights to due process, to a judicial remedy, or to access the courts. The plaintiff got all of those things; he just did not like the results."
His attorney Assistant Federal Public Defender Amy Harwell said they are reviewing the order and will make a decision as to how to proceed.
“Cutting-edge DNA evidence proves what Oscar Smith has claimed since the day of his arrest, more than 30 years ago: he is not the man responsible for the murders for which he stands convicted," Harwell said. "Nevertheless, procedural technicalities and a judicially-created insurmountable state court burden of proof has shut him out of court. Tennessee is poised to execute an innocent man.”
Gov. Bill Lee said he wouldn't prevent execution from happening.
“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.
Smith has now selected his last meal. He chose a double bacon cheeseburger, deep-dish apple pie and vanilla bean ice cream. This meal will be provided to Smith on Thursday before his death.
