When a Death Sentence Can’t Stop Being One

The Advocate By Onikepo Braithwaite Onikepo.braithwaite@thisdaylive.com The Advocate By Onikepo Braithwaite Onikepo.braithwaite@thisdaylive.com Not Commuted by Failure: Christa Gail Pike, Dead Woman Walking! The answer to whether the death sentence imposed on Christa Gail Pike for the 1995 murder of Colleen Slemmer in Tennessee, USA, after the failed execution by lethal injection, is still in force, is Yes. Last Wednesday’s botched execution attempt doesn’t alter the sentence handed down by the court, nor does it vacate the verdict and judgement of the court; they are still in force. Under Tennessee Code Annotated § 39-13-204(g), the jury returns its decision of the death sentence in a form such as this: “…..Therefore, we, the jury, unanimously find that the punishment shall be death”. It is quite clear that, when the punishment handed down is death, it is not served until death occurs, and survival of an attempt, is not a commutation. In Nigeria, a Judge usually pronounces the death sentence like this: “The sentence of this court upon you is that you be hanged by the neck until you are dead, and may God have mercy on your soul”. See Bassey v State (2025) LPELR-80670(SC) per Mohammed Baba Idris, JSC on the death sentence, where the Supreme Court held inter alia thus: “It is a fundamental principle of law that, where a specific procedure or method is prescribed for the performance of an action, compliance with that prescribed procedure is mandatory”. Again, it is clear from the foregoing that, in Nigeria, whatever method is prescribed, hanging, must be followed through, and in the case of death by hanging, until the convict is hung by their neck until they are dead, there has been no compliance with the order of the court, and the sentence hasn’t been carried out. After a guilty verdict, by virtue of the Tennessee Rule of Criminal Procedure 32(e), the Judge signs a Judgement of Conviction then entered by the Clerk. It includes the plea, the verdict or findings, the adjudication and sentence. Obviously, a botched execution attempt has no bearing on this. The 2025 Tennessee Code 40-23-117 provides thus: “Death sentence stands if not carried out at scheduled time When, from any cause, an inmate sentenced to death has not been executed pursuant to the sentence, the sentence stands in full force, and shall be carried into execution by the court in which the inmate was tried”. In current practice, once appeals are exhausted, the Supreme Court sets the execution date under Rule 12(4)(E), as it did for 30 September, 2026. A new date for execution should therefore, be fixed by the court, because the conviction and sentence are not undone by the failure. In Louisiana ex rel. Francis v Resweber, 329 U.S. 459 (1947), Willie Francis survived a failed electrocution caused by a mechanical fault in the electric chair. Francis had argued that his fifth (prohibiting double jeopardy) and eighth (prohibiting cruel and unusual punishment) amendment rights applied through the fourteenth amendment, would be violated by a second execution. The Supreme Court, in a 5-4 split decision, held that a second execution attempt did not violate the US Constitution; that it was neither double jeopardy, nor cruel and unusual punishment. Justice Stanley Reed’s majority opinion treated the failure as an accident, not a completed punishment, and not the wanton infliction of pain: when “an accident, with no suggestion of malevolence, prevents the consummation of a sentence”, due process does not bar the State from finishing it. Francis was electrocuted, the following year. In Alabama, Kenneth Eugene Smith was convicted in 1989 of the murder-for-hire killing of Mrs Elizabeth Sennett, and sentenced to death. In 2022, the attempt to execute Smith by lethal injection failed, because no usable vein through which the injection was to be administered could be found before the warrant expired. However, on January 25, 2024, Smith was eventually executed by means of a gas, nitrogen hypoxia. In short, the courts haven’t treated a convict’s survival of unsuccessful attempts of execution, as vacating the death sentence. In the Ohio case of Romell Broom, who received the death sentence in 1985 for the 1984 abduction, rape and murder of 14 year old Tryna Middleton, like Smith, a usable vein couldn’t be accessed to deliver the lethal injection when the execution was to be carried out on September 15, 2009, despite about 18 attempts to find one, in a process that lasted for over two hours. A first reprieve was issued, immediately after the failed attempt. The State then fixed a second execution for June 2020, but the Governor issued a second reprieve a couple of months before the new execution date, due to the unavailability of the drugs to be utilised for execution. A third execution date was subsequently set for March 16, 2022, but Broom died of Covid-19 in December, 2020. Broom had filed a Petition, State v Broom, 146 Ohio St.3d 60 (2016), challenging the constitutionality of his death sentence on the ground that he would suffer double jeopardy of life, and sought to bar a second execution attempt. His Petition failed. He claimed that the first failed attempt to execute him, had already punished him, and a second attempt would punish him again for the same murder. The court disagreed with him in a 4-3 split decision, holding that the lethal injection drugs had to be delivered and flow into the intravenous system, for the jeopardy of death to apply; preparation to inject the drugs, or the fact that the drugs weren’t injected, the punishment hadn’t been executed. Facts of Pike’s Case It is needless for me to rehash the facts of the case, as the details are readily available all over the place. The important points to note about the facts however, are that 1) Pike was 18 years old when she murdered 19 year old Colleen Slemmer, while one of her accomplices, her boyfriend, Tadaryl Shipp, was 17; he was sentenced to life imprisonment; 2) the murder was premeditated, as the deceased was lured into the woods and killed there; 3) the deceased was murdered in a gruesome manner – she was cut, kicked, had her throat cut, and was struck with asphalt, over a period of about an hour; 4) Pike apparently took a piece of Colleen’s skull and showed it to an acquaintance – this seems to sound like keeping a trophy from the crime, and using it to brag to a third party about what the perpetrator had done. Pike was actually sentenced to death by electrocution in 1996. Lethal injection is now the default, and an offender whose crime predates 1 January, 1999 may still elect the chair. The difference between Pike and Francis’ cases and that of Smith and Broom is that, in Pike’s case she received two doses of the lethal injection during the first execution attempt, albeit that they may have ended up in her tissues instead of her veins and Francis received an electric current that didn’t kill him, while nothing was actually administered to Smith and Broom, since their veins couldn’t be located. Will Pike’s Lawyers argue that another execution attempt, after she has already been subjected to the protocol of two doses of the lethal drugs injected into her body (leaving her in a critical condition), not just crosses into unnecessary and wanton pain under the Eighth Amendment, but on the basis of the decision in State v Broom (Supra) may amount to double jeopardy, thereby violating Pike’s fifth amendment right? Will Pike’s Lawyers ask the court to hold that, in her case, the execution had already commenced? Is it of any importance, if the lethal drugs went into Pike’s tissues or other parts of her body, and not specifically her vein where it was supposed to go? Since State v Broom (Supra) is an Ohio case, it would be at best, a persuasive authority for a Tennessee or Federal Court, and in any event, it didn’t decide what happens after the lethal injection is injected, but fails to kill the individual. Or would Justice Reed’s aforementioned opinion in Louisiana ex rel. Francis v Resweber (Supra) be more applicable to Pike, since in Francis’ case, just like the lethal injection entered Pike’s body, the electrical current also passed through Francis’ body, but both punishments failed to kill both convicts. That the failure of the first attempt at Pike’s execution was an accident, not something done intentionally to inflict pain on her, but to carry out her punishment. It appears that the test in Justice Reed’s opinion was accident, rather than a purpose to inflict pain beyond the punishment, and whether the sentence had been consummated. On that test, a protocol followed in good faith, which fails, does not complete the sentence and does not bar another warrant. That was the conclusion in Francis’ case, and a second attempt was allowed. The aforementioned Section 40-23-117 answers the way forward. If, from any cause, an inmate sentenced to death hasn’t been executed pursuant to the sentence, the sentence stands in full force and shall be carried into execution. A failed attempt is such a cause. Pike was not given more than the protocol allows. The Tennessee course is a first set of pentobarbital and, if the inmate is not dead, a backup set. She received both. No third dose is authorised, and none was given. Failure after the full course, does not complete the sentence. Conclusion In all this, Colleen Slemmer, the victim, should not disappear, nor can she be forgotten. Pike’s belief that Ms Slemmer liked her boyfriend, was not a proved fact. It may have been nothing more than jealousy on Pike’s part. Besides, liking another woman’s boyfriend is not a capital offence, and it does not begin to justify an hour of torture and murder. The pain and horror Ms Slemmer suffered at the hands of Pike and Shipp, are not erased because the first attempt to carry out the death sentence failed. The courts, up to the Supreme Court, have upheld the conviction and the death sentence. A mistake in carrying out a lawful sentence, does not transfer the sentence from the offender to the victim’s family, and does not rewrite the judgement. Post Script Kidnap of NYSC Members Permit me to restate what I may have already said in the past – it is wrong for the National Youth Service Corps (NYSC) to continue to post our children all over the country, out-of-station, when they cannot protect them, leaving them as sitting ducks for kidnappers and other criminals on Nigerian travel routes and remote Camps. The primary purpose of government is the security and welfare of the people – see Section 14(2)(b) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) – and where this can’t be achieved on the roads of Nigeria, let the children do their NYSC where they reside, so they don’t have to travel. Additionally, NYSC Camps that are not within the metropolis, but rather, are located in remote areas, shouldn’t be utilised, as they are soft targets where large numbers of unarmed youths can easily be abducted without incident. In August, Corpers were abducted on an Imo Highway, while in September, another group was kidnapped on their way to their various camps in the South East and South South. In my humble opinion, it is not just foolhardy and insensitive, but unacceptable for Government to keep insisting that these children be posted all over the place to do NYSC, when their safety cannot be guaranteed.