CAPITAL PUNISHMENT Appeals court allows execution to proceed

William H. Smith now is scheduled to die Tuesday for a 1987 rape and murder.
CINCINNATI (AP) -- A federal appeals court lifted a stay of execution Sunday for a prisoner who claims an abnormality in his brain may have affected his behavior when he raped and killed a woman in 1987.
The 6th U.S. Circuit Court of Appeals said the lethal injection of William H. Smith, 47, should proceed as scheduled Tuesday.
"The execution is moving forward," said Kim Norris, a spokeswoman for the Ohio attorney general's office.
Smith's attorney, Jennifer Kinsley, said an appeal would be filed with the U.S. Supreme Court on Monday. Kinsley said she could not reveal details of that appeal.
"At this point I guess our options are somewhat limited and we're going to do everything that we can," she said.
The federal appeals court overturned a ruling last week by a federal judge who said Smith's execution should be postponed to investigate his medical claim.
Claim of brain abnormality
Kinsley has said that a CT scan revealed an abnormality, or some sort of damage, in a part of Smith's brain that can affect behavior. The scan was performed Dec. 29 at Mansfield General Hospital after Smith complained of feeling ill. Kinsley argued that the stay was necessary to allow time for a more precise magnetic resonance imaging scan.
On Feb. 28, U.S. District Judge S. Arthur Spiegel halted the execution. The judge said defense lawyers preparing for Smith's 1988 trial failed to develop evidence to support his claim that he had "organic brain damage" that could have affected his behavior when Mary Bradford, 47, was killed at her Cincinnati apartment.
The state's lawyers argued that Spiegel had no basis for granting the stay because the state had notified him hours earlier that an MRI had been done on Smith's brain the prior Friday to investigate the claim.
Neither the MRI nor the CT scan performed on Smith in December support his claim that he should be spared execution, the state's lawyers said.
The appeals court wrote in Sunday's ruling that the recent tests did not show anything substantially different from what the courts had already seen. Because of that, the court wrote, Spiegel did not have jurisdiction to grant the stay.
Smith had been found competent to stand trial in 1988.