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Wednesday September 28th, 2022 11:37AM

Alabama asks US Supreme Court to let it carry out execution

By The Associated Press
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ATMORE, Ala. (AP) — A federal appeals court on Thursday rejected Alabama’s bid to proceed with the scheduled evening execution of an inmate who claims the state lost his paperwork selecting an alternative to lethal injection.

In a 2-1 decision, the 11th U.S. Circuit Court of Appeals denied the state’s request to lift a recent injunction barring the state from carrying out the planned execution of Alan Miller. The state appealed the ruling to the U.S. Supreme Court seeking to go ahead with its plan Thursday night.

Miller, 57, was convicted of killing three people in a 1999 workplace rampage, drawing the death sentence. A judge blocked the execution plan earlier this week.

Miller testified that he had turned in paperwork four years ago selecting nitrogen hypoxia as his execution method, putting it in a slot in his cell door at the Holman Correctional Facility for a prison worker to collect. On Tuesday, U.S. District Judge R. Austin Huffaker Jr. issued a preliminary injunction blocking the state from killing Miller by any means other than nitrogen hypoxia, after finding it was “substantially likely” that Miller “submitted a timely election form even though the State says that it does not have any physical record of a form.”

Although Alabama has authorized nitrogen hypoxia as an execution method, it has never done so and the prison system has not finalized procedures for using it to carry out a death sentence.

In upholding the injunction, the appeals court noted what appeared to be a disorganized method of collecting the forms selecting an execution method. “Prison officials at Holman chose not to keep a log or list of those inmates who submitted an election form choosing nitrogen hypoxia,” the court said, finding that the state also did not demonstrate that it would “suffer irreparable harm” if the execution did not take place Thursday.

The Alabama attorney general’s office quickly appealed the ruling, writing that Miller’s claim that the state lost the selection form Miller returned is not reason enough to halt the execution.

The state wrote Miller’s claim that the state was negligent and “misplaced his method-of-election form” is “categorically insufficient to rise to the level of a constitutional deprivation.”

The state also said that by blocking the execution, the lower courts had “discounted the interests of the state and of Miller’s victims and their families to zero.”

Miller's attorneys urged justices to keep the stay in place, saying that state law gave him the right to request nitrogen and he should not be blamed for the prison system's “extremely disorganized” method of distributing and collecting the forms on death row.

The death warrant for the execution was set to expire at midnight, so the state would need the injunction lifted by then to let the execution proceed. Alabama requested a ruling by 8 p.m. which they did not get.

The state did not explain the reason for the 8 p.m. timing request, but the July execution of inmate Joe Nathan James was delayed for about three hours. The prison system said there were difficulties establishing an intravenous line, but did not specify how long it took. Advocacy groups have alleged that execution was botched.

Miller had visits from family members and an attorney on Thursday as he waited to see if his execution would go forward. He was given a food tray that included meatloaf, chuckwagon steak, macaroni and french fries, the prison system said.

Nitrogen hypoxia is a proposed execution method in which death would be caused by forcing the inmate to breathe only nitrogen, thereby depriving him or her of the oxygen needed to maintain bodily functions. It is authorized as an execution method in three states but no state has attempted to put an inmate to death by the untested method. Alabama officials told the judge they are working to finalize the protocol.

When Alabama approved nitrogen hypoxia as an execution method in 2018, state law gave inmates a brief window to designate it as their execution method.

“That the state is not yet prepared to execute anyone by nitrogen hypoxia does not mean it will harm the state or the public to honor Miller’s timely election of nitrogen hypoxia. By contrast, if an injunction does not issue, Miller will be irrevocably deprived of his choice in how he will die — a choice the Alabama Legislature bestowed upon him,” Huffaker wrote.

Prosecutors said Miller, a delivery truck driver, killed co-workers Lee Holdbrooks and Scott Yancy at a business in suburban Birmingham and then drove off to shoot former supervisor Terry Jarvis at a business where Miller had previously worked. Each man was shot multiple times and Miller was captured after a highway chase.

Trial testimony indicated Miller believed the men were spreading rumors about him, including that he was gay. A psychiatrist hired by the defense found that Miller suffered from severe mental illness but also said Miller’s condition wasn’t bad enough to use as a basis for an insanity defense under state law.

___

This story has been corrected to show Alabama's last execution was in July.

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