ATMORE, Ala. (AP) — A federal appeals court on Thursday rejected Alabama’s attempt to proceed with the 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 preventing the state from carrying out Thursday night's scheduled execution of Alan Miller. The state appealed the ruling to the U.S. Supreme Court in a effort to carry out the lethal injection Thursday night.
Miller, 57, was convicted of killing three people in a 1999 workplace rampage and was scheduled to die by lethal injection until the execution was blocked by a judge earlier this week.
Miller testified that he turned in paperwork four years ago selecting nitrogen hypoxia as his execution method, putting it in a slot in his cell door 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.
In refusing to lift Huffaker's injunction, the appeals court on Thursday said it is “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.”
“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 the state lost the selection form Miller returned was not enough to stop the execution.
“Miller’s claim that the State misplaced his method-of-election form ultimately sounds only in negligence, which is categorically insufficient to rise to the level of a constitutional deprivation,” the state wrote. 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."
The death warrant for the execution expires at midnight, so the state must get the injunction lifted by then in order to let the execution proceed. Alabama requested that justices rule by 8 p.m.
The state did not explain the reason for the time request, but the request came after the August execution of 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 the execution was botched.
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.
The state argues there is no evidence to corroborate Miller's testimony that he turned in the form. “Miller offers no evidence aside from a self-serving affidavit,” lawyers for the state 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.