Alan Eugene Miller swore he turned in the form choosing to die by an alternate method of execution the state still isn’t ready to use. Alabama says he didn’t.
The state plans to execute him by lethal injection on Sept. 22.
In a lawsuit filed Monday in the U.S. District Court for the Middle District of Alabama, Miller says that the Alabama Department of Corrections lost a form he claims he submitted in 2018 electing to be executed by nitrogen hypoxia.
Miller requested that the court enjoin the state from putting him to death by lethal injection.
To date, no state has carried out an execution by nitrogen hypoxia. Since it was approved by Gov. Kay Ivey in 2018, Alabama has not created a protocol for its use. ADOC Commissioner John Hamm has not said when the state will be ready to proceed with the untested method of execution.
Former death row inmates have alleged that the state practically postponed the executions of those who chose nitrogen hypoxia.
“As a consequence of the Defendants’ failure to adopt a protocol, they have indefinitely suspended and postponed the executions of all inmates who elected death by nitrogen hypoxia,” Nathaniel Woods’ attorneys argued ahead of his 2020 execution.
Miller, 57, petitioned the Alabama Supreme Court in May not to set a date for his execution by lethal injection and filed a signed affidavit to the court attesting that he signed and submitted a form electing death by nitrogen to the appropriate correctional officer the same day it was given to him.
In response, Holman Warden Terry Raybon submitted an affidavit saying it had not found a record of Miller’s form. Miller’s attorneys argue that the contradiction “created a quintessential factual dispute that can only be resolved by a trial court after an evidentiary hearing.”
Defendants Raybon, Hamm and Attorney General Steve Marshall have not yet submitted responses in court. Raybon and Marshall declined to comment for this story. The Montgomery Advertiser has not received a response from ADOC.
Miller, 57, was sentenced to death for the killing of three men in a workplace shooting in Shelby County in 1999. Prosecutors say an employee entering Ferguson Enterprises in Pelham saw Miller exit the building on Aug. 5, 1999, before finding Lee Holdbrooks and Scott Yancy fatally wounded inside.
Miller then drove to nearby Post Airgas, where he had previously worked, and killed Terry Jarvis, an employee at that location, prosecutors say.
The jury deliberated for 20 minutes before finding Miller guilty and recommended the death penalty, which a judge imposed. The U.S. Supreme Court has rejected several of Miller’s appeals.
The Alabama Supreme Court set Miller’s execution date on July 18, 2022. Chief Justice Tom Parker dissented, and associate justices Alisa Kelli Wise and Jay Mitchell recused themselves from the vote. The justices did not offer written explanations of their decisions, and a clerk at the Alabama Supreme Court said the office could not comment on Parker’s behalf.
‘A haphazard approach’ to a momentous decision
When Ivey signed a law approving nitrogen hypoxia as a means of execution in 2018, death row inmates were to be given a 30-day window to choose the untested method. Officials said the 30 days began on June 1, 2018, but the new law did not describe how an inmate could opt in beyond informing the prison warden "in writing."
Officials also claimed they did not have to inform inmates of the new option, and most didn’t know about it until less than a week before the deadline.
Attorneys with the U.S. Federal Defenders showed up at Holman Correctional Facility, the site of Alabama’s death row and execution chambers, on June 26, 2018, with forms they created for their clients to fill out if they chose death by nitrogen. The inmates then had five days to choose how they would die.
Holman correctional officer Jeff Emberton said in a January 2019 affidavit that he distributed election forms in “mid-June” to every prisoner on death row. Multiple death row inmates disputed Emberton’s claim, the Montgomery Advertiser's Melissa Brown reported, saying they were unaware of the option until they were contacted by their attorneys in late June.
In 2019, Federal Defender John Palombi told the Advertiser that ADOC only distributed his office’s form to inmates after the Federal Defenders met with their clients. He said ADOC did not provide death row inmates with information about the election period.
“The Department of Corrections handed out the form without notice or explanation,” Palombi said. “To take such a haphazard approach to such a momentous decision does not create confidence in the operation of the department.”
Palombi said the state did not have a process in place for collecting election forms from death row inmates, which Miller also alleges in his lawsuit.
Miller is not the first person on death row to say the state lost their election form.
In 2019, Marshall withdrew his request to execute Jarrod Taylor although neither his office nor the ADOC had his form.
On July 29, 2019, Marshall moved the Alabama Supreme Court to schedule Taylor’s execution by lethal injection. A day later, Taylor’s attorneys told Marshall that he elected nitrogen hypoxia in writing during the 30-day window.
In his motion to withdraw the request for setting Taylor’s execution date, Marshall says that Taylor’s attorneys sent him a copy of Taylor’s election form and correspondence around the time supporting the assertion that Taylor had submitted a form.
Marshall conceded that his office “was never given this form, and counsel for the Alabama Department of Corrections did not have this form in their files” but that “the documentation provided by Taylor's counsel supports the assertion that he made a timely election of nitrogen hypoxia.”
“The State intends to honor that election,” he wrote.
Whether the state intends to honor Miller’s alleged election is unknown, considering that Miller did not provide similar documentation in his court filings. The Advertiser has been unable to reach Miller’s attorneys to ask whether such documentation exists, but Miller claims he was unable to make a copy or notarize his election form in his affidavit.
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"One is absolutely sickened, not by the crimes that the wicked have committed,
but by the punishments that the good have inflicted." -- Oscar Wilde
