“Miller has shown, based on the evidence presented, a substantial likelihood of success on the merits... and that the balance of harms weighs in his favor. Therefore, Miller has established his entitlement to a preliminary injunction that prevents the State from executing him by any method other than nitrogen hypoxia,” U.S. District Judge R. Austin Huffaker Jr. wrote in his Monday order.
The judge said in his order, “Miller has presented consistent, credible, and uncontroverted direct evidence that he submitted an election form in the manner he says was announced to him by the (Alabama Department of Corrections),” along with “circumstantial evidence” that the ADOC lost or misplaced his form after he turned it in.
He added, “it is substantially likely that Miller timely elected nitrogen hypoxia” and said several of the state’s arguments “miss the mark.”
Not dying by his choice of method would be “the loss of his ‘final dignity’—to choose how he will die,” the judge added.
The Alabama Attorney General’s Office could appeal the order to the U.S. Eleventh Circuit Court of Appeals. If a higher court doesn’t overturn Huffaker’s ruling, the execution cannot go forward because the state is only prepared to use lethal injection.
Miller, 57, was set to die by lethal injection on Thursday at 6 p.m. at William C. Holman Correctional Facility in Atmore. His current lawsuit stems from claims he made saying he turned in a form electing to die by nitrogen hypoxia after the method was approved in June 2018. The AG’s Office said there’s no evidence Miller ever completed or submitted a form making that choice.
“Having listened to Miller’s live testimony and observed his demeanor, and having compared Miller’s live testimony with his deposition and affidavit, and with no direct contradicting evidence... the Court finds substantially credible Miller’s testimony that he timely submitted a nitrogen hypoxia election form,” the judge wrote.
No state in the nation has used nitrogen hypoxia for an execution, although several states have laws allowing it. Alabama is currently not ready to carry out such an execution, ADOC Commissioner John Hamm said in an affidavit. The admission comes days after Deputy Alabama Attorney General James Houts said that it was “very likely” the state could execute Miller this week using nitrogen hypoxia if the court deemed the change of method necessary.
The judge said the AG’s Office made “vague and imprecise statements regarding the readiness and intent to move forward with an execution,” and ordered the state to take a definite stance on their readiness. After his order, Hamm’s affidavit was filed.
Huffaker wrote in his Monday order that the state has been “inconsistent” with its claims. “Suffice it to say, the readiness of the protocol and of the ADOC to conduct executions by nitrogen hypoxia has been a moving target,” he wrote.
“In this case specifically, the Court has received inconsistent information along the way from the State... The Court notes that while nitrogen hypoxia may not be available on September 22, 2022, the State has not said when it expects the protocol to be ready. From all that appears, the State intends to announce its readiness to conduct executions by nitrogen hypoxia in the upcoming weeks.”
Hamm said in his affidavit, “The ADOC cannot carry out an execution by nitrogen hypoxia on September 22, 2022,” adding the department “remains ready to carry out (Miller’s) sentence by lethal injection.”
After the state approved nitrogen hypoxia in 2018, and the law allowed inmates already sitting on Alabama Death Row—most of whom are behind bars at Holman—a 30 day-window in June 2018 to change the way they would be killed from the default method of lethal injection to nitrogen hypoxia.
“This case presents another occasion for the Court to consider the downstream effects of an Alabama Department of Corrections official’s decision to distribute to death row inmates a form by which inmates could elect their execution by nitrogen hypoxia,” the judge wrote.
Huffaker said there is ”no evidence of a standardized policy or procedure for ADOC officials to collect and transmit completed forms... for logging and retention, nor is there evidence of a chain of custody from the time forms were collected.”
The judge mentioned 2 other death row inmates who have also alleged issues with the state’s collecting of their forms. In those cases, the state eventually said one man’s form was submitted in a timely fashion but either not received or properly stored by the prison; the other centered around an issue with a guard delivering the form to the prison warden. “This evidence suggests that what Miller claims the ADOC did— or failed to do—after he turned in his form was not unique to him.”
The state’s arguments are based on “weak circumstantial evidence... misrepresentations about Miller’s testimony, and—at bottom—the State’s subjective belief that Miller did not timely elect because he has a motive to try to delay his execution,” the judge ruled.
According to a deposition provided in court records, Miller elected to die by nitrogen hypoxia so he “wouldn’t have to be stabbed with needles.”
Miller was convicted of killing 3 men in a Shelby County workplace shooting spree in August 5, 1999. Those men were Lee Holdbrooks, 32; Christopher Scott Yancy, 28; and Terry Jarvis, 39. Ferguson Enterprises. Holdbrooks and Yancy were employees of Ferguson, while Jarvis worked for Post Airgas in Pelham.
Miller was a former employee of Post Airgas, and at the time of the slayings worked at Ferguson.
Miller, who did not testify at his trial, took the stand last week during an evidentiary hearing in his current lawsuit. “He testified unequivocally that he does not like needles. He explained that, prior to June 2018, someone at the ADOC who tried to insert a needle into his arm to draw blood had trouble finding a vein,” the judge wrote. “According to Miller, they ‘poke’ the needle around, move it around, ‘sometimes they’ll nick a nerve, or they’ll pull it out and go after the hands or the other arm.’.. His testimony on this subject was uncontroverted.”
Miller said in a deposition, “You know, it’s my life. And I know I didn’t want to be stabbed with needles and everything like that.”
In his Monday order, Huffaker said Miller’s choice to die by nitrogen hypoxia was a “fairly straightforward decision-making process” that was “primarily animated by a desire to avoid being stabbed with needles, as opposed to a complex or thoughtful decision or desire to affirmatively elect nitrogen hypoxia as his method of execution.”
The nitrogen hypoxia execution process will center around a prisoner inhaling nitrogen, without any source of oxygen, causing death by asphyxiation. Inhalation of only one or two breaths of pure nitrogen will cause sudden loss of consciousness and, if no oxygen is provided, death.
The AG’s Office asked Miller during a deposition if, “as a planning precaution,” he could be fitted with a gas mask in the case they could execute him using nitrogen hypoxia. The AG’s Office used that topic to argue before Huffaker that the lawsuit was a tactic to delay Miller’s execution-- an argument Huffaker said “misrepresented Miller’s testimony.”
“Miller said he would be upset because no one else who elected nitrogen hypoxia is being subjected to mask-fitting. Moreover, the Court agrees with Miller’s counsel that it is a natural human reaction to be upset about the prospect of being fitted with the means of one’s own execution.” He wrote that the comments “have no bearing on the veracity of his testimony that he made a timely election in June 2018.”
“The State and the public also have an interest in the State following its own law generally and in the State honoring an inmate’s valid election of nitrogen hypoxia more specifically—an election afforded to inmates by the Alabama Legislature,” Huffaker wrote.
“An execution is final; there are no do-overs or give-backs.”
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Source: al.com, Staff, September 20, 2022
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but by the punishments that the good have inflicted." -- Oscar Wilde
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