5th Circuit Court gives go-ahead for Louisiana’s first nitrogen gas execution

NEW ORLEANS – A federal appeals court Friday overturned a district judge’s order that had blocked Louisiana’s first planned execution using nitrogen gas, allowing the state to carry out the death sentence Tuesday barring a last-minute reversal.

An attorney for convicted killer Jessie Hoffman said she will take the U.S. 5th Circuit Court of Appeals’ decision to the U.S. Supreme Court.

Louisiana last put a condemned person to death in 2010 using lethal injection, and 56 people currently await execution.

Hoffman was found guilty of the 1996 murder of Mary “Molly” Elliot, 29. Investigators said Hoffman kidnapped Elliot after she left work in downtown New Orleans the day before Thanksgiving, drove her to a remote area near the Pearl River, raped and shot her. A hunter found her nude body the next day.

State lawmakers and Republican Gov. Jeff Landry approved a switch to nitrogen gas as Louisiana’s preferred execution method in 2024 after the state failed for years to acquire the drugs needed for lethal injections. Under public pressure, major pharmaceutical companies have stopped making the medications available for the death penalty.

Attorneys for Hoffman argue that death by nitrogen hypoxia, in which the subject is deprived of oxygen, is a form of cruel and unusual punishment that is prohibited under the U.S. Constitution.

The three-judge 5th Circuit panel ruled 2-1 to reverse the preliminary injunction U.S. District Judge Shelly Dick, an appointee of former President Barack Obama, issued Tuesday. Her order followed a 12-hour hearing last week during which Hoffman, who is on death row at Louisiana State Penitentiary in Angola, requested he be put to death by a firing squad or a physician-administered drug cocktail.

“The preliminary injunction is not just wrong. It gets the Constitution backwards, because it’s premised on the odd notion that the Eighth Amendment somehow requires Louisiana to use an admittedly more painful method of execution — namely, execution by firing squad rather than by nitrogen hypoxia. That can’t be right,” 5th Circuit Judge James Ho wrote in his prevailing opinion.

President Donald Trump appointed Ho to the appellate court in 2017, a year before he nominated the third member of the panel, Judge Andrew Oldham, to the 5th Circuit.

Judge Catharina Hayes, a 5th Circuit appointee of former President George W. Bush, dissented, agreeing with the district judge that Hoffman has not been given enough time to challenge Louisiana’s new form of execution.

On Feb. 10, the governor made the formal, legally required announcement that he had established the state’s protocol for carrying out the death penalty with nitrogen. St. Tammany-Washington District Attorney Collin Sims obtained a death warrant for Hoffman two days later, setting his execution date for March 18. Details in protocol weren’t made public until March 5.

“The timeline in which [Hoffman] could challenge it and the setting of his execution date … all happened within the last month,” Hayes wrote in her opinion. “As the district judge thoroughly discusses, there are issues that need more time to be resolved and decided. Obviously, that cannot be done once he is dead.”

Cecelia Koppel, one of Hoffman’s attorneys, told the Illuminator before Friday evening’s 5th Circuit ruling she was prepared for the case to go up to the Supreme Court regardless of decision.

Attorney General Liz Murrill has represented the state in challenges to its death penalty method.

“This is justice for Mary ‘Molly’ Elliot, her friends, her family, and for Louisiana,” Murrill said in a statement after the 5th Circuit ruling.

Murrill has previously told the Associated Press that Louisiana intends to execute at least four people this year. It would become the second state to carry out nitrogen executions, following Alabama where the method has been used four times since February 2024.

Some witnesses to those executions have said the condemned men went through significant distress, and that their deaths were not instantaneous. Dr. Joseph Antognini, a California anesthesiologist, has countered those claims. Murrill called on him as an expert witness for last week’s hearing before Judge Dick.

In Friday’s interview, Koppel questioned the integrity of the information Murrill’s expert provided.

“Dr. Antognini, who is a hired hand by the state, has testified in at least 20 different cases around the country, basically rubber stamping the state’s execution methods in each and every one of those cases,” Koppel said.

Dick put more credence in the defense’s hypoxia expert, Dr. Philip Bickler also of California, according to Koppel. But in his majority opinion, Ho dismissed any notions that nitrogen hypoxia involves suffering, and he noted Louisiana has modeled its protocol after Alabama’s.

“Breathing 100% pure nitrogen causes unconsciousness in less than a minute, with death following rapidly within ten to fifteen minutes,” Ho wrote. “And it does not produce physical pain.”

Louisiana man with execution date next month dies at Angola

Hoffman’s death was scheduled for the day after the execution of Christopher Sepulvado, who had been sentenced to die for the 1992 murder of his 6-year-old stepson, Wesley Allen Mercer, in DeSoto Parish. But Sepulvado, 81, died Feb. 22 at Angola’s infirmary. He had been in failing health for months, which his lawyers said made his pending execution pointless.

The last person Louisiana put to death 15 years ago was Gerald Bordelon, 47, who gave up the right to appeal his execution for the rape and murder of his 12-year-old stepdaughter Courtney LeBlanc.

Prior to Bordelon, lethal injection had been most recently used in 2002 for Leslie Dale Martin, who had contested his execution for the rape and murder of 19-year-old McNeese State student Christina Burgin in 1991.

Source: Louisiana Illuminator, Greg LaRose, March 15, 2025

"One is absolutely sickened, not by the crimes that the wicked have committed,
but by the punishments that the good have inflicted."

— Oscar Wilde

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