A federal judge in Alabama hears a request to block a 3rd nitrogen execution

By The Associated Press

MONTGOMERY, Ala. (AP) — A federal judge heard testimony Tuesday about what happened during the nation’s first two nitrogen gas executions, weighing whether to allow Alabama to use that method again next month to put an inmate to death.

Attorneys for Carey Dale Grayson are asking a federal judge to issue a preliminary injunction to block the prisoner’s scheduled Nov. 21 execution with nitrogen gas. The attorneys say Alabama officials must make changes to the procedure, adding in a court filing that state officials “have chosen to ignore clear and obvious signs the current protocol contains major problems.”

Alabama is asking the judge to let the execution proceed as planned, writing in a court filing that it’s time for “Grayson’s lawful sentence to be carried out.”

Alabama has carried out two executions with nitrogen gas. Kenneth Smith was put to death in January in the nation’s first execution with nitrogen gas and Alan Miller was put to death last month. Media witnesses, including The Associated Press, described how the inmates shook on the gurney for two minutes or longer, the movements followed by what appeared to be several minutes of periodic labored breaths with long pauses in between.

The execution method involves placing a respirator gas mask over the inmate’s face to replace breathable air with pure nitrogen gas, causing death by lack of oxygen. The method has generated debate about its humaneness, as critics have argued that the state’s execution protocol does not deliver the quick death the state said it would.

Alabama Corrections Commissioner John Q. Hamm testified Tuesday that he was not concerned about how the executions unfolded. He said involuntary movements, including the type of breathing witnessed during the two executions, were expected based on his research.

Captain Brandon McKenzie, who serves as captain of the execution team and stays inside the death chamber during executions, testified that a pulse oximeter connected to Smith continued to show high oxygen readings at the start of the execution. McKenzie said “at some point he lifted his head and shoulders off the gurney” and then fell back. He said at that point the oximeter showed plummeting levels.

He said the pulse oximeter at Miller’s execution showed that the levels plummeted quickly after the nitrogen began flowing. The state has suggested that Smith might have held his breath, causing his execution to take longer.

Smith had blood and fluid in his lungs after his death, according to an autopsy conducted by the Alabama Department of Forensic Sciences.

Dr. Brian McAlary, an anesthesiologist who reviewed the autopsy findings for Grayson’s legal team, said he believed that was caused by negative pressure pulmonary edema, which occurs when a person is struggling to breathe against an obstruction, leading to fluid being drawn from blood vessels.

Grayson’s attorney asked if a person experiencing that would feel panic or psychological pain.

“It would be difficult to imagine they wouldn’t,” McAlary testified.

Dr. Shante Hill, who performed the autopsy for the state, testified that the autopsy findings were consistent with death by asphyxia or hypoxia. She said there was not evidence of an obstruction.

Testimony will continue Wednesday morning.

Grayson was one of four teenagers convicted in the 1994 killing of 37-year-old Vickie Deblieux in Jefferson County. Prosecutors said Deblieux was hitchhiking from Tennessee to her mother’s home in Louisiana when the teens offered her a ride. Prosecutors said they took her to a wooded area, attacked her, threw her off a cliff and later mutilated her body.

Grayson is the only one facing a death sentence. Two other teens had death sentences set aside when the U.S. Supreme Court banned the execution of offenders who were younger than 18 at the time of the crime. Grayson was 19.