By Michael Apfel and Hannah Adams
ATMORE, AL — Alabama Department of Corrections last week cited an inability to access a death row inmate’s veins and time concerns for a decision to halt an execution by lethal injection.
Alan Eugene Miller was sentenced to death after he was found guilty of fatally shooting three former coworkers, but legal disputes began to occur after Miller’s request for an execution method other than lethal injection were mishandled.
An Alabama District Court previously ruled to vacate Miller’s conviction over this concern, affording him the right to execution by nitrogen hypoxia rather than lethal injection. But the Supreme Court soon overruled the lower court and allowed for the execution to happen.
“Due to the time constraints resulting in the lateness of the court proceedings, the execution was called off once it was determined the condemned’s veins could not be accessed in accordance with our protocol before the expiration of the death warrant,” said Alabama Department of Corrections Commissioner John Hamm, according to AL.com.
The disputes can be traced back to a 2018 Alabama law giving death row inmates the execution option of nitrogen hypoxia, a novel technique offered as an alternative to inmates that provide written requests prior to their execution date.
Miller alleges he provided a written request to receive the nitrogen hypoxia execution in a timely manner, but the ADOC maintained that they had no records of his request.
Back on April 19, Attorney General Marshall moved the Alabama Supreme Court to proceed scheduling Miller’s execution, and on May 18, Miller filed an objection to the State’s motion.
The grounds for Miller’s objection were that the scheduling of his execution was premature because Miller previously requested an execution by nitrogen hypoxia, and there had not been an established protocol for the method.
Miller gave an affidavit in which he explained in June or July of 2018 a correctional officer from the William C. Holman Correctional Facility gave him a form to request a nitrogen hypoxia execution, and Miller signed and returned the form back to the officer “at the same time that he was collecting forms from everyone else.”
Attorney General Marshall maintained there was a lack of evidence for this claim, and the ADOC had no records of this written request.
Miller filed a brief in response to the state’s claims, requesting the case be remanded to an Alabama trial court to resolve the factual discrepancies. The Alabama Supreme Court sided with the State, setting the execution for Sept. 22.
An amended complaint was filed by Miller’s counsel against the ADOC, asserting that Miller’s constitutional rights to due process and protections against cruel and unusual punishment had been violated.
In a later evidentiary hearing on Sept. 12, Miller presented a recording of phone calls he made just three days before his execution to his brother about his execution. In the second recording, Miller made reference to a piece of paper about “gas stuff,” which Miller’s counsel contends was the written request.
Captain Jeff Emberton served at the prison when Miller allegedly signed his request and testified to how the requests were given to inmates on May 24, 2021. Captain Emberton said a warden, Cynthia Stewart, instructed him not to record anyone’s name or keep track of those who submitted forms.
Captain Emberton also testified that he told inmates about the form’s significance in groups of three or four inmates at a time because of the cell’s close proximity to each other, personally handing inmates the forms and leaving them in inmates’ cells who were asleep and could not be awakened.
Warden Stewart’s secretary Jennifer Parker was in charge of processing the nitrogen hypoxia execution request forms.
She testified that she did not know where the forms she was given came from, she did not know blank forms were given to all death row inmates, she never created a list of inmates that submitted the forms electronically, and she did not remember Warden Stewart instructing her what to do with the forms.
Miller himself testified at the evidentiary hearing, explaining his disdain for needles.
Miller testified to a 2018 incident in which an ADOC employee trying to draw his blood had difficulty finding his vein and painfully poked his arms for 30 minutes. Miller described the incident as “painful” and “feeling like a pin cushion,” leaving a large bruise inside his elbow lasting a couple days. Miller’s testimony regarding this incident was undisputed.
Miller also testified to receiving the nitrogen hypoxia form and signing it, explaining that, while he did not want to die, he would prefer his execution not be carried out via lethal injection. Miller said he signed and placed the form in a slot where ADOC could collect it.
Evidence of two other Holman inmates complaining about how their nitrogen hypoxia forms were handled was also submitted.
When nitrogen hypoxia was added to the Alabama Code as an alternative execution method — and throughout the June 2018 election period — ADOC had not yet devised a protocol for nitrogen hypoxia executions.
In Reeves v. Dunn, Case No. 20-cv-27-RAH (M.D. Ala.), a prior case in this court, ADOC counsel affirmed that the procedures should be ready within the first three to four months of 2022, and that an announcement concerning nitrogen hypoxia procedures would be made in October of this year.
On Sep. 8, the State entered an opposing response to Miller’s motion for a Preliminary Injunction: that if this Court were to issue an injunction requiring his execution by nitrogen hypoxia, the execution still could be conducted on Sept, 22.
On Sept, 15, the State filed an affidavit from Commissioner Hamm, in which the Commissioner represented that the ADOC is not prepared to execute Miller by nitrogen hypoxia on Sept. 22.
While Miller’s case was informed by inconsistent info by the state, the court ultimately accepts as true the word of Commissioner Hamm’s sworn statement that the ADOC cannot execute Miller by nitrogen hypoxia on Sept. 22.
Citing Miller’s live and deposition testimonies, the court ruled that Miller undeniably proved that he submitted an election form in the manner he says was announced to him by the ADOC.
Miller also presented evidence that the ADOC lacked any standardized protocol or rules regarding the collection and transmittal of inmates’ completed election forms, which is circumstantial evidence supporting Miller’s theory that the ADOC lost or misplaced his form after he turned it in.
In reference to the State’s arguments, they were defined by misrepresentations, improper references, and weak circumstantial evidence— i.e., insufficient evidence to support their belief that Miller did not timely elect because he had a motive to try to delay his execution.
While the court cannot definitively prove that Miller is falsely claiming a timely election, based on Hamm v. Comm’r, Ala. Dep’t of Corr., No. 18-10473, 2018 WL 2171185, at *4 (11th Cir. Feb. 13, 2018), an inmate in Miller’s position is not required to fully defend his position.
That being said, the court ruled that it is substantially likely that Miller submitted a timely nitrogen hypoxia election form.
The court also contended that executing Miller by lethal injection when he has timely elected nitrogen hypoxia is substantially likely to violate his procedural due process rights. The finality of an execution, the court stated, does not allow for any do-overs or mistakes.
The court agreed an order directing the State to posthumously honor Miller’s election would be utterly inadequate, and compensation to Miller’s estate would not be appropriate either since Miller’s situation is not monetary in nature.
On Sep. 19, The court ultimately granted Miller’s motion for preliminary injunction, enjoining the State and their agents from executing Eugene Miller by any method other than nitrogen hypoxia until further order from this Court.