Alabama asks court to let it carry out lethal injection

MONTGOMERY, Ala. (AP) — Alabama has asked a federal appeals court to let it proceed Thursday night with the lethal injection of an inmate who claims the state lost his paperwork selecting an alternative execution method.

Alan Miller, 57, was convicted of killing three people in a 1999 workplace shooting and was scheduled to die by lethal injection Thursday until the execution was blocked by a judge earlier this week. Alabama asked the 11th U.S. Circuit Court of Appeals to lift that injunction.

Miller testified that he turned in paperwork four years ago selecting nitrogen hypoxia as his execution method, putting it in a slot in his cell door for a prison worker to collect. U.S. District Judge R. Austin Huffaker Jr. issued a preliminary injunction blocking the state from killing Miller by any means other than nitrogen hypoxia.

Nitrogen hypoxia is a proposed execution method in which death would be caused by forcing the inmate to breathe only nitrogen, thereby depriving him or her of the oxygen needed to maintain bodily functions. It is authorized as an execution method in three states but no state has attempted to put an inmate to death by the untested method. Alabama officials told the judge they are working to finalize the protocol.

When Alabama approved nitrogen hypoxia as an execution method in 2018, state law gave inmates a brief window to designate it as their execution method.

“That the state is not yet prepared to execute anyone by nitrogen hypoxia does not mean it will harm the state or the public to honor Miller’s timely election of nitrogen hypoxia. By contrast, if an injunction does not issue, Miller will be irrevocably deprived of his choice in how he will die — a choice the Alabama Legislature bestowed upon him,” Huffaker wrote.

The state argues there is no evidence to corroborate Miller’s testimony that he turned in the form. “Miller offers no evidence aside from a self-serving affidavit,” lawyers for the state wrote.

Miller, a delivery truck driver, was convicted of killing Lee Holdbrooks, Scott Yancy and Terry Jarvis in a 1999 workplace rampage in suburban Birmingham.

Trial testimony indicated Miller believed the men were spreading rumors about him, including that he was gay. A psychiatrist hired by the defense found that Miller suffered from severe mental illness but also said Miller’s condition wasn’t bad enough to use as a basis for an insanity defense under state law.

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