Alabama’s development of a never-used nitrogen hypoxia method of execution is not final but could possibly be used next week, a lawyer for the state said in court today.
A federal court judge held a hearing in Montgomery on Monday in the case of Alan Eugene Miller, who is scheduled for execution Sept. 22. Miller, 57, has challenged the use of lethal injection for his execution, arguing that he requested nitrogen hypoxia during a window of time death row inmates were allowed to choose that as an alternative to lethal injection in 2018.
His attorneys said the state lost his signed form making that change; the Alabama Attorney General’s Office claimed there was no corroborating evidence that Miller completed the form.
Deputy Alabama Attorney General James Houts told U.S. District Judge R. Austin Huffaker Jr. during the Monday hearing that he must be “very careful” in his statement, but that it was “very likely” the state could execute Miller using the nitrogen hypoxia method if the court says it cannot execute Miller by lethal injection. Houts said the protocol “is there” but not final, and made several references to Alabama Department of Corrections Commissioner John Hamm and Hamm’s decision about making the announcement.
The Alabama Legislature passed a bill to authorize execution by nitrogen hypoxia in 2018 but the method has never been used in any state and Alabama has never disclosed a protocol.
One of Miller’s attorneys, Mara Klebaner, said the AG’s office asked if Miller would waive his claims if the state used nitrogen hypoxia.
Houts also said the state was seeking to fit Miller for a mask for nitrogen hypoxia, but Miller would not let them. He didn’t clarify details of the mask, nor details of the room in which the future nitrogen hypoxia executions would take place. He added that the nitrogen protocol would be “nested” within the larger execution protocol information, but that hasn’t happened yet.
Miller’s attorney said she does not want Miller used as a “test case” with an “untested protocol” if the state’s nitrogen hypoxia protocol is not final. She argued that, while the state said they were open to discussing Miller’s concerns about the method, her legal team cannot form questions to a protocol it hasn’t seen.
Miller, 57, was convicted of killing three men in a Shelby County workplace shooting spree in August 1999. Those men are Lee Michael Holdbrooks, Christopher Scott Yancy, and Terry Lee Jarvis.
Miller took the stand Monday at 11:43 a.m. for about 30 minutes. In a thick southern accent, wearing a red collared-shirt and handcuffs, he spoke about how he remembered receiving a form in June 2018 from someone with the ADOC about changing his method of execution from lethal injection to nitrogen hypoxia. He said someone— presumably a corrections officer or guard— yelled down the death row hallway of cells about a form that would be handed out, and that someone would be back later in the day to collect the form. The paperwork was passed through the steel bars of the small cell, Miller said.
“I yelled back, ‘I want it notarized and copied,’” Miller said, but added that neither happened.
When he read the form, he thought the method of execution mentioned— nitrogen hypoxia— must be like nitrous oxide that is used in dentist’s offices. He used to work for a gas company, where he delivered gas to medical offices. “I didn’t want to be stabbed with needles and stuff,” he said. “I didn’t want to be executed at all, but I didn’t want to be stabbed with needles.”
Miller added that in his more than two decades on death row, when he has been “stuck” with needles, medical staff had problems finding a vein and he was often left in pain.
He signed the form and put it in the “beanhole”— a place on the prison bars where food trays are left and other items are sometimes picked up and dropped off, Miller said. Because his ankle was hurting, he laid down in his bed. He did not see who picked up the form that afternoon.
When asked by Houts who else on death row signed the paperwork, Miller said he didn’t know. “I don’t go around asking,” he said. “I didn’t look at everybody’s signature.” Miller added there are some inmates in William C. Holman Correctional Facility in Atmore, where death row is primarily housed, that he had never seen. Death row inmates are locked in their cells for about 23 hours a day.
Two phone calls between Miller and his brother were also played in court. In the first call, Miller told his brother that the state was seeking a date to execute him.
“Ain’t nothing I can do about it. What can I do?” Miller asked his brother, heard through the grainy audio. His brother said he would plan to witness Miller’s execution.
“I ain’t just gonna let you sit there alone… I’ll be there,” his brother said.
The brothers also talked about Miller’s will and plans for his remains to be buried alongside his mother.
In the second call, Miller told his brother he should get a stay of execution because he chose the “gas stuff.” He added during the short call, “I told ya’ll a way long time ago,” about the method.
Houts later argued there was no evidence Miller filled out the paperwork electing nitrogen hypoxia as his method of death— no emails, no receipts from federal mail, or anything else entered in the court record. Miller maintains his attorney-client privilege regarding communications between he and his lawyers.
Lethal injection has been Alabama’s method of execution for about 20 years. Lawmakers approved nitrogen hypoxia because of legal challenges to lethal injection and difficulty in obtaining the drugs used to cause death.
At least two other states, Oklahoma and Mississippi, have also approved nitrogen hypoxia, but no state has used it. Alabama has not disclosed how the method would work. According to the Death Penalty Information Center, in a nitrogen hypoxia execution the condemned inmate would breathe only nitrogen and would die from the deprivation of oxygen.
This story will be updated.
AL.com reporter Mike Cason contributed to this report.