“…critical finding that it is substantially likely that Mr. Miller timely submitted a written election form choosing nitrogen hypoxia to officials at Holman…The AG’s office also argued that there was no evidence Miller submitted a form. Judges Jordan and Rosenbaum wrote that there was also no evidence he did not.”

Hope is being able to see that there is light despite all of the darkness.”
— Archbishop Desmond Tutu


Despite earlier hints that it would be ready to execute Miller by nitrogen hypoxia on Sept. 22, the Alabama Department of Corrections said last week that it is not yet ready to use the untried method.

A federal appeals court Wednesday afternoon upheld the stay, ruling the Alabama Attorney General’s Office had not shown that a lower court abused its discretion in blocking the execution. Hours later, the state appealed to the U.S. Supreme Court.

The state appealed the case after a lower court issued a preliminary injunction prohibiting the state from executing Miller “by any method other than nitrogen hypoxia” until further court order.

Miller was sentenced to death for the killing of three men in two workplace shootings in Shelby County in 1999. Prosecutors said an employee entering Ferguson Enterprises in Pelham saw Miller exit the building on Aug. 5, 1999, before finding Lee Holdbrooks and Scott Yancy dead inside.

Miller then drove to nearby Post Airgas, where he had previously worked, and killed employee Terry Jarvis, prosecutors say. The jury deliberated for 20 minutes before finding Miller guilty and recommended the death penalty, which a judge imposed. 

Thursday, 9:15 p.m., CDT: SCOTUS allows Miller execution to proceed

The U.S. Supreme Court Thursday night allowed Alabama to execute Alan Eugene Miller by lethal injection, days after a lower court said the state could only execute him by nitrogen hypoxia.

The five-justice majority did not issue an opinion on the case, which came a few hours after a three-judge panel of the 11th U.S. Circuit Court of Appeals upheld the lower court ruling. Justices Sonia Sotomayor; Elena Kagan; Amy Comey Barrett and Ketanji Brown Jackson opposed the decision.

Thursday, 8:09 p.m., CDT: Miller’s attorneys file response with SCOTUS

Three-and-a-half hours after the state appealed to the U.S. Supreme Court, Miller’s attorneys filed a response.

His attorneys noted that the state had shifted its strategy, focusing not on the court’s factual findings of whether Miller timely elected nitrogen hypoxia in writing — the district judge thinks it is likely he did — but on the fact that the state does not have his form and feels the evidence provided was not sufficient.

“The State’s new, Kafkaesque argument in favor of forcing an illegal execution tonight is that the truth of whether Mr. Miller timely submitted his nitrogen hypoxia election form does not matter,” the attorneys wrote.

Miller’s attorneys also noted that the state’s request to the Supreme Court — to vacate the preliminary injunction — was different than its earlier request to the 11th Circuit to stay the injunction. However, a stay or vacatur of a preliminary injunction would have the same effect, practically: Miller’s execution by lethal injection.

Mr. Miller will be executed, and there is every reason to believe he will be executed soon. All he asks is that the State respect the choice the legislature gave him: to die by nitrogen hypoxia instead of lethal injection,” Miller’s attorneys wrote.

Alabama’s execution warrant for Miller expires at midnight. A Supreme Court ruling overturning the stay is necessary for the execution to proceed.

Thursday, 6:22 p.m., CDT: ADOC releases details about Miller’s past 24 hours

An ADOC spokesperson shared details with media witnesses of Miller’s past two days, including that several members of his family visited him on Wednesday and Thursday ahead of his possible execution Thursday night.

On Wednesday, the document showed, Miller’s visitors included his brother, Richard Miller; his sister, Cheryl Ellison; his brother, Jeffery Carr, and sister-in-law, Sandra Carr. He also had a phone call with Kelly Huggins, his attorney.

On Thursday, the same family members returned. Miller also visited with his uncle, Richard Carr, and another of his attorneys, Mara Rose Klebaner.

As prison officials awaited word on whether the U.S. Supreme Court would overturn a temporary injunction of Miller’s execution, media witnesses and family went to Atmore, Alabama, in the event Miller’s execution by lethal injection would be allowed.

Attending were his two brothers, his sister, his sister-in-law, attorney Klebaner and Elizabeth Bruenig, a reporter for The Atlantic who weeks ago ordered the private autopsy of Joe Nathan James, who was executed by the state of Alabama on July 28 after a three-hour delay she described as “lengthy and painful.”

More:James’ death ‘lengthy and painful,’ says reporter who witnessed private autopsy

Miller’s final meal consisted of meatloaf, chuckwagon steak, American cheese, French fried potatoes, applesauce, instant potatoes, macaroni, apples and “Orange Drink.”

A note at the top of the document sent to media says, “The condemned inmate is allowed access to a television, a telephone, his/her mail, and a Bible or its equivalent.”

Thursday, 4:31 p.m., CDT: State appeals to SCOTUS to lift stay

The Alabama AG’s Office filed an application to the U.S. Supreme Court to vacate the stay of Miller’s execution. The 11th U.S. Circuit Court of Appeals upheld the stay earlier Thursday after the AG’s office appealed a U.S. district judge’s ruling.

The office requested a ruling from the court by 7 p.m. CDT Thursday.

In the 43-page appeal, the AG’s office argues that Miller should have sought legal recourse earlier and that his request for an injunction was a way to delay his death sentence.

“Because nitrogen hypoxia is not currently available as a method of execution in Alabama, the injunction is an effective commutation of Miller’s death sentence,” AG Steve Marshall wrote.

The AG’s office said the district court that issued the injunction prohibiting his execution by any method other than nitrogen hypoxia “badly abused” its discretion. It also argued that Miller’s claims of the state’s negligence, by failing to properly keep a record of those who elected nitrogen hypoxia, did not amount to a constitutional deprivation.

Miller has therefore alleged, at most, that ADOC was insufficiently careful with handling his method-of-execution form. But ‘[t]he guarantee of due process has never been understood to mean that the State must guarantee duecare on the part of its officials,'” the AG’s office wrote.

Thursday, 2:18 p.m., CDT: 11th Circuit Court of Appeals upholds stay of execution

A three-judge panel of the 11th U.S. Circuit Court of Appeals on Thursday allowed a stay of Miller’s execution to remain in place.

🔻 2-1 ruling…!!!🔻

The Attorney General’s Office said it will appeal the latest ruling.

Miller was scheduled to be executed at 6 p.m. Thursday.

The AG’s office had argued in its appeal to the 11th Circuit that there were more proper legal remedies for Miller to pursue and that the district court had come to erroneous conclusions. Miller’s attorneys responded that the state never called District Judge R. Austin Huffaker‘s conclusions wrong, and two of the judges agreed.

“The State does not challenge, as clearly erroneous, any of the district court’s factual findings,” 11th Circuit Judges Adalberto Jordan and Robin Rosenbaum, both appointed by President Barack Obama, wrote. “This includes the critical finding that it is substantially likely that Mr. Miller timely submitted a written election form choosing nitrogen hypoxia to officials at Holman.”

The AG’s office also argued that there was no evidence Miller submitted a form. Judges Jordan and Rosenbaum wrote that there was also no evidence he did not.

“The officials at Holman chose not to keep a list or log of those inmates who submitted election forms, and the State cannot now blame Mr. Miller for that institutional decision,” they wrote. “What the state is asking for is blind acceptance of its position that Mr. Miller did not submit a timely election form because he had no corroborating evidence that satisfied the state.”

11th Circuit Judge Robert Luck, appointed by President Donald Trump, dissented, arguing the state had records from at least 50 death row inmates who chose execution by nitrogen hypoxia.

“It may be, as the district court found, that Miller did, in fact, timely elect nitrogen hypoxia as his method of execution. But without an election form or contemporaneous documents showing an election — like the state had for every other death row inmate that elected nitrogen hypoxia—the state had a rational reason to treat Miller differently,” Luck wrote.

Luck also agreed with the state that Miller should have pursued other paths in his appeal.

Alabama execution:What we know about Alabama’s plans to execute Alan Eugene Miller

Thursday, 10:56 a.m., CDT: State replies to Miller’s attorneys

The Alabama Attorney General’s Office largely repeated arguments from its initial brief in its reply to Miller’s attorneys, accusing Miller of “inexcusable delay” and arguing that Miller’s allegations that the Department of Corrections lost his form to opt into nitrogen hypoxia — which they did not concede — should not factor into the court’s decision.

“Miller tries to run from his pleadings, but they leave no doubt that he alleges nothing more than a species of common-law negligence,” the filing said. “And because ‘injuries inflicted by governmental negligence are not addressed by the United States Constitution,’ … Miller’s claim cannot succeed.”

The 2018 law that established nitrogen hypoxia as an execution method gave death row inmates 30 days from the effective date of the act to decide whether to choose it as their execution method. Death row inmates who spoke with the Advertiser in 2019 said the DOC notified them of the option just five days before the deadline, and described a chaotic process where inmates had to rush to contact out-of-state lawyers to consider the ramifications of the decision.

Nitrogen hypoxia:In 2018, Alabama approved death by nitrogen for executions. When did it inform its inmates?

But federal courts have been largely unsympathetic to arguments from inmates that the process was flawed. Last October, Alabama executed Willie B. Smith for the 1991 murder of Sharma Ruth Johnson after the U.S. Supreme Court and the 11th U.S. Circuit Court of Appeals rejected arguments from Smith’s attorneys that the inmate’s intellectual disabilities meant he did not understand he could choose death by nitrogen hypoxia.

In January, attorneys for death row inmate Matthew Reeves, convicted of the 1996 murder of Willie Johnson, also argued that Reeves’ intellectual disabilities prevented him from understanding his choice. The 11th Circuit initially stayed Reeves’ execution but was overruled by the U.S. Supreme Court. Reeves was executed by lethal injection on Jan. 21.

The three-judge 11th Circuit Court of Appeals panel had not made a ruling as of late Thursday morning.

Thursday, 7:37 a.m, CDT: Miller’s attorneys respond

In a reply brief, Miller’s attorneys called the state’s attempt to overturn the preliminary injunction “last minute” and said that any delay in Miller’s execution is “entirely a consequence of Appellant’s failures.”

Miller’s attorneys argued that the district court’s judgment shouldn’t be reversed as 11th Circuit precedent reserves such decisions for cases of “clear abuse of discretion” by the district judge.

“Those judgments, therefore, are the ‘district court’s to make,’ especially, where, as here, this Court is being asked to review an entire evidentiary record — spanning thousands of pages — in a matter of hours,” Miller’s attorneys wrote.

Wednesday: District court denies state’s request for stay of preliminary injunction

Huffaker on Wednesday denied the state’s request in district court to overturn his previous decision granting Miller a preliminary injunction, on the basis that the decision to overturn the injunction posed the potential of more harm to Miller than any potential harm to the public if it weren’t overturned.

“…Miller has met his burden of showing a substantial likelihood that he timely elected and that he can succeed on his claims, that he likely faces irreparable injury, and that the balance of harms weighs in his favor,” Huffaker wrote.

The appeal is still before the Eleventh Circuit which has yet to rule.

Tuesday morning: State seeks stay of preliminary injunction

After Huffaker granted a preliminary injunction barring the state from executing Miller by any method other than nitrogen hypoxia, Attorney General Steve Marshall submitted a request for a stay of that preliminary injunction to the U.S. District Court for the Middle District of Alabama and the 11th U.S. Circuit Court of Appeals.

The state focused its argument not on the factual dispute at the core of Miller’s litigation — whether he submitted an election of nitrogen hypoxia during a limited opt-in window in 2018 — but on things Miller could have done differently, calling his delay of filing his lawsuit a “gambit” meant to delay his execution.

“Because Miller could have brought his claim earlier yet decided to wait, the State’s ‘significant interest in enforcing its criminal judgments,’ … outweighs Miller’s purported interest in nitrogen hypoxia,” Marshall wrote.

Evan Mealins is the justice reporter for the Montgomery Advertiser. Contact him at emealins@gannett.com or follow him on Twitter @EvanMealins.



fri sept 23 2022 CDT mgy REmbr… G is, as G can only BE. GOOD

If I didn’t define myself, I’d be crunched into other people’s fantasies for me and eaten alive. audre lorde

amen. so BE it. laff THRU it…yes. in Time.

In Memory of Akiriyiah (Kirah) McClellan
June 22, 2006 – Feb 16, 2022