Federal Court Orders Alabama to Preserve Evidence of Botched Attempted Execution of Alan Miller

A fed­er­al dis­trict court has ordered Alabama state offi­cials to pre­serve evi­dence relat­ed to the state’s failed attempt to exe­cute death-row pris­on­er Alan Miller on September 22, 2022. The botched exe­cu­tion attempt, Alabama’s third since 2018, came after a divid­ed U.S. Supreme Court issued an after-hours exe­cu­tion-night order set­ting aside with­out opin­ion an injunc­tion that had barred the state from exe­cut­ing Miller ​“by any method oth­er than nitro­gen hypox­ia.” Prison offi­cials then unsuc­cess­ful­ly attempt­ed as many as 18 times to estab­lish an intra­venous exe­cu­tion line before call­ing off the exe­cu­tion as the mid­night dead­line for car­ry­ing it out approached.

Miller’s lawyers filed an emer­gency motion in fed­er­al court on September 23, 2022, to grant them imme­di­ate access to their client to pho­to­graph and take video of Miller to pre­serve evi­dence of the injuries he sus­tained dur­ing the exe­cu­tion attempt. A con­fi­den­tial account pro­vid­ed to DPIC by an indi­vid­ual with per­son­al knowl­edge who had no asso­ci­a­tion with the case indi­cat­ed that Miller had ​“about 18 nee­dle marks” in his arms and legs after the failed execution. 

In grant­i­ng Miller’s motion, U.S. District Court Judge R. Austin Huffaker, Jr. direct­ed the Alabama Department of Corrections (ADOC) to allow a med­ical doc­tor retained by Miller’s coun­sel access to Miller to eval­u­ate his con­di­tion. The court also ordered ADOC ​“to locate and pre­serve all evi­dence [and a]ll com­mu­ni­ca­tions relat­ing to the attempted execution.” 

The Supreme Court’s 5 – 4 order, issued by the five male Republican jus­tices on the Court over the bipar­ti­san dis­sent of the Court’s four female jus­tices, came short­ly after 9 pm Central time, three hours after the exe­cu­tion was sched­uled to begin. It nev­er­the­less pro­vid­ed the Alabama Department of Corrections near­ly three hours to per­form the exe­cu­tion before the mid­night expi­ra­tion date of Miller’s death warrant. 

After the exe­cu­tion team spent two and a half hours unsuc­cess­ful­ly attempt­ing to do so, Alabama Corrections Commissioner John Hamm blamed their fail­ure on ​“time con­straints result­ing from the late­ness of the court pro­ceed­ings.” He said, ​“the exe­cu­tion was called off once it was deter­mined the con­demned inmate’s veins could not be accessed in accor­dance with our pro­to­col before the expi­ra­tion of the death warrant.”

The Department of Corrections trans­port­ed reporters to the prison to wit­ness the sched­uled exe­cu­tion, then, with­out expla­na­tion, left them at the gate for approx­i­mate­ly 45 min­utes before return­ing them to the media cen­ter. As an ambu­lance drove off the prison grounds, ADOC offi­cials respond­ed to reporters’ ques­tions about Miller’s con­di­tion by refus­ing to con­firm whether he was alive or dead. At a post-can­ce­la­tion news con­fer­ence, Commissioner Hamm assert­ed that Miller was back in his cell and that the ambu­lance had been for an unre­lat­ed prisoner’s medical emergency. 

Three days before Miller was sched­uled to be exe­cut­ed, Judge R. Austin Huffaker, Jr. of the U.S. District Court for the Middle District of Alabama, an appointee of for­mer President Trump, grant­ed a pre­lim­i­nary injunc­tion block­ing the state from exe­cut­ing Miller through any method oth­er than nitro­gen hypox­ia. Miller had pre­sent­ed ​“con­sis­tent, cred­i­ble, and uncon­tro­vert­ed direct evi­dence” that he had elect­ed to be exe­cut­ed by hypox­ia when Alabama autho­rized the new method in 2018. The Alabama Department of Corrections (ADOC) said they did not have Miller’s form, and sought to exe­cute him by lethal injec­tion because the state was not pre­pared to car­ry out exe­cu­tions by nitrogen hypoxia. 

On the after­noon of the sched­uled exe­cu­tion, a pan­el of the U.S. Court of Appeals for the Eleventh Circuit vot­ed 2 – 1 to deny state pros­e­cu­tors’ motion to vacate Judge Huffaker’s injunc­tion. The major­i­ty wrote: ​“Prison offi­cials at Holman chose not to keep a log or list of those inmates who sub­mit­ted an elec­tion form choos­ing nitro­gen hypox­ia. They lost or mis­placed the elec­tion form sub­mit­ted by anoth­er inmate at Holman … and a prison guard did not turn in the form of a third inmate …. The dis­trict court found, fol­low­ing an evi­den­tiary hear­ing, that it is sub­stan­tial­ly like­ly that Mr. Miller sub­mit­ted a time­ly elec­tion form even though the State says that it does not have any phys­i­cal record of a form. The State does not chal­lenge that fac­tu­al find­ing, and has com­plete­ly failed to argue (much less show) that it will suf­fer irreparable harm.” 

In fil­ings before the Supreme Court appeal­ing the circuit’s rul­ing, Alabama offi­cials argued that Miller’s claim that the state was neg­li­gent in fail­ing to keep records of his selec­tion of nitro­gen hypox­ia did not amount to a vio­la­tion of his rights. ​“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 due care on the part of its officials.’ ” 

In response, Miller’s attor­neys called the state’s argu­ment ​“Kafkaesque” and argued that the state was unnec­es­sar­i­ly rush­ing to exe­cute their client. ​“What is the emer­gency? The State of Alabama wants to pro­ceed with the exe­cu­tion of Alan Miller by lethal injec­tion tonight. Mr. Miller is not going any­where, and nei­ther is the Alabama Department of Corrections,” they wrote. ​“The State is man­u­fac­tur­ing an emer­gency need to exe­cute Mr. Miller despite the fact that the State can exe­cute Mr. Miller once it final­izes its nitro­gen hypox­ia execution protocol.”

The Court vot­ed 5 – 4 to lift the injunc­tion, with Justice Amy Coney Barrett join­ing the Court’s three lib­er­al mem­bers in dis­sent­ing. The deci­sion was the lat­est in which the Court has lift­ed stays or injunc­tions issued by low­er courts that would have tem­porar­i­ly delayed exe­cu­tions. It has not stayed any exe­cu­tion since the death of Justice Ruth Bader Ginsburg, except to deter­mine whether a reli­gious advi­sor may accom­pa­ny a con­demned pris­on­er in the exe­cu­tion cham­ber while he is being put to death.

Miller’s abort­ed exe­cu­tion marks at least the third time in the last four years that Alabama has failed for hours to estab­lish access to a prisoner’s veins for lethal injec­tion. In 2018, in cir­cum­stances sim­i­lar to Miller’s, the state called off the exe­cu­tion of Doyle Hamm after two and a half hours of efforts to set an intra­venous line. Hamm’s attor­neys had warned the state that his med­ical con­di­tion — ter­mi­nal cra­nial and lym­phat­ic can­cer, hepati­tis C, and pri­or his­to­ry of drug use — would like­ly make it impos­si­ble to set an IV line. 

At a news con­fer­ence imme­di­ate­ly after call­ing off the exe­cu­tion, then-ADOC Commissioner Jeff Dunn blamed the exe­cu­tion team’s fail­ure on the U.S. Supreme Court’s after-hours issuance of an opin­ion green-light­ing the exe­cu­tion. said ​“I wouldn’t char­ac­ter­ize what we had tonight as a prob­lem.” The team had sim­ply run out of time, Dunn said. Graphic pho­tographs obtained after a fed­er­al court grant­ed Hamm’s lawyers phys­i­cal access to him to pre­serve evi­dence of ADOC’s con­duct revealed that the exe­cu­tion team unsuc­cess­ful­ly attempt­ed more than 10 times to insert intra­venous exe­cu­tion nee­dles into his feet, legs, and right groin, like­ly punc­tur­ing his blad­der and caus­ing blood in his urine. 

Hamm and ADOC reached a con­fi­den­tial set­tle­ment in which Alabama agreed not to attempt a sec­ond time to put him to death. Hamm died of cancer in 2021. 

Less than two months pri­or to Alabama’s attempt to exe­cute Miller, it sub­ject­ed Joe Nathan James to a tor­tur­ous botched exe­cu­tion. Findings from an inde­pen­dent autop­sy after James’ July 28 exe­cu­tion showed at least six failed attempts to set an intra­venous exe­cu­tion line, punc­ture wounds in Mr. James arm mus­cles that appear to be unre­lat­ed to efforts to insert the IV, mul­ti­ple unex­plained inci­sions, and bleed­ing and bruis­ing around Mr. James’ wrists where he was strapped to the gur­ney. The state again claimed that ​“noth­ing out of the ordi­nary” had occurred dur­ing the three-hour peri­od between the sched­uled start of James’ exe­cu­tion and the time in which the exe­cu­tion cur­tain was opened and media wit­ness­es observed an already non­re­spon­sive James strapped to the execution gurney.

In grant­i­ng Miller’s emer­gency motion to pre­serve evi­dence relat­ing to the failed exe­cu­tion, Judge Huffaker direct­ed the prison to allow a med­ical doc­tor retained by Miller’s coun­sel access to Miller to eval­u­ate his con­di­tion. The court also ordered ADOC ​“to locate and pre­serve all evi­dence relat­ed to the attempt­ed exe­cu­tion of Mr. Miller on 9/​22/​2022, includ­ing but not lim­it­ed to: a) All med­ical charts, reports, and notes that were pre­pared, relied upon, doc­u­ment­ed, or oth­er­wise used; b) All med­ical mate­ri­als and equip­ment, includ­ing but not lim­it­ed to syringes, swabs, scalpels, and IV-lines that were used or oth­er­wise relied upon … includ­ing any med­ical waste.” In addi­tion, Judge Huffaker ordered also state offi­cials to pro­duce ​“All com­mu­ni­ca­tions relat­ing to the attempt­ed exe­cu­tion on 9/​22/​2022 from per­son­nel employed, con­tract­ed by, or oth­er­wise asso­ci­at­ed with Holman, the Alabama Department of Corrections, and Alabama Attorney General’s Office, includ­ing e‑mails, phone calls, text mes­sages, notes, or any oth­er form of com­mu­ni­ca­tion, writ­ten or otherwise.”

Alabama has one of the most expan­sive exe­cu­tion-secre­cy poli­cies in the coun­try and has aggres­sive­ly con­cealed its exe­cu­tion prac­tices from the media, the pub­lic, and coun­sel for death-row pris­on­ers. It has failed to pro­vide any expla­na­tion to the pub­lic about what occurred behind the exe­cu­tion cur­tain dur­ing the botched exe­cu­tion of Joe james and the failed exe­cu­tions of Hamm and Miller. ​“When states refuse to be open about issues like this, that’s a big red flag,” said Robert Dunham, DPIC exec­u­tive direc­tor. ​“You botch three exe­cu­tions and say, ​‘Trust me, I’m Alabama,’ that is not a good justification.”