Court filings provide additional details of the US’ first nitrogen gas execution
MONTGOMERY, Alabama — A prison guard who helped carry out the first execution using nitrogen gas in the country’s history said in a court document that the inmate had normal blood oxygen levels for longer than expected before the levels suddenly dropped.
Another court document indicated that nitrogen gas flowed for at least 10 minutes during the execution. The documents, filed last month in an ongoing lawsuit, provide additional details about the execution of Kenneth Smith, the first person to be put to death using nitrogen gas.
Alabama Attorney General Steve Marshall’s office claims the high oxygen levels indicate Smith held his breath as the nitrogen gas flowed, causing the execution to take longer than expected. But attorneys for another inmate said the state has no evidence to support that claim and is trying to “explain away” an execution that went horribly wrong.
As Alabama plans additional nitrogen gas executions, questions and disagreements remain about what happened in the first one. A federal judge will hear arguments Tuesday in a request to block the state from executing Alan Miller with nitrogen gas in September, which would be the nation’s second nitrogen execution.
Witnesses to Smith’s execution in the mediaincluding The Associated Press, said Smith shook on the gurney for minutes before taking a series of gasping breaths. Alabama had assured a federal judge before the execution that the new execution method would quickly cause unconsciousness and death.
A pulse oximeter showed Smith’s oxygen levels were 97% to 98% for a “period of time that was longer than I expected,” the prison captain said in an affidavit. The prison captain said he did not see Smith make any violent or convulsive movements, but he did tense up and lift his body off the gurney. After he took “deep breaths,” his oxygen levels began to drop, the prison captain said.
“The best explanation for the testimony is that Smith held his breath and lost consciousness when he inhaled nitrogen gas — not that the mask did not fit or that the nitrogen was impure,” the Alabama attorney general’s office wrote in a court document.
Miller’s attorneys responded that the state has no evidence to support that claim, saying it would be impossible for someone to hold their breath for the duration of the execution. Instead, they suggested that other problems with the mask were to blame for the delay.
“It should not be surprising, therefore, that Mr. Smith did not lose consciousness after a few breaths — as the State has repeatedly assured this Court he would. Instead, Mr. Smith’s entire body — including his head — began to convulse and jerk violently, moving against the restraints with enough force to move the gurney,” Miller’s attorneys wrote.
Dr. Philip E. Bickler, an expert hired by Miller’s defense, wrote in a court document that most people can hold their breath for only a minute or less.
The court file, which was later sealed, indicated that the nitrogen gas flowed for at least 10 minutes. Bickler wrote that he understood Alabama’s “execution log to state that 10 minutes elapsed between the beginning of the flow of nitrogen gas to Mr. Smith” and the time the prison guard performed a consciousness check on Smith.
Unless the court stops Alabama plans to implement Miller with nitrogen gas on September 26. Miller, a delivery truck driver, was convicted of murdering three men — Terry Jarvis, Lee Holdbrooks and Scott Yancy — in consecutive workplace shootings in 1999.
Alabama had previously attempted to execute Miller by lethal injection. But the state called off the execution after it failed to connect an IV line to the 351-pound inmate. The state and Miller agreed that any further execution attempts would be carried out with nitrogen gas.
However, Miller said in a statement that he did not trust the state to properly fit the gas mask. “And these guys sometimes can’t even open a cell door. They’re basically keystone cops,” he said.
The Attorney General’s Office is also looking for a date for the execution of nitrogen gas for Carey Dale Grayson, who was convicted of the 1994 murder of Vickie Deblieux in Jefferson County.
A lawyer for Grayson said the descriptions of Smith’s execution show there needs to be more oversight of the new execution method.
“Even after the first execution, we have more questions than answers. We need to slow down, not speed up,” said John Palombi, an attorney with the Federal Defenders Program.