Lawyers for Alabama inmate seek to block his fall execution by nitrogen gas

MONTGOMERY, Alabama — Attorneys for an Alabama inmate set to be executed with nitrogen gas this fall argued in a court filing Tuesday that the state is ignoring problems with the method and wants to carry out more nitrogen executions.

Attorneys for Carey Dale Grayson have asked a federal judge to ban the state from using the same nitrogen protocol that Alabama used in January to Execute Kenneth SmithThe court filing cited witness statements about the execution and the findings of an autopsy on Smith.

Alabama, after becoming the first state to carry out a nitrogen execution, has scheduled two more executions using the new method. A second execution via nitrogen gas is scheduled for Sept. 26 for Alan Eugene MillerGrayson is expected to be executed on November 21.

“Rather than investigating what went wrong — as other states have done following problems with executions — Defendants have chosen to ignore clear and obvious signs that the current protocol contains serious problems that will result in more unconstitutional, torturous executions if it continues to be used,” Grayson’s attorneys wrote in the Tuesday night filing.

The Alabama Attorney General’s Office declined to comment on the court filing Wednesday but has maintained that the method is constitutional. Alabama Attorney General Steve Marshall previously said described the execution as a “schoolbook”. The state will later file a response to the request for interim relief.

Smith had blood and fluid in his lungs after his death, according to an autopsy performed by the Alabama Department of Forensic Sciences. The state autopsy noted that when his lungs were cut, they showed “marked congestion and edema with dark maroon blood.” The tracheobronchial tree was also noted to contain a “small amount of frothy fluid.”

An expert hired by Grayson’s legal team to review the autopsy wrote that the finding is “deeply disturbing.”

Dr. Brian McAlary, an anesthesiologist, wrote that it was the result of negative pressure pulmonary edema, which occurs when one tries to breathe against an obstruction of the upper airway, which causes fluid to drain from the blood vessels. He said it can also occur after strangulation or suffocation with a plastic bag. He also wrote that the lack of a sedative prior to nitrogen gas increases the likelihood that the person will panic.

“Mr. Smith’s autopsy illustrates what happens to the body when this panic response occurs. An individual who experiences panic and the feeling of being unable to breathe while also being deprived of oxygen will experience a narrowed airway similar to an upper airway obstruction,” McAlary wrote.

Dr. Thomas Andrew, who retired after two decades as New Hampshire’s chief coroner, told The Associated Press that lung congestion is consistent with asphyxia as the mechanism of death. He said that as the heart fails rapidly, “the blood flows backward and the lungs become quite congested.”

Andrew said he thought it might be a “bridge too far” to conclude there was an airway obstruction. However, he agreed that the lack of sedation could cause someone to panic.

“I think this is a critical critique of the protocols that are used in this form of execution… You will certainly have a sense of the lack of oxygen, the hunger for air and all the panic and discomfort that are inherent in that manner of death,” Andrew said.

Alabama in 2018 Authorized Nitrogen Gas as a new method of execution. Grayson selected it as his execution method in 2018, but the state had not yet developed a process for using it to carry out an execution.

Grayson was one of four teenagers convicted in the 1994 murder of 37-year-old Vickie Deblieux in Jefferson County. Prosecutors said Deblieux was hitchhiking from Tennessee to her mother’s home in Louisiana when four teenagers, including Grayson, offered her a ride. Prosecutors said they took her to a wooded area, attacked her, beat her and threw her off a cliff. The teenagers later mutilated her body, prosecutors said.

Grayson is the only one of the four who faces the death penalty, as he was 19 years old at the time of the crime.