A shackled Alabama Death Row inmate sat Tuesday waiting to hear if a judge would allow his scheduled execution to go forward as he listened to his attorneys argue inside a federal courtroom about the best method to kill him.
A preliminary injunction hearing for Carey Dale Grayson, who is set to die by nitrogen gas next month, began Tuesday at the federal courthouse in Montgomery.
Grayson, 49, is set to die on Nov. 21. He would be the third Alabama inmate to die this year using nitrogen gas. Grayson was convicted with three other men for the brutal Feb. 22, 1994, slaying and mutilation of Vicki Lynn DeBlieux.
U.S. District Judge Austin Huffaker Jr. heard arguments from the Federal Defenders for the Middle District, who are Grayson’s lawyers, and the Alabama Attorney General’s Office.
Several witnesses took the stand throughout the day-long hearing, including Alabama Department of Corrections Commissioner John Hamm, prison officials who are part of the execution team, and an anesthesiologist.
Much of the morning’s testimony centered around the two prior nitrogen executions in Alabama this year—which were the first of their kind nationally. Kenneth Smith was executed in January; Alan Miller was put to death in September.
Smith’s execution sparked controversy after he writhed on the gurney for several minutes, thrashing against the restraints, and slightly gasped for seven minutes after.
The state has argued that those physical reactions were caused by Smith holding his breath, delaying the nitrogen entering his body. The claim was repeated throughout Tuesday’s hearing.
Grayson’s lawyers are arguing for changes to the state’s nitrogen protocol, which currently involves pumping nitrogen gas into a gas mask fitted to the inmate’s face without any sedatives. The lawyers have previously said in court filings that the state has made “unwritten alterations” to the heavily redacted protocol, doesn’t use qualified people throughout the procedure to monitor medical equipment, and haven’t revealed what they conceded in a confidential settlement with Miller.
Grayson’s lawyers have proposed several alternatives, including a dose of midazolam followed by a dose of ketamine to precede the nitrogen; or a dose of ketamine followed by a fatal dose of fentanyl.
When asked if those procedures were possible—if given the drugs and personnel to administer them—Hamm said the current protocol would have to be changed. If it was, he would comply with the changed protocol.
Other testimony pointed to the Attorney General’s Office being the primary author in creating the protocol.
Hamm was questioned about the media witnesses’ accounts of both nitrogen executions, which AL.com was part of. He said he generally believed the AP reporter and AL.com reporter who witnessed those executions to be truthful and trustworthy, but that he wouldn’t have used words like “gasping” to describe the executions.
“Mr. Smith was doing everything he could to bring attention to himself and disrupt” proceedings, Hamm said.
Another prison employee, the regional director, testified after Hamm. She is involved in executions, she said, and participates in practices. No reports are produced from those practices.
The warden of William C. Holman Correctional Facility, Terry Raybon, took the stand after lunch. He testified that, as the state’s executioner, he gives three codes during the nitrogen executions to the other team members: one that the nitrogen is about to start flowing, one to initiate a consciousness check or a check of the pulse oximeter on the inmate, and one when the execution has been completed.
He said there are two pulse oximeters, and two EKGs connected to an inmate: There are two in case one of them fails. If both fail, “we’d continue the execution,” he said.
Grayson’s expert anesthesiologist said during his testimony that Smith’s autopsy showed he suffered from negative pressure pulmonary edema. He didn’t perform the autopsy but reviewed the document. That condition couldn’t be caused by holding one’s breath, he said.
He suspected the negative pressure pulmonary edema was caused by a blockage to the upper airway, possibly a panic-induced closure of the airway. If an inmate facing the same execution method was given a drug like ketamine, the doctor said, “it would be very rare” to experience that type of panic.
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