By Kim Chandler
Associated Press
MONTGOMERY, Alabama — A federal judge on Monday blocked Alabama from executing an inmate who alleges the state lost his paperwork to apply for an alternative to lethal injection.
District Judge R. Austin Huffaker, Jr. issued a preliminary injunction to prevent the state from executing Alan Miller Thursday by any method other than nitrogen hypoxia, an unproven method that Miller says he requested but that Alabama is not willing to use.
Miller was sentenced to die after being convicted of killing three people in a workplace shooting in 1999.
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“Miller will likely be irreparably harmed if no warrant is issued because he will be deprived of the ability to die by the method he chose and instead be forced to die by a method he tried to avoid and which he claims , it will be painful,” Huffaker wrote.
The damage will be "the loss of his 'final dignity', of choosing how he is going to die," the judge added.
The sentence prevents Alabama from carrying out the lethal injection that had been set for Thursday.
However, Alabama Attorney General Steve Marshall will appeal the decision, Mike Lewis, a spokesman for Marshall, wrote in an email.
Nitrogen hypoxia is a proposed method of execution in which death would be caused by forcing the inmate to breathe only nitrogen, thus depriving him of the oxygen necessary to maintain bodily functions.
Nitrogen hypoxia has been licensed by Alabama and two other states for executions, but no state has attempted to kill an inmate using this unproven method.
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Officers escort murder suspect Alan Eugene Miller out of the Pelham City Jail in Alabama on August 5, 1999. Dave Martin/AP
When Alabama approved nitrogen hypoxia as an alternative execution method in 2018, state law gave inmates a brief window to designate it as their method of execution.
Miller testified last week that he returned a state form that selected nitrogen the same day it was distributed to inmates by a prison worker.
He said he left it in the slot in his cell door for a prison worker to pick up, but did not see who picked it up.
Miller described her aversion to needles due to the painful attempts to draw blood.
He said the nitrogen method reminded him of the nitrous oxide gas used in dentists' offices, and seemed better than lethal injection.
"I don't want to be stuck with a needle," Miller said.
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Alabama prison officials say they are not aware of Miller returning the form, arguing that Miller is only trying to delay his execution.
Huffaker wrote that he cannot rule out the possibility that Miller is lying about selecting the nitrogen to delay his impending execution, but said his testimony was credible.
“It is substantially likely that Miller opportunely chose nitrogen hypoxia,” the judge wrote.
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The judge noted the possibility that Alabama could soon use nitrogen.
“It appears that the State intends to announce its readiness to carry out executions for nitrogen hypoxia in the coming weeks,” the judge wrote.
The Alabama Department of Corrections told the judge last week that Alabama “has completed many of the preparations necessary to carry out nitrogen hypoxia executions” but is not prepared to put them into practice.
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Miller, a delivery truck driver, was convicted in the 1999 workplace shootings that killed Lee Holdbrooks, Scott Yancy and Terry Jarvis in suburban Birmingham.
Miller shot Holdbrooks and Yancy at a business and then headed elsewhere to shoot Jarvis, evidence shows.
A defense psychiatrist said Miller was delusional and seriously mentally ill, but that his condition was not serious enough to be used as a basis for an insanity defense under state law.