Supreme Court lifts stay, allows Alabama to execute Alan Miller tonight -

Alan Eugene Miller is set to die tonight, punished by the state of Alabama for his August 5, 1999 shooting spree that left three men dead.

Miller's execution date comes after weeks of legal wrangling, most recently on Thursday when the Alabama Attorney General's Office asked the U.S. Supreme Court to overturn a lower court judge's ruling that effectively stayed the Sept. 22 execution.

Miller, 57, was set be executed by lethal injection at 6 p.m. at William C. Holman Correctional Facility in Atmore. The Supreme Court justices will ultimately make the final decision if Miller dies tonight.

His legal battles centers around his claims that in June 2018, he completed a form distributed to death row inmates at Holman electing to die by the state's newly approved method of execution, nitrogen hypoxia, instead of the default method of lethal injection.

The AG's Office argues there is no record of that form being submitted, and that he should be executed using lethal injection instead.

Update 9:08 p.m.

The U.S. Supreme Court granted the state's application to vacate the injunction, clearing the way for Alabama to execute Alan Miller tonight. Justice Sonia Sotomayor, Justice Elena Kagan, Justice Amy Coney Barrett, and Justice Ketanji Brown Jackson voted to deny the application.

Update 8:12 p.m.

Attorneys for Miller have filed a response in the Supreme Court, saying the lower court's ruling preventing the lethal injection execution scheduled for tonight should not be overturned.

"After carefully reviewing hundreds of pages of evidence, weighing live in-court testimony, and sifting through nearly half-a-dozen deposition transcripts, the district court found as a matter of fact that Miller likely elected execution by nitrogen hypoxia in the time provided by Alabama law," the brief said. "The district court entered a preliminary injunction preventing the State from executing Mr. Miller by any method other than nitrogen hypoxia, which is precisely what the State has agreed it must do for every other inmate who timely elected nitrogen hypoxia."

The attorneys argued there was no reason for Miller to be executed tonight, even though the state asked the nation's high court for an order "on an emergency basis."

Miller's attorneys wrote in the filing, "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. 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."

Update 6:24 p.m.

The public information officer for the Alabama Department of Corrections said that, on Wednesday, Miller was visited by his brother Richard Miller along with his sister Cheryl Ellison, Jeffery Carr, and Sandra Carr. He had a phone call with an attorney, Kelly Huggins.

Thursday, he was visited by Richard Miller, Cheryl Ellison, attorney Mara Rose Klebaner, along with uncle Richard Carr, Jeffery Carr, and Sandra Carr.

Miller did accept a final meal tray, which included meatloaf, chuckwagon steak, American cheese, french fried potatoes, applesauce, instant potatoes, macaroni, apples, and an orange drink.

Those listed to witness the execution, if it goes forward tonight, for Miller are Richard Miller, Cheryl Ellison, Jeffery Carr, Sandra Carr, and Mara Klebaner. Also listed as a witness for Miller is Elizabeth Bruenig, The Atlantic journalist who reported that some doctors were calling the July 28 execution of Joe Nathan James "botched."

According to the ADOC, Miller has had access during the last 24 hours to a television, a telephone, his mail, and a Bible or its equivalent.

Update 4:35 p.m.

The Alabama Attorney General's Office has officially asked the U.S. Supreme Court to overturn an injunction and allow tonight's scheduled execution to move forward.

"This case involves another set of last-minute, meritless claims brought to delay an execution," the AG's Office wrote, calling Miller's claims "meritless."

"Because nitrogen hypoxia is not currently available as a method of execution in Alabama, the injunction is an effective commutation of Miller's death sentence. Earlier today, the Eleventh Circuit declined to stay the district court's injunction. This Court should vacate it."

The AG's Office continued, adding Miller should have filed his lawsuit sooner: "But even assuming Miller's novel right to better recordkeeping were constitutionally cognizable, Miller's procedural claim would still fail... Miller inexplicably declined to seek this state-law remedy despite having over two months to do so after the Alabama Supreme Court set his execution date."

The state also asked for the high court to issue a ruling by 7:00 p.m. CST.

The death warrant for Miller expires at midnight; meaning, the state must have started the execution process by that time.

Update 2:45 p.m.

The Attorney General's Office will appeal to the U.S. Supreme Court, Attorney General, said Mike Lewis, communications director for the attorney general's office.

Update 2:30 p.m.

The 11th Circuit Court of Appeals, in a 32-page order and a 2-1 decision, upheld the ruling by Judge R. Austin Huffaker Jr. Monday night calling off the execution after finding that Miller had sought to be executed by an alternate method - nitrogen hypoxia - but state prison officials had lost the form.

"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 11th Circuit stated in its ruling this afternoon. "The State does not challenge that factual finding, and has completely failed to argue (much less show) that it will suffer irreparable harm. For the reasons set forth in this order, the State's emergency motion for a stay of the district court's preliminary injunction is denied."

Alabama could still seek a ruling from the U.S. Supreme Court to reverse the 11th Circuit's decision and execute Miller tonight.

The original story continues here:

"Miller has established his entitlement to a preliminary injunction that prevents the State from executing him by any method other than nitrogen hypoxia," U.S. District Judge R. Austin Huffaker Jr. wrote in his Monday order. Alabama is not yet ready to be the first in the nation to conduct an execution using nitrogen hypoxia.

The judge said in his order, "Miller has presented consistent, credible, and uncontroverted direct evidence that he submitted an election form in the manner he says was announced to him by the (Alabama Department of Corrections)," along with "circumstantial evidence" that the ADOC lost or misplaced his form after he turned it in.

The Alabama Attorney General's Office addressed that issue in a brief filed to the 11th Circuit today. "Does that alleged mistake give rise to a procedural due process claim or equal protection class-of-one claim? Of course not," the attorney general brief states. The attorney general also states Miller had an "inexcusable delay" in filing a lawsuit to challenge on that issue. "But the interests of Miller's many victims demand consideration, too, and foreclose any notion that it was excusable for Miller and his team ... to wait almost five weeks from the date (of) his execution was set to launch this lawsuit."

Miller was sent to Alabama Death Row after he was convicted of shooting three men at his current and former places of work in 1999. Those men were Lee Holdbrooks, 32; Christopher Scott Yancy, 28; and Terry Jarvis, 39. Holdbrooks and Yancy were employees of Ferguson Enterprises, while Jarvis worked for Post Airgas in Pelham.

This article will be updated throughout the night with the status of the execution. Live updates, when they begin, will be added at the top of this story.

The current lawsuit

No state in the nation has used nitrogen hypoxia for an execution, although several states have laws allowing it. Alabama's law allowing nitrogen hypoxia executions was passed in 2018, and the law allowed inmates currently sitting on death row to opt-in to dying by the newly approved method.

There was no state-sanctioned process or form to elect nitrogen hypoxia; the law just said inmates must make their choice in writing and deliver it to the prison warden during a 30-day-period in June 2018.

The process has come under fire for years, with U.S. Supreme Court Justice Sonia Sotomayor once describing it as "haphazard" as she wrote: "Once a State has determined that individuals on death row should have a choice as to how the State will execute them, it should ensure that a meaningful choice is provided."

Read more: Alabama bungled 'haphazard' process of letting death row inmates choose execution method, lawsuits say

Alabama is currently not ready to carry out such an execution, Alabama Department of Corrections Commissioner John Hamm said in an affidavit. The admission comes days after Deputy Alabama Attorney General James Houts said that it was "very likely" the state could execute Miller on Sept. 22 using nitrogen hypoxia if the court deemed the change of method necessary.

Huffaker said the AG's Office made "vague and imprecise statements regarding the readiness and intent to move forward with an execution," and ordered the state to take a definite stance on their readiness. After his order, Hamm's affidavit was filed.

Huffaker wrote in his Monday order that the state has been "inconsistent" with its claims. "Suffice it to say, the readiness of the protocol and of the ADOC to conduct executions by nitrogen hypoxia has been a moving target," he wrote.

"In this case specifically, the Court has received inconsistent information along the way from the State... The Court notes that while nitrogen hypoxia may not be available on September 22, 2022, the State has not said when it expects the protocol to be ready. From all that appears, the State intends to announce its readiness to conduct executions by nitrogen hypoxia in the upcoming weeks."

The judge also criticized the ADOC policy of changing execution methods in 2018. He wrote the case "presents another occasion for the court to consider the downstream effects" of the process and that there is "no evidence of a standardized policy or procedure for ADOC officials to collect and transmit completed forms... for logging and retention, nor is there evidence of a chain of custody from the time forms were collected."

In his order, Huffaker mentioned two other death row inmates who have also alleged issues with the state's collecting of their forms.

In its appeal to the 11th Circuit, assistant Alabama attorney generals argued Miller's legal team waited too long to file his lawsuit and was simply seeking to put off the execution. He "followed the playbook of many death-row inmates, waiting to the last minute to file his claims," according to the state's appeal.

They also argue Miller has no evidence that he actually completed and turned in his form selecting the change of execution method in June 2018.

"Miller sat on his hands and his rights after he says he was subjected to unconstitutional acts committed by a previous warden of Holman Correctional Facility and her subordinates in June 2018," attorneys from the AG's Office wrote in an earlier filing.

On Thursday in a filing to the U.S. Supreme Court, the AG's Office said, "delay has been the central feature of this litigation. Start with the fact that Miller could have brought this suit as soon as July 18, 2022, when the Alabama Supreme Court set his execution date. Yet, following the playbook of many death-row inmates, he waited 34 days longer to file his claims."

Lethal injection is the only method the state can use to execute Miller currently, according to Hamm's affidavit. The state has yet to provide a clear protocol on how the process will work in Alabama.

The nitrogen hypoxia execution process will center around a prisoner inhaling nitrogen, without any source of oxygen, causing death by asphyxiation. Inhalation of only one or two breaths of pure nitrogen will cause sudden loss of consciousness and, if no oxygen is provided, death.

Read more: Alabama not ready to use nitrogen hypoxia for Sept. 22 execution

Miller's attorneys wrote in a legal brief filed to the U.S. Supreme Court on Thursday night that "It is disingenuous in the extreme to suggest that nitrogen hypoxia is not an 'available' method of execution when state law gave inmates the option to choose it four years ago. Any delay in the timing of executions of all of the inmates who chose nitrogen hypoxia is due to the State's failure to produce a nitrogen hypoxia protocol in the four years since the legislature gave inmates the right to choose it."

"It is a minor delay that will only last as long as the State takes to finalize its own nitrogen hypoxia protocol," the legal team wrote.

Alan Miller's past

Court records filed by an appeal team for Miller in 2006 talked about his "unstable" upbringing and the "extreme physical and psychological abuse" he suffered from his father. Those records also note a "well-documented history of family mental illness."

Records show Miller's father "did not like his son at all," according to Miller's mother. "After (Miller) was born, his father frequently called him 'the devil' or 'a demon,'" the appeal stated. "He 'deliberately tried to instill terror in the Miller children.'"

Miller moved around until he was 18, according to court records, because of his "reckless, violent and unpredictable father." His father was a truck driver and would frequently quit his job or get fired and uproot his family. Miller's father also served prison time for armed robbery, burglary, and various drug offenses.

Court records refer to Miller's father as a "self-proclaimed healer," who would sometimes stop working because he felt called by God to preach instead.

"The constant moves made it impossible for (Miller) and his siblings to make friends growing up," a document filed by appeal lawyers for Miller said. "Because (Miller) was constantly the 'new kid,' he readily became the object of teasing by other children, which made him particularly sensitive to perceived teasing and ridicule in his adult life as well. Due to the uncertainty that marred his developmental years, 'keeping to himself' became a way of life for (Miller)."

Appeal records state Miller's father belittled him, called him names, and wouldn't let him participate in sports or activities. He also physically beat Miller, resulting in multiple concussions and other injuries, and stabbed him with a knife. Miller's father also, according to the records, would often wave a pistol and threaten to kill his family. This abuse happened to all the Miller children and Miller's mother, but was often worse with Miller himself.

The Millers lived with rats and cockroaches roaming their beds "in constant poverty," the record stated, and were never accepted by any community they moved into because of the father's behavior.

Court records show that, once he was an adult, Miller and his brother were the sole financial providers for their mother and family.

Miller did not testify at his trial, but took the stand during an evidentiary hearing in his current lawsuit, testifying how he strongly disliked needles and adding that people within the ADOC have often had problems with drawing his blood.

His attorneys wrote in their Supreme Court filing, "Mr. Miller will be executed, and there is every reason to believe he will be executed soon. All he asks is that the State respect the choice the legislature gave him: to die by nitrogen hypoxia instead of lethal injection."

Miller shared that sentiment in a deposition. "You know, it's my life. And I know I didn't want to be stabbed with needles and everything like that," he said. "I thought it would be simpler. I wouldn't be stabbed like that or have allergic reactions to the chemicals that they said was in the lethal injection."

"I don't want to die. I just want to be treated fairly."

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