Defense Attorneys Argue State’s Overlooked Execution Issues
Lawyers for Alabama death row inmate Carey Dale Grayson are urgently seeking to block his upcoming execution, set to be carried out with nitrogen gas, citing severe flaws in the method. In a court filing made public on Tuesday, Grayson’s attorneys argue that Alabama has ignored critical issues with its nitrogen execution protocol, which they claim could result in more “unconstitutionally torturous executions.”
Citing previous execution flaws
The legal team has asked a federal judge to prevent the state from using the nitrogen protocol that was previously implemented to execute Kenneth Smith in January. The court documents reference witness accounts and the autopsy results of Smith’s execution.
Alabama, the first state to conduct a nitrogen execution, has scheduled two more. Alan Eugene Miller is set to be executed on September 26, followed by Grayson on November 21.
“Rather than investigating what went wrong – as other states have done following issues with executions – defendants have chosen to ignore clear and obvious signs the current protocol contains major problems that will result in more unconstitutionally torturous executions if it continues to be employed,” Grayson’s attorneys stated in the court filing.
State’s response and autopsy findings
The Alabama attorney general’s office has not commented on the recent court filing but maintains that the execution method is constitutional. Alabama Attorney General Steve Marshall previously described the execution as “textbook.”
The state will respond to the request for a preliminary injunction later. According to an autopsy conducted by the Alabama Department of Forensic Sciences, Smith had blood and fluid in his lungs after his death.
The state autopsy revealed that Smith’s lungs displayed “marked congestion and edema with dark maroon blood,” and noted a “small amount of frothy fluid” in the tracheobronchial tree.
Expert opinions on the execution method
Dr. Brian McAlary, an anesthesiologist hired by Grayson’s legal team, found the autopsy results “highly concerning.” He stated that these findings were indicative of negative pressure pulmonary edema, a condition that can occur when one attempts to draw a breath against an upper airway obstruction, causing fluid to be pulled from blood vessels. This condition could also result from strangulation or smothering with a plastic bag. McAlary noted that the absence of a sedative before nitrogen gas exposure increases the likelihood of panic.
“Mr. Smith’s autopsy demonstrates what happens to the body when this panic response occurs. An individual experiencing panic and the sensation of the inability to breathe while also being denied oxygen will experience a constricted airway similar to an upper airway obstruction,” McAlary wrote.
Dr. Thomas Andrew, former chief medical examiner of New Hampshire, also weighed in, stating that lung congestion is consistent with asphyxia as the cause of death. He explained that as the heart rapidly fails, “blood backs up and the lungs become quite congested.”
Andrew acknowledged that lacking sedation could indeed spark panic. “I think that’s a critical critique of the protocols used in this form of execution… You certainly will have a sense of the absence of oxygen, air hunger, and all of the panic and discomfort that is part and parcel of that way of dying,” he noted.
Grayson’s case and choice of execution method
Alabama approved nitrogen gas as an execution method in 2018, a choice Grayson opted for despite the state lacking a concrete process to administer it at the time. Grayson was convicted for the brutal 1994 murder of 37-year-old Vickie Deblieux in Jefferson County.
Deblieux was attacked by Grayson and three other teenagers after they offered her a ride while she was hitchhiking back home. Following a brutal assault, they threw her off a cliff and mutilated her body, according to prosecutors.
Grayson, who was 19 at the time, faces the death penalty, unlike the other teenagers involved in the crime.
The legal battle continues
As the scheduled execution dates approach, the legal battle over the use of nitrogen gas as an execution method in Alabama intensifies. Grayson’s attorneys are determined to prevent what they describe as a “torturous” and flawed execution method from being used again.
