A three-judge panel of the U.S. 11th Circuit Court of Appeals Monday denied Alabama death row inmate Carey Dale Grayson’s request to halt his execution by nitrogen gas, scheduled for Thursday. (Alabama Department of Corrections)
A federal appeals court Monday rejected the appeal of an Alabama death row inmate scheduled to be executed on Thursday.
The three-panel judge denied Carey Dale Grayson’s request for a preliminary injunction against Alabama’s use of nitrogen gas execution, upholding a district court decision.
“Given the evidence presented at the evidentiary hearing, the district court’s factual findings are not clearly erroneous,” wrote U.S. Circuit Judge Adalberto Jordan in the court’s opinion. “And based on these findings, the district court did not abuse its discretion in concluding that Mr. Grayson failed to show a substantial likelihood of success on his claim that aspects of the nitrogen hypoxia protocol violate the Eighth Amendment.”
A jury convicted Grayson of two counts of capital murder in 1996 for his role in the 1994 murder of Vickie Deblieux in which he and several others took her to a wooded area and proceeded to beat her to death.
His attorneys argued the execution method violates Grayson’s Eighth Amendment right against cruel and unusual punishment.
Grayson alleged several issues with the planned protocol by the state: that the Alabama Department of Corrections would not perform a medical exam prior to his execution; that he would not be sedated prior to getting put to death; that the mask would not be properly fitted to his face and that the mask would not be properly monitored with an EKG and pulse oximeter devices.
He then proposed two alternative methods, to either be sedated prior to getting executed with nitrogen gas or receive a lethal injection of ketamine and fentanyl.
Grayson and his attorneys relied on the expertise of anesthesiologist Brian McAlary, who stated that Grayson could experience a high degree of suffering when deprived of oxygen during the execution absent a medical exam or sedative.
Attorneys for the state relied on the testimony of Joseph Antognini, another anesthesiologist, to challenge McAlary’s claims.
U.S. District Court Judge R. Austin Huffaker Jr. wrote his ruling on Nov. 6 that McAlary did not offer sufficient evidence that Grayson would experience negative pressure pulmonary edema should his airway be obstructed during the execution, which Grayson’s attorneys cited as a potential problem with the protocol.
“As for pain, Dr. McAlary conceded that the protocol only inflicts psychological pain, a type of pain that would exist regardless of the method of execution,” Huffaker’s ruling stated.
The appeals court found Huffaker’s ruling plausible.
“Mr. Grayson presented ‘little evidence’ about his ‘unsubstantiated assertion’ that alleged deficiencies with the mask and its fitting increase the likelihood of the introduction of oxygen which would prolong the execution process and possibly result in a hypoxia-induced injury,” the panel wrote.
Grayson may appeal the court’s ruling to the U.S. Supreme Court.
If the high court upholds the ruling, Grayson will be the third person executed by nitrogen gas in Alabama this year and the sixth put to death by the state. Alabama is the only state that has conducted nitrogen gas executions.