A federal judge Wednesday denied a preliminary injunction request from Carey Dale Grayson, scheduled to be executed for his role in the 1996 death of Vickie Deblieux. Grayson, scheduled to be executed on Nov. 21, alleged execution by nitrogen gas constituted cruel and unusual punishment. (Alabama Department of Corrections)
A federal judge Wednesday denied an Alabama death row inmate’s request to block his scheduled execution later this month by nitrogen gas.
U.S. District Court Judge R. Austin Huffaker Jr. ruled that Carey Dale Grayson, scheduled to be executed for his role in the 1996 death of Vickie Deblieux, would not likely succeed on the merits of his lawsuit alleging that Alabama’s nitrogen hypoxia protocol violated his Eighth Amendment right against cruel and unusual punishment.
“His evidence and allegations amount to speculation, a speculative parade of highly unlikely events, and scientific controversy at best,” Huffaker wrote.
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Absent intervention by the court, Grayson would be the state’s sixth execution for 2024, by far the most of any state in the country, and the third by nitrogen gas, making Alabama the first, and so far, the only state to try that method of execution.
Alabama executed Kenneth Eugene Smith by nitrogen gas in January, the first ever to be executed by that method. That was followed by Jamie Ray Mills and Keith Edmund Gavin in May and July, both by lethal injection.
Alan Eugene Miller was executed in September using nitrogen gas. Derrick Ryan Dearman was executed by lethal injection in October.
According to court documents, Grayson and three other teenagers picked up Deblieux while she was hitchhiking to her mother’s home in Louisiana.
The teenagers took her wooded area under the pretense of picking up another vehicle, where, according to court documents, they threw bottles at her, and attacked her.
A jury found Grayson guilty of one count of intentional murder during a kidnapping in the first degree and a second count of intentional murder during a robbery. The jury then unanimously sentenced him to death.
Grayson had previously exhausted both his direct and postconviction appeals and Gov. Kay Ivey scheduled him to be executed on Nov. 21 at sometime between midnight and 6 a.m. on Nov. 22.
In June, the Federal Defenders of the Middle District of Alabama filed a lawsuit that challenged the nitrogen gas execution method, saying it amounts to cruel and unusual punishment, a similar argument that Smith had used, and failed, as he tried to stop his execution that eventually took place in January.
Media witnesses saw Smith gasping and writhing during his execution in January. Miller, executed by nitrogen in September, also struggled and gasped for air.
Grayson alleged four problems with the execution protocol: the lack of a pre-execution medical examination, the lack of sedation prior to initiation of the nitrogen gas, improper fit of the mask, and lack of proper monitoring of the mask, and EKG and pulse oximeter devices.
Federal law requires a defendant challenging their method of execution to offer an alternative. Grayson suggested a 10 mg injection of ketamine and placement in a hyperbaric chamber filled with 90% nitrogen. Once the execution begins, the chamber would be filled with 100% nitrogen that Grayson would breathe until he passes away.
The second protocol would call for Grayson’s execution through a lethal injection using ketamine and fentanyl.
Anesthesiologist Brian McAlary testified on Grayson’s behalf at a hearing in October that he would experience “agony” after getting deprived of oxygen while still conscious without a medical exam or sedative.
McAlary also stated that Grayson may have permanent brain damage if the nitrogen gas was turned off before he was executed.
“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 states.
The state solicited the expertise of Joseph Antognini, also an anesthesiologist, as well as case studies to refute McAlary’s claims.
“As they note, Dr. McAlary provides no evidence other than his belief of the existence of negative pressure edema, which he extrapolates from the Smith autopsy report and inferences taken from hearsay eyewitness accounts of highly questionable value,” Huffaker said in his opinion.
Huffaker suggested there were conflicting accounts of what happened in Smith’s execution and said that psychological pain could not be enough to stop an execution.
“Other courts have held that psychological pain or mental suffering cannot by itself support an Eighth Amendment claim,” Huffaker said.
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