FILE – This undated photo provided by the Alabama Department of Corrections shows inmate Alan Eugene Miller, who was convicted of workplace murder in a shooting that killed three men in 1999. Miller, who was scheduled to be executed by lethal injection in September. 22, 2022, he says the state lost the paperwork it dragged into choosing an alternative method of execution. (Alabama Department of Corrections via AP, File) 1 of 2 FILE – This undated photo provided by the Alabama Department of Corrections shows inmate Alan Eugene Miller, who was convicted of workplace murder in a shooting that killed three men in 1999. Miller, who was scheduled to be executed by lethal injection in September. 22, 2022, he says the state lost the paperwork it dragged into choosing an alternative method of execution. (Alabama Department of Corrections via AP, File) MONTGOMERY, Ala. (AP) — Alabama could be ready to use a new, untested execution method called nitrogen hypoxia to carry out a death sentence as soon as next week, a state prosecutor told a federal judge Monday. James Houts, the state’s deputy attorney general, told U.S. District Judge R. Austin Huffaker Jr. that it is “very likely” the method will be available for Alan Eugene Miller’s execution, currently set for Sept. 22, if the judge blocks the use of lethal injection. Houtz said the protocol “is there,” but said the final decision on when to use the new method rests with Corrections Commissioner Jon Hamm. Nitrogen hypoxia, which is supposed to cause death by replacing oxygen with nitrogen, has been approved by Alabama and two other states for executions, but has never been used by any state. The revelation about the possibility of using the new method came during a court hearing on Miller’s request for a preliminary injunction to prevent his execution by lethal injection. Miller claims prison staff lost paperwork he returned in 2018 that called for nitrogen as the method of execution instead of lethal injection. The Alabama attorney general’s office said there was no evidence that Miller returned the form. Huffaker heard testimony and arguments during an evidentiary hearing in federal court in Montgomery. He noted the “high stakes” attached to the looming execution date, but did not immediately rule on the request to block the lethal injection. When Alabama approved nitrogen hypoxia as an alternative execution method in 2018, state law gave inmates a short window to designate it as an execution method. Wearing a maroon shirt and his hands tied in front of him, Miller testified that he returned a state form selecting nitrogen the same day it was distributed to inmates by a prison worker. “I remember the guy yelling that he was going to put something in the door and come back to get them,” Miller testified. He said he signed the form and placed it in the “bean hole” – the prison’s nickname for the cell door slot used to pass mail, food trays and papers – but did not see who collected it. Miller said he yelled that he wanted the form copied and notarized, but he didn’t get it. Miller described how he disliked needles because of painful attempts to draw blood. He said the nitrogen gas sounded like the nitrous oxide gas used in dental offices and that seemed better than lethal injection. “I didn’t want to get stabbed with a needle,” Miller said. Houch, trying to dispute the prisoner’s story about the paper, asked him if he could describe anything about the officer who distributed the paper, but Miller said he could not. “I think we’re very entitled to question its veracity,” Houtz told the judge. Alabama told a federal judge last year that it had completed construction of a “system” to kill condemned inmates using nitrogen gas, but gave no estimate of when it would be put into use. Miller’s attorney, Mara Klebaner, said the state asked if Miller would drop his claims if the nitrogen was ready, but said more information was needed about the nitrogen process. Miller’s lawyers don’t want to be the test case for an untested execution method, he said. Klebaner said the Alabama attorney general’s office recently withdrew a request for an execution date for another inmate after his attorneys provided evidence that the inmate had opted for nitrogen hypoxia. He said Miller should be treated the same. The state argued that Miller was trying to delay his execution. Houtz told the judge that the state had gone so far as to see if Miller would agree to be fitted with a nitrogen mask, but the inmate refused. Miller’s attorney said the state introduced the gas mask during a deposition and that Miller was understandably upset. Miller, a delivery truck driver, was convicted of a workplace shooting that killed Lee Holdbrooks, Scott Yancey and Terry Jarvis in suburban Birmingham. Miller shot Holdbrooks and Yancey at a business, then drove to another location to shoot Jarvis, according to evidence. Miller was delusional and believed the men were spreading rumors about him, including that he was gay, testimony showed. A defense psychiatrist said Miller suffered from serious mental illness, but his condition was not bad enough to be used as the basis for an insanity defense under state law.
