Federal judges hear arguments in Alabama death row inmate’s appeal

A three-judge panel of the U.S. 11th Circuit Court of Appeals Monday heard arguments over whether to allow the scheduled execution of James Edward Barber to go forward on Thursday.

Barber, convicted of the murder of Dorothy Epps in 2001, argues that Alabama’s string of botched lethal injection executions means that the method violates his Eighth Amendment protections against cruel and unusual punishment.

“Mr. Barber’s case presents exactly the conditions that the Supreme Court has articulated are required to succeed on an Eighth Amendment method of execution claim,” said Mara Klebaner, an attorney representing Barber.

The Alabama attorney general’s office argues the motion is a delaying tactic that should be rejected.

“From the outset, Barber has relied on creating a sense of urgency to bolster his arguments, which are facially weak,” wrote Richard Anderson, an assistant attorney general for Alabama, in the reply brief.  “Barber is not entitled to a stay of execution because he waited too late to bring his claim.”

During the hour-long proceedings, the judges questioned the litigants related to the timing of procedures, and how a person’s body composition affects how easily it becomes to establish an intravenous line — issues that are central to the points for each of the parties in the briefings they filed.

Botched executions

Alabama’s last three execution attempts have all had issues. In July 2022, Joe Nathan James was strapped to a gurney for three hours before his execution began. The Alabama Department of Corrections said the delays were due to setting an IV line and that they could not confirm if he was unconscious prior to his execution. The Atlantic reported that an autopsy of James showed jagged incisions and multiple puncture wounds on his body.

In September, the state called off the execution of Alan Miller after failing to establish an IV line. In an affidavit, Miller said he was repeatedly stuck with needles for 90 minutes. The needles struck nerves that Miller said left him feeling like he “had been electrocuted.”  In November, the state called off the execution of Kenneth Smith, who was strapped to the gurney for almost two hours as the staff stuck him with needles multiple times. Smith stated in a complaint that he “felt sharp and intense pain as the needle was repeatedly inserted into his collarbone.”

Gov. Kay Ivey imposed a brief moratorium to investigate the problems, but said in February that Corrections had addressed the problems and would resume executions, though neither Ivey’s office nor Corrections specified what if any changes had been made to the execution protocols or procedures. Alabama Attorney General Steve Marshall soon filed a warrant with the Alabama Supreme Court to set an execution date for Barber.

Barber’s attorneys argue the internal review “made no meaningful changes to their execution protocols and practices,” and that Barber is likely to suffer as the men in the botched executions did. They also argue that he could be executed by nitrogen hypoxia, a legal but as yet unused execution method in Alabama.

Anderson of the attorney general’s office alleged that Barber intentionally waited to file a motion for a preliminary injunction on May 25 when he could have filed it on Nov. 17 of last year when the final botched execution took place as evidence for his claims. At Monday’s oral arguments, the judge asked Barber’s attorneys about that.

Klebaner said Barber did not know that he was next in line for execution until Ivey ended the moratorium.

Questions from judges

U.S. Circuit Judge Robert Luck, one of the members of the panel, asked “why does that matter?”

”There is no requirement as I understand under the statute of limitations or for bringing it, that he has to have a pending execution warrant,” he said.

Klebaner said Barber filed a motion to oppose the state setting a method of execution in September, after James’ botched execution.  The state withdrew its motion for his execution as it was investigating the issues related to the problems with the botched executions.

The judges also appeared skeptical of Barber’s claims that lethal injection would cause Barber harm.

“The Eighth Amendment does not guarantee a prisoner a painless death,” said U.S. Circuit Judge Elizabeth L. Branch, a member of the panel.

Klebaner said there was a pattern of Corrections struggling to execute people by lethal injection.

“The state has conceded that it is not attempting to remedy any of the things that went wrong last year,” Klebaner said. “Although unfortunately, because the state has refused to produce discovery or explain itself in those three executions, we do not know fundamentally, the nature of what went wrong with the executions.”

Klebaner said the problem is the method itself, and Alabama did not do anything to change the method.

“It is like picking a different can of soda off the shelf from a factory that isn’t passing safety inspections,” Klebaner said. “The state is using the same standards of quality control, and they are going to get the same product.”

Luck asked for evidence that nitrogen hypoxia is a less painful way to execute someone than by lethal injection.

“The court held that nitrogen hypoxia, because it completely eliminates the risk of the problems ADOC is having with IV access,” Klebaner said. “Nitrogen hypoxia does substantially reduce the risk of harm.”

Luck also questioned the attorney general’s office, saying “the delay is your fault, you being the state” because the state could set an execution date when it chose.

Anderson said that doesn’t matter.

“There is no case law or principle that states that a state, which is charged with carrying out a lawful execution to get justice for its citizens in the state and its victims, can be indefinitely delayed in seeking that justice because a federal prisoner happens to file a lawsuit,” Anderson said.

Anderson also argued the problems with the executions last year were isolated incidents, not representative of a pattern, saying the state made changes to the personnel who establish IV lines.

“He (Barber) doesn’t acknowledge the fact, or deal with the fact, that the defendants treated this not as par for the course, or ‘oh, well, we unusually executed a couple of people.’ They took action,” Anderson said.

U.S. Circuit Judge Jill A. Pryor asked how the state could assert that the personnel changes addressed the problems “if no explanation has ever been given.”

Anderson said that was not his burden to meet.

“The problem here is the problem for Barber in that he is the litigant with the burden,” Anderson said. “What he has to show is a substantial likelihood of success on the merits.”

Pryor asked why the state simply does not release information about the results of the investigation.

“I see a pattern of the state withholding all the information that would help satisfy both the litigants and the courts about what has happened and is most likely to happen in the future, and then coming in at the last minute with an affidavit that says, ‘trust us, everything will be OK,’” she said.

Anderson said there is a danger to making the information public.

“There are very strong concerns that states have with security over executions because of documented incidents where once someone’s name is out there, the person, whether through fear of retribution or actual threats of retribution, will withdraw from the process.” Anderson said.