Lawyers for an Alabama inmate facing execution by nitrogen gas this fall argued in a court filing on Tuesday that the state has neglected to address significant issues with the method, as it plans to conduct more executions using nitrogen.
The attorneys representing Carey Dale Grayson requested a federal judge to prevent the state from using the nitrogen protocol employed in the January execution of Kenneth Smith. The court filing referenced witness accounts of the execution and the findings from Smith’s autopsy.
Alabama, which became the first state to carry out an execution using nitrogen, has scheduled two more executions with this method. Alan Eugene Miller’s execution is slated for September 26, while Grayson’s is scheduled for November 21.
“Instead of investigating what went wrong—as other states have done when faced with execution issues—Defendants have chosen to ignore clear and significant signs that the current protocol contains major flaws that will lead to more unconstitutionally torturous executions if it continues to be used,” Grayson’s attorneys stated in their Tuesday night filing.
The Alabama attorney general’s office declined to comment on the filing but has consistently defended the method as constitutional. Alabama Attorney General Steve Marshall previously described the execution as “textbook.” The state is expected to respond to the request for a preliminary injunction.
According to an autopsy conducted by the Alabama Department of Forensic Sciences, Smith had blood and fluid in his lungs following his death. The state’s autopsy report noted “marked congestion and edema with dark maroon blood” in his lungs and a “small amount of frothy fluid” in the tracheobronchial tree.
An expert hired by Grayson’s legal team to review the autopsy findings expressed serious concern. Dr. Brian McAlary, an anesthesiologist, stated that the results suggest negative pressure pulmonary edema, which occurs when someone tries to breathe against an upper airway obstruction, drawing fluid from blood vessels. He explained that this condition can also result from strangulation or suffocation with a plastic bag. McAlary further noted that the absence of a sedative before administering nitrogen gas increases the likelihood of panic.
“Mr. Smith’s autopsy demonstrates the bodily effects when this panic response occurs. An individual experiencing panic and the sensation of being unable to breathe while also being deprived of oxygen will experience a constricted airway similar to an upper airway obstruction,” McAlary wrote.
Dr. Thomas Andrew, who served as New Hampshire’s chief medical examiner for over two decades, told The Associated Press that lung congestion is consistent with asphyxia as the cause of death. He explained that as the heart fails rapidly, “blood backs up, and the lungs become quite congested.”
Andrew noted that while it might be a “bridge too far” to conclude definitively that there was an airway obstruction, he agreed that the lack of sedation could induce panic.
“I think that’s a critical critique of the protocols used in this form of execution. You will certainly experience the sensation of oxygen deprivation, air hunger, and the accompanying panic and discomfort that is inherent in that manner of dying,” Andrew said.
Alabama authorized nitrogen gas as an execution method in 2018. Grayson selected nitrogen as his execution method that same year, though the state had not yet developed a procedure for carrying out executions with it.
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Grayson was one of four teenagers convicted in the 1994 killing of 37-year-old Vickie Deblieux in Jefferson County. Prosecutors stated that Deblieux, who was hitchhiking from Tennessee to her mother’s home in Louisiana, was offered a ride by the four teenagers, including Grayson. They took her to a wooded area, assaulted and beat her, and then threw her off a cliff. The teens later mutilated her body, according to prosecutors.
Grayson is the only one of the four facing the death penalty, as he was 19 at the time of the crime.
