The State of Alabama sought federal court permission to conduct the nation's fourth execution by nitrogen hypoxia. ‘Serial rapist and murderer’, Demetrius Terrence Frazier, requested that his execution be blocked unless changes were made to the state's execution protocol. Frazier claimed that he lacked the same sedative that was used at the start of lethal injections. His defese team argued that nitrogen hypoxia would cause him to die in a way that violated the Eighth Amendment's prohibition on cruel and unusual punishment. Meanwhile, Frazier's death penalty opponents were working to convince Michigan's governor to halt the Alabama execution and to bring Frazier back to Michigan, where he would in theory face a life sentence for the later (1992) murder of a 14 year old girl.
Michigan Convictions (1993):
Convicted of first-degree murder, armed robbery, and other serious crimes, Frazier received life sentences plus 60 to 90 years. His sentence means that he would die in prison.
Alabama Conviction (1996): Following his confessions, Frazier was extradited to Alabama, where he was convicted of capital murder for the death of Pauline Brown (1991). He was sentenced to death in 1996.
Alabama's nitrogen hypoxia execution method is a recently developed alternative to lethal injection, designed to carry out the death penalty using pure nitrogen gas. The condemned person would wear a mask or hood connected to a nitrogen source that would result in the individual breathing a mixture of nitrogen and oxygen instead of the normal air mixture. The execution would be done in a way that would cause the individual's oxygen levels to decline rapidly, leading to unconsciousness in a short amount of time and then to death—not caused by any cruel or unusual means. Nitrogen is widely available, bypassing the legal and supply-chain issues tied to execution drugs.
The attorney for Frazier was questioned by U.S. District Judge Emily Marks about the reason for her to intervene when the courts have allowed executions by nitrogen to go forward in the past.
Frazier's attorneys asked for the hearing and sought court intervention. They urged the judge to block the execution unless the state alters its protocol. In particular, they wanted assurances that Frazier would not undergo, in their opinion a less than humane execution. The prosecution claimed this was simply a stalling tactic. The defense demanded that the state use a sedative before the gas began to flow.
"Something is going wrong. Every inmate who has been executed by nitrogen gas has exhibited signs of consciousness beyond the 40 seconds," said Frazier's attorney Spencer Hahn.
An anesthesiologist who was present for the November execution of Carey Dale Grayson by nitrogen, testified to seeing clear "evidence of distress" in the condemned man. Dr. Brian McAlary noted that Grayson moved his head back and forth, had rapid eye movements and struggled against his restraints. McAlary further stated that he thought Grayson's last act of moving when he was not under duress happened after around three minutes of the gas being administered. It was then, according to McAlary, that Grayson simultaneously raised both legs and kept them up for a moment before releasing them back down. McAlary said he believed the movement was a voluntary response because “both legs were moved at exactly the same time, direction and distance.”
An anesthesiologist, Dr. Joseph Antognini, (an anesthesiologist with the University of California-Davis Medical Center) who was hired by the state to be an expert witness, provided contradictory testimony, asserting that such movements did not mean Grayson was conscious. Antognini, however, did not see Grayson’s death by lethal injection.
“Movement can happen in the absence of pain,” Antognini said. He gave examples of such occurrences, when he saw patients move involuntarily during surgery while being unconscious. But he acknowledged he had never seen movements like a double leg lift during his surgery career.
In a previous case Dr Antognini, stated "It’s my opinion that the drug midazolam at 500 milligrams administered intravenously would render an inmate insensate, unconscious and insensate to a noxious stimuli or unable to perceive pain that might occur or arise from other drugs or stimuli,".
The Judgement
Chief District Judge Emily C. Marks rejected Demetrius Frazier’s request for a preliminary injunction to either stop his execution on Thursday in Alabama or require that the state give him a sedative before administering the gas.
“Frazier fails to meet his burden to establish that the Protocol does create a substantial risk of serious psychological pain such that the Protocol violates the Eighth Amendment,” Marks wrote.
https://en.wikipedia.org/wiki/Demetrius_Terrence_Frazier
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