Alabama opposes defense attorneys' request to film nitrogen execution

MONTGOMERY, Ala. — The state of Alabama asked a judge Friday to deny defense lawyers' request to film the next execution by nitrogen gas in an attempt to help courts evaluate whether the new method is humane.

The request to record the scheduled Sept. 26 execution of Alan Miller was filed by attorneys for another man facing the death penalty, Carey Dale Grayson.

They are challenging the constitutionality of the method after Alabama carried out the nation's first execution by nitrogen gas in January, when Kenneth Smith was put to death.

“Serious constitutional questions linger over Alabama’s nitrogen hypoxia protocol. To date, the only instance of a judicially sanctioned execution—that of Kenneth Eugene Smith—using nitrogen did not proceed in the manner defendants promised,” lawyers for inmate Carey Dale Grayson wrote. Grayson is scheduled to be executed in November with nitrogen gas.

Witnesses to Smith’s execution described him shaking on the gurney for several minutes as he was put to death by nitrogen gas. Alabama Attorney General Steve Marshall declared the execution was a “textbook” success. Attorneys for Grayson wrote that, “one way to assist in providing an accurate record of the next nitrogen execution is to require it be videotaped.”

Courts have rarely allowed executions to be recorded.

The lethal injection of a Georgia man was recorded in 2011. The Associated Press reported that video camera and a camera operator were in the execution chamber. Judges had approved another inmate’s request to record the execution to provide evidence about the effects of pentobarbital. A 1992 execution in California was recorded when attorneys challenged the use of the gas chamber as a method of execution.

The Alabama attorney general’s office on Friday asked U.S. District Judge R. Austin Huffaker, Jr. to deny the request.

“There is no purpose to be served by the contemplated intrusion into the state’s operation of its criminal justice system and execution of a criminal sentence wholly unrelated to this case,” state attorneys wrote in the court filing.

Alabama Department of Corrections Commissioner John Q. Hamm wrote in a sworn statement that he had security and other concerns about placing a camera and videographer in the death chamber or witness rooms. He also said that he believed a recording, “would severely undermine the solemnity of the occasion.”