The state of Alabama urged a federal judge Tuesday to allow the nation’s fourth execution with nitrogen gas to proceed next week, but a doctor who witnessed an earlier execution by the new method told the judge the inmate appeared to be in distress and awake minutes longer than officials predicted. Alabama has carried out all three of the nation’s executions using the gas and has set a Feb. 6 execution date for Demetrius Terrence Frazier, 52. But attorneys for Frazier, who was convicted of the 1991 rape and murder of a woman in Birmingham, sought the hearing asking the court to intervene, the Associated Press reports. Frazier’s attorneys urged the judge to block the execution unless the state makes changes to its protocol, such as giving the inmate the same sedative used at the start of lethal injections before the gas begins flowing. Separately Tuesday, Frazier’s mother and death penalty opponents asked Michigan’s governor to bring Frazier back there to finish a life sentence in the state for a separate murder conviction in the killing of a 14-year-old girl. Michigan has no death penalty. Alabama’s method involves placing a respirator gas mask over the face to replace breathable air with pure nitrogen gas, causing death by lack of oxygen. The state maintained Tuesday that the method brings swift death.
Dylan L. Mauldin, assistant solicitor general for Alabama, called Frazier’s legal maneuver a tactic to delay his execution and said the court should deny his request for a preliminary injunction. Mauldin noted the U.S. Supreme Court has never ruled the method unconstitutional. Meanwhile, a lawyer for Frazier, argued that inmates executed with the gas appeared to be conscious for some minutes, instead of the 30 to 40 seconds he said the state predicted. U.S. District Judge Emily Marks questioned Frazier’s attorney about why she should intervene when the courts have previously let nitrogen executions go forward. “Something is going wrong. Every inmate who has been executed by nitrogen gas has exhibited signs of consciousness beyond the 40 seconds,” Spencer Hahn, an attorney for Frazier, responded. Dr. Brian McAlary, an anesthesiologist who witnessed the November execution of Carey Dale Grayson, testified that he observed clear “evidence of distress” in the prisoner. He noted Grayson moved his head back and forth, had rapid eye movements and struggled against his restraints. McAlary said he believed Grayson’s last voluntary movement occurred after about three minutes when he simultaneously raised both legs and held them in the air before letting them fall down. McAlary said he believed the movement was voluntary because “both legs were moved at exactly the same time, direction and distance.” The testimony was the first time a medical doctor had testified about observations during a nitrogen execution. The court was previously given news accounts from journalists and the observations of prison staff.
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