Alabama execution methods ‘shrouded in mystery,’ federal judge says in call for transparency
A federal appellate judge said Alabama’s process of allowing death row inmates to change their method of execution in the summer of 2018 was “shrouded in mystery” and should have been more transparent.
The comments came from Eleventh Circuit Court of Appeals Judge Adalberto Jordan on Monday during arguments before a three-judge panel in Atlanta. Alabama Attorney General Steve Marshall had appealed a lower court ruling that formally reprimanded his deputy for the way she handled part of a death penalty case and included a $1,500 sanction.
“I’m somewhat sympathetic to your positions in this case, but, what a mess the state of Alabama has made by not doing adequate recordkeeping,” said Jordan on Monday. “What a mess you’ve caused for everybody. Nothing on paper, no directions on paper, no record of the log of who turned in these forms regardless of who submitted them. Everything is shrouded in mystery. Maybe that’s the way the state of Alabama wanted it to be. But boy, you’re paying the dues now.”
The district court sanction stems from issues over the process Alabama used for giving death row inmates the option to change their execution method to asphyxiation by nitrogen. That method was signed into law in 2018, and prisoners had a month that summer to decide if they wanted to die by the newly approved, but not yet tested, method.
The reprimand came in a September 2021 order from Chief U.S. District Judge for the Middle District of Alabama Emily Marks. In that case, Assistant Alabama Attorney General Lauren Simpson contended multiple times throughout the case that Cynthia Stewart, the warden at William C. Holman prison at the time, decided on her own to hand out forms in June 2018 to the inmates sitting on death row at Holman.
The form, later discovered to be copied from the Federal Defenders for the Middle District of Alabama, had a spot for inmates to elect to die by the state’s newly approved execution method of nitrogen hypoxia.
In that case, the AG’s Office said they were surprised by the form’s distribution, because the Alabama Department of Corrections had decided not to distribute a notice about the new law. They believed Stewart must have made the choice to hand out the forms on her own. However, later testimony from Stewart in a deposition showed she had been directed by someone with a higher rank, although she said she couldn’t recall who told her to pass out the forms.
After learning of this admission, Marks formally reprimanded Simpson and the AG’s Office for “assert(ing) repeatedly a verifiable fact without evidentiary support.” The judge added that Simpson did not try to interview the warden.
The judge said Simpson did not make a “reasonable inquiry” into how the form was distributed.
“Simpson assumed an additional, unverified ‘fact’ that Cynthia Stewart made the decision on her own without any consultation or direction from anyone at the ADOC,” wrote Marks in her earlier order. About the idea that Stewart decided on her own to distribute the forms, the judge wrote, “this asserted ‘fact’ was an assumption based on a limited inquiry that did not include talking to Cynthia Stewart, yet counsel presented it to the Court as though it were a verified fact.”
Marshall’s office filed a notice to appeal about a month later, and the appellate court issued a three-judge panel to hear oral arguments from the AG’s Office and from a lawyer representing the district court’s ruling on Monday.
Alabama’s solicitor general Edmund Gerard LaCour, Jr. called the sanctions a “fundamental mistake” by the lower court. “Nothing Ms. Simpson did here looks anything like contempt,” he said.
Marshall was present at the hearing, but did not argue the case.
The Eleventh Circuit judges hearing the case were Jordan, Jill Pryor, and Charles Wilson.
“This would have all been taken care of had the state of Alabama done this in a way that was open and transparent to everybody,” Jordan said on Monday “… that’s your problem in this case, because you have nothing on paper.”
Court-appointed attorney Christina Karam represented the lower court’s order. She argued that Stewart’s chain of command decision was “an easily verifiable fact,” because Stewart was employed by the ADOC during the entirety of the litigation, but Simpson never contacted her. Courts need to be able to rely on what lawyers submit to be fact, Karam argued, but Simpson made “inaccurate representations in this case.”
LaCour told the judges that Simpson spoke with ADOC’s legal representatives and not the warden herself because she was busy handling other cases and issues, and there is no law that requires each attorney to talk to every single person involved in the case. “Well, there’s a lot going on in litigation,” he said.
He added there was not a “deliberate indifference to obvious facts.”
Wilson, another appellate judge, said lawyers “have an obligation to verify the facts in your pleading.”
Regardless of the procedure, and whether the AG’s Office and ADOC were on the same page about handing out forms to Alabama Death Row inmates, Jordan said “more transparency would have helped everybody here.” In this case, he said “everything is a mystery.”
The higher court has yet to issue a ruling in the case.