Unredacted documents posted by Alabama officials in the federal court’s electronic filing system reveal new information about the first nitrogen gas execution in the United States in January. These details include the identity of the state’s execution captain, his thoughts from inside the death chamber, and the worries of another prisoner who is about to die the same way.
The papers were filed this week in a capital case for Alan Eugene Miller, who escaped an attempted lethal injection in 2022 and is set to be executed by nitrogen gas in September. They shed light on the state’s mostly secret execution process. In March, Miller filed a federal case to stop his execution. He said that the state had failed to carry out executions in the past and that he was worried that the nitrogen hypoxia method would make him more painful and make his death last longer.
The papers that haven’t been changed include Miller’s deposition transcript from July 10, in which he worries that the execution team will have trouble putting on a mask for him to breathe in the nitrogen gas.
“Who are these people who are going to fit the mask? How did they train?” Miller said.
Miller, who weighs 350 pounds, says that the mask shouldn’t be put on by the execution captain but by a medical worker instead. He also said that there was a time when normal masks didn’t fit his face.
“My head is big.” He said in his interview, “Nothing else fits my head.” Miller is 59 years old.
The Alabama Attorney General’s Office and the state Department of Corrections know that the papers with no redactions were filed in Miller’s case but did not want to say anything.
This week, a motion to seal was sent to the court. It says that the state’s answer to Miller’s request for a preliminary injunction “includes references to highly confidential deposition testimony taken from the captain of the execution team.”
The papers name the state’s execution captain and another member of the team. This is information that lawyers for the state have fought to keep secret in the past, saying that naming the execution team would put them at risk of being harassed and threatened.
In the motion, the state’s lawyers ask to file a version of their answer with some parts blacked out and another version without those parts blacked out under seal. This means that some of the depositions’ contents should not be available to the public.
Alabama carried out its third execution of the year on Thursday evening. Keith Edmund Gavin, who was found guilty of killing a delivery driver in 1998, was put to death by lethal injection.
The unedited depositions give us a look into what happened in Alabama’s execution chamber on January 25, when the state put to death convicted murderer Kenneth Smith. It was the first time that a state had used nitrogen hypoxia, a method in which a person breathes nitrogen gas through a mask, preventing them from getting oxygen.
Smith, like Miller, had escaped an earlier attempt to kill him by lethal injection in 2022, when prison staff failed to find a vein that would work.
The United States had not yet tried putting someone to death with nitrogen gas, and doctors said that even a small amount of air in the nitrogen-filled mask could cause slow asphyxiation, which would make the death take longer while increasing the risk of vomiting or pain.
People who saw Smith being killed by nitrogen said he was violently thrashing while he was attached to a table. The government said that his movements were not caused by oxygen leaking into the mask. In Miller’s deposition, the state’s lawyer said that a medical expert for the government told Miller that Smith would have lost consciousness much sooner if he had “cooperated if he had taken deep breaths during his execution.”
“So, you’re telling Kenny Smith to help you kill him?” Miller said.
“I’m not quite getting it,” he said next. It sounds like you want me to practice killing myself. I thought you all put people to sleep. I thought that when you go to the dentist, they put on a mask and you go under. Then they turn the stuff on.
For the killings of Lee Holdbrooks, Scott Yancy, and Terry Jarvis at work in August 1999, Miller was found guilty of capital murder and was supposed to be put to death by lethal injection in September 2022. After trying for more than an hour, the prison staff gave up on the operation because they couldn’t find a vein.
The state decided that they would not try to put Miller to sleep again with a lethal injection, and they said that Miller had chosen nitrogen hypoxia before, even though it had not been tried before.
Miller has said that the state Department of Corrections wouldn’t check to see if the mask would fit him before the execution. However, in his deposition, he turned down an offer from the state’s lawyers to have it checked before the process.
“I think this is scary on a mental level,” Miller said.
The execution captain talked about how he was trained to secure masks and said that he has “not encountered any person for whom the mask did not fit securely and effectively.”
But expert evidence in Miller’s court filing says that the state’s protocol doesn’t promise a mask that doesn’t let air in.
“A prison guard probably won’t be able to tell by looking alone if oxygen is getting into the mask,” said Dr. Philip Bickler, a professor of anesthesia and perioperative care at the University of California, San Francisco, and co-author of the 2024 study “Evidence Against Use of Nitrogen for the Death Penalty.”
In his evidence, Bickler also disagreed with the idea that Smith might have held his breath during his execution to try to stop it on purpose.
“As a first step, this doesn’t match up with what multiple witnesses said about seeing Mr. Smith gasping for air for several minutes,” he said. “In my professional opinion, the reported signs of obvious physical distress that Mr. Smith was in during his execution were likely caused by suffocation that went on for a long time.”
In his deposition, the captain of the execution said that he hadn’t noticed if Smith was breathing or holding his breath while he looked at the number from the pulse oximeter, which checks the amount of oxygen in the blood.
The day after Smith was put to death, Alabama Attorney General Steve Marshall played down worries that he might not have passed out as quickly as expected. The way he did things was called “textbook.”
