MONTGOMERY, Ala. (AP) — A federal appeals court said Monday it will let the nation’s third execution with nitrogen gas go forward this week in Alabama, rejecting arguments that the new method causes unconstitutional levels of pain.
The 11th U.S. Court of Appeals swiftly affirmed a lower court's decision to let Carey Dale Grayson's execution proceed. Grayson, 50, had sought a preliminary injunction to block the execution.
The three-judge panel wrote that evidence “did not show that nitrogen hypoxia creates a substantial risk of conscious suffocation."
An attorney for Grayson said they plan to appeal to the U.S. Supreme Court.
Grayson, who was convicted of the 1994 killing of Vickie Deblieux, is scheduled to be executed Thursday night. The new execution method involves placing a respirator gas mask over the person's face to replace breathable air with pure nitrogen gas, causing death by lack of oxygen.
The appellate court decision was issued about five hours after judges heard oral arguments in which lawyers for Grayson and the Alabama attorney general’s office gave contrasting accounts of the state’s first two nitrogen gas executions earlier this year and the risk of unconstitutional pain.
John Palombi, an attorney with the Federal Defenders Program, told the judges that the subject will feel “conscious suffocation” before the nitrogen renders the person unconscious.
“I would submit to the court that being conscious and being suffocated for a period of time constitutes terror,” Palombi said.
One of the judges questioned how the method is any different from the gas chamber, which involves the subject inhaling poisonous gas while conscious. The method hasn’t been used to carry out an execution in the U.S. since 1999, but it is still authorized.
A lawyer for the state urged the court to let the execution go forward, arguing that nitrogen hypoxia causes no physical pain and leads rapidly to unconsciousness.
“Yes, nitrogen hypoxia deprives the condemned inmate of oxygen, but it is not suffocation in the lay sense, like drowning or smothering with a plastic bag or paralyzing the lungs. This is really apples and oranges,” Robert Overing, deputy solicitor general for Alabama, told the panel.
He said Grayson's lawyers used the term suffocation “to evoke a sense of fear and pain that doesn’t exist with this method.”
One judge on the panel noted that predictions by a state expert that nitrogen gas would render a person unconscious within 10 to 40 seconds was inconsistent with what was observed at the state’s first two nitrogen gas executions. Media witnesses, including The Associated Press, described how the subjects shook on the gurney for two minutes or longer, followed by what appeared to be several minutes of periodic labored breaths with long pauses in between.
About two dozen anti-death penalty protesters outside the Alabama Capitol on Monday focused on the shaking as a sign of distress during the previous executions.
“There is an absolute error in this protocol. It is torturous. It should not be allowed to happen in a civil society,” T.J. Riggs, Amnesty International’s death penalty abolition coordinator for Alabama, said at the demonstration.
Protesters delivered a petition to Gov. Kay Ivey asking her to stay Grayson's execution.
Inside the courtroom, the state maintained the movements of those who have been put to death were involuntary. Overing said it was difficult to pinpoint exactly when the subject became unconscious. The state has maintained that Kenneth Smith held his breath during his January execution, causing it to take longer than expected.
Grayson was one of four teenagers convicted of killing of Deblieux, 37, in Jefferson County in 1994. Prosecutors said Deblieux was hitchhiking from Tennessee to her mother’s home in Louisiana when the teens offered her a ride. They said the accused took her to a wooded area, attacked her, threw her off a cliff and later mutilated her body.
Grayson is the only one facing a death sentence. Two other teens had their death sentences set aside when the U.S. Supreme Court banned the execution of offenders who were younger than 18 at the time of their crimes. Grayson was 19. Another teen involved in Deblieux's killing was sentenced to life in prison.
A demonstrator holds a sign during a protest outside the Capitol in Montgomery, Ala., on Monday, Nov. 18, 2024, against a scheduled execution in Alabama using nitrogen gas. (Kim Chandler/Associated Press)
FILE - This undated photo provided by the Alabama Department of Corrections shows Carey Dale Grayson, one of the state's death row inmates who asked to have his execution carried out by nitrogen gas. (Alabama Department of Corrections via AP, File)
Abe Bonowitz of Death Penalty Action leads a outside the Capitol in Montgomery, Ala., on Monday, Nov. 18, 2024, against a scheduled execution in Alabama using nitrogen gas. (Kim Chandler/Associated Press)
JACKSONVILLE, Fla. (AP) — Jaguars coach Doug Pederson doesn’t believe in firing assistants during the season.
He didn’t do it during his five years in Philadelphia and doesn’t plan to in Jacksonville, not even after the worst loss in franchise history.
Coming off a 52-6 debacle at Detroit and heading into a bye week, Pederson said “everything’s on the table” in terms of making changes. But he also made it clear that keeping his staff intact is a priority.
“I think you got to be really, really careful,” Pederson said. “When you start pointing fingers at certain people, it’s a dangerous thing. And I’m not going to do that. Not doing it. Not right now.
“As a head coach in this league that’s going through what we’re going through, you’re pointing a finger. And if it’s going to be pointed, it needs to be pointed at me. Start with me. That’s enough on that.”
The Jaguars (2-9) could point fingers in any direction and find problems. They have lost four games in a row and 14 of 17.
Their offense mustered the fewest yards over a three-game stretch in franchise history. Jacksonville managed 528 yards in losses to Philadelphia (215), Minnesota (143) and Detroit (170).
Their defense, meanwhile, gave up the most yards over three games in the team’s 30 seasons. The unit allowed 1,494 yards to the Eagles (447), the Vikings (402) and the Lions (645).
So something, maybe everything, needs to be overhauled in Jacksonville. Owner Shad Khan, though, opted not to fire Pederson or general manager Trent Baalke the day after the franchise’s most lopsided loss.
“Football is a war of attrition at times,” veteran center Mitch Morse said. “Our team has been no exception to that, both on offense and defense. That’s part of the gig. You go in and you’ve got to battle with who you’ve got and rally around guys.
“You ask anyone in this locker room. You don’t expect to lose, but it’s how you respond to that. That’s going to be a great challenge.”
Special teams have been bright spots this season. Logan Cooke leads the NFL in net punting at 46.4 yards a kick. Rookie Cam Little has made 13 consecutive field goals, including a career-long 59-yarder against the Lions. And safety Daniel Thomas had Jacksonville’s top highlight when he dropped punt returner Kalif Raymond inside the 10-yard line.
Pederson said the Jaguars need to look into playing consecutive games in London every year. They won three in a row after playing back-to-back weeks in London in 2023 but eventually wore down and dropped five of six to miss the playoffs. They’re on a four-game skid now after splitting two games overseas.
“I think it’s something we need to take a look at where the bye is (after) 10 days over there,” Pederson said. “Having the bye early in the year? I don’t necessarily like that as much. But I think we need to take a look at where it is and the timing of it as we move forward.”
Rookie Brian Thomas Jr. caught five passes for 82 yards against the Lions, his best game in weeks. He had four receptions for 34 yards the previous two games combined, both while playing without Christian Kirk (broken collarbone).
Backup quarterback Mac Jones has struggled in two starts in place of Trevor Lawrence. He has completed 31 of 51 passes for 249 yards, with no touchdowns, three interceptions and four sacks.
Receiver Gabe Davis, who signed a three-year, $39 million contract in free agency, will miss the rest of the season after tearing the meniscus in his left knee. Davis has 20 receptions for 239 yards and two touchdowns. He will join Kirk on injured reserve.
1 – Jacksonville’s current spot in the 2025 NFL draft. If it holds, the Jaguars would have the top pick for the third time in five years.
The only questions that matter down the stretch: What will Khan do with Pederson and Baalke, and how will any potential changes make Lawrence better in 2025?
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Detroit Lions quarterback Jared Goff (16) talks with Jacksonville Jaguars quarterback Trevor Lawrence after an NFL football game, Sunday, Nov. 17, 2024, in Detroit. (AP Photo/Carlos Osorio)
Jacksonville Jaguars quarterback Mac Jones (10) throws against the Detroit Lions during the first half of an NFL football game, Sunday, Nov. 17, 2024, in Detroit. (AP Photo/Duane Burleson)
Jacksonville Jaguars quarterback Mac Jones (10) runs the ball against the Detroit Lions during the first half of an NFL football game, Sunday, Nov. 17, 2024, in Detroit. (AP Photo/Duane Burleson)
Jacksonville Jaguars wide receiver Brian Thomas Jr. (7) runs the ball against the Detroit Lions during the first half of an NFL football game, Sunday, Nov. 17, 2024, in Detroit. (AP Photo/Duane Burleson)
Jacksonville Jaguars place-kicker Cam Little (39) kicks a 35-yard field goal against the Detroit Lions during the first half of an NFL football game, Sunday, Nov. 17, 2024, in Detroit. (AP Photo/Carlos Osorio)
Jacksonville Jaguars head coach Doug Pederson leaves after talking to the media after an NFL football game against the Detroit Lions, Sunday, Nov. 17, 2024, in Detroit. (AP Photo/Carlos Osorio)
Jacksonville Jaguars head coach Doug Pederson watches against the Detroit Lions during the first half of an NFL football game, Sunday, Nov. 17, 2024, in Detroit. (AP Photo/Duane Burleson)
Jacksonville Jaguars head coach Doug Pederson talks to the media after an NFL football game against the Detroit Lions, Sunday, Nov. 17, 2024, in Detroit. (AP Photo/Carlos Osorio)
