Jeffery Lee was convicted of the murders of Jimmy Ellis and Elaine Thompson during a pawn shop robbery in 1998. A trial jury voted 7-5 to sentence Lee to life in prison, but the trial judge overrode the jury and sentenced Lee to death. Lee's attorneys earlier this month asked a federal judge to expand an injunction to prevent him from getting executed by lethal injection. (Alabama Department of Corrections)
Attorneys for an Alabama death row inmate who successfully challenged Alabama’s nitrogen gas execution protocol last month has asked a federal judge to prevent the state from using a different execution method to put him to death.
In the July 7 filing, attorneys for Jeffrey Lee asked the U.S. District Court Judge Emily Marks to expand an injunction against nitrogen gas to lethal injection and electrocution, the state’s two other statutory methods of capital punishment. The filing said it would be “manifest injustice.”
“Mr. Lee would face execution by a method he specifically elected away and that the state represented he would not face,” the motion states.
Attorneys for Lee declined to comment further on Tuesday.
A message was sent to the Alabama Attorney General’s Office and the Alabama Department of Corrections on Tuesday seeking comment. The court has given Alabama until July 17 to reply.
Lee was convicted of the 1998 murders of Jimmy Ellis and Elaine Thompson during a robbery of a pawn shop in Orrville. A jury voted 7-5 to sentence Lee to life in prison, but the presiding judge overruled the jury and sentenced Lee to death. The practice of judicial override was abolished in 2017.
Lee was scheduled to be executed by nitrogen gas in June, but he argued that the method amounted to cruel and unusual punishment. Witnesses to prior nitrogen gas executions have reported those subjected to it struggling and gasping for air through the process. Lee said he would prefer to be executed by firing squad, a method not currently authorized by Alabama.
Marks in June ruled that while Lee would experience “air hunger,” the acute distress that people who are in the process of getting executed will experience, she ruled it was an “inescapable consequence of death” and not additional pain beyond what is needed to put someone to death.
On appeal, a three-judge panel at the U.S. 11th Circuit Court of Appeals reversed that part of the ruling, writing it was “over and above the mental distress that typically accompanies the knowledge of impending death by execution.” The panel directed Marks to determine whether execution by firing squad was feasible.
Marks ruled it was and enjoined the state from executing Lee by nitrogen gas.
The Alabama Attorney General’s Office immediately appealed that ruling, seeking a stay of the permanent injunction, but the 11th Circuit and the U.S. Supreme Court declined to overturn Marks’ ruling. The Alabama Attorney General’s Office then filed an expedited request with the Alabama Supreme Court, seeking to execute Lee by lethal injection.
Lee’s attorneys wrote in the July 7 filing that attorneys for Alabama in 2018 agreed to settle a lawsuit filed by Lee in 2016 against the state’s lethal injection protocol, after Lee opted into execution by nitrogen gas. Lee’s attorneys cited language in the agreement that an attempt to execute Lee would be carried out by nitrogen gas, and “not the three-drug lethal injection protocol at issue in this litigation.” That, they argued, prevented execution by lethal injection.
“Having secured dismissal of that action based on that representation, the state cannot reverse course,” the motion states. “Yet in seeking a new execution date for Mr. Lee after he prevailed in challenging the protocol, the state now asserts that it ‘is prepared to execute Lee via lethal injection with the three-drug cocktail adopted in 2014.”’
Lee also argues that the state cannot go back on its word.
“Mr. Lee reasonably relied on the State’s representation that his execution would be by nitrogen hypoxia, not lethal injection, and dismissed his lethal injection lawsuit as a result. Equity forbids the State from reversing on that representation to Mr. Lee’s detriment,” the motion states.
The motion argues that Alabama law states people can only be executed by lethal injection only if nitrogen gas is no longer available. That is not currently the case because “lethal injection is available only if nitrogen hypoxia as a method of execution—not merely the protocol implementing it—is held unconstitutional by the Alabama Supreme Court or the U.S. Supreme Court, or by the Eleventh Circuit if certiorari is denied.”
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Author: Ralph Chapoco