'What a mess': Judge says mysteries around execution methods keep causing Alabama trouble

A federal appeals judge has criticized Alabama's paltry record-keeping for its planned executions, and called the process used in 2018 to allow death row inmates to elect an alternative method of execution a “mystery.”

Judge Adalberto Jordan of the 11th U.S. Circuit Court of Appeals made the comments Monday in Atlanta at a hearing during which the Alabama Attorney General’s Office appealed a lower court’s sanction of an assistant attorney general. Jordan's comments arose from the way Alabama gave death row inmates 30 days in 2018 to decide whether to opt in to nitrogen hypoxia, an untested method, as their preferred method of execution.

Attorneys and their clients on death row described a chaotic process at Holman Correctional Facility as inmates scrambled to get legal advice and to understand the choice before them.

“I'm somewhat sympathetic to your positions in this case, but what a mess the state of Alabama has made by not doing adequate record keeping. What a mess you've caused for everybody,” Jordan said at the hearing on Monday.

The Alabama Attorney General’s Office appealed a lower court’s reprimand of Lauren Simpson, an assistant attorney general, for her role handling a 2021 death penalty case. U.S. District Judge Emily Marks ruled in September 2021 that Simpson asserted facts without proper evidence and without consulting the proper parties.

Ahead of the execution of Willie B. Smith in October 2021, Simpson asserted in court several times that Cynthia Stewart, then warden of Holman Correctional Facility, acted independently by ordering Captain Jeff Emberton to hand out the 2018 nitrogen hypoxia election forms to those on death row since the Alabama Department of Corrections had previously decided not to inform inmates of their new option.

But Stewart later said in a deposition that she was instructed by a higher-ranking employee to make sure the forms were passed out, although she couldn’t recall who it was.

Simpson said she assumed Stewart made the decision on her own accord based on ADOC’s previous decision and that ADOC’s legal team was surprised to learn the form had been distributed.

“The assertion was not, however, based on any conversation or communication with Cynthia Stewart,” Marks wrote. “… Based on the potential seriousness of the misrepresentation in this case involving a death-row inmate and the extent of counsel’s negligence, which the Court finds rises to the level of recklessness, the Court finds that the conduct here is ‘akin to contempt.’”

Marks formally reprimanded Simpson for violating the Federal Rules of Civil Procedure by entering a statement without evidentiary support and ordered her to pay a $1,500 fine.

The AG’s office appealed the ruling three weeks later. In July 2022, the court set a date to hear oral arguments from the AG’s office and an attorney representing the district court.

Edmund LaCour, Jr., the state’s solicitor general, argued against the ruling, calling the lower court’s decision to characterize Simpson’s failure to contact Stewart as “akin to contempt” a “clear and obvious error.”

“I don’t think Rule 11 [of the Federal Rules of Civil Procedure] has ever been applied to require any one attorney to talk to every single witness involved in every single case. That’s an impossible burden to bear,” LaCour said.

Christina Karam defended the district court’s ruling, pointing out that Rule 11 imposes an affirmative duty on attorneys to investigate.

“This would have been all taken care of,” Jordan said, had state officials been more transparent about their process of keeping track of which inmates had picked nitrogen hypoxia.

“Nothing on paper. No directions on paper. No record of the log of who turned in these forms, regardless of who submitted them,” Jordan said. “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.”

Evan Mealins is the justice reporter for the Montgomery Advertiser. Contact him at emealins@gannett.com or follow him on Twitter @EvanMealins.

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This article originally appeared on Montgomery Advertiser: Nitrogen hypoxia election process 'a mess,' judge says