Alabama requests new chance to execute Alan Miller, who survived first attempt

On Tuesday, the Alabama attorney general’s office filed with the Alabama Supreme Court an expedited motion to set an execution date for Miller before another man on death row.

The AG’s office on Aug. 5, 2022, moved the court to schedule James Barber’s execution, but the court has not yet set a date. The court would have to suspend state appellate procedure to set Miller’s execution date ahead of Barber’s, according to the motion.

After the U.S. Supreme Court OK’d Miller’s execution by lethal injection shortly after 9 p.m. on Sept. 22, Alabama Department of Corrections staff tried to establish intravenous access to administer the lethal injection. Prison staff couldn't find a suitable vein and called off the procedure 30 minutes before midnight, when the execution warrant expired.

Elizabeth Bruenig of the Atlantic reported that staff poked Miller with needles for more than an hour before he "was left hanging off the upright gurney, his hands and one foot bleeding from failed IV attempts, waiting to die.”

Miller's attorneys were unable to be reached for comment Thursday.

The U.S. Supreme Court has ruled that subsequent attempts to carry out the death penalty don’t violate the Constitution, although states don’t always seek a second execution date.

In 1946, Louisiana tried to execute 17-year-old Willie Francis by electrocution. The men tasked with carrying out the execution were seen drinking and passing a flask as they made preparations to execute Francis. The men flipped the switch and electricity flowed through Francis, but he didn’t die.

The state called off the execution but moved for a new execution days later. A lawyer stepped in to appeal, and the case made it to the U.S. Supreme Court.

In 1947, the high court ruled that the proposed execution wouldn’t violate the Constitution’s double jeopardy, cruel and unusual punishment or equal protection clauses.

Francis was executed on May 9, 1947.

In Alabama, Doyle Lee Hamm survived a failed execution attempt but lived the rest of his life on death row. Hamm’s execution was called off after prison staff failed to gain IV access to Hamm, poking him at least 11 times in the legs and groin the night of Feb. 22, 2018.

Hamm’s attorney argued that attempting a second execution would violate his protections against double jeopardy and cruel and unusual punishment. Hamm and the state reached an agreement to not attempt a second execution.

He died of lymphatic cancer in November 2021, at age 64.

Romell Broom, an Ohio man who survived a 2009 execution attempt, was scheduled to face execution a second time on March 16, 2022, but he died in December 2020 at age 64.

Ohio executioners also failed to kill Alva Campbell in November 2017 after they were unable to find a vein. Campbell died in custody four months later at age 69.

Miller’s attorneys plan to file a new complaint against Alabama in federal court, based on court filings. R. Austin Huffaker, district judge for the middle district of Alabama, has given his attorneys until Oct. 14 to file their request to make a new complaint.

Miller was sentenced to death for the killing of three men in two workplace shootings in Shelby County in 1999. Prosecutors said an employee entering Ferguson Enterprises in Pelham saw Miller exit the building on Aug. 5, 1999, before finding Lee Holdbrooks and Scott Yancy dead inside.

Miller then drove to nearby Post Airgas, where he had previously worked, and killed employee Terry Jarvis, prosecutors say. The jury deliberated for 20 minutes before finding Miller guilty and recommended the death penalty, which a judge imposed.

Miller had previously asked the courts to stop his execution by lethal injection.

Miller maintained that he chose to be executed by nitrogen hypoxia, a still unused method, because he is afraid of needles and had prior experience working with chemicals. He accused state officials of losing the form he used to make his election.