MONTGOMERY, Ala. (AP) — Lawyers for a condemned Alabama inmate made a series of legal filings Wednesday to try to halt his upcoming execution, arguing there are questions about the sedative that will be used.
Robert Melson, 46, is scheduled to die by lethal injection Thursday for the 1994 fatal shooting at a Popeye's restaurant he was robbing in Gadsden, 60 miles (96 kilometers) northeast of Birmingham. Melson opened fire, killing three employees and wounding another, after they had been ordered into the restaurant's freezer, according to state prosecutors.
Attorneys for Melson asked the 11th U.S. Circuit Court of Appeals and the Alabama Supreme Court Wednesday to block the execution. The 11th Circuit had previously issued a stay that was overturned Tuesday night by the U.S. Supreme Court.
The filings centered on Alabama's use of the sedative midazolam which some states have turned to as other lethal injection drugs became difficult to obtain. Midazolam is supposed to prevent inmates from feeling pain before other drugs are given to stop their lungs and heart, but several executions in which inmates lurched or coughed have raised questions about its use. An inmate in Alabama coughed and heaved for the first 13 minutes of an execution held in December.
Melson's attorney argued that midazalom does not anesthetize an inmate, but they look still, because a second drug, a paralytic, prevents them from moving.
"Alabama's execution protocol is an illusion. It creates the illusion of a peaceful death when in truth, it is anything but," Melson's attorneys wrote in the filing to the Alabama Supreme Court. "It should not allow Mr. Melson's execution to go forward in the face of botched executions and significant challenges to the constitutionality of Alabama's execution protocol."
They asked the courts to put the execution on hold until the 11th Circuit hears appeals from Melson and other inmates. They argue a federal judge prematurely dismissed their lawsuits challenging the constitutionality of the state's death penalty procedures.
The 11th Circuit did not rule on the merits of Melson's claim when it issued the first stay. Judges said they were issuing the stay to avoid prejudging the other inmate's appeals.
The Alabama attorney general's office has argued midazolam's use has been upheld by the U.S. Supreme Court and it has allowed multiple executions to proceed using the drug, including the execution of an Alabama inmate last month.
"If a stay were granted, Melson's execution would be delayed many months, if not years. The State, the victims' families, and the surviving victim in this case have waited long enough for justice to be delivered," the attorney general's office wrote in a Wednesday court filing with the 11th Circuit.