Alabama is preparing to execute an inmate for the shooting deaths of three fast food restaurant workers during a 1994 robbery.
Robert Bryant Melson, 46, is scheduled to die by lethal injection Thursday evening at a south Alabama prison.
State prosecutors said Melson and another man who used to work at the restaurant, robbed a Popeye’s in Gadsden, 60 miles (96 kilometers) northeast of Birmingham. They said Melson opened fire on four employees in the restaurant’s freezer. Nathaniel Baker, Tamika Collins and Darrell Collier were killed.
The surviving employee, Bryant Archer, crawled for help and was able to identify one of the robbers as the former worker. While he could not identify Melson, prosecutors said Melson told police he had been with the former employee that night. A shoeprint behind the store matched Melson’s shoes, they said.
Melson’s attorneys asked appellate courts to halt the execution in order to review the constitutionality of Alabama’s lethal injection protocol. Melson and other inmates are appealing a judge’s dismissal of lawsuits that argued Alabama plans to use the sedative midazolam has been linked to what they say were problematic executions. Some states have turned to the sedative as other lethal injection drugs became difficult to obtain. They argue a federal judge prematurely dismissed their lawsuits challenging the constitutionality of the state’s death penalty procedures.
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 midazolam 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.”
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 inmates’ 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.