Attorney: Alabama shouldn’t rush to kill inmate who avoided execution last week

Christopher Price mugshot

Christopher Price is set to die April 11 for the 1991 slaying of Bill Lynn (ADOC).

An attorney for the Alabama inmate who narrowly avoided execution last week said the state is “short circuiting” the ongoing federal litigation regarding the inmate’s choice of execution method.

Price, 46, was set to die by lethal injection at Holman Correctional Facility in Atmore on Thursday at 6 p.m.. Around 4 p.m. that day, a federal judge in Mobile issued a stay of execution for 60 days and ordered the state to submit evidence in contradiction to Price’s contention the three-drug lethal injection protocol will cause or is likely to cause severe pain. He was asking to be executed by the newly approved method, nitrogen hypoxia.

The 11th Circuit Court of Appeals upheld the stay based jurisdictional issues, and the Alabama Attorney General’s Office appealed to the U.S. Supreme Court. At approximately 11:34 p.m., when the nation’s highest court had not yet ruled, the state called off the execution because the Alabama Department of Corrections wouldn’t have sufficient time to prepare Price for execution by the time his death warrant expired at midnight.

Price was convicted in the 1991 robbery and slaying of a Fayette County minister, Bill Lynn. Lynn was killed days before Christmas that year, while he was wrapping presents for his grandchildren.

The U.S. Supreme Court voted early Friday morning, after the state had called off the execution and after the death warrant had expired, by a majority of 5-4 to vacate the stay. The majority order said Price had missed a deadline for selecting nitrogen as his preferred execution method and noted that his claim was filed late in the process.

In a dissent, Justice Stephen Breyer admonished court conservatives for overruling two lower court stays “in the middle of the night” without discussing it further at a morning conference. “What is at stake in this case is the right of a condemned inmate not to be subjected to cruel and unusual punishment in violation of the Eighth Amendment,” Breyer wrote.

Monday, the state asked the Alabama Supreme Court to quickly reset an execution date for Price in the “interests of justice.” The AG’s Office has argued Price missed the deadline for electing nitrogen hypoxia as his preferred execution method.

Aaron Katz, of Boston law firm Ropes & Gray, has represented Price as lead counsel since 2009. He said the AG’s Office’s request to set a new execution date for Price is a rushed attempt to kill him before his case can be litigated. He said there is information to show lethal injection is very likely to cause severe pain, and Alabama is rushing to execute inmates with a protocol many experts disagree on.

Katz said the state’s claim that Price and his legal team knew about the nitrogen hypoxia opt-in period last summer but didn’t act on it is “nonsense.”

Early last year, Gov. Kay Ivey signed a bill giving inmates the option to choose execution by nitrogen hypoxia. According to the law, inmates waiting to be executed were allowed to opt in the nitrogen method if they wished, but had to do so within a 30-day period in June 2018. Of the 177 inmates on Alabama’s Death Row, more than 50 inmates chose to die by the new method. The law had no requirement for the AG’s Office to notify death row inmates’ attorneys, many who are located in other states, of the law change and the 30-day election period.

Federal Defender for the Middle District of Alabama John Palombi said, “The statute adding nitrogen hypoxia as an authorized method of execution for the state did not expressly require the state to notify death row inmates (or their attorneys) of the change, or that there was a time limit on opting in, or the legal effects of opting in. This meant that the attorneys had the responsibility of keeping up with these changes."

The election for nitrogen had to be written and signed by the inmate during the month of June, but there was no official form issued by the state for the inmates to fill out. According to an affidavit by Palombi, his office made a form with blanks for their clients to sign and turn into the prison warden as notification of their elections. He said that on June 26, he and Federal Defender Spencer Hahn went to Holman to meet with their clients.

On that visit, Palombi said he and his colleague presented their drafted forms to their clients. “When we presented our clients with the form, we explained all of [the] details to them in a discussion protected by the attorney-client privilege," he said in the affadavit. "I did not direct or encourage any of our clients to convey any of our attorney-client privileged communications to inmates not represented by the Federal Defenders Office, and I believe it would have violated the Alabama Rules of Professional Conduct for me to have done so.”

“The Federal Defenders Office has never represented Mr. Price. I was also generally aware that Mr. Price was represented by other counsel, and so the Alabama Rules of Professional Conduct would have prohibited me from making any attempt to speak with him,” he said.

No Alabama inmates have been executed by the new method, and a state protocol for the nitrogen hypoxia executions has not yet been developed.

Price’s days are “precious," his lawyer said, and he spends them communicating with his new wife and making artwork for his attorneys and family. The inmate’s last request was to marry his now-wife, and they were wed in the Holman prison yard the day before his set execution. “His days have meaning to him,” Katz said.

Katz said Price is remorseful for the 1991 slaying of Lynn, a minister who was stabbed to death with a sword and a knife outside his home in the Bazemore community. Court records show Lynn suffered 38 stab wounds, some up to four inches deep and between three and four inches long, and his arm was nearly severed.

Lynn’s wife was also wounded in the attack, but survived her injuries. She was present Thursday, along with several other family members, to witness the execution.

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