John Jefferson
A federal judge rejected a Georgia death row inmate’s request to be executed by firing squad because he claims that lethal injection could cause him excruciating pain.
Michael Wade Nance, 63, argued that an injection of the sedative pentobarbital, the only execution method authorized in the state, could cause him severe pain because of his medical issues, in violation of his constitutional rights.
U.S. District Judge J.P. Boulee ruled Thursday that Nance had failed to prove that the injection would result in excruciating pain due to his medical history. Because of this, Boulee did not weigh in on whether a firing squad is a possible alternative.
Nance’s lawyer, Anna Arceneaux, said they plan to appeal the decision. The case was originally filed in January 2020 and has already moved to the U.S. Supreme Court once.
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He was sentenced for his murder conviction in the 1993 death of Gabor Balogh. Nance had just robbed a bank in Gwinnett County and abandoned his own car after dye packs hidden in the stolen money exploded. Balogh was backing out of a parking space at a liquor store across the street when Nance pulled open the car door and fatally shot him.
Nance’s lawyers argued that his veins are tough to locate by sight and that the ones that can be seen are compromised. They said there is a substantial risk that his veins could “blow” during an execution, causing the drug to leak into surrounding tissue and cause intense pain.
His lawyers also argued that his longtime use of a medication to treat back pain could result in the pentobarbital used in lethal injections being ineffective or less effective.
The judge said that a doctor who testified for the state during a bench trial in May suggested that Nance had undergone three separate medical procedures since the lawsuit was filed that required an IV and that there had been no issues.
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Addressing whether Nance’s longtime use of a pain medication could interfere with the lethal injection drug, Boulee pointed to the testimony of a doctor called by Nance’s lawyers who said “no one actually knows” what the impact would be.
The U.S. Supreme Court has said that for an inmate to challenge an execution method under the Eighth Amendment, they must prove that it creates “a substantial risk of serious harm” and that there are “known and available alternatives” that are “feasible, readily implemented” and that will significantly reduce the risk of severe pain, which is why Nance’s lawyers suggested the firing squad.
Boulee ruled in March 2020 that Nance’s arguments were procedurally barred because he had waited too long to bring them and that he had failed to prove how his constitutional protections against cruel and unusual punishment would be violated.
Nance appealed and a panel of the 11th U.S. Circuit Court of Appeals concluded that since lethal injection is the only method of execution authorized by Georgia law, he was effectively challenging the validity of his death sentence, which the panel said he was procedurally barred from doing.
He appealed to the U.S. Supreme Court, which overturned the 11th Circuit ruling. Justice Elena Kagan wrote in the majority opinion that he was “not confined to proposing a method authorized by the executing State’s law” when he challenged Georgia’s execution method. She said there is no reason to believe that changing state law to allow executions by firing squad would be a “substantial impediment” to carrying out the execution.
The case then headed back before Boulee, who held a bench trial in May. During that trial, testimony was given arguing that execution by firing squad would result in a quick death. But since Nance failed to prove that his medical problems would cause him to suffer severe pain during a lethal injection, the judge said he had “no need to address” the proposed firing squad alternative.
The Associated Press contributed to this report.
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