Alabama Death Row inmate execution called off for tonight

The Alabama Department of Corrections has announced that tonight's execution is called off after the Alabama Attorney General's Office decided not to appeal a stay that had been issued in the case. That means the state will have to reset the execution for a later time.

U.S. District Court Judge Keith Watkins has issued a stay of execution for Borden. Efforts to immediately reach the Alabama Attorney General's to see if they will appeal the decision were unsuccessful.

On Wednesday, the U.S. Supreme Court lifted the 11th Circuit Court of Appeals' injunction last week that had stayed Borden's execution so Watkins could have time to hold an evidentiary hearing in an inmate lawsuit that claims the lethal injection drug combination used by Alabama is unconstitutional. The court had previously - on Sept. 6 - ordered Watkins to hold the hearing.

In his order staying the execution this afternoon Watkins noted the 11th Circuits' Sept. 6 order. "This court is not authorized to ignore the instructions of the Eleventh Circuit. If Mr. Borden is executed as scheduled, this court will be unable to comply with the Eleventh Circuit's mandate. Given the unusual procedural posture of this case, preservation of this court's ability to comply with the clear directives of the Eleventh Court requires issuance of the injunction requested (the stay)," the judge stated.

After the U.S. Supreme Court ruling, Borden's attorneys filed a renewed request to the 11th Circuit for a "traditional stay" of the execution. That court quickly denied it.

Then, this morning, Borden's attorneys filed a request with Watkins to issue the stay.

Borden is entitled to a stay of execution to allow him to continue his challenge to Alabama's method of execution, his attorneys argue in their motion.

"Borden can show that he has a substantial likelihood of success on the merits of his claim that Alabama's three-drug protocol violates the Eighth Amendment (against cruel and unusual punishment)," the attorneys with the Alabama federal public defenders' office. "The Eleventh Circuit ruled that if Mr. Borden can prove the facts alleged in his complaint, he meets both prongs of the Baze standard (a previous ruling). He has evidence to show that there is a substantial risk that midazolam will not anesthetize him, and he will be paralyzed, suffocating, and unable to alert anyone before he is burned alive from the inside by potassium chloride. He also has evidence that there are alternative methods of execution available to the state that do not contain that risk."

The Alabama Attorney General's Office has stated in court records that the state's lethal injection method had already been litigated in another case and ruled constitutional.

In its response this morning to this morning's appeal by Borden's attorneys the Alabama Attorney General's Office writes to the federal judge that: "The Supreme Court's vacation of the Eleventh Circuit's stay strongly weighs against any further request for a stay of execution, and this court should reject Borden's attempt to obtain a second bite at the apple. In any event, Borden has failed to establish that he is entitled to a stay of execution."

Alabama also has set an Oct. 19 execution for Torrey Twane McNabb for his conviction in the fatal shooting of Montgomery police officer Anderson Gordon in September 1997.

Alabama's number of executions were fewer in the last few years as the state dealt with lawsuits over its new lethal injection drug combination. Alabama and other states had to look for new drugs after manufacturerers began prohibiting the use of them for executions.

Inmates in Alabama and other states, including Borden, have argued that Midazolam doesn't sedate them enough to ward off the pain of the other two drugs to stop their heart and lungs. The U.S. Supreme Court had ruled two years ago that states could use Midzaolam, despite problems with some inmates struggling on the gurneys.

Attorneys for Alabama death row Inmate Ronald Bert Smith believe he suffered during his Dec. 8, 2016 execution - gasping, coughing, and heaving for 13 minutes. The state prisons commissioner denied anything happened outside the state's protocol for that execution.

While the number of executions have been down across the nation, so has the number of people being sentenced to death in Alabama and other states, according to one report.

Borden, who has been on death row 22 years, was convicted of killing his estranged wife, Cheryl Borden, and her father, Roland Harris at a Christmas Eve family gathering in Gardendale.

According to an appeals court summary of the shooting, here is what happened:

Jeffrey Borden arrived at the Harris's residence with his and Cheryl's three children. The children had spent the previous week visiting Borden, who was living in Huntsville at the time.

"The appellant was to return the children to Gardendale in time to spend Christmas with their mother. When the children arrived at their grandparents' house, their grandfather, Roland Harris, came outside to help unload their clothes and Christmas gifts from the appellant's car. Shortly thereafter, the children's mother, Cheryl Borden, arrived at her parents' house and began to help her children move some of their things from the appellant's (Jeffrey Borden's) car to her car. In front of the children, the appellant then took out (a) .380 caliber semiautomatic pistol and shot Cheryl Borden in the back of her head. Cheryl fell to the ground. Her father, Roland Harris, who was also present in the front yard, began to run toward the front door of the house yelling for someone to telephone 911.

The appellant (Jeffrey Borden) chased Harris and fired several shots toward him and in the direction of the house. Harris made it into the house as the appellant continued to shoot at him from the yard. One of the bullets fired from the appellant's gun struck and shattered a glass storm door at the front entrance of the house. Once inside the house, Harris collapsed on the floor. At some point during the shooting, a bullet had struck Harris in his back. As the appellant shot at Harris, the three children ran through the garage of the residence and came into the house through a back entrance, screaming that their father had shot their mother and that she was dead. Several other family members were inside the house during the incident and scrambled to take cover from the gunfire.

Cheryl Borden and her father, Roland Harris, were transported to a local hospital, where they died later that evening."

Jeffrey Borden pleaded not guilty by reason of mental defect or disease after he was charged in the murders.

Cheryl Borden at one point had a temporary restraining order against her husband, according to a report at the time of the shooting.

Borden's oldest son, then 11, testified at his father's trial about the shooting. He testified that he heard the shot then saw his mother fall. "I stood there for a couple of seconds then I got (his sister) and (younger brother) and I went into the house."

Roland Harris' wife declined to comment when contacted this week by AL.com. Efforts to reach the children for comment were unsuccessful.

Source: AL.com, October 5, 2017

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