[Deathpenalty] death penalty news----ALABAMA

[Rick Halperin]

Oct. 5



ALABAMA----stay of impending execution

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)