U.S. Supreme Court lifts Alabama inmate's stay of execution

The U.S. Supreme Court on Wednesday lifted a stay of execution against Jeffery Lynn Borden, who was convicted for the murder of his estranged wife and father-in-law on Christmas Eve of 1993.

As is customary, the majority on the nation’s high court did not give their reasons for lifting a stay imposed last week by the U.S. 11th Circuit Court of Appeals. Justices Stephen Breyer, Ruth Bader Ginsberg and Sonia Sotomayor wrote that they would have maintained it.

The Alabama Department of Corrections will execute Borden on Thursday, barring any other legal actions.

Borden shot his estranged wife, Cheryl Borden, on Dec. 24, 1993 in front of their three children after taking the three children to the Gardendale home of his father-in-law, Roland Harris, where a family gathering was taking place. According to court records, Borden shot Harris as he ran into the house yelling for someone to call 911.

Borden was convicted of the murder and sentenced to death. His federal attorneys argue Borden has severe mental illness that included suicide attempts, hospitalizations and “nine attempts at electroconvulsive therapy.”

The inmate in 2016 joined a challenge to Alabama’s three-drug execution protocol. The lawsuit argues midazolam, a sedative, cannot render a condemned inmate sufficiently unconscious before officials administer the next two drugs, intended to paralyze the muscles and stop the heart. U.S. District Judge Keith Watkins dismissed the lawsuit late last year, but a three-judge panel of the 11th Circuit ordered new hearings in the case in September.

The same panel stayed Borden’s scheduled execution last week to allow the challenge to midazolam to go forward. The Attorney General’s Office filed to lift the stay on Monday, writing in its brief that “any questions concerning three-drug midazolam protocols have effectively been answered.”

Alabama has conducted four executions since January 2016. Three occurred without visible incident. But last December, Ronald Bert Smith gasped and coughed for at least 13 minutes of his 34-minute execution.

Borden’s attorneys called the state’s move “a macabre and cynical attempt” to pre-empt the inmate’s challenge.

“There is no question that he had a substantial likelihood of success on his appeal; he won it,” Borden’s attorneys wrote in a filing. “Now, faced with losing the appeal, the State is turning to his execution as the means to prevent him from litigating the question.”

The state has set an Oct. 19 execution date for Torrey McNabb, convicted and sentenced to death for the 1997 murder of Montgomery police officer Anderson Gordon.