2017-10-05 20:36:35 UTC
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
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
"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
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
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.
A service courtesy of Washburn University School of Law www.washburnlaw.edu
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