Lee's Legal Team to the Eleventh Circuit: Granting a Stay Would Make This Execution Unreviewable

Hours after Alabama filed its appeal asking the Eleventh Circuit to reverse yesterday's ruling declaring nitrogen hypoxia unconstitutional, Jeffery Lee's legal team filed their response. The brief leads with a clear and precise argument that if the court grants the State's request for a stay, Lee gets executed tomorrow night. Once he is executed, this appeal becomes moot. There will be no further review — by the Eleventh Circuit or the Supreme Court — of a method of execution a federal district court declared unconstitutional after the first full trial ever conducted on the question. The State would have obtained, through an emergency stay request, the permanent insulation of an unconstitutional execution from any appellate review whatsoever.

As the brief puts it: "Defendants are entitled to appellate review; they are not entitled to carry out an execution before that review is complete."

The State's primary line of attack is against Dr. James Williams, the firearms and ballistics expert who testified that firing squad produces unconsciousness within three to five seconds with no perceivable pain. The State argued he had an undisclosed conflict of interest — he had consulted with lawyers for the family of Mikal Mahdi, executed by firing squad in South Carolina last year.

Lee's team has two answers to that. First, the Mahdi family has not filed a lawsuit. Federal Rule 26 only requires disclosure of cases in which an expert has actually testified — not consulting relationships in cases that haven't been filed. There was nothing to disclose. Second, and more pointedly: the State chose not to depose Dr. Williams during discovery. It never asked him about any of this when it had the chance. Having declined to ask the questions, it cannot now claim surprise at the answers.

The State also argued that Dr. Williams contradicted himself — that his report said any service-caliber rifle is "accurate enough," yet he criticized South Carolina's protocol at trial. The brief draws a clean distinction: caliber accuracy and bullet construction are two different variables. His report addressed whether a service-category rifle can hit the cardiac bundle from the required distance. His criticism of South Carolina addressed the choice of frangible ammunition — rounds designed to disintegrate on impact, which don't penetrate as deeply as the standard jacketed soft-point bullets used by law enforcement nationwide. There is no contradiction. The brief also notes that the district court's opinion contains no reference to the distance differential the State spent considerable effort attacking — the State is largely arguing about something the district court didn't rely on.

On feasibility, the brief notes the State's own appellate brief concedes that "ADOC can procure guns, ammunition, and building materials." With materials off the table, the only remaining disputes were space and personnel — and on both, ADOC's own leadership testified affirmatively. The brief quotes former Commissioner Hamm's direct testimony: asked whether ADOC could modify space at Holman for firing squad executions if the Legislature authorized it, his answer was simply "Yes." Deputy Commissioner Williams gave the same answer on staffing.

The brief also addresses the State's argument that Lee's 2018 election of nitrogen hypoxia shows bad faith. Lee elected the method before ADOC's current protocol existed — he could not have consented to a specific protocol that didn't yet exist. And when he made his election, he explicitly reserved all rights. Courts have declined to apply equitable estoppel on this record, and the Supreme Court has rejected the argument that inmates must propose only currently authorized execution methods.

On the stay factors, the brief notes the State faces a high bar — a strong showing of likely success — and its argument amounts to little more than disagreeing with how the district court weighed the evidence. That is not clear error. The district court heard the testimony, made credibility determinations, and issued detailed findings. Disagreement is not reversal.

The brief also argues that the irreparable harm calculus also cuts sharply against a stay. The injunction doesn't disturb Lee's conviction, doesn't invalidate his death sentence, and doesn't prevent Alabama from carrying out that sentence by another method. If Alabama wins the appeal, it can seek another execution date. A delayed execution is not irreparable harm. An unconstitutional execution that moors any possibility of review — that is.

The Eleventh Circuit has to decide today. Tomorrow, the window opens.