Judge finds lethal injection would not violate rights of Georgia inmate wanting firing squad

ATLANTA (CN) — Attorneys representing a Georgia inmate on death row said Friday they plan to appeal a judge’s ruling that lethal injection would not cause him excessive pain in violation of his Eighth Amendment rights.

Attorney John Hutchins declined to provide further comment on the ruling against his client, Michael Wade Nance, who was convicted of murder and sentenced to death over 25 years ago.

U.S. District Judge J.P. Boulee found that Nance had failed to prove that lethal injection was likely to cause him an unconstitutional level of pain or discomfort.

“None of the evidence that plaintiff presented demonstrated that the state, through executing him under the protocol, would intensify the sentence of death with a cruel superaddition of terror, pain or disgrace,” Boulee wrote in the order.

Nance argued in a 2020 complaint that an execution by lethal injection would violate his constitutional rights because his veins are so severely compromised that they are likely to blow and cause him to suffer “excruciating pain” during the execution. He also asserted that due to his longtime use of a prescription drug for back pain, the sedative used in the state’s lethal injection protocol may be less effective and fail to “render him unconscious and insensate.”

Members of the execution team assigned to carry-out Nance’s execution and witnesses of previous executions testified during a five-day bench trial in May 2024.

Dr. David B. Waisel, an anesthesiologist, said then that Nance’s veins are heavily scarred and tortuous and that it would be difficult to insert a peripheral IV. However, he admitted that a skilled clinician would still be able to insert a small IV into his upper arm.

Another anesthesiologist, Dr. Joseph F. Antognini, also testified that “venous access should not be an issue” and that the risk of problems or complications are “pretty low.”

In his order issued Thursday, Boulee wrote that he is unpersuaded by Nance’s argument because after he filed his complaint, he had three medical procedures — all of which required peripheral IV access and had no reported complications according to medical records.

The judge also wrote that Waisel’s testimony concerning Nance’s use of the anticonvulsant medication gabapentin and its effect on the lethal injection drug was purely speculative.

During the trial, Waisel acknowledged that the medical community has “no idea what the effects of gabapentin may be with pentobarbital,” but that he doesn’t believe there is a high chance it would affect its efficacy during the execution.

As an alternative to lethal injection, Nance proposed death by firing squad — a method currently approved by four other states that permit the death penalty, but not Georgia.

The U.S. Supreme Court has said that to challenge an execution method under the Eighth Amendment, a prisoner must also show that there are “known and available alternatives” that are “feasible, readily implemented,” and that will in fact significantly reduce the substantial risk of severe pain.

Because Nance failed to show that he would suffer severe pain during a lethal injection, Boulee said he had “no need to address” the firing squad argument.

However, the judge did note precedent that says, “the Eighth Amendment does not guarantee a prisoner a painless death,” but instead forbids punishment that cruelly intensifies the sentence.

Nance, 63, fatally shot Gabor Balogh after robbing a Gwinnett County bank in 1993. While fleeing, Nance attempted to steal Balogh’s car at a liquor store across the street by pulling the door open and shooting him. A jury convicted Nance of murder and he was sentenced to death in 1997, when electrocution was the state’s primary method of execution.

However, on appeal in 2000, the Georgia Supreme Court reversed Nance’s death sentence and remanded for a new sentencing trial, after discovering the trial court had erred by failing to excuse an unqualified juror. A year later, the court declared electrocution to be unconstitutional and Georgia switched to lethal injection as the sole method of execution.

Nance was again sentenced to death in the retrial and the state high court affirmed the sentence in 2005. After unsuccessful appeals in federal court and the 11th Circuit, he turned to the U.S. Supreme Court.

The justices originally denied his petition for certiorari in March 2020, but after the Covid-19 pandemic delayed his scheduled execution, they eventually agreed to decide if a habeas petition is the proper procedural motion for method-of-execution challenges like Nance’s.

In June 2022, the high court majority held a death row inmate can use federal civil rights claims, rather than a habeas corpus petition, to challenge his method of execution. It sided with Nance, pointing to the court’s 2019 decision in Bucklew v. Precythe that found a prisoner can request an alternative execution method that is allowed in other states.

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