Appeals court won’t review denial of firing squad request

ATLANTA — A federal appeals court has declined to reconsider its earlier ruling that rejected the request by a man on Georgia’s death row to die by firing squad rather than by the injection of a sedative.

Lawyers for Michael Wade Nance argued that his veins are severely compromised and that the execution method Georgia uses — injection of pentobarbital — could cause him excruciating pain in violation of his constitutional rights. They suggested instead that the state execute Nance by firing squad.

A federal judge rejected that request and a three-judge panel of the 11th U.S. Circuit Court of Appeals in Atlanta ruled in December that it could not consider his request for procedural reasons. The full appeals court on Tuesday issued a 7-3 decision declining to reconsider the panel’s decision.

Nance, 59, was convicted and sentenced to death for killing Gabor Balogh in 1993. Nance had just robbed a Gwinnett County bank and abandoned his own car after dye packs hidden in the stolen money exploded. Balogh was backing out of a parking space at a liquor store across the street when Nance pulled open the car door and shot him, according to court filings.

In a complaint filed in January 2020, Nance’s lawyers wrote that his veins are extremely difficult to locate by sight and those that are visible are compromised. There is substantial risk that the sustained intravenous access involved in an execution could cause his veins to lose their structural integrity and “blow,” causing the drug to leak into the surrounding tissue where it would cause intense pain and burning, they wrote.

A prison medical technician told Nance in 2019 that the execution would likely have to “cut his neck” — likely a reference to a process that involves inserting a catheter into a large central vein — to carry out the execution because that’s the only way they could get sustained intravenous access, his lawyers wrote.

Additionally, they argued, a medication Nance has been taking for chronic back pain has altered his brain chemistry in such a way that pentobarbital won’t reliably cause him to become unconscious and insensate, meaning he could suffer a prolonged and painful execution.

A federal judge ruled in March 2020 that he had waited too long to make these arguments and that his lawyers failed to show his constitutional protections against cruel and unusual punishment would be violated since the court must presume state officials will act “carefully and humanely” in carrying out his execution.

In a dissenting opinion Tuesday, Circuit Judge Charles Wilson, joined by Circuit Judges Beverly Martin and Adalberto Jordan, wrote that the appeals court should consider Nance’s arguments.

The 11th Circuit panel concluded that since lethal injection is the only method of execution authorized by Georgia law, Nance was effectively challenging the validity of his death sentence. Nance was procedurally barred from bringing that type of challenge, the panel said.

But Wilson argued that Nance wasn’t trying to avoid execution by asking to be executed by firing squad.

“He accepts his fate. He does not ask to be spared,” Wilson wrote. “Nance only asks that the method by which the State will take his life falls in line with his Eighth Amendment right to be free of cruel and unusual punishment.”

The constitutionality of the execution method “should have weighed heavily on this court,” Wilson wrote.

“Sadly, by declining to rehear Nance’s case, a majority of the court follows a pattern of employing faulty reasoning to bar relief from inhumane executions,” he wrote.

The 11th Circuit Chief Judge William Pryor, joined by Circuit Judges Kevin Newsom and Barbara Lagoa, wrote that the panel’s opinion was consistent with circuit and U.S. Supreme Court precedent.

“Federal courts do not have jurisdiction to provide remedy for every right denied,” and not every decision reflecting that fact is worthy of review by the full appeals court, Pryor wrote.