Capital Litigation

Alan Miller

After nearly 20 years of representing our client, Alan Miller, a death row inmate in Alabama, Alan was executed on September 26, 2024. Over the years, the Sidley team obtained several victories on Alan’s behalf as the State of Alabama attempted on more than one occasion to execute him.  

Alan elected under state law to be executed by nitrogen hypoxia rather than lethal injection due to the fact that throughout his life, medical practitioners had struggled to access his veins, causing him severe pain. Following Alabama’s initial refusal to honor his election, Sidley filed a federal lawsuit in 2022 seeking a preliminary injunction prohibiting the State from executing him by lethal injection. The District Court granted the preliminary injunction, and the Eleventh Circuit affirmed, but the U.S. Supreme Court vacated the injunction on the night of his execution date. The State accordingly attempted to execute Alan by lethal injection in the remaining hours before midnight, but could not do so because the practitioners could not find a vein, making Alan one of the few people in American history to survive an execution attempt.

Following its failed attempt at executing Alan in 2022, the State then petitioned the Alabama Supreme Court for a second attempt at executing Alan by lethal injection. Sidley brought a second round of federal court litigation arguing that a second lethal injection attempt would constitute cruel and unusual punishment. The case against the State was settled, and under the terms of the settlement, the State agreed it would only attempt execution by nitrogen hypoxia when that method of execution became available in the United States.

In February 2024, the Alabama Attorney General, upon the approval of a nitrogen hypoxia protocol, moved for a new execution date. Sidley filed a lawsuit in defense of Alan asserting violations of his constitutional rights. Specifically, Sidley argued that the State setting Alan’s execution date ahead of others on Alabama’s death row was in retaliation of him previously criticizing the State’s execution program after the earlier failed attempt to execute him. Sidley also argued that the State setting Alan’s execution date violated his right to equal protection under the Fourteenth Amendment, and that carrying out Alan’s execution by nitrogen hypoxia would violate his right to be free from cruel and unusual punishment under the Eighth Amendment.    

Alan decided to resolve this lawsuit via a confidential settlement. This settlement was informed by several weeks of fast-paced discovery and depositions.

Ultimately, Alan’s story is representative of what the Sidley team, comprising dozens and dozens of lawyers and professional staff, aimed to provide throughout the years of representing Alan: thorough legal representation to help him make difficult choices in the most challenging circumstances. Alan also achieved a major goal of his via Sidley’s litigation, which was to shine a light on the realities of how the death penalty is administered in the State of Alabama.

Keith Gavin

In 2005, the Equal Justice Initiative of Alabama referred Keith Gavin to Sidley for pro bono representation. Over the course of almost 20 years, Sidley devoted more than 11,200 hours to representing Keith in his state and federal post-conviction proceedings.

Keith steadfastly maintained that he was innocent of the crime for which he was convicted and sentenced to death. After Sidley was engaged to represent Keith in state post-conviction proceedings, Sidley conducted a comprehensive investigation into the State’s case against Keith and trial counsel’s performance. Leaving no stone unturned, Sidley developed an evidentiary record in the state circuit court that demonstrated that Keith’s trial counsel failed to conduct a constitutionally adequate investigation that would have allowed his trial counsel to show that someone other than Keith had committed the murder at issue. Because of trial counsel’s failures, the jury never heard, for example, about the numerous irregularities in the police investigation and that a key witness for the State lied about the gun used in the murder. Sidley also built an evidentiary record demonstrating that Keith’s trial counsel failed to conduct a constitutionally adequate investigation into potential mitigating evidence that could have been introduced during the sentencing phase of the trial. After Keith was convicted, his trial counsel failed to present any of this extensive mitigation evidence. Evidence presented in state post-conviction proceedings also established that the jurors voted by secret ballot on both guilt and the sentence before the penalty phase of the trial even began.

In 2020, a federal judge in Alabama partially granted the habeas petition that Sidley filed on Keith’s behalf. The court found that Keith’s trial counsel provided ineffective assistance of counsel during the penalty phase of Keith’s trial and thus granted habeas relief as to Keith’s death sentence. Relying on the evidentiary record that Sidley had developed, the district court found that trial counsel “did not conduct an adequate background investigation, did not pursue all reasonably available mitigating evidence, and did not make a reasonable effort to present the mitigating evidence they had.” The district court also found that the mitigating evidence available to trial counsel bore no relation to the “few naked pleas for mercy actually put before the jury,” and further found that had this evidence been presented to the jury, there was a “reasonable probability” that Keith would have received a different sentence. The State appealed the district court’s decision, and the Court of Appeals for the Eleventh Circuit ultimately reversed the grant of habeas relief.

In 2024, the Attorney General of Alabama moved the Alabama Supreme Court to set an execution date for Keith, even though at least 19 other people on Alabama’s death row had exhausted their appeals before Keith. On Keith’s behalf, Sidley opposed the State’s motion on state and federal grounds. The Alabama Supreme Court granted the State’s motion in a summary order.

Ahead of Keith’s execution, Sidley advocated to protect Keith’s right to the free exercise of his religion. Keith was a Muslim, and he did not want an autopsy conducted following his execution because an invasive autopsy would violate his religious beliefs. Sidley attempted to resolve the issue without litigation, but after attempts to reach an agreement with the State to forgo an autopsy failed, Sidley assisted Keith in filing a lawsuit to protect Keith’s religious liberty. The State ultimately agreed to forgo conducting an autopsy and settled the lawsuit.

During Keith’s last week, multiple current and former members of Keith’s legal team at Sidley spent time with him in Alabama, including on his final day.

On July 18, 2024, the State of Alabama executed Keith Gavin.

Another Step Forward in Death Row Case

A Sidley team that is representing an Alabama death row prisoner recently achieved a significant victory in securing an evidentiary hearing on the client’s Atkins claim raised in a federal habeas petition. Judge Axon of the Northern District of Alabama granted the petition in part, writing that the state court’s refusal to grant an evidentiary hearing was based on an unreasonable determination of the facts, and agreeing to review the Atkins claim de novo. The team, all based in Chicago, is now preparing for the hearing, scheduled for the summer of 2025. The case was referred to Sidley by the Equal Justice Initiative.