In dissent, appeals court judge says James Barber will soon be state's 'guinea pig'

Barber is scheduled to be executed by lethal injection Thursday at 6 p.m.

A federal appeals court has rejected the appeal of James Barber, a condemned Alabamian.

Alabama plans to execute Barber, who goes by Jimi, Thursday at 6 p.m.

Judge Jill Pryor dissented from Wednesday evening’s 2-1 ruling by the Eleventh Circuit Court of Appeals, writing that Barber should not be forced into becoming the state’s “guinea pig.”

Alabama’s previous two attempts to execute its citizens through lethal injection led to the repeated poking and prodding of the condemned men — Alan Miller and Kenny Smith — but did not lead to their deaths. Difficulty establishing vein access by members of the execution team led to the state’s failure to carry out its grim mission, officials would later confirm.

In the wake of those failures, Barber argued that an attempted execution by lethal injection would violate the Constitution. Instead, Barber requested that his death come by nitrogen suffocation, an untested, unregulated method of execution allowed by Alabama law.

“…ADOC swears it is ready to try again, with Mr. Barber as its guinea pig.” -Judge Jill Pryor

A federal court, however, rejected Barber’s argument, writing that changes to the death penalty process — for example, an effective 6-hour extension of the timeframe executioners will have to establish vein access — mean that the man’s situation differs substantially from those of Smith or Miller. The Eleventh Circuit affirmed that view with Wednesday’s opinion, leaving only the U.S. Supreme Court the last place Barber could seek relief.

In her dissent, Pryor wrote that Barber’s appeal would likely succeed if he were allowed to seek evidence from the Alabama Department of Corrections related to its three-month “review” of the execution process that came after the botched executions.

“After a three-month ‘review’ of its procedures— conducted entirely internally, entirely outside the scope of any court’s or the public’s scrutiny, and without saying what went wrong or what it fixed as a result—ADOC swears it is ready to try again, with Mr. Barber as its guinea pig,” Pryor wrote on Wednesday.

Barber was convicted and sentenced to death for the 2001 murder of Dorothy “Dottie” Epps in Harvest, Alabama.

In the decades since, Barber said he’s received something he never expected to find — forgiveness.

“I did not deserve it. I could not earn it. But I could not and will not ever take it for granted,” Barber recently said.

Barring action by the U.S. Supreme Court or Gov. Kay Ivey, Alabama is scheduled to begin its attempts to execute James Barber at 6 p.m. on Thursday.