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Marks ruled Frazier had not met the “exceedingly high� legal bar required to win an injunction.

“Frazier fails to meet his burden to establish that the Protocol does create a substantial risk of serious psychological pain such that the Protocol violates the Eighth Amendment,� Marks wrote.

Frazier is scheduled to be executed for the 1991 rape of murder of Pauline Brown. Prosecutors said Frazier broke into Brown’s Birmingham apartment, raped her and shot her in the back of the head.

Alabama became the first state to carry out executions with nitrogen gas when three inmates were put to death using the new method in 2024. The method involves placing a respirator gas mask over the face to replace breathable air with pure nitrogen gas, causing death by lack of oxygen.

Frazier’s lawyers pointed to descriptions of the state’s first three nitrogen executions to argue the method causes conscious suffocation instead of the swift death that the state promised.

Dr. Brian McAlary, an anesthesiologist who witnessed the November execution of Carey Dale Grayson, testified he observed clear “evidence of distress� in the prisoner and that Grayson appeared conscious for up to three minutes.

, including The Associated Press, on the gurney at the start of their executions.

Marks ruled that the descriptions do not support a finding that any of the men “experienced severe psychological pain or distress over and above what is inherent in any execution.� The state has maintained the movements by the inmates may have been involuntary or faked.

However, the judge noted there could be a point that depriving an inmate of oxygen while conscious is unconstitutional.

“Notwithstanding the State’s stubborn refusal at the evidentiary hearing to concede this point, the longer an inmate remains conscious while breathing in nitrogen during an execution, the more likely it becomes that the Eighth Amendment may be violated,� Marks wrote.

Before his conviction in Alabama, Frazier was convicted in Michigan for the 1992 murder of a 14-year-old girl. He was sentenced to life in prison. Michigan does not have the death penalty.

Frazier’s mother made a last-minute plea to Michigan Gov. Gretchen Whitmer to intervene and request that Frazier be sent back to Michigan to serve the life sentence instead of being executed in Alabama.

“Please bring my son back to Michigan. Please don’t let Alabama kill my son if you can stop it,� Carol Frazier wrote in the letter to Whitmer.

Whitmer’s office declined to comment on the request.