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Supreme Court says Alabama execution can proceed

This undated photo provided by Alabama Department of Corrections shows Alabama inmate Jeffery Borden in Atmore, Ala. Borden is facing execution by lethal injection after being convicted of killing his wife and father-in-law during a 1993 Christmas Eve gathering. The Alabama attorney general on Monday, Oct. 2, 2017, asked the nation's high court to overturn an injunction blocking Thursday's execution of Borden. (Alabama Department of Corrections, via AP)

MONTGOMERY, Ala. (AP) — The U.S. Supreme Court on Wednesday ruled Alabama can proceed with the execution of a man convicted of killing his estranged wife and father-in-law in 1993.

Jeffery Lynn Borden is scheduled to receive a lethal injection Thursday at a south Alabama prison. A divided court overturned a stay issued by the 11th U.S. Circuit Court of Appeals which ruled this month that a judge had prematurely dismissed Borden's challenge to the humanness of the state's lethal injection procedure.

Three justices— Justice Ruth Bader Ginsburg, Justice Stephen Breyer, and Justice Sonia Sotomayor — indicated they would keep the execution on hold.

Borden, 56, was convicted of killing his wife, Cheryl Borden, and her father, Roland Harris, during a Christmas Eve gathering in Jefferson County in 1993. The state attorney general's office wrote that trial testimony showed Borden, who was separated from his wife, brought their three children to the gathering at Harris' house after a weeklong visit, and then shot her in the back of the head as she was helping to move the children's belongings. He then shot Harris.

The 11th Circuit on Friday temporarily blocked the execution after ruling a judge had prematurely dismissed inmates' lawsuits that argued the use of the sedative midazolam at the start of the procedure would not reliably render them unconscious before subsequent drugs stop their lungs and heart.

Alabama asked the Supreme Court to lift the stay, saying justices let four other executions proceed using the same drug combination, and that Borden "presents nothing new that would justify a stay."

"Any questions concerning three-drug midazolam protocols have effectively been answered," the attorney general's office wrote.

Borden's attorneys had asked the justices to keep the stay in place, saying the 11th Circuit determined that "the question of the constitutionality of Alabama's method of execution is worthy of serious consideration."

"This macabre and cynical attempt to moot the case by executing those who successfully file suits against the state must be stopped," Borden's attorneys wrote in the Tuesday filing requesting to maintain the stay.

They declined to comment on the decision Wednesday.

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