Why Lawyers and Judges Should Watch Executions

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Transparency on death row can help hold states accountable for botched lethal injections

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Timothy McVeigh died with his eyes open. The Oklahoma City bomber was strapped to a gurney in the death chamber at the federal penitentiary in Terre Haute, Indiana. It was June 11, 2001, and the mass murderer died from lethal injection at 7:14 a.m. as he stared up at the closed-circuit camera in the ceiling of the room. The jarring image of the last moments of his life, and of his defiant death, were beamed to a room in Oklahoma City, where the victims and survivors of the April 19, 1995, had been granted special federal permission to see the execution via satellite.

Here is some detail of that momentous event, which tracks my own memory of it:

Ten people -- members of the victims' families and survivors of the bombing -- also witnessed the execution from a room beside the death chamber. Paul Howell, whose daughter was killed in the bombing, said McVeigh was expressionless.

"What I was hoping for is that we could see some kind of 'I'm sorry,' but we didn't get anything like that. My emotions were that it was just a big relief. Just a big sigh came over my body and it felt real good," Howell said.

More than 650 miles away in Oklahoma City, 232 survivors and family members watched on closed-circuit television. "He actually lifted his head and looked directly in the camera, and it was as if he was looking directly at us," said Larry Whicher, who lost his brother. "His eyes were unblinking. They appeared to be coal black. I truly believe that his eyes were telling me ... that if he could, he would do it all over again."

He died with his eyes open. Although I was in Terre Haute that day, in a muggy, buggy media tent on the grounds of the prison, and although I had covered every day of his federal murder trial, I did not see McVeigh's execution. A few hours before he died, I had lost a random drawing that was held among a small group of radio reporters for the one viewing seat made available to us. To this day, it remains one of the biggest professional regrets of my career. I don't believe that anyone who covers capital punishment in America can do so completely without having witnessed an execution. And I often wonder how the American people would have reacted, exactly three months before 9/11, had they been able to see what I so desperately wanted to see that day.

The topic of public executions, and what may be gained or lost in their viewing, is timely again because a judge in Georgia last week allowed the execution of a man named Andrew Grant DeYoung to be videotaped for subsequent use by lawyers for a death row inmate named Gregory Walker. Evidently, it was the first time since 1992 that an execution had been taped and the well-reported episode, predictably, has brought out into the open again many of the same arguments we've heard before about the possibility that the American people may one day be subjected to visible proof of the capital punishment which is routinely undertaken in their name.

"Prison officials and prosecutors should no longer be allowed to keep secret from the courts vital evidence in the fight over lethal injections."

No one involved in the latest drama, mind you, wants to see taped executions come to the primetime television lineup. Instead, the criminal defense attorneys who convinced Fulton County Superior Court Judge Bensonetta Tipton Lane to authorize the taping of the DeYoung's execution argued that the current legal and political debate over injection protocols and drug mixes would be aided by giving judges access to tapes of the executions. The jurists would benefit from seeing direct evidence of precisely how state executions are unfolding now that Georgia is using pentobarbital instead of thiopental in its lethal injection cocktail.

This, in turn, would better enable the courts to accurately determine whether such injections violate the "cruel and unusual punishment" clause of the Eighth Amendment. The debate on this topic has gained ferocity recently because Georgia, like other states that still perform executions, have had to scramble this year to concoct a new deadly "cocktail' after the Italian maker of one of its ingredients, thiopental, decided that it no longer wanted to be a part of what United States Supreme Court Justice Harry Blackmun once famously called America's "machinery of death."

So why, specifically, did Walker's attorneys want the tape?  "We've had three botched lethal injections in Georgia prior to Mr. DeYoung, and we thought it was time to get some hard evidence," defense attorney Brian Kammer told The New York Times. Walker's attorneys told the court:

Following three consecutive irregular Georgia executions, DEA seizure of Georgia's thiopental supply for its violation of federal drug importation laws, exposure of illegal narcotics activity by the medical personnel overseeing state lethal injections, Georgia's precipitous switch from thiopental to pentobarbital -- an anesthetic whose manufacturer warns is untested and unsafe for use in judicial elections, and the subsequent botched execution of Roy Blankenship, who  lurched and grimaced in obvious pain for several minutes while dying, Mr. Walker, who stands to be executed in the same manner, moved to preserve evidence of Georgia's next intended execution.

Judge Lane, smartly, framed her ruling in practical terms. She wrote:

The briefing on this motion reflects that eye witnesses to an execution may often have varying recollections regarding the details of what happened. In some of the other cases cited by the respondent the State has attacked the conclusions suggested by witnesses on the basis that the witness has not witnessed an execution performed by the State of Georgia and/or is unfamiliar with the protocols used here. These arguments tend to underscore the potential relevance of the evidence the petition seeks to gather.

If prison officials have nothing to hide, in other words, they should at least be willing to gather and hand over such videos for subsequent use by the courts; a simple matter of giving judges the "best evidence" available. Echoing Judge Lane, Richard Dieter of the Death Penalty Information Center told me Monday that the use of videotaped executions within the criminal justice system makes sense for several reasons: 

Basically, the country is in a period of experimentation (with involuntary human subjects) as it tries to find a suitable means of execution. Although I believe the problems with the death penalty far exceed this narrower question, it is one over which there has been a veil of secrecy. Prisons and state governments have been reluctant to explain why they are choosing certain new drugs, whether they have explored all alternatives, and whether they have consulted about the side effects of new drugs being used. Having an objective view of what actually happens in the execution chamber could provide some degree of transparency in evaluating the various procedures.

Now, it is quite a stretch to go from allowing limited courtroom (or in-chambers) use of the videotape to enabling the public dissemination of such images. After all, no one I know (and no one you likely know, either) has ever seen the videotape of that 1992 execution (or of any other execution since the modern death penalty regime was established in 1976 by the United States Supreme Court). Every day in this country, judges deal with confidential or classified evidence which is sealed and which never sees the light of day. To think that the handful of judges and lawyers who would have access to the tape would allow it to be published is a insult to them and their staffs.  

That didn't stop prosecutors in DeYoung's case, however, from making the familiar "parade of horribles" argument. The videotaping of one execution would lead to the videotaping of all executions, they argued, which would lead one day to such videos being uploaded onto YouTube for the whole world to see. Prosecutors all over the country routinely leak confidential information about criminal suspects. These prosecutors were arguing that it would be terrible indeed if the judge were to jeopardize the secrecy of the execution chamber. A known benefit (judicial access to the tapes) should give way to a theoretical possibility (the leaking of a tape). Even in the cynical world of capital punishment law, this is a bad argument. No wonder Judge Lane rejected it.

Making execution videotapes for lawyers and judges to evaluate is a no-brainer. It should be happening all over the country and with greater frequency. Prison officials and prosecutors should no longer be allowed to keep secret from the courts vital evidence in the fight over lethal injections. But after 15 years of covering the death penalty debate I confess I still don't know precisely where I stand on the issue of the public dissemination of such tapes. Executions happen. Sometimes more effectively than others. Sometimes gruesomely. And always at the expense of the American taxpayer. A big part of me thinks the world wouldn't end if an execution videotape were ever made public.

But part of me also thinks the public release of an execution tape would turn yet another dramatic moment into something blasé or, worse, circus-like. If such a release were to start online, as everyone presumes, it's hard to make a reasonable case that the images wouldn't shortly thereafter appear on cable television, to great fanfare. Nor is it worthwhile to pretend that the same dark sensibilities that drew thousands to public executions a century ago aren't still vibrant within people today. The good news, I guess, is that the Georgia case doesn't require us to test this tension, at least not yet.

Update: I received an interesting note Tuesday afternoon from Megan McCracken, an expert in lethal injection law at the University of California/Berkeley School of Law. She wrote:

"The videotaping of Mr. DeYoung's execution is a step in the right direction in terms of shedding light on what happens during an execution. However, videotaping only captures what witnesses see and cannot transmit the information we actually need. When something goes wrong in a lethal injection execution, witnesses, lawyers for condemned prisoners, and the public are prevented from knowing what happened because of the paralytic that is administered to the prisoner and the secrecy surrounding the entire process. A video will not tell us what actually happened in the room where the drugs are administered, and until DOCs reveal what happened behind the scenes, it is likely we will never know what happened to Mr. Blankenship or any of the other men and women who have been executed by an unnecessarily dangerous process."

 

Image: Ho New/Reuters

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Andrew Cohen is a contributing editor at The Atlantic, 60 Minutes' first-ever legal analyst, and a fellow at the Brennan Center for Justice. He is also chief analyst for CBS Radio News and has won a Murrow Award as one of the nation's leading legal journalists. More

Cohen is the winner of the American Bar Association’s 2012 Silver Gavel Award for his Atlantic commentary about the death penalty in America and the winner of the Humane Society’s 2012 Genesis Award for his coverage of the plight of America’s wild horses. A racehorse owner and breeder, Cohen also is a two-time winner of both the John Hervey and O’Brien Awards for distinguished commentary about horse racing.

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