Metropolitan News-Enterprise


Monday, August 2, 2002


Page 1


Court Orders Greater Access to Executions, Cites First Amendment


By KENNETH OFGANG, Staff Writer/Appellate Courts


A California Department of Corrections policy, under which media and other witnesses to executions were not permitted to see the procedures leading up to the condemned inmates’ deaths, violates the First Amendment, the Ninth U.S. Circuit Court of Appeals ruled Friday.

The judges affirmed an injunction issued by U.S. District Judge Vaughn Walker of the Northern District of California. Walker ruled that the curtains between the spectator area and the death chamber must be lifted once the inmate enters the chamber.

The California First Amendment Coalition and the Society of Professional Journalists’ Northern California Chapter sued in 1996, challenging Procedure 770, after William Bonin became the first California killer executed by lethal injection.

Bonin was led into the chamber, strapped to a gurney, and intravenous shunts were inserted into his arms. When the curtains opened, witnesses, including members of the press, saw Bonin lying motionless on the gurney.

Death Announced

A few moments later, an announcement informed the witnesses that Bonin was dead. Officials later said there was trouble inserting the intravenous lines into Bonin’s arms before the curtains were lifted.

The suit led to the issuance of a preliminary injunction, requiring that the curtain be lifted “just before the time intravenous tubes are inserted.” The injunction was in place for the second execution by injection, that of Keith Daniel Williams.

Walker later granted a broader injunction, requiring that witnesses be allowed “to view the procedure at least from the point in time just prior to the condemned being immobilized, that is[,] strapped to the gurney or other apparatus of death.” But the Ninth Circuit panel reversed, saying the record on the plaintiffs’ summary judgment motion was inadequate to support the court’s decision to override the judgment of prison officials.

Pemanent Injunction

As a result, Procedure 770 was in effect for the four executions held between June 1998 and March 2000. But after a two-day bench trial, Walker again granted a permanent injunction, as a result of which the March 2001 execution of Robert Lee Massie and the January 2002 execution of Stephen Wayne Anderson were conducted with broadened access.

 The state, meanwhile, appealed again. But the panel Friday found the plaintiffs’ evidence compelling.

Walker’s order, Judge Raymond Fisher wrote for the Ninth Circuit, appropriately balances “the State’s ability to carry out executions in a safe and orderly manner and the public’s right to be informed about how the State and its justice system implement the most serious punishment a state can exact from a criminal defendant—the penalty of death.”

Procedure 770, Fisher wrote, “is an exaggerated, unreasonable response to prison officials’ legitimate concerns about the safety of prison staff.”

Public access to executions has long been the norm in the United States and elsewhere, Fisher noted. More than 50,000 public executions were conducted in England, he pointed out, and “town square” hangings occurred in California until 1858 and in other states as recently as 1937.

When California moved its executions inside prison walls, the judge added, it provided for official witnesses, as did other states. Under the current regime, up to 50 witnesses—including 17 members of the news media—are authorized to view an execution.

Public access to executions is a qualified right under the First Amendment, the judge said, because it enables an informed debate as to whether the infliction of death by lethal injection conforms with “evolving standards of decency.”

While the state argued that the “initial procedures” are not part of the execution, the judge declared, the citizenry is entitled to accurate information regarding processes “which are invasive, possibly painful, and may give rise to serious complications.”

The state, Fisher said, failed to support its claim that Procedure 770 is necessary to protect the anonymity of the execution team members. The “rationality and the credibility” of that contention, he said, fails for a number of reasons.

The injunction, Fisher said, gives witnesses no more opportunity to identify execution team members than was available when California used the gas chamber, which replaced hanging in 1937. “Indeed, during Robert Harris’ execution [by lethal gas in 1992] witnesses saw the execution team escort Harris into the chamber more than once,” as a result of a series of stays, the judge noted.

Besides, Fisher pointed out, Procedure 770 would not assure anonymity, since team members are with the prisoner continuously from the night before execution, and the prisoner is free to communicate with attorneys, friends, and family during that time. And even if a team member were identified, “the notion of retaliation is pure speculation,” the judge said, citing the absence of evidence that any team member has ever been harmed or threatened because he participated in an execution.

Officials’ real goal, the judge suggested, may be to avoid “any public perception that executions involve the use of excessive force” in the event an inmate becomes “hostile or combative.” Fisher cited a 1996 memo by the then-warden of San Quentin, suggesting that if the use of “a great deal of force” became necessary, it “would most certainly be misinterpreted by the media and inmate invited witnesses who don’t appreciate the situation we are faced with.”

Fisher acknowledged testimony that some team members were reluctant to participate in executions after the injunction was granted. But no one actually refused, he pointed out, nor was there any evidence that if anyone did refuse, there would not be qualified replacements available.

If officials truly believe anonymity is necessary once team members are in the execution chamber, he added, they can cloak them in surgical garb.

Senior Judge Betty B. Fletcher and visiting Senior Judge Myron Bright of the Eighth Circuit joined in the opinion.

The case is California First Amendment Coalition v. Woodford, 00-16752.


Copyright 2002, Metropolitan News Company