Amidst Nebraska Execution-Secrecy Controversy, California Judge Lets Execution-Access Lawsuit Proceed

As lawyers for Nevada told their state supreme court that a con­tro­ver­sial Nebraska exe­cu­tion had been car­ried out with­out prob­lems, a fed­er­al judge issued a rul­ing allow­ing a law­suit to pro­ceed that would force California to allow media wit­ness­es to observe exe­cu­tions in that state in their entire­ty. The devel­op­ments in the cas­es in the two states high­light an ongo­ing con­tro­ver­sy over the lack of trans­paren­cy and account­abil­i­ty in recent lethal-injection executions. 

Attorneys rep­re­sent­ing the Nevada Department of Corrections said in a court fil­ing on August 16, 2018 that media wit­ness­es to Nebraska’s four-drug exe­cu­tion of Carey Dean Moore, which used three of the drugs Nevada plans to use to exe­cute Scott Dozier, ​“report­ed no com­pli­ca­tions, only some cough­ing before Moore stopped mov­ing.” They failed to report to the court that the wit­ness­es did not see when the lethal-injec­tion chem­i­cals had been admin­is­tered or what lethal-injec­tion expert, Fordham Law Professor Deborah Denno, called “[t]he parts of the exe­cu­tion that would be most prob­lem­at­ic” — when the IV lines are set and the peri­od after the final drug is admin­is­tered. Those occurred behind drawn curtains. 

Contrary to what Nevada’s lawyers told the court, the Lincoln Journal-Herald, com­pil­ing wit­ness obser­va­tions to the exe­cu­tion, wrote: ​“Nebraska wit­ness­es actu­al­ly report­ed Moore coughed, his diaphragm and abdomen heaved, he went still, then his face and fin­gers grad­u­al­ly turned red and then pur­ple, and his eyes cracked open slight­ly. One wit­ness described his breath­ing as shal­low, then deep­er, then labored.” 

Nebraska College of Law Professor Eric Berger, who stud­ies the death penal­ty, called the eye­wit­ness reports ​“some­what trou­bling.” He said, ​“It’s cer­tain­ly pos­si­ble that every­thing went smooth­ly and humane­ly, but it’s also pos­si­ble that it did­n’t … We just don’t have enough infor­ma­tion to make that determination.” 

Similar con­cerns with the abil­i­ty of the pub­lic to view poten­tial­ly prob­lem­at­ic exe­cu­tions ani­mat­ed the fed­er­al court’s rul­ing on the California exe­cu­tion process. Noting that the pub­lic has a First Amendment right to ​“view exe­cu­tions from the moment the con­demned is escort­ed to the exe­cu­tion cham­ber,” fed­er­al dis­trict court judge Richard Seeborg denied a motion filed by lawyers for the California Department of Corrections seek­ing to dis­miss a law­suit chal­leng­ing admin­is­tra­tive rules that bar the pub­lic from view­ing the prepa­ra­tion and injec­tion of lethal drugs and to keep the cur­tain open through the com­ple­tion of the execution process. 

Christopher S. Sun, who rep­re­sent­ed media plain­tiffs The Los Angeles Times, KQED, and the San Francisco Progressive Media Center, called pub­lic access to exe­cu­tions ​“crit­i­cal to inform­ing our nation­al dia­logue about the death penal­ty” and said the suit was filed to ensure that the pub­lic knows what actu­al­ly hap­pens dur­ing an exe­cu­tion. Sun said cur­rent California state reg­u­la­tions afford exe­cu­tion per­son­nel dis­cre­tion dur­ing the exe­cu­tion to draw the cur­tain on the win­dow through which wit­ness­es see the exe­cu­tion and require the cur­tain to be closed and the pub­lic address sys­tem turned off if three dos­es of the lethal-injec­tion drugs fail to kill the pris­on­er, deny­ing impor­tant infor­ma­tion to the pub­lic in a mat­ter of height­ened public interest. 

In allow­ing the suit to pro­ceed, the court said the media had made a thresh­old show­ing that it was enti­tled to observe prison per­son­nel ​“prepar­ing the chem­i­cals[,] … the process of admin­is­ter­ing the chem­i­cals,” the entire exe­cu­tion itself, and ​“the admin­is­tra­tion of med­ical care … in the Lethal Injection Room” in the event of a failed or botched execution. 

The California law­suit is not the first of its kind. In 2016, an Arizona fed­er­al court ruled that the First Amendment affords the pub­lic the right to view exe­cu­tions in that state in their totality.