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July 21, 2011

"DeYoung executed with videographer documenting his death"

The title of this post is the headline of this news report from Georgia on the first recorded execution in the United States in nearly two decades.  Here are the specifics:

With a video camera recording his last moments, Andrew Grant DeYoung was executed Thursday night at the Georgia Diagnostic and Classification Center for killing three family members. Georgia Department of Correction Andrew DeYoung was sentenced to death for killing his 41-year-old parents and 14-year-old sister in the family's northeast Cobb home in 1993.

DeYoung was declared dead at 8:04 p.m., fewer than 15 minutes after the process began. Lying prone, he barely moved throughout the execution. His parting words were: "I'm sorry for everyone I've hurt."

For the first time in Georgia, a videographer was present in the execution chamber, documenting DeYoung's death and his reaction to a new three-drug lethal injection that anti-death penalty activists said caused unnecessary pain and suffering. The videographer, accompanied by a woman taking notes, stood off to the side and was barely visible to witnesses.

DeYoung, however, only blinked his eyes and swallowed repeatedly, and showed no violent signs in death. He was checked by a nurse for consciousness shortly into the execution, a new procedure put in place. At 8:22 p.m., he was taken from the prison in a black Butts County Coronor van.

It is believed this was the first execution involving lethal injection that was videotaped in the nation. In 1992, a California execution was recorded on video, but the gas chamber was in use. The execution of Timothy McVeigh, the Oklahoma City bomber, was shown live over a closed-circuit broadcast from an Indiana prison to victims or family members of the deceased watching in Oklahoma City....

Hours before Thursday's execution, Fulton County Superior Court Judge Bensonetta Tipton Lane rejected the state's attempt to have the Georgia Supreme Court review her ruling that allowed the execution videotaping.

Lane, overseeing the appeal of death-row inmate Gregory Walker, had ordered the recording of DeYoung’s execution after hearing claims the state’s lethal injection process caused unnecessary pain and suffering. The execution videotaping was the first in almost two decades nationally, since it was permitted in California. No other states with the death penalty currently allow it.

Walker's attorneys asked the Fulton County judge to order DeYoung’s execution videotaped. Lane agreed but said the tape had to be immediately placed under court seal. The state Supreme Court supported that decision.

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Comments

It would appear that inmate Walker, instead of creating evidence for himself, has created some for the state. The movements reported -- blinking and repeatedly swallowing -- don't come within shouting distance of the Baze standard. Indeed they don't come within shouting distance of anything.

Posted by: Bill Otis | Jul 22, 2011 1:08:41 AM

Bill, do you think the US Supreme Court will eventually forcefully re-affirm the Baze decision--basically reminding all concerned that a lethal-injection protocol "substantially similar" to Kentucky's will pass constitutional muster? It seems to me that a US Supreme Court decision is being virtually ignored.

Posted by: Alpino | Jul 22, 2011 3:49:50 AM

Video recording executions should not be permitted. At some point it makes it to Youtube, and becomes popular. Such popularity is a strong reward, and will result in more murders for glamor.

Posted by: Supremacy Claus | Jul 22, 2011 5:33:16 AM

It will be interesting to see if any traditional or non-traditional media move to unseal the tape and get access to it for public display. Actually, Supremacy Claus raises an interesting question about the unintended consequences of media display of executions. I doubt he is right but it's hard to know. Interested if BIll Otis thinks there is any potential merit to this argument advanced Supremacy Claus?

Posted by: Steve Prof | Jul 22, 2011 6:43:31 AM

We had public executions in this country for most of the country's history and I don't think there is much evidence that during that extended period people sought to commit crimes in order to be thusly "rewarded."

Posted by: C | Jul 22, 2011 8:19:36 AM

Bill, Walker's legal team took a gamble and harmed their client. Sort of like David Dow, only not as bad.

Posted by: federalist | Jul 22, 2011 8:57:55 AM

Maybe the state could sell or auction off tickets for attending executions and have naming rights as a way to generate revenue.

Posted by: Steve Prof | Jul 22, 2011 9:49:28 AM

Alphino,

I would say they already have to a certain degree by issuing per curium orders in at least one case (possibly more than one, I don't recall?). I expect that trend to continue. I don't expect another full opinion on the topic for awhile.

Posted by: Soronel Haetir | Jul 22, 2011 9:54:36 AM

alpino --

Generally, SCOTUS believes that when it has spoken once, it has spoken enough. Still, as long as the Ninth Circuit sits out there, with its historical (and present) penchant for defiance, you never know. If the Ninth affirms some order banning Drug X based on mere guessing, or guessing dressed up as "science" (courtesy of the "scientists" at Amnesty International, etc.), then SCOTUS might well be sufficiently provoked to grant cert and write a "We actually meant it"-type opinion.

Posted by: Bill Otis | Jul 22, 2011 10:11:52 AM

SC and Steve Prof --

"Video recording executions should not be permitted. At some point it makes it to Youtube, and becomes popular. Such popularity is a strong reward, and will result in more murders for glamor."

It's going to be hard for this one to make YouTube, because it's under seal. The number of persons with access is extremely limited, and if it gets out, the leaker will be easy to find and will be in big trouble. And to my knowledge the recording made in 1992 has not leaked out.

I also think there's no glamor or any other sort of appeal to this tape. It's hardly glamorous to be put to death, and the death itself was, from the news accounts, like going to sleep. Who is going to get on the Internet to watch someone going to sleep? There's just nothing to see.

I might add that, in general, I don't oppose videotaping lethal injections for the same reason I don't opposed recording police questioning of suspects. The neat thing is that the Left is so ideologically in stone that it can no longer hear itself. It's become an echo chamber. After years of talking only to each other, they actually BELIEVE that police questioning is an exercise in compulsion/torture, and that lethal injection is a study in sadism.

This is just so much pro-criminal tripe, and I am happy to have it exposed as such. Let there be taping. When the Left sees that they're getting snowed under with tapes that show absolutely nothing objectionable, they'll change their tune on a dime and start complaining that all this taping is a violation of privacy (or something).

Posted by: Bill Otis | Jul 22, 2011 10:32:12 AM

federalist --

"Walker's legal team took a gamble and harmed their client. Sort of like David Dow, only not as bad."

In a way, I don't blame Walker's lawyers. At some level, they know they have a losing hand, and that the current drug cocktail is adequate for Constitutional purposes. So they felt like they had little to lose by putting their chips on the longshot hope that DeYoung would trash around or cry out.

Unfortunately for them, their longshot hope turned out like most longshot hopes. But since they were going to lose anyway, you can kind of see what they were thinking.

Posted by: Bill Otis | Jul 22, 2011 10:38:36 AM

I agree with Bill Otis on his last post. Bring on the video taping. His last paragraph about the Left eventually complaining about too much taping as an invasion of privacy was not only humorous but probably a valid prediction.

Posted by: Steve Prof | Jul 22, 2011 10:50:02 AM

So I wonder if the eventual examination will be just the judge who will then rule that there's nothing there, or if it will be set up so the lawyers will get to view it. In that latter case you can be sure they'll find something ridiculous that doesn't quite match the written protocol. "Your honor, the protocol calls for no more than 10' of plastic tubing, but you can see that they used at least 10.5' The entire procedure needs to be scrapped and my client spared"

Posted by: Soronel Haetir | Jul 22, 2011 10:56:53 AM

Oh I agree with you Bill, I just like taking shots at these ridiculous last-minute challenges.

Posted by: federalist | Jul 22, 2011 11:12:51 AM

Soronel, actually you are exactly right: the 10.5' tubing takes to long for the cocktail to arrive creating an 8th Amendment violation. :)

Posted by: Steve Prof | Jul 22, 2011 11:51:33 AM

Bill Otis

the 9th Circuit has yet to interfere with the new drug combination in Arizona.

Walker's attorneys were hoping for a problem in DeYoung's execution but didn't get it. I assume Troy Davis is up next in Georgia. I wonder if his attorneys or others will try to get more videotaping approved hoping for a mishap in the execution chamber.

Posted by: DaveP | Jul 22, 2011 1:04:20 PM

"blinking and repeatedly swallowing -- don't come within shouting distance of the Baze standard"

Of course this isn't the least bit relevant to the Baze standard when pancuronium bromide is used (as it reportedly was here), the effect of which is to prevent unsightly thrashing about while the inmate is being killed.

Posted by: Michael Drake | Jul 22, 2011 2:08:45 PM

(And yes, I am aware that PB was used in the protocol examined in Baze. The issue is whether a lack of conspicuous indicia of pain is dispositive, which it can hardly be where PB has been administered.)

Posted by: Michael Drake | Jul 22, 2011 2:13:15 PM

Michael Drake,

Regardless Baze puts the burden, and a fairly heavy one at that, on the condemned. They are going to have to bring forward a lot more than they have if they actually think they are going to meet that standard.

Posted by: Soronel Haetir | Jul 22, 2011 2:20:28 PM

Michael Drake

I believe the repetitive argument is that the first drug won't anesthetize the inmate before the PB is administered. Baze was affirmed even without a consciousness check which most states do.

Posted by: DaveP | Jul 22, 2011 2:49:37 PM

Michael Drake --

Not to be piling on with Soronel and DaveP, but last time I looked, lack of evidence was considered a weakness, not a strength.

Baze imposes a burden on the defense to show that there is -- not that there might be, or could be -- an unreasonable risk of severe pain. The lawyers for inmate Walker, who asked for the videotaping, knew full well that PB was going to be used. They sought the taping anyway, hoping somewhat ghoulishly to get some thrashing. They came up empty.

If they didn't think it would be relevant because of the use of PB, they needn't have asked for the taping to begin with. But they did. This means that they have left the door wide open for the state to use the tape as relevant on the Baze issue; the defense can't claim that the tape is irrelevant (for the reason you suggest or any other), having previously taken the postion that it had to be made in the first place because it WAS relevant.

Your real quarrel is with the Baze majority. Good luck with that! It was 7-2. Souter was one of the dissenters and Sotomayor (and Kagan for that matter) seem more likely to go with the government on something like this. My guess is that, if Baze were to come up today, it would be 8-1, with only Ginsburg for the defendant, and no sympathetic concurrence like the one from Stevens.

Posted by: Bill Otis | Jul 22, 2011 4:04:21 PM

I wasn't addressing the defendant's burden under Baze, which is clearly heavy (and uber-obviously not met by the videotaped evidence described here). My only point was that pace Bill, the videotape is not evidence "for the state" relevant to assessing the condemned man's pain under Baze, because PB was used.

Posted by: Michael Drake | Jul 22, 2011 6:35:31 PM

Just to clarify my previous post: when I stated PB, I meant pancuronium bromide which is the 2nd drug that is administered. Not pentobarbital.

Posted by: DaveP | Jul 22, 2011 6:46:29 PM

Michael Drake --

I had a bit of trouble understanding the second sentence of your last comment. As best I can figure it, though, I think you're missing the forest.

The broader point of Baze is that we're not going to parse the precise chemical workings of this drug or that one; that is not a job for which courts are suited. What we're going to do is allocate to defendants the job of proving, as best they can with the evidence they have, that there is a substantial likelihood of severe pain. If they do it, the state will have to come up with something else. Otherwise, the courts do not intervene.

If I am not mistaken, the defense bar for years INSISTED on using PB as preferable to the cocktail that had existed. Now that it's getting used, they're still not satisfied.

What's actully going on, as I see it, is that the point is no longer to complain about the supposed specific defects of this drug or that one. The point is to complain about ANY drug. And the point of that, in turn, is to end capital punishment by making the practicalities of its imposition impossible to bring off.

Am I getting warm?

For as clever a strategy as it might seem, it's mostly flopping. The reason for this is one I have mentioned often before. The only way to end capital punishment in this country is to convince the majority of the judiciary and/or the electorate that it's wrong.

Since it isn't wrong, cf. Timmy McVeigh, abolition will have to await the proverbial long day in December, PB or no PB.

Posted by: Bill Otis | Jul 22, 2011 6:58:41 PM

Bill Otis

good post. The defense will complain about anything and everything hoping something will work. That is their job. I thought they were insisting on a 1 drug protocol that used sodium piotental. A couple of federal district judges ordered states to do this but they were reversed.

Posted by: DaveP | Jul 22, 2011 7:34:29 PM

Bill, since you said you didn't understand, I'll try one more time to clarify. PB masks the outward signs of pain. So video showing that there were no outward signs of pain here would not be competent evidence to show there was no pain.

(Yes, I know—really, I do—that Baze doesn't require the prosecution to prove painlessness (or anything else, for that matter). I was simply responding to your suggestion that the video was evidence "for the government" on the point. As you also suggest, though, this issue amounts to a tree probably not much worth arguing about, given the forest we're in. So I'll leave it at that.)

Posted by: Michael Drake | Jul 23, 2011 10:12:31 AM

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