The Last Gasp Read online

  At 12:01 A.M. the condemned, dressed in a red jump suit, was brought into the death chamber. Jimmy Lee Gray’s face was ashen. Guards strapped his arms and legs to the chair and bound his head to a metal pole behind him. The place was muggy, hot, and reeked of bug spray. Mississippi’s official executioner, T. Berry Bruce, was a school custodian who had handled every one of the state’s thirty-two gassings at the prison since Parchman’s chamber was built in 1954, and he made it his practice never to communicate with the condemned. Bruce received a go-ahead knock on his door, indicating there would be no further reprieve. A voice quickly read the death warrant, and the sheriff announced, “Let us begin.”

  Soon after that, Bruce remained in full view of Gray as he pulled the lever, which made a creaking metallic sound as it released the pellets into the sulfuric acid bath beneath the wire-mesh chair. The cyanide landed with a plop and the gas started to rise in an eerie cloud. Once he was certain that the poison had been unleashed, the executioner turned his back and lit up a Lucky Strike.10

  Witnesses noticed that Gray appeared to inhale deeply and then moaned. His body jerked violently at the black leather straps binding his arms, chest, and legs. His head slumped forward and then pitched backward several times, causing him to bang his head against the pole so violently that the chamber seemed to shake from the impact. According to one witness, United Press International reporter Daniel Lohwasser, four minutes into the execution, “It was obvious that Mr. Gray was in excruciating pain.”11

  Eight minutes into the execution, when Gray was still smashing his head on the metal pole behind him, a prison official sternly ordered all the witnesses to leave the area. “Gentlemen of the press,” the deputy warden commanded, “that was the pre-agreed-upon signal for witnesses to leave the room.”

  “He hasn’t been pronounced dead, has he?” one journalist asked.

  “No questions,” said the official.12

  Gray’s lawyer also protested, but he, too, was ordered to leave. Thirteen years later, Lohwasser, a former Vietnam combat veteran, would state, “The images of Jimmy Lee Gray searching the room with his eyes, straining to escape the gas, and smashing his head against the pole, are permanently burned into my memory. These images are far more cruel, barbaric, and demoralizing than any other violent and gruesome acts that I have witnessed.”13

  Few Americans took note of Mississippi’s resumption of executions, or if they did, they cared little about the child killer Jimmy Lee Gray. In December 1984 a Gallup poll found that 72 percent of all Americans supported the death penalty for murder, but 56 percent favored lethal injection as the preferred method of execution, compared to 16 percent for the gas chamber and only 6 percent for the electric chair.

  One by one, states had backed away from the continued use of the gas chamber, usually substituting lethal injection instead. New Mexico switched to lethal injection in 1979, and in 1983 Nevada, the pioneer in lethal gas, also moved to the needle. After a state court had declared Oregon’s capital punishment statute unconstitutional in 1981, the state was without any execution law for three years. In the wake of Gray’s botched execution, Mississippi turned away from the gas chamber, adopting lethal injection in 1984 for cases after the act’s effective date, as did Wyoming—although such an approach meant that the gas chamber was still in force for older cases.

  In early 1984 North Carolina, which had used the gas chamber more times than any other state except for California, debated whether to keep it. Representative John W. Varner, a physician, said on the house floor, “There’s no doubt about it. Death in a gas chamber is a horrible death. You’re strapped in a little room. For many minutes, not a few, he’s struggling, trying to breathe and all he can breathe is gas.” Although Varner’s comments about asphyxiation were accurate, he then added a plug for lethal injection that would later become much more controversial: “With lethal injection, he feels no pain. It’s like going into an operating room and going to sleep. He passes away with no struggle.”

  In the end, North Carolina authorized the use of lethal gas or lethal injection at the condemned’s election, with lethal gas used if the condemned failed to choose a method. Rhode Island abandoned not only its gas chamber but abolished the death penalty in 1984. Colorado abandoned lethal gas in 1987. Missouri in 1988 began to offer a choice: lethal gas or lethal injection.14

  At about the same time that the Supreme Court denied Jimmy Lee Gray’s final stay of execution, in September 1983, the Journal of Historical Review, a neo-Nazi Holocaust-denial journal published by the Institute for Historical Review (IHR) in Newport Beach, California, published a noteworthy article. In 1979 the IHR had begun offering a reward of $50,000 for verifiable “proof that gas chambers for the purpose of killing human beings existed at or in Auschwitz.” In 1983 the journal published “Zyklon B, Auschwitz, and the Trial of Dr. Bruno Tesch,” written by William B. Lindsey. Although Lindsey did not publicize the fact at the time, he was a chemist with a Ph.D. from Indiana University who worked as a research chemist for DuPont. (He worked there from 1952 to 1985.) Not only was Lindsey a Holocaust denier who disclaimed that Zyklon-B had ever been used to carry out executions at Auschwitz, but he also contended that convicted German war criminal Dr. Bruno Tesch and his prokurist Karl Weinbacher were unfairly convicted and hanged after the Allies had dissolved Germany’s “legitimate” (Nazi) government. His detailed study of Zyklon-B also failed to mention that his longtime employer, DuPont, had also furnished chemicals used in U.S. gassings.15

  The IHR’s $50,000 reward (and an additional $40,000) was eventually paid in 1985 to Auschwitz survivor Mel Mermelstein of Huntington Beach, California, who had sued the IHR for breach of contract for initially ignoring his evidence (a signed testimony of his experiences in Auschwitz). As a result of Mermelstein’s case, on August 5, 1985, Judge Robert A. Wenke of the Superior Court of California for the County of Los Angeles declared the Holocaust an indisputable legal fact and ordered the defendants to apologize, which they did.16 The IHR, however, has continued to espouse pro-Nazi, Holocaust-denying positions.

  In February of 1985 Dr. Lindsey testified in the first “false news” trial of Ernst Zündel in Canada, where he rejected the claim that masses of prisoners had been gassed to death at Auschwitz. “I have come to the conclusion that no one was willfully or purposefully killed with Zyklon-B [hydrogen cyanide] in this manner,” he testified. “I consider it absolutely impossible.” The trial ended with Zündel’s conviction and sentencing to fifteen months in prison. It also ended Dr. Lindsey’s tenure at DuPont.17

  The legal struggles over America’s use of lethal gas for executions continued in states that had not completely abandoned the gas chamber. Mississippi was one of the fiercest battlegrounds. In 1979 Edward Earl Johnson, a poor black youngster from Leake County, had been charged with killing a white police officer and assaulting an elderly white woman. Prior to his arrest the eighteen-year-old had never been in trouble with the police. His lawyers put up scant defense before he was convicted, after which he spent eight years in a windowless cell on death row. Although the Catholic Church and others advocated on his behalf, Johnson still faced execution by gas due to the pre-1984 date of his conviction. With only three weeks to go until Johnson’s scheduled gassing, a new appeals attorney finally joined the case. Clive Stafford Smith was a twenty-eight-year-old Englishman who had come to Atlanta to work for the Southern Prisoners’ Defense Committee with such famous capital defenders as Millard Farmer and Stephen Bright, and he was determined to try to stop the youth’s execution.

  At the time, Mississippi prisons had a relatively open media policy, and the filmmaker Paul Hamann had decided to focus a television documentary on Johnson because his was the next scheduled execution. Hamann received permission to film Johnson, his family, and his lawyer as the case reached its conclusion. The resulting ninety-minute documentary, Fourteen Days in May, produced for the BBC, would be shown in the United States on HBO, becoming the only documentary film released to t
he public showing the last-minute machinations surrounding a lethal gas execution. Smith kept fighting for his client until the end—and Johnson continued to deny that he had killed the policeman—but he was executed on May 26, 1987.18

  Seven weeks later, on July 8, 1987, Mississippi executed another black man after the U.S. Supreme Court refused to block the event. Connie Ray Evans, twenty-seven, the self-confessed killer of a convenience store clerk, had admitted the killing, saying, “I wasn’t thinking; I wasn’t feeling…. I was there. I did it. But it wasn’t me.”19 He appeared to have become a changed man in prison. Before Evans died, Warden Donald Cabana asked the condemned man if he had any final words. Evans requested to tell him something privately. He then told the warden, “From one Christian to another, I love you,” to which Cabana replied, shortly before releasing the gas into the chamber, “I love you too.”20 A prison spokesman said Evans would probably be dead within a minute or two, but a healthy young male like him could live for several minutes before becoming brain dead, and in fact it took thirteen painful minutes for him to die. Five years later his lawyer, who had witnessed the execution, was still haunted by recurring images and nightmares.21 Shortly afterward, the warden had a heart attack.

  On June 21, 1989, it was time for another Mississippi gassing under the old death penalty law. Leo Edwards Jr. was a thirty-six-year-old black man who stood convicted of murdering three people during a five-day robbery spree, although he claimed to have been unjustly convicted by the all-white jury. He and his alleged accomplice had escaped from the Louisiana State Penitentiary at Angola, but now he had reached the end of the line. When it came time for Edwards to go to the gas chamber he was groggy from the Valium he had received at his own request. The guards had to drag and carry him to the chamber. As the cyanide gas swirled around him, he gasped for breath and shrugged his shoulders several times. Five minutes into the gassing he opened his eyes and began crying out before going into involuntary spasms. The doctors had to wait a full fourteen minutes before pronouncing death. Edwards became the fourth person executed at Parchman, and the 113th prisoner put to death in the nation since the United States resumed executions.22

  At the end of the 1980s, since Gregg, about 120 persons had been executed in the United States, eighty-six of them in four southern states: Texas, Florida, Louisiana, and Georgia. Blacks continued to be disproportionately represented on death row, and serious questions remained about the death penalty, especially who received it and who did not.23

  In 1987 the abolitionist cause received another blow when the U.S. Supreme Court under Chief Justice William Rehnquist, in McCleskey v. Kemp, rejected by a 5–4 vote that the death penalty in Georgia discriminated against individual black defendants in violation of the Eighth and Fourteenth amendments.24 Using state execution records, David C. Baldus of the University of Iowa had produced the most exhaustive statistical analysis of racial discrimination in capital sentencing ever conducted. The study showed that the odds that the killer of a white victim would receive the death penalty was 4.3 times greater than the odds that the killer of a black victim would receive that penalty.25 But the majority of justices held that establishing a statistical likelihood of that nature was not sufficient to establish a violation of equal protection. In order to prevail, they said, the defendant would have to demonstrate that “the decisionmakers in his case acted with discriminatory purpose.” In the end, the Court acknowledged that McCleskey was challenging “decisions at the heart of the State’s criminal justice system,” but the justices were reluctant to infer that the state had abused its discretion.26

  By 1992, the center of the legal action over the gas chamber had moved to Arizona, California, and Maryland. In California, the state’s mandatory death penalty statute was judicially abolished in 1991. In 1992 a new law provided for lethal gas or lethal injection at the condemned’s election, and lethal gas if the condemned person failed to choose a method. In Arizona, a defendant who was sentenced to death for an offense committed before November 23, 1992, had to choose either lethal gas or lethal injection; those convicted for an offense after that date as well as those convicted before who failed to choose got lethal injection. Maryland still retained lethal gas as its official method, but it seldom resorted to execution.27

  On April 6, 1992, just three weeks before California was scheduled to reactivate its gas chamber, Arizona prepared to use its apparatus for the first time in twenty-nine years. Donald Harding, forty-three, was convicted of killing three businessmen in 1980. As the end approached, the condemned man had thoroughly studied all he could about death by gas and done everything in his power to prepare himself for it. News media and lawyers from around the country followed every step in Arizona with keen interest, seeing it as a possible preview of what might follow in high-profile California. The suspense reached its peak as Arizona’s execution ritual began to unfold. The warden stood with his left hand raised and looked Harding, barely six feet away, straight in the face. Then he glanced at his watch for a long moment, dropped his left arm, and said, “Now!” There was a loud clunking sound, followed by a hiss and the sight of white gas rising under the black chair.

  As was the state’s requirement, Harding was dressed only in white undershorts that resembled a diaper. When strapped to the chair, Harding saw in the witness gallery Attorney General Grant Woods, the official most responsible for bringing back the death penalty, and he gave Woods the finger as his final gesture. He breathed deeply. There were groans and gasps, heaves and shudders, followed by convulsions.28 As Harding was thrashing against the restraints in obvious agony, his spiritual advisor glanced around at the other witnesses and saw “disbelief and shock in their faces.” The expression of a normally composed TV reporter turned beet red and his face contorted with emotion. One witness, a woman, rushed over and grabbed the minister’s hand, shaking and shivering. “It was extraordinarily difficult,” the clergyman later declared, “the most testing situation my commitment to God and humanity has ever asked of me… how macabre and barbaric it all was. I could feel evil and humanity like a wet mist encircling all of us who witnessed it and all those monitoring his demise.”29

  Harding wasn’t pronounced dead until eleven agonizing minutes later. At first his body had been red, but now it had turned ashen gray and beige, the color of the gas chamber itself.30 Afterward, a shaken newsman who had witnessed the event said, “We put animals to death more humanely than this guy.”31

  The messy execution increased the pressure on other states to substitute lethal injection for the gas chamber.32 It also lent more credence to the statements of lawyers who contended that execution by lethal gas was neither quick nor painless, and that it was a form of cruel and unusual punishment.

  The drama increased as California was poised to conduct its first legal execution in twenty-five years. For more than a decade, its corrections officials had engaged in technology transfer with other deathpenalty states to try to prepare for the likely resumption of executions. California staff communicated with their counterparts in North Carolina, Oklahoma, Utah, Texas, Arizona, and Mississippi.33 In an era of growing awareness about the impact of post-traumatic stress, one of their biggest concerns was how killings would affect the prison’s personnel. In 1989 California started stress-management sessions for managers and staff who were likely to participate in executions. Their purpose, as described by San Quentin warden Daniel B. Vasquez, was to “achieve a sort of ‘stress inoculation.’” San Quentin’s “execution team” also underwent special training. Extensive post-trauma procedures were put into effect to ease the psychological burden on the executioners.34

  But as the state rushed to make ready for the scheduled execution of Robert Alton Harris, all their planning could not fully prepare them for the trials to come, not the least of which were unprecedented challenges to the constitutionality of their famous gas chamber. A coalition of abolitionist lawyers began planning a major class action lawsuit in 1990. On April 12, 1992, three California pr
isoners sentenced to death—David Fierro, Robert Harris, and Alejandro Gilbert Ruiz—filed a complaint in federal district court in San Francisco alleging violation of their federal civil rights. They were represented by a legal team led by Michael Laurence of the American Civil Liberties Union of Northern California and Warren George and Carolyn L. Reid of McCutchen, Doyle, Brown & Enersen of Los Angeles. The plaintiffs sought to have the method of execution by lethal gas declared unconstitutional and requested a temporary restraining order to prevent the next scheduled execution, involving Robert Alton Harris. On April 18, district court Judge Marilyn Hall Patel granted a temporary restraining order and enjoined the state of California from executing Harris in the gas chamber.

  On April 21, however, the U.S. Supreme Court subsequently vacated three stays of Harris’s execution. Justice John Paul Stevens, with whom Justice Harry Blackmun joined, dissented, saying, “In light of all that we know today about the extreme and unnecessary pain inflicted by execution by cyanide gas, and in light of the availability of more humane and less violent methods of execution, Harris’ claim has merit…. To my mind, the gas chamber is nothing more than a chemical garrotte.”35 However, the U.S. Supreme Court had barred judges of the Ninth Circuit Court of Appeals from entering any more stays of execution for Harris.36

  The facts of the case seemed damning. In 1978 Robert and Daniel Harris allegedly kidnapped two sixteen-year-old boys, took them to an isolated area near San Diego, and shot them to death in cold blood. After he murdered the teens, Robert Harris ate the hamburgers they had left behind, then took their car to use in robbing a bank. The pair was arrested, and when Robert Harris confessed to the shootings he was sentenced to death. By 1992 he had been on death row for more than thirteen years.37 His execution was set to proceed as planned on April 21.