The Last Gasp Read online

  During the lead-up to the execution, a nationally known psychologist and lawyer, Craig W. Haney, conducted an intensive psychological study of Robert Harris while he was on death row. Haney documented his subject’s history of abuse, beginning with Harris’s birth three months prematurely after his father kicked his pregnant mother in the stomach during a drunken rage; he also suffered from fetal alcohol syndrome and cognitive disabilities. Haney discovered that Harris’s fears had greatly increased as a result of the news of the horrific execution in Arizona, and he was afraid of how much he would suffer. Harris came to form a bond with the psychologist, and he asked Haney to witness his execution. When the time finally arrived, Haney reluctantly appeared as requested. He found himself in “a ghastly display case, a huge aquarium-like structure, brightly lit with windows in front and around the sides. Because the chamber is painted green,” he wrote, “the reflected light gave a faint green color to the room where the witnesses stood.”38 Somebody said it was the same color as a dollar bill.

  To everyone’s horror, Harris’s executioners went through the whole ritual, until the moment when the gas was about to be released, when suddenly the procedure was stopped due to a judge’s stay. The process was resumed two hours later. Witnesses noted that in that time Harris had aged ten years.39 By order of Judge Patel the execution was videotaped for the lawsuit—the only known film made documenting an American execution. It was never shown in court, however, and the tape was destroyed in January 1994 after lawyers for the state agreed not to offer new testimony of witnesses to executions in the gas chamber if the suit was retried.40

  Based on his experience as a witness to the Harris execution, Haney declared:

  Lethal gas draws out the process of suffering and it does so in the course of a calculated, deliberate spectacle. The public invasiveness of this horrible process is made all the more unbearable by the prolonged view of a human being struggling in agony and in terror…. I cannot shake free from my memory of this spectacle, an organized violation of human nature’s most basic prohibition—a prohibition more profound than the one against killing: to stand by and wait and watch and do nothing while another person writhes and shudders in deadly pain. Execution by lethal gas requires both victim and witnesses to experience not just death but dying.41

  Other legal commentators also condemned the suffering Harris had been forced to endure and the courts’ contribution to it.42

  Meanwhile, investigators working for the plaintiffs in Fierro v. Gomez had obtained affidavits from persons like Haney who had witnessed gas executions, participated as staff, or studied cyanide and related issues. They found a neighbor who lived five houses away from San Quentin who declared he was “deeply offended and outraged” that the state continued to carry out gas chamber executions in his community. The researchers also took statements from several Holocaust survivors who recounted their personal experiences with gas-chamber executions during World War II.

  Paul V. Benko, Ph.D., was a death camp survivor who witnessed its horrors up close. He later moved to the United States and tried to move on with his life. While studying at the University of California at Berkeley for his Ph.D. in plant pathology, Benko was assigned to kill insects in a jar full of cyanide gas. He said the sight of the insects struggling in pain reminded him of the millions of Jews, Gypsies, and political and social prisoners gassed by the Nazis. Benko became a biology professor at Sonoma State University, where he helped found its Center for the Study of the Holocaust. When he learned about Robert Harris’s scheduled gas execution, he said, “it immediately rekindled my memories of the death camps. There is no way to compare the millions of innocent Holocaust victims with the convicted men and women on death row, but the… use of the gas chamber by the State of California is an atrocity.”43 (Benko died in 1998.)

  Another Holocaust survivor, Gloria H. Lyon, declared, “As a person who saw the daily horror of mass extermination by gas, I know that execution by gas is torture and it can never be anything less. The torture begins with one’s awareness of the way in which his or her life would be taken, and intensifies with one’s knowledge of how low and painful a method of execution gas is.”44

  Deputy Attorney General Gerald Engler, on the other hand, argued that using such evidence in this case “demeans the memory of those who died” in the Holocaust “and the spirit of those who survived, through comparison of the unforgivable slaughter of innocent victims with the lawful execution of convicted murderers.” He also said the similarities of the execution methods had not been established. But the statements provided by the Holocaust survivors proved extremely pertinent and powerful.45

  As the lawyers in Fierro continued their lawsuit to try to get the federal courts to find execution by lethal gas unconstitutional, the district court allowed the next condemned inmate, David Mason, to be excluded from the class pursuant to his withdrawing any further challenges to his death sentence. California had recently enacted legislation giving inmates a choice between lethal gas and lethal injection. On August 24, 1993, Mason, accused of the murder of five persons, refused to select a method of execution and thus went to the gas chamber pursuant to Penal Code §3604. Right until the end, when he was strapped into the gas chamber, prison officials pressured him to choose—did he want lethal injection instead? Warden Vasquez told Mason he would likely be conscious for two to three seconds, but as it turned out, he remained conscious for three agonizing minutes after the cyanide was released, and his prolonged death struggle shocked many of the witnesses present.46

  Shortly after Mason’s gassing, a trial on the plaintiffs’ motion for a preliminary and permanent injunction in Fierro was conducted in San Francisco. It lasted from October 25 to November 5, 1993. The court heard several days of testimony from eight experts and forty-six lay witnesses.47 It also reviewed many scientific articles addressing the effects of lethal gas on the human body and viewed the death house facilities at San Quentin. Some of the evidence used included the state’s own execution records that recorded the nature and duration of each phase of the lethal gas executions, and which, like the eyewitness testimony, indicated that substantial periods of time elapsed before inmates exposed to cyanide gas lost consciousness.

  One of the defense experts, Professor John M. Friedberg, M.D., of the University of California at Berkeley, used 113 San Quentin “Lethal Gas Chamber—Execution Records” to estimate the duration of consciousness and awareness of pain experienced by prisoners executed by hydrogen cyanide gas over the past fifty years. The estimates were based on notations completed by the chief prison medical officer attending the executions. Entries made by thirty-one different prison physicians included times for “gas strikes face,” “apparent unconsciousness,” “certain unconsciousness,” and “dead.” There were also lines for “remarks.” One EKG rhythm strip (that of David Mason, who was executed at San Quentin in August 1993) was also available for examination. Friedberg found that the state’s own prison records indicated that average survival time was 9.3 minutes, including 1.6 minutes during which the prisoner was reported to be conscious. In addition, his estimates, which were derived from the records coupled with the extensive medical literature on cyanide, indicated that a typical gassing victim continued to remain conscious for almost five minutes. Friedberg concluded, “Prison estimates of time to certain unconsciousness did not correlate with times to death. Additional comparisons show that physiologically based estimates of minimum consciousness are not correlated with the original estimates from the prison forms. The persistence of consciousness and the pain of myocardial and skeletal muscle ischemia and tetany, induction of autonomic reflexes (e.g., drooling, defecating, emesis), and the terror of slow asphyxiation qualifies this form of execution as cruel and unusual.”48

  The state of California relied on only one scientific expert, an army pharmacologist and toxicologist who claimed that cyanide gas caused rapid, virtually painless death. Under questioning, however, he came off as unreliable, and he also seemed
to place stock in embarrassing information that had been spouted by discredited Holocaust deniers. The lack of credible scientific witnesses proved to be a major blunder, particularly since the plaintiffs had presented a compelling battery of diverse and credible witnesses and scientific data to support their arguments. As a result, the plaintiffs appeared to have made an exceptionally strong case before Judge Patel.

  At that time, connections between the Holocaust deniers and the American execution industry were being hotly exposed. One name that came up in the Fierro trial served as a bombshell against the state of California. Fred A. Leuchter Jr. was a Massachusetts-based consultant who had advised twenty-seven states on execution methods, equipment, and procedures from 1979 to 1990. His self-proclaimed specialties were the electric chair, the gas chamber, and lethal injection. States he advised about lethal gas included Arizona, California, Mississippi, Missouri, and North Carolina. Leuchter received extensive news coverage due to his invention of a lethal injection machine and his authorship of reports denying that gas chambers had been used to kill Jews in the Holocaust. In late 1990 he was exposed as a fraud when it was revealed that he was not a licensed engineer, contrary to his claims, and he became engulfed in an avalanche of negative publicity. At the time it was revealed that some of his work had included refurbishing California’s gas chamber.49

  Leuchter’s most controversial activities involved his denial of the Holocaust. In 1988 he had received an advance payment of $37,000 in connection with the defense of Ernst Zündel, a German-born Canadian neo-Nazi who was on trial for violating Canada’s “spreading false news” statute, based on his publication of Holocaust denial pamphlets such as Richard Verrall’s Did Six Million Really Die? and his own screed, The Hitler We Loved. Zündel’s writings had challenged the notion that the Nazis had used hydrocyanic gas to exterminate more than a million persons in gas chambers during World War II, and he claimed that claims about gassing had been fabricated for propaganda purposes.50

  Leuchter was best known for having published several reports, widely circulated internationally, in which he purported to have uncovered forensic proof supporting the Holocaust revisionists’ claims.51 Accompanied by a video crew, he had visited several former Nazi death camps and taken scrapings from the walls, ceilings, and floors and collected soil from around the remains of suspected gas chambers. He then took his “forensic evidence” back to Boston for laboratory tests. Then, based on his own analysis, Leuchter prepared technical reports in which he offered numerous conclusions, such as the claim that a lack of Prussian blue coating on the gas chamber walls proved that they had not been subjected to Zyklon-B.52

  In 1990 the first of several reputable scholars, Professor Jan Markiewicz, director of the Forensic Institute of Krakow, Poland, conducted his own analysis and reached different conclusions. In fact, his findings refuted Leuchter’s, and he noted that the chemical analysis proved that the gas chambers had remnants of high levels of cyanide whereas the living quarters did not. Leuchter had claimed that the traces of cyanide found in the camps were due to low levels of cyanide exposure from delousing, but his claims did not hold up to serious scrutiny.

  For death penalty opponents, one interesting fact about Leuchter is that he was originally referred to Zündel by Bill Armantrout, warden for the Missouri State Penitentiary in Jefferson City, Missouri, and the official responsible for that state’s gas chamber executions. When the state’s sole expert witness regarding cyanide acknowledged knowing Leuchter but failed to dismiss his work and that of other discredited Holocaust deniers, it did not help the state’s case with Judge Patel. After the trial and before the judge’s decision was announced, Leuchter’s bizarre activities received even more embarrassing publicity.

  While these events were taking place, another death penalty case reached a head in North Carolina. David Lawson, a white thirty-eightyear-old, had been convicted in 1981 on charges of murder, assault, and breaking and entering (he had allegedly shot two helpless victims in the back of the head during a burglary). Death row inmates in North Carolina had the option of lethal injection, but Lawson refused to choose, saying that doing so would amount to sanctioning his execution, so state law required him to be executed in the gas chamber. His lawyers tried to get the federal courts to find his execution by lethal gas declared unconstitutional. The Phil Donahue Show had sought to obtain permission to have the execution videotaped, and Lawson himself had said that having his execution filmed would give his life meaning. But in June 1994 the U.S. Supreme Court denied Lawson’s petition for a stay of his execution, clearing the way for Lawson’s execution by lethal gas. The Court also denied requests to videotape Lawson’s execution.

  At 2 A.M. on June 15, 1994, David Lawson was brought into the gas chamber wearing only white boxer shorts, a diaper, and socks. The hair on his legs and head had been shorn. When he was strapped into the large wooden chair, the guards proceeded to bind his face with a leather mask that covered his eyes. It had a large hole for his nose and small holes over his mouth, but it left his forehead bare. The mask also attached his head to the chair. Lawson began yelling as his executioners covered his face. His words weren’t clear through the double-paned windows of the death chamber, but he seemed to be shouting, “I’m human, I’m human!” as the airtight door to the room was clamped shut. He continued screaming as the fog of gas rose about him. Many of the witnesses were horrified.

  “After about three or four minutes,” one witness said, “he was unable to say the full sentence, ‘I am human,’ but was still crying out the word ‘Human!’ about every twenty seconds. He did this for another two to three minutes. Finally, he couldn’t say even part of the word, but he continued to grunt about every twenty seconds for another minute or minute and a half. His body continued to quiver for another minute or so, then he was still.” It took twelve minutes for Lawson to die, but it seemed much longer. For many of those who saw and heard it, the experience would last a lifetime.53

  At last, on October 4, 1994, the district court in San Francisco issued its long-awaited order in Fierro. The result amounted to one of the greatest victories in capital punishment law, for the judge declared execution by lethal gas under California Penal Code §3604 violated the Eighth Amendment ban against cruel and unusual punishment.54 For the first time a federal court had found a specific method of legal execution to be unconstitutional. The ruling was particularly noteworthy because it occurred as the death penalty enjoyed its highest level of public support, a record 80 percent in favor according to a Gallup poll in 1994.

  The district court noted that the abandonment of the gas chamber by several states stood in sharp contrast to the relatively slow movement away from other methods of execution, and it made clear that the gas chamber had become an outmoded method of execution. Based on the evidence presented, Judge Patel had agreed that cyanide kills by bonding with an enzyme called cytochrome oxydase. When pressed, each expert in the case had claimed that this cytochrome oxydase had something to do with “suffocation,” or what the court quoted as “the transfer of oxygen to the cells,” and that it was experienced much like a massive heart attack. Simply put, the district court found that cyanide blocks the transfer of oxygen to the cells, resulting in histotoxic hypoxia, or cellular suffocation. The district court’s decision also noted that the primary point of disagreement was “whether unconsciousness occurs within at most thirty seconds of inhalation, as defendants maintain, or whether, as plaintiffs contend, unconsciousness occurs much later, after the inmate has endured the painful effects of cyanide gas for several minutes.” Judge Patel found an inmate likely to be conscious for fifteen to sixty seconds from the time the gas first hit his or her face, and possibly conscious, or partly conscious, for up to two minutes.55

  In reaching its determination, the federal district court in Fierro offered three major doctrinal expansions: 1) a more comprehensive Eighth Amendment framework than Campbell v. Wood by emphasizing an evolving standards of decency test (dependent upon
legislative trends); 2) a broader process for challenging an execution method by allowing an inmate to bring a section 1983 action in lieu of a petition for a writ of habeas corpus; and 3) a more detailed measure of pain and unconsciousness.56 The court held, “Objective evidence of pain must be the primary consideration, and evidence of legislative trends may also be considered where the evidence of pain is not dispositive.”57

  The Fierro ruling created a considerable stir in the world of capital punishment. It also appeared to influence a 1994 determination by the U.S. District Court of the District of Maryland, which allowed a Maryland inmate to videotape the lethal gas execution of another inmate. The purpose of the videotaping was to acquire evidence on the length of consciousness and level of pain an individual experiences when exposed to lethal gas.58

  But the greatest shock waves from Fierro were yet to come. In 1996 the Ninth Circuit Court of Appeals unanimously endorsed the district court’s suggested standards and held that an execution method may be unconstitutional if an inmate faces a “substantial risk” of suffering “extreme pain for several minutes.”59 The Ninth Circuit’s action marked the first federal appeals court ruling holding unconstitutional any method of legal execution. No other court, state or federal, had ever sustained a general challenge to any method of execution. Prior to the court’s ruling, several other courts had rejected the notion that eyewitness descriptions were valid indications of pain and suffering experienced by a prisoner undergoing execution. The Ninth Circuit Court’s support for the finding that lethal gas violates the Eighth Amendment and enjoining the state of California from using that method to enforce its death judgments was also unprecedented. 60