Are you saying the second drug in the cocktail paralyzes the muscles or the third? I assume you mean the second, right?

I moved the paranthetical to make that clearer. The second drug is the paralyzer, and does not reduce pain nor add to the lethality, at least according to a court case in which expert testimony from pharmacologists was heard. IANAL, so I don't know the citation. IANAD, so I can't verify it medicinally. Wait for the brief, which is coming within 20 days.

Congrats, Lea!

The first amendment argument is really interesting.

It is. It's never been legitimately brought up to a court before, so it'll be interesting to see where that goes.

Did they argue that the dead-person's first amendment rights are being violated by being unable to voice his objections (or thrash about in horrible pain) through paralysis as well, or did they merely focus on the right of the public to see the man's agony?

Congrats, flea. But I think the second argument is crap.

right of the public/press. the Sole purpose of the 2nd drug is muscle paralysis - it does not act to sedate, reduce pain, or kill in any way. the most frequent problem w/ anaesthesia is that it isn't always precise - sometimes people are not fully out. this is especially the case where anaesthesiologists don't actually participate b/c it violates the hippocratic oath [which is why the gerryrigged 3-drug protocol anyway)(ie, see http://www.sfgate.com/cgi-bin/article.cgi?f=/n/a/2006/02/21/state/n03281...)
- the second two drugs can be excruciating if the 1st isn't precise. BUT, since the 2nd drug masks those effects, an inmate can be suffering brutally, slowly suffocating, while looking serene. Here's a very helpful article from 2003. http://www.hcs.harvard.edu/~amnesty/articles/injec.html

the 1st Am. argument would be that the 2nd drug produces an effect where a journalist then goes off and reports the execution as serene. how is that NOT government censorship when that is precisely the only point of the drug?? - to protect the media from the real effects of the government's actions. [my co-counsel's analogy was interviewing a famous prisoner who is brought out to the interviewer forcibly drugged - doesn't that violate 1st Am.?) while it may be creative and almost metaphorical, it isn't crap!*

*especially in the Ninth Circuit, which shovels it down. :)

I'm very proud of you, Flea. It's a wonderfully creative and unexpected-but-obvious-in-context argument. Naturally I expect nothing less from you -- making the arguments that work.

I did pause for a minute, though, when reading online comments for the relevant RJ article. While there was the usual polemic stuff and ad hominem attacks on Gary (boy, they love messing with his last name), somebody pointed out it could be considered cruel to Castillo to prepare for death, have his last meal, get visited by his family, and then suddenly get the execution delayed for two months. I have little sympathy for him, of course, given what he confessed to and seems to readily admit, my main objection to his death is the "state shouldn't kill" argument, not the "poor man shouldn't die" argument. Did he and his lawyer not know the ACLU was taking up the case, or did they simply not expect to be represented by super-lawyer Flea?

I dunno flea; I've had a chance to review the brief and I am still not biting on the First Amendment argument. I suppose I just am incapable of such high-falutin abstract legal reasoning -- or better put, buying into it as a viable legal argument.

The death penalty is morally wrong and unconstitutional. There, now that I've got that off my chest...

It is not censorship because the government is not preventing the press from publishing reports about the extraordinary pain that the condemned suffers. Censorship, as it relates to the Press Clause, has historically referred to prior restraint--meaning that the government forbade a journalist from publishing content that the journalist wished to release publicly. Journalists are free to do the research, conference with medical experts who relate the effects of the sedative and the effect of the other two drugs, and decry the lethal injection method until the Roberts Court is no more. The content--a story about the pain and suffering felt by the condemned--is not being restricted. (We do, of course, restrict televised executions---that seem to be a first amendment problem more than a sedative is a constitutional issue).

Alina, do you have privileged access, or is the brief publicly available and accessible?

And will the court transcripts ever be released publicly? I'm dying to see them (pun unintended).

totally valid, which is why the argument is a stretch. the 'censorship' argument would be much stronger if made by the inmate - b/c it's his speech being censored...but Castillo won't make it.
staying the execution until SCOTUS rules is clearly the right thing to do - and important and beneficial precedent to other 'nonvolunteers'- and the judges don't want to be the only court in the country to OK an execution while the rest of the states show them deference. the problem is the ACLU has the shakiest of shaky standing on that issue - so what they've got to do is just provide them cover to do the right thing. either by fudging standing or by convincing them on the thinner, 1st am. argument. it IS a stretch - but if there's anything i'm convinced about state courts judges, particularly elected ones, is that they're results-driven. Here' in spite of strong public support, i think they're worried about a national black eye. aclu just needs to give them enough to justify it.

here's an audio link to the oral argument. at present, it's the bottom link, on Oct 15.

http://www.nvsupremecourt.us/info/audio/

enjoy?

That is a reasonable argument, anon. The legal process seems a sham in light of it (gasp!). On standing: ACLU has no standing for the 1st Am. argument. The Nevada press might (but I think they lose on the merits).

JBG better watch out. There's a new podcaster on the block, and she has seven judges (justices? Are they called justices on the state level?) in her "zoo crew".

Is it just me, or is Flea getting a little twang in her voice?

Geoff, if it is indeed the case that the second drug plays no role in the execution except to hide the physical reaction of the victim, you still don't believe that that prevents the press from witnessing the full effects of the execution? And if not, does that mean that you disagree with previous court decisions not allowing curtains to be drawn across the executed? I.e., do you make a distinction between physical and chemical veils, or do you generally think veils are OK?

I actually think the 1st Amendment rights of the press argument has merit.

Liveblogging this now...was the "2 aspirin/4 aspirin" line (around 14:00) rehearsed or off the cuff?

I think the curtain decision was incorrect.

pre-suggestion of a confidential coconspirator. the only line i cribbed. :)

I liked that too, Jon.

fyi, i do the rebuttal.

BTW, Monk, the Press does not have the right to witness everything it wished. It has the right to publish most of what is wishes.

Flea may be the coolest person I know.

Her post convinces me a little on the First Amendment argument, but I wonder whether having shaky standing is ultimately bad PR. Like the way people disparage Roe v. Wade because the decision was kind of a stretch. Then again, do we want results or legal correctness? (And if you want legal correctness over all, do you have to go into academia?)

whichever more efficiently destroys the fabric of american society.

"BTW, Monk, the Press does not have the right to witness everything it wishes"

No, but do you think that there's no line in preventing the press from being able to witness what it should be able to report? As flea mentioned before, should the government be allowed to sedate prisoners before the press can speak with them? Is that a legal right, or just the government being nice? Can the government put a moratorium on all interaction with the press if they wanted to? I'm legitimately asking this question.

Even if it's not a strong argument legally, I think it's a strong argument ethically, with respect to government transparency. Especially with respect to something as serious as the government's right to take a person's life.

Why didn't alan go up there? The video arguing seems like an unnecessary encumbrance. That being said, his voice is surprisingly clear for a video that is itself being recorded. What was the setup like?

whoops. allen.

"I think the curtain decision was incorrect."

I found the cite, a 9th circuit decision: California First Amendment Coalition v. Woodford

To get a little legal, where does their argument, which starts on page 9 of the PDF, go astray?

Ethically, we are in agreement.

Now, back to the pertinent legal questions:

Should the gov be able to sedate? No. This is likely a violation of due process, likely a violation of the prisoner's freedom of speech, likely a violation of medical ethics. I don't believe this is a violation of the press clause, however. The press can, and should, respond by publicizing the sedation of the prisoner!

The government can prevent government employees from speaking to the press if it wished, yes. It does this routinely w/r/t military and other aspects of nat'l security. If would be tremendously foolish and ineffective to do this on matters such as, oh, a presidential veto or some other matter of policy free from security concerns.

No government wants to be transparent. It is one job of the media to investigate--the "checking value" as Meikeljohn calls it. That is not the same thing as a reporting value.

I think the freedom of the press should protect the freedom of the press to investigate and report.

audio feed may have hooked directly into the court recorder, because it came directly into court separate from the video. our papers were filed around 9am, served around 10, and the oral argument (which we weren't expecting) was scheduled around 11:50am. in order to arrive in reno in time to drive to carson city, allen would've had to catch be at the airport by 12:45 for a 1:30 plane or so - it just wasn't happening. i intended to do the entire argument until the court informed us around 2pm that they were able to get a live audio and video feed, when we decided that we should split b/c allen carries more weight on first amendment issues. i feel very grateful as junior green lawyergirl to have done any of it. badass.

The argument in Woodford goes astray because there is no information being withheld from the press. Nor is the press being restrained from investigating and reporting. Is it obstructive? Probably. Unconstitutional? No.

...with, i presume, the idea that such censorship would be unconstitutional, but actionable only by the person whose expression is censored, right? the alternative (aclu's argument) is more like rampant 3rd party standing to all press organizations who perceive a government wrong so long as it involves the 1st am? geoff makes some points!

"there is no information being withheld from the press"

That is precisely where we disagree. Information doesn't necessarily mean words on a piece of paper. In this case, it can mean the sight and sound of a government process that traditionally has been open to the public, and that is being withheld, whether by physical or chemical obstruction.

Does that mean you also think that the government could rightfully bar the press from all court proceedings?

then they'd be denying the right to access. the aclu argument is more like the right to report on something in a way other than how it happens.

i don't know who this anonymous clown is, but let's hope he doesn't send this link to the NV AG.

The press--at least in the current case--has full use of its powers of observation (well, I guess it cannot smell and touch the body). There is undoubtedly a chemical effect. But anesthesia would produce a chemical effect, too. To be consistent, would the ACLU argue, ceteris paribus, that the use of anesthesia would be unconstitutional because it prevents the press from observing the natural effect of the drug cocktail?

nahh, cuz then it would clash with the 8th am, and the 8th would win.

OK, how about the first drug that induces unconsciousness?

Assuming the same response, the argument at issue is: the press is being denied first amendment rights because it cannot see an unconscious body twitch and writhe (even though there are other people watching the execution, the witnesses, who might be spared the additional horror)?

they're the same
1. sedative (not anesthesia b/c doctors can't participate)
2. muscle paralysis
3. killjuice

same response.

"the press is being denied first amendment rights because it cannot see an unconscious body twitch and writhe"

Or they can't see that the first drug, which is supposed to induce unconsciousness, is failing partially or completely.

that twitching only happens if something goes awry - it's not an intentional result. it's crucial for the public to know whether or not that's happening.

Carol Weihrer, who underwent eye surgery in 1998, testified for Mr. Abdur'Rahman at the hearing in May. Anesthesia was administered before the surgery, as was pancuronium bromide to immobilize the eye. But the anesthesia was ineffective. Ms. Weihrer testified that the experience was terrifying and torturous. She could not, she said, communicate that she was awake. Ms. Weihrer called the experience "worse than death."

How nice for her doctor that he didn't have to witness that!

Which raises the question of the epidemiological evidence. Just because one in 100 inmates is more resistant to the sedative does not mean that the method of sedation as a whole is cruel and unusual.

But we don't know if 1 in 100 is more resistant, because of drug 2. If we're going to do LI, we should do it with 2 drugs, not 3. Then we can see if it is cruel or not. It's like if we killed people by burning them in soundproof, windowless ovens, and claimed it wasn't cruel and unusual because we never see them run around or hear them scream.

Flea, how do we ensure that regular old prison isn't cruel and unusual? Is there any sort of periodic independent inspection? Is cleaning up for visitation day frowned on? It seems like arguing in that direction might be useful.

BTW, Flea, I thought it a little odd that you played to the potential embarrassment of Nevada at being the last state to stop LI depending on what the US supreme court finds. I don't know how much the supreme court cares about that sort of thing, but it certainly seems like fodder for your opponents, since Nevada has a bit of a reputation as being contrary and independent, and possibly even relishes being a holdout. If it doesn't tip your hand, what was the reason for this approach?

Does cruel and unusual refer to the discomfort inflicted on the victim, or on society?

how do we ensure that regular old prison isn't cruel and unusual?

Not that you were talking to me, but AFAICT we don't. Some sick shit goes on in prisons.

Next, I want flea to prove to Major League Baseball that there is in fact more than one October.

"whichever more efficiently destroys the fabric of american society."
-I love you.

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