Dead man talking
By Edward Ericson Jr.
No one said Florida should cease killing people. Indeed, the attorney who seeks to end the state's use of the electric chair says a less frightening form of execution might even cause the public death machine to operate more efficiently.
"My clients agree: No one should have to go through this," Martin McClain said during a break in a four-day court hearing last month in Orlando. "If you look at the states that have lethal injection, they have many more volunteers [among death-row convicts]. Many more waive their appeals" and go to their deaths willingly, he said.
And so McClain attacked not the penalty but the process. He argued that the bloody execution of Allen Lee Davis -- the last to die in the chair, on July 8 -- was "cruel and unusual," a violation of the Constitution. First prison guards trussed Davis' face so he couldn't breathe, he said. Then the electrical apparatus pumped Davis with 700 fewer volts than it was supposed to, he said. The weaker current was not enough to painlessly kill a man whose 344-pound bulk had earned him the nickname "Tiny," he said. And that meant Davis may have remained conscious even after the first jolts sent electricity racing through him, he said.Judge Clarence Johnson didn't buy it. His ruling that the chair is an appropriate and viable means of execution now goes to the Florida Supreme Court, which will resume the debate next week.A lot of people think the chair's best days are behind it. Florida is one of only four states that use the chair, a fact McClain and his team use to bolster their argument. The chair is a relic, they say, a dark-age symbol of torture that "violates the evolving standards of decency that mark the progress of a maturing society." The particular challenge facing McClain, a lawyer with New York's Legal Aid Society, is to halt its use before the chair is imposed on his client, murderer Thomas Provenzano.
The argument about decency holds no legal meaning, but it goes to the heart of the twisted morality that surrounds the chair. In a land where vengeance equals justice, the bad must die in order to separate them from the good. Only by death can the worst criminals be transformed into something inhuman. And only by violent death can this creature slake, and stoke, our need for vengeance.
"Davis was a deviant animal that should have been permanently caged or executed many years before May 1982," when he murdered John Weiler's pregnant wife and their two daughters, said Weiler in a prepared statement after Davis died. "The execution today was a legal, moral and righteous one, and I can assure you God approves."
God may approve. But the Constitution forbids "cruel and unusual" punishment. Theoretically it also forbids torture.
And so the killing of "Tiny" Davis was, like all state killings, a "judicial execution," sanctioned by law, conducted in accordance with strict protocol. The electric current was precisely metered. Each strap holding Davis's body was manufactured of specified materials, to precise tolerances; the electrode on his head was certified by an electrical engineer to be of high quality. The sponges stuffed between the electrodes and Davis's body were soaked in a precisely measured solution of three gallons of water to one gallon of salt. Each task was conducted by men who are professionals, highly trained, even "dignified," to use their lawyer's word.Provenzano's lawyers presented evidence designed to dismantle this clinical patina. The judge was unconvinced.
"The post-execution photographs of Allen Lee Davis indicate that the straps used to restrain Davis' body, specifically, the mouth strap and chin strap, may have caused Davis to suffer some discomfort," Johnson wrote in his decision. "However, the straps did not cause him to suffer unnecessary and wanton pain, and the mouth strap was not part of the electrical operation of the electric chair."
In other words, because the mouth strap is not part of the "electrical operation" of the chair, the pre-execution smothering of Davis by guards is exempt from any possible ruling that it constitutes "cruel and unusual" punishment, much as the beating death by guards of death-row inmate Frank Valdes on July 17 cannot be used as an argument against capital punishment. The death is only what the state defines the death to be. That's why protocol is so important.
The judge suggested that the mouth strap be redesigned. But there was no callous disregard for the condemned man's well being, he wrote, and "any pain associated therewith is necessary to ensure that the integrity of the execution process" -- a process that, in previous years, has set two men's heads on fire -- "is maintained."
Davis' body was photographed only because Davis had a nosebleed, which began just seconds before the current was turned on and stained his shirt [Witnessing a Time to Kill, July 17]. The nosebleed was not significant to the execution or this latest challenge to the chair. But the post-execution pictures of Davis, the first ever taken, reveal a man who clearly couldn't get enough air during his last moments. The weighty questions now: Can the state legally smother a man before it shocks him to death? If the proper voltage is not met -- even if due to an unalterable law of physics -- have the dead prisoners rights been violated? Indeed, how far can a court go in sanctioning as legal -- meaning clean, predictable, efficient, even "dignified" -- a method of execution?
To these other twisted ironies might be added: Why should taxpayers spend hundreds of thousands, maybe millions, of dollars on arguments against electrocution that were rejected by the state Supreme Court just two years ago? And why stage a four-day court hearing, 9 a.m to 9 p.m. each day, just to decide who goes first in the inevitable appeal?
The parade of expert witnesses -- professors who have studied arcania such as the "current density" of a charge passing through a skull into the brain; electrical engineers who design, build and maintain the chairs; members of the "team" that conducts Florida's executions -- know one another from past hearings.
Ira Whitlock, an electrical engineer, rebuilt the chair's circuitry and is paid up to $52,290 per year to maintain it. He certified to the changes made since the last challenge to the chair, in 1997. That case, called Leo Jones v. State, was filed after Pedro Medina's head burst into flames during his execution on March 25, 1997.
The chair was cleared of wrongdoing then, but the case showed that the components of the electrical apparatus -- the 2400-volt Caterpillar generator, the three Westinghouse VH5075 1200-amp breakers, the chart recorder that gauges the current -- all had been neglected since they were put into service, beginning in 1960. Whitlock was brought in to fix it.
After the Jones hearings, it was further decided that the state needed an exact process of execution, a script stating where and when each man would perform each task, from strapping the inmate's legs to the chair, to strapping the electrodes on his head and right calf, to throwing the final switch. The chair itself had to be transformed into a precision killing instrument, with performance on order of a race car or fighter jet.
An Alabama electrician named Jay Wiechert who specializes in the building and maintenance of "judicial electrocution systems" drafted the "protocols" that called for each condemned prisoner to receive 2,300 volts at 9.5 amperes for eight seconds, followed by 1,500 volts at 4 amps for 32 seconds, and finally 2,300 volts at 9.5 amps for eight seconds more.There is a higher law than that of Florida, Whitlock explained: Ohms Law. It means you can only decree voltage and amperage when you also know resistance, or ohms. "Tiny" Davis' 344 pounds were a good conductor of electricity. He didn't resist the current as much as other inmates did. The chair's self-regulating circuitry dropped the voltage in order to maintain the amperage at the protocol level. If the breakers had not done so, the amps would have risen to precisely 14.5. That's because Volts divided by Amperes equals Ohms. That is Ohms Law.
Whitlock said he told the Department of Corrections to rewrite the protocols to reflect that fact, but his bosses told him not to commit that to writing. It might have sparked a lawsuit.
Others who detailed their roles in the process reinforced its clinical nature:
"We make sure that everything is ready and clean, and ready to proceed with the execution," said John H. McNeill, the utility supervisor at the Florida State Prison and a member of the execution team. "I don't pay any attention to what their name is. I try not to get involved in any way; I'm just doing a job for the state of Florida." McNeill's job is to strap down the right arm and leg.
Robert J. Thomas is another of the four men who straps the inmate into the chair; he also mops the floor after the deceased is carried away. He buckles the mouth strap "as tight as I can get it," he testified. Just before the switch was pulled on Davis, Thomas saw two bubbles of blood appear at his left nostril. He saw blood start to run down his nose. He said nothing to his supervisor. He did not signal the warden. "All it was is a nosebleed," Thomas said. After Davis died, Thomas cleaned the mouth strap with bleach; in court, you could still see a faint line where the blood ran.
Dr. Victor Selyutin's job is to certify that the inmate is dead. He saw Davis start bleeding. And he saw Davis struggle after the mouth strap was put on. He demonstrated this to the judge, writhing in the witness chair. He acknowledged that the gestures may have been because Davis couldn't get any air. The Hippocratic Oath notwithstanding, Selyutin did nothing to aid Davis.
Warden James Vernon Crosby Jr. told the court that, when he assumed the job 18 months ago, "virtually all I did" was learn the protocols of the electric chair. He staged dress rehearsals. He attended tests. He bought radios so the technicians could talk to each other. "I look at it much like a spaceship launch," Crosby testified. The former mayor of Starke and himself a Sunday-school teacher stresses safety and fealty to the clinical ideal, despite his growing reputation among inmates and even a former prison chaplain that he condones brutality by his guards. "We tell everybody, just take your time," Crosby said. "If you see something [unusual], say something.""Maybe they should have told me that," Crosby said in court. "When we leave here, we have a problem. I'm going to find out where the problems were."
That was all Judge Johnson needed to hear: If Warden Crosby was going to look into it, clearly there was no indifference to the suffering of any inmate strapped into the chair, he concluded.he process was legally sound, if not aesthetically efficient.If "judicial execution" carried out in such a manner is legal, could the court also legalize the beating death of inmate Valdes by calling it "judicial bludgeoning?" There is already a protocol, of sorts, for the use of clubs and electric shock devices on prisoners. Arguing the well-accepted medical fact that massive trauma sends the body into instant shock, which blocks the pain receptors, could the Supreme Court condone "judicial quarterings" or "judicial burnings-at-the-stake" so that the cleansing fire might redeem the souls of those condemned? The science is sound. The men are trained and, indeed, dignified.
All that is needed now is the cool reasoning of experienced professionals.