TN court could settle limbo concerning executed man's autopsy

By Clay Carey, The Tennessean

Cecil Johnson Jr. did not want coroners examining his body after he was executed Dec. 2. Because of his religious beliefs, the death row inmate said he did not want an autopsy - just an immediate funeral and burial at a cemetery in Las Vegas.

Johnson's wishes have run headlong into the state medical examiner's practice of conducting autopsies on executed inmates, prompting a monthlong battle over the custody of his remains. Medical Examiner Bruce Levy is seeking a court order allowing an autopsy. Johnson's body is in storage until a final decision is made.

Today, the state Court of Appeals is scheduled to hear arguments in the matter. At issue: the question over whether Johnson's religious beliefs outweigh the government's interest in knowing exactly how his execution went. Knowledge gleaned from post-execution autopsies can be important, particularly when lethal injections are used, death penalty experts say. But last wishes based on religion throw a serious kink in those plans, they say, making it hard to justify post-mortem examinations.

The Rev. James Thomas, Johnson's spiritual adviser, said Johnson "wanted all of his body to go back to God" after his death.

"It's important to respect that. I don't know why the state won't respect that - he's paid his debt," said Thomas, pastor of the Jefferson Street Missionary Baptist Church in Nashville.

Thomas said Johnson was a nondenominational Christian and that his feeling on the autopsy was a personal one, not based on a specific church doctrine.

"Cecil was a very spiritual fellow," Thomas said. "I believe he developed that (belief) by reading his Bible in that prison."

The fact that Johnson's belief wasn't part of a specific spiritual creed won't lessen its importance in court, said Charles C. Haynes, senior scholar at the nonprofit First Amendment Center.

"If his family says, 'This is our deep religious belief,' under our First Amendment that should be taken seriously," Haynes said.

In court papers, Johnson said, "My strong personal religious convictions do not allow for my body to be desecrated in any such manner such as is rendered in an autopsy. ...''

But Levy said, in court documents, that an autopsy "is the only way I can rule out any possibility that the state failed to protect the rights of (Johnson) during incarceration and establish that the execution was carried out in the manner prescribed by law."

Method has raised debate

The lethal injection protocol involves three shots - first a lethal dose of sedatives, then a muscle paralytic and finally the drug that stops the heart. The method has been controversial in Tennessee and elsewhere; opponents of capital punishment have argued that if they are administered improperly, the shots can leave the victim paralyzed but coherent and in pain.

Autopsies could reveal problems with the way the drugs are used and can provide states with a defense in the event of legal challenges, said Richard Dieter, director of the nonprofit Death Penalty Information Center. Still, he said, the wishes of inmates who oppose autopsies on religious grounds should be respected.

"I think ordinarily the state's control ends with the execution," Dieter said. "They don't have ownership of a body."

Christopher Slobogin, professor of law and director of the Criminal Justice Program at Vanderbilt University, said the practice of routinely conducting autopsies is not common. Most states either give the inmate's remains to families immediately after the execution, or don't address the issue at all in state law, Slobogin said.

A few states do have laws calling for autopsies. Pennsylvania state code expressly gives county coroners the discretion to conduct post-mortem examinations.

Florida requires autopsies on all inmates who die in the prison system's custody, including those who are executed, Department of Corrections spokeswoman Gretl Plessinger said. Those requirements are spelled out specifically in state law.

"We haven't had any challenges" to that policy, Plessinger said. Since 2006, Florida has performed eight executions.

In Tennessee, state law gives medical examiners like Levy the authority to call for autopsies on people who die of unnatural causes, including those who are executed.

Over the past 10 years, the state has executed five other death row inmates. Levy has conducted autopsies on four of them, including one who had religious objections. Levy had to go to court before getting permission to study the remains of convicted cop killer Philip Workman in 2007, who also objected based on his religious beliefs.

Levy did not perform an autopsy on Sedley Alley after the family objected and took the matter to court, but Levy's office did draw fluids from the body.

Ongoing legal battle

Autopsies "can help the state and the public determine the effects of lethal injection - whether the individual was conscious when he died instead of anesthetized as he is supposed to be, whether he was in pain and so on," Slobogin said.

"But if the individual strongly objects to an autopsy, especially on religious grounds, there doesn't seem to be a particularly strong state interest in conducting the autopsy," the professor said.

Johnson's widow and spiritual adviser have said they do not question the way the execution was carried out and that the autopsy isn't needed.

The 53-year-old Johnson was sentenced to death for killing three people, including a 12-year-old boy, during a Nashville convenience store robbery in 1980. Hours before his execution, Johnson and his wife filed court motions claiming the autopsy would violate his constitutional rights.

Less than an hour before Johnson's death, U.S. District Court Judge Robert Echols issued a temporary restraining order blocking his autopsy. A week later, after both sides had argued the issue in court, Echols lifted that order and said the autopsy could proceed.

In his ruling, Echols wrote that the public "has a right to know whether the executions which are carried out on its behalf are done in a humane way."

A day after Echols ruled, Johnson's widow filed a second suit to stop the autopsy in state court. On Dec. 16, Davidson County Chancellor Russell T. Perkins blocked it, opining that the state hadn't shown that the state's need to conduct the autopsy trumped Johnson's religious beliefs.

Perkins said the autopsy "would impinge on the exercise of religious beliefs, genuinely held."

Levy appealed that decision to the Tennessee Court of Appeals.