Tortured Defense

Just before the trial began for Curtis Lavelle Vance, who earlier this week was convicted of murdering television anchorwoman Anne Pressly, Judge Chris Piazza granted a defense motion to bar testimony about how much pain she might have suffered.

Any statement about the pain associated with Pressly’s injuries or her suffering would be a guess, defense attorney Katherine Street argued. Descriptions of what people saw were acceptable to the defense, she said, “but not to the level of pain.”

I couldn’t help but shake my head. Descriptions about the level of pain have become the centerpiece of challenges to capital punishment by Death Row inmates.

In Washington, a trio brought suit in May of this year contesting the lethal injection “cocktail” mix used to execute prisoners. The primary argument put forth by the three condemned inmates? They claimed there was a chance they might suffer—guess what—too much pain during their executions.

“This case is about suffocation and searing pain,” one defense attorney said.

His client, Jonathan Gentry, was a lot less concerned about pain when he caved a 12-year-old girl’s skull in with a rock back in 1988.

Like so many violent criminal plaintiffs appealing their sentences, Gentry’s perspective on the subject has undergone a transformation during his years behind bars. He’s fervently against pain now.

Another defense attorney in the Washington case warned of the risk of “excruciating pain” if the first sedative dose of the lethal injection didn’t render an inmate totally unconscious.

Superlative descriptions of pain levels such as “tremendous” and “severe” run rampant in the case. The presiding judge did not disallow guesswork about pain and suffering; that was the crux of the case.

Ultimately, the Thurston County Superior Court in Washington denied the three murderers’ claims, relying substantially on the April 2008 U.S. Supreme Court decision in Baze and Bowling vs. Rees. In that case , the court ruled that Kentucky’s lethal injection protocol was constitutional as a form of capital punishment.

Kentucky is one of 30 states that all use the same three-drug formula in lethal injections. Luckily for convicted murderers, the execution is said to be painless when conducted properly.

Once they were facing the needle, the Baze plaintiffs, both convicted of double homicides, saw pain in a different light. Appealing to the Supreme Court, they contended that an improper administration of the lethal injection could result in “significant pain.”

In oral argument, plaintiff attorney Donald Verilli wasted no time in bringing the terminology of torment to bear on how much agony an inmate might suffer.

“Kentucky’s lethal injection procedures pose a danger of cruelly inhumane executions,” he said in his opening sentence. “If the first drug in the three-drug sequence . . . is not effectively administered to the executed inmate . . . the third drug, potassium chloride, will inflict an excruciating burning pain as it courses through the veins.”

As Verilli bandied back and forth with several justices about allegedly painless alternatives to Kentucky’s mixture and fail-safe methods to monitor the level of unconsciousness in inmates, Justice Antonin Scalia interjected a relevant rejoinder.
“Mr. Verilli,” he said, “This is an execution, not surgery.”

Later, after Verilli asserted that “the pain that is inflicted here when this goes wrong is torturous, excruciating pain under any definition,” Justice Samuel Alito asked him whether every form of execution ever used would be unconstitutional under his position.

As Verilli hemhawed in response, Alito pressed on.

“You have no doubt that the threedrug protocol that Kentucky is using violates the Eighth Amendment,” he said, “but you really cannot express a judgment about any of the other methods that has ever been used?”

In her dissenting argument, Justice Ruth Bader Ginsburg added to the lexicon of pain in the case, depicting it as “burning and intense” and “dreadful.”

Evidently, describing pain in the highest court has become as common as filing motions when the death penalty is at issue. Which makes it all the more puzzling why a judge in a capital murder trial would agree to censor descriptions of the pain the victim likely felt while attempting to defend herself during a fatal attack. Perhaps it’s a routine defense request.

No doubt the inane distinction turns on some finer point of law, and prohibiting prosecutors from portraying a murder victim’s pain—but allowing criminals to characterize it so vividly when trying to escape their punishment— is technically legal.

But it still doesn’t seem right.


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