Alabama tilts the advantage in executions in favor of prosecutors

Only law enforcement officials, prosecutors, and members of the media can have phones, paper, pens or pencils handy when Alabama executes one of its prisoners.

Guess who can’t have any of these items during an Alabama execution? The people who need them the most: Capital defense lawyers charged with the macabre – but honorable-beyond-belief duty – of having to document their clients’ last moments (clients they’ve represented for years, and in some instances, decades) while zealously protecting their constitutional right to be free from cruel and unusual punishment.

{mosads}It’s not for lack of asking. Federal defenders in Alabama who, like all lawyers, bear the designation of being “officers of the court,” have repeatedly, and very nicely, asked state prosecutors, the federal courts, and Alabama Department of Corrections (ADOC) officials for the right to bring into the witness room one cell phone, paper, and some writing utensils.

Repeatedly, obstinately, pigheadedly, the answer they’ve been given is “no.”

Instead, contravening common sense and the Constitution, Alabama remains steadfast in denying a meaningful right to counsel and access to the courts during the most critical moments any death row inmate has – as the state’s executioners tinker, and in some instances, fumble around with their machinery of death.   

In the case of Christopher Brooks, who was executed at Holman Prison, in Atmore, Ala., on Jan. 21 of this year, federal defenders specifically requested access to a cell phone or landline during the execution in case something went wrong and they had to quickly call the judge because of a botch. As detailed in “Courts denied phone to attorneys of man condemned to death” (February 9, 2016), in their court filings, Brooks’ lawyers argued that without access to a phone during the execution, “Brooks will be without meaningful access to the courts during his execution, as his only witnesses, including designated members of his legal team, will be unable to contact the courts and seek intervention if something arises during his execution that warrants seeking a stay or other appropriate relief.”

Mr. Brooks’ lawyers pointed out the obvious: that, as respected members of the bar and highly-skilled and trustworthy federal employees, they should be trusted to bring paper products and one cell phone into the witness room adjoining the execution chamber. They noted that such phone access has been granted to death penalty counsel as a matter of either protocol and/or professional courtesy, citing examples in Tennessee, Arizona, and Ohio. They even proposed a plan to ADOC officials where they would buy a disposable cell phone for use only to witness Brooks’ execution; at the end of the execution, ADOC would then take possession of the phone. This reasonable request was denied.             

Now, it turns out, that that phone access which Mr. Brooks’ lawyers pleaded for before his execution could have been extremely useful in vindicating Brooks’ constitutional right not to be exposed to cruel and unusual punishment.

As reported in “Alabama’s last execution may have burned a man alive,” a federal investigator witnessing Brooks’ execution saw Brooks’ eye open after he was administered midazolam, a controversial drug that is supposed to anesthetize the prisoner. Brooks’ lawyers have alleged – with supporting affidavits and the opinion of a medical expert – that Brooks’ eye could not have opened as it did at that point in the execution unless Brooks was experiencing excruciating pain.

Instead of being able to immediately call the court the minute Mr. Brooks’ eye popped open to request a stay of execution, his lawyers were forced to sit and watch, completely powerless to act or even scribble notes on a notepad, as their client’s internal organs burned from the inside out.

This was exactly the kind of hellacious scenario that federal district judge Aleta A. Trauger sought to avoid during the 2000 execution of Robert Glenn Coe by lethal injection in Tennessee. Trauger ordered that Coe’s counsel be permitted access to a phone as he witnessed Coe’s execution because Coe, like Christopher Brooks and all citizens of this country, has “an Eighth Amendment right not to be subjected to cruel and unusual punishment, and substantial caselaw supports the contention that this right attaches until his successful execution.” Coe v. Bell, 89 F.Supp.2d 962, 967 (M.D. Tenn. 2000).

Unfortunately for Mr. Brooks (and other death row prisoners in Alabama, who are mostly housed at Holman prison, also known as “Hell on Earth”) while they’ll give you one last crappy meal, last rites, and a free pauper’s burial, the one thing Alabama won’t give its condemned: the meaningful right to counsel and a lawyer when they need it most.    

Cooper is a former D.C. public defender who worked as an assistant federal public defender in Alabama, in the same office that represented Christopher Brooks, between 2012 and 2015. He has contributed to numerous magazines and newspapers in the United States and overseas. He writes full-time and lives in Woodland Hills, California.

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