The state of Alabama executed convicted murderer Christopher Price last week, just hours after the U.S. Supreme Court refused to grant a stay of execution.
The action was not particularly unusual except for one thing — half of the briefs in the case were blacked out, so the public could not see them, and virtually all of the record in the case was sealed.
It is rare for the Supreme Court to allow such deletions, and on Friday, the Reporters Committee for Freedom of the Press and NPR filed a motion with the Supreme Court requesting it unseal the material that was blocked from public view.
None of the information that has been sealed has anything to do with the defendant's guilt. Rather, the information involves the drugs and the protocol Alabama uses for executions. Price wanted to be executed by nitrogen gas, which he contended would be less painful than death by lethal injection using a drug called midazolam, which Alabama ultimately did use in the execution.
The Supreme Court itself has often been mired in bitter debate about the death penalty in recent years, but it has not hidden the disputes from the public — until this case.
All of the deletions were at the insistence of Alabama, the reporters committee noted.
"The state did not provide any explanation for its asserted need for secrecy," citing only its need "to reference certain material ... designated 'confidential,' " the committee said. "Alabama has no legitimate interest that justifies sealing either its lethal injection protocol or expert evidence regarding the effects of midazolam."
The reporters committee noted that in even in the Pentagon Papers case in 1971 — a case in which the government claimed a national security interest in barring publication — the briefs were unredacted, available to the press and public, and oral arguments were conducted publicly, with only parts of the court appendix sealed.
In 2018, Chief Justice John Roberts called the judiciary "the most transparent branch in government." And the Supreme Court has long upheld the right of access to a wide range of judicial proceedings and records, because, as the court has put it, the constitutional right of access "enhances the quality and safeguards the integrity of the fact-finding process" and allows "the public to participate in and serve as a check upon the judicial process — an essential component in our structure of self-government."
The court has also said that court proceedings cannot be closed "unless specific, on-the-record findings are made demonstrating that closure is essential to preserve higher values" and that the closure is "narrowly tailored to serve that interest."
There were no such findings made by any of the lower courts. Instead, Price's lawyers said they had to agree to Alabama's demand that the record be closed to get Price's claim heard by the appellate courts and ultimately get the case up to the Supreme Court.
Defense lawyer Aaron Katz said in an interview that the reason he agreed to let the record be closed to the public and press in the lower courts is that he was running out of time, with the execution date set for May 30.
"You can't afford any sideshow" in circumstances like this, he said. "You've essentially got to agree to whatever terms the state forces" on you "to get the information you need to prove your case."
To go down a "rabbit hole" fight for public disclosure is "just a waste of time" when you are fighting for a more humane method of an imminent execution, he said.
Katz said he did ask the state to allow unredacted briefs at least in the 11th Circuit Court of Appeals, but the state refused, as it did when Katz made the same request for the Supreme Court briefs.
Katie Townsend, legal director for the reporters committee, said her organization is asking the Supreme Court to unseal the briefs filed in the Supreme Court.
The high court perhaps agreed to Alabama's request to seal the briefs because of the time considerations in the emergency stay application, but, she said, the court should not let that precedent stand.
Alabama's claim that it needs to keep all that information secret is "crazy," she said. How can it be "that the state gets away with saying to the public, 'We're not going to tell you our legal arguments, or allow you to see our evidence, which goes to the heart of the legal issue'?" Townsend said.
Were this secrecy order to stand, she said, "other lawyers can't find out what the legal arguments or evidence was in this case." Indeed, in the dissenting opinion filed by four justices in the Price case, the dissenting justices wrote an opinion that referred to the very material in the record that has been blocked from view.
Katz, Price's lawyer, underscored the problem. "Technically, I can't disclose to you what my expert testified to in a deposition that took place in a law firm in Atlanta two weeks ago," he said. "The idea that that's appropriate is pretty absurd."
Mike Lewis, a spokesman for the Alabama attorney general, said the state sought to keep the records and arguments secret "out of concern for the safety of correctional officers as well as inmates."
But Katz said he has never sought to disclose the names of corrections officers or anyone else involved in the execution.
The reporters committee points to the availability of appellate records that extends "far back in the nation's history," and it points to a more recent opinion issued by the D.C. Circuit Court of Appeals.
That decision declared that "the public cannot have confidence that the nation's appellate courts issue well-reasoned and fair opinions derived from facts and legal arguments the parties present if the case proceeds with key argument and evidence under seal."
The circuit court opinion was written by President Barack Obama's failed Supreme Court nominee, Merrick Garland, and joined by his then-colleague Brett Kavanaugh, later appointed to the Supreme Court by President Trump.
SCOTT SIMON, HOST:
The U.S. Supreme Court, which has been bitterly divided over the use of the death penalty in recent years, is now hiding a part of that dispute from public view. In a rare move, the court sealed and significantly redacted documents relating to Christopher Price, who was executed by the state of Alabama last week. The redacted material involves the drugs and the protocol the state uses in executions. NPR and the Reporters Committee for Freedom of the Press have filed a motion with the Supreme Court requesting it to unseal those records. NPR's legal affairs correspondent Nina Totenberg is involved in that motion and joins us. Nina, thanks so much for being with us.
NINA TOTENBERG, BYLINE: Oh, it's my pleasure, Scott.
SIMON: What can you tell us about the sealed documents?
TOTENBERG: Well, Christopher Price wanted to be executed by nitrogen gas instead of midazolam, which is a very controversial drug which he claimed cause excruciating pain. And the state of Alabama insisted on secrecy about the drugs and the protocol and the evidence. And if the defense lawyers wanted to get the case to the Supreme Court, they tell me, they had to agree to sealing all the documents. That was the price of admission that Alabama was demanding. But when it got to the Supreme Court, the Supreme Court justices certainly didn't have to agree to blacking out most of the arguments in the briefs (ph), but they did that. And when you look at those briefs and you see all the words and the sentences, most of the brief's just blacked out. It's highly unusual, and it's quite a shock.
SIMON: I mean, other states and courts have talked about lethal injection drugs. Why the secrecy?
TOTENBERG: I don't know. And when I contacted the state of Alabama, they wouldn't tell me. In the briefs, they say they want confidentiality. And the only suggestion is that the reason was - that they gave to me - was to protect the correctional personnel. But the defense lawyers say they never wanted the identities of the correctional personnel made public.
SIMON: This is going to sound naive, but does the public have the right to all decisions, arguments and records from the Supreme Court?
TOTENBERG: Well, that's why NPR went to court - and the Reporters Committee. And we can only hope that the justices, upon further reflection, will do what they've always done in the past pretty much, and that is make arguments public. Among other things, they make them public so that other lawyers will know what arguments were accepted and what weren't. And that's also so because the public will understand the reasoning of the court's decisions and have confidence in the system and its transparency.
SIMON: Nina, given all of your time covering the U.S. Supreme Court and legal questions, this is rare. What do you make of it?
TOTENBERG: Really, I don't know what to make of it. After all, the Supreme Court didn't seal any of the briefs in the Pentagon Papers case in 1971. And that case involved claims of national security. It didn't even seal most of the record in that case. It just sealed parts of the appendix. And in this case, one of the defense lawyers told me that he couldn't even disclose to me the testimony of the deposition given by an expert witness on the Alabama protocols just a week ago in an Atlanta law firm. You know, let me add here that in 2018, Chief Justice Roberts called the judiciary the most transparent branch of government. And the Supreme Court has long upheld the right of access to a wide range of judicial proceedings and records for all the reasons that I have just enumerated.
SIMON: NPR's legal affairs correspondent Nina Totenberg, thanks so much.
TOTENBERG: You're welcome. Transcript provided by NPR, Copyright NPR.