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The New Jersey Appellate Division on Feb. 20 halted lethal injection executions in the state, ruling that the medical knowledge on which they are based is inadequate. Presiding Judge Sylvia Pressler also opened the door for executions to be filmed by the media so the public can see “the reality of the choices it makes.” Her dramatically worded decision reads at times more like an editorial than a ruling. She said regulations adopted by the state Department of Corrections to govern executions are “arbitrary,” “unreasonable” and “tautological,” and that the death penalty might only be “conceptually” constitutional. She said the rules were written without the required medical investigation into whether a lethal injection is “reversible” — if a prisoner won a reprieve after the injection had been given but before the drugs had run their course. “We appreciate that the grant of a stay … is not a likely event. It can, however, happen,” stated Pressler, joined by James Ciancia and Edwin Alley. “And should it occur, there can be no justification for depriving that inmate a chance at life … we are persuaded that a death penalty cannot be carried out under these regulations.” The Department of Corrections was ordered to hold further hearings and do more research before carrying out an execution. The ruling affects the fate of at least six pending death penalty cases, in Atlantic, Middlesex, Essex, Mercer, Sussex and Morris counties, in addition to the 13 men on death row. The closest convict to the death sentence is John Martini, convicted of a 1989 kidnap-killing. He has exhausted his 3rd Circuit appeals. Pressler’s decision, In Re Readoption With Amendments of Death Penalty Regulations, A-0899-01T1, is written in such strong language that it practically baits those critics of the judiciary who maintain that, although the death penalty remains officially the law, state judges will not allow one to take place. “We do not regard ourselves as being at liberty to revisit that legislative decision in view of the Supreme Court’s repeated affirmation that, conceptually at least, capital punishment, if attended by mandated and appropriate adjudicative safeguards, does not violate the constitutional proscription,” Pressler said. She reiterated the importance of the ban on “cruel and unusual punishments” and Chief Justice Robert Wilentz’s opinion, in State v. Ramseur, 106 N.J. 123 (1987), that the test for cruelty changes with evolving standards of decency. With that as its context, Pressler found that the department’s argument — that the “reversibility” of lethal injection is irrelevant because the death penalty is intended to be irreversible — was a “tautological explanation” of the rule. “[T]hat cannot be assumed to be true, and medical opinion might, in fact, suggest the contrary. This is particularly so in view of information collected by the DOC from other jurisdictions showing that death is not instantaneous but may take up to thirty minutes,” she wrote. The reversibility issue was triggered by the department’s attempt to remove an emergency medical cart from the execution chamber. “[A]n inmate who is being executed in error because a stay of execution has been issued after the injection is administered is wrongfully deprived of due process, and fundamental fairness, to say nothing of life itself,” Pressler wrote. The department’s lawyers, Deputy Attorneys General Patrick DeAlmeida and David Ragonese, took a somber view of the ruling. “We’re happy the department has an opportunity to re-examine the regs that were called into question by the court and to create a record to support them,” DeAlmeida said. “At least they weren’t eviscerated.” He noted that the court deliberately reiterated that it was not ruling squarely on the constitutionality of the death penalty. The department has not decided whether it will attempt to rewrite the rules or appeal to the Supreme Court, DeAlmeida said. On the subject of where the department would find medical expertise on reversibility — doctors are generally barred by their professional ethics rules from assisting in executions — Ragonese said he did not know to whom the state might turn. Kevin Walsh, counsel to the successful plaintiff, says he hopes the case expands into a wider ban on executions. “I think initially that this imposes the much sought-after moratorium for an opportunity to deliberate” on whether the state really wants to keep the death penalty on the books. “The DOC has not demonstrated it has the expertise to impose death in a manner acceptable to society.” PUBLIC INTEREST IN MEDIA COVERAGE Walsh, who represents New Jerseyans for a Death Penalty Moratorium, is most excited about the media access portion of the ruling. The regulations at issue banned the prisoner from any media contact for three days before the execution. His sedated body would be unveiled on the gurney, minutes before the final event, for only a few witnesses. Pressler found that the Department of Corrections had advanced no substantial rationale for keeping the media away from death row. The department had asserted that the inmate’s privacy and the security needs of Trenton State Prison were the overriding factors. But if the inmate gives his permission, Pressler stated, the privacy issue goes away. After that, the press should get “as full a media coverage as is consistent with legitimate institutional concerns for safety.” Those concerns, however, only take effect after the department can cross several hurdles that Pressler also laid down. The rights of the inmate, the press and the public must be outweighed by “some degree of specificity” in the department’s needs, not a “mere recital of the shibboleth” favoring prison security. Until then, the public may have a right to see “just what is involved, in human terms and in terms of decency and morality, in the State’s putting a person to death,” the decision said. “It is one thing for proponents and opponents to talk about capital punishment as an abstract proposition. It is quite another to see it carried out,” the ruling added. “We do not believe this is a matter of voyeurism. We believe, to the contrary, that it is a matter of demonstrating to the public the reality of the choices it makes.” The department won two substantial concessions in the case on the issues of “Neo-Nazi” influence over the choice of execution methods and on the level of redactions in department records to be made public. On the “Neo-Nazi” issue, Pressler found that the role played by Fred “Mr. Death” Leuchter as an adviser to the department was irrelevant. Leuchter, an amateur execution expert based in Massachusetts, was dropped by the department when it emerged that he had written an engineering report claiming that the gas chambers at Auschwitz were not capable of killing as many Jews as is generally believed. “[T]he personal beliefs of Leuchter are irrelevant … These are not Neo-Nazi inspired regulations,” Pressler said. A separate section of the opinion reviewed redactions of the department’s paperwork that Walsh was seeking under the Open Public Records Act. The department appears to have won the right to keep most of the redactions intact, which DeAlmeida hailed as a useful tool in upholding the deliberative privilege of the executive branch. Gov. James McGreevey’s office did not formulate a response to the ruling by press time. But two county prosecutors took the opinion in stride, although they spoke about the state’s death penalty in tones that seemed to indicate they did not expect to see it carried out soon — if at all. “As long as there is capital punishment on the books in the state of New Jersey then we will abide by that law,” says Burlington County Prosecutor Robert Bernardi, president of the County Prosecutors Association. “The chance of an execution ever occurring seems to be unlikely.” James Lynch, first assistant in Camden County, and a former homicide chief there, added, “There’s a kind of a view that people who prosecute cases like this have a blood lust and that we’re concerned with rushing people to death chambers. That’s never been my approach or the approach of any prosecutor I’ve dealt with.” “The notion that we would be upset that some procedural safeguards are built in is probably inaccurate,” Lynch says. “This is not Georgia or Florida, where we have people lined up.”

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