Again, justices turn eyes to chair

Florida's high court will decide: Is the electric chair an implement of efficiency or a tool of torture?

By SYDNEY P. FREEDERG

© St. Petersburg Times, published August 25, 1999

TALLAHASSEE -- The Florida Legislature approved the electric chair in 1923, declaring that hanging was outdated and inhumane for a growing state in the 20th century.

Supporters of the chair hailed it as a technological wonder that would execute instantly, painlessly and humanely by pouring electricity through the skull and an electrode wired to the lower right leg.

Almost 76 years later, citing modern science, "evolving standards of decency" and a series of 1990s executions with smoke, flames and blood, an attorney for death row inmates argued Tuesday that it's time to retire the three-legged chair.

"What will history think in 50 years?" attorney Martin McClain asked, facing the seven justices of the Florida Supreme Court and waving a post-execution photograph of a grimacing Allen Lee "Tiny" Davis, who bled last month during his execution. "The electric chair is not going to survive."

But Richard Martell, Florida's chief lawyer on capital punishment appeals, said death row lawyers were simply rehashing old arguments. He dismissed the notion that the electric chair is a dinosaur.

"It is operating as it is intended to," he said, adding that evidence clearly indicates the chair kills without "torture or lingering death" and does not inflict "unnecessary or wanton pain."

The two lawyers' speeches came as the high court heard about the operation of the chair for the fourth time in little more than two years.

The fiery execution of Pedro Medina in March 1997 -- the second time flames erupted in the death house since 1990 -- prompted two court hearings and a yearlong moratorium on the death penalty.

The most recent hearing before Tuesday came just two weeks before the bloody execution of Davis, who was put to death in a chair with a new oak frame but with the same 40-year-old electrical circuitry.

The blood that dripped below his face mask on July 8 stunned witnesses, caused a worldwide reaction and prompted the justices to stay the execution of convicted killer Thomas Provenzano. He was scheduled to die the next day for a 1984 Orlando courthouse rampage that killed a bailiff and paralyzed two others.

The Supreme Court assigned retired Judge Clarence Johnson of Orlando to hold a new hearing on whether the chair is "cruel and unusual."

Three weeks ago, after hearing from 33 witnesses and viewing photos of a bloody Davis strapped in the chair, he upheld its use.

Martell argued Tuesday that Johnson's decision should stand, and called the nosebleed that prompted the stay "a non-issue." He blamed it on Davis' high blood pressure.

But Justices Harry Anstead and Leander Shaw, who have voted against the chair, and Barbara Pariente, a new justice who voiced concern about it before Davis' execution, interrupted the state lawyer several times with tough questions.

Anstead said the photographs of a purplish-colored Davis with eyes blackened and muscles wrinkled between his eyes "demonstrate a heinous ... visually horrible situation."

Anstead wanted to know about the wide brown strap scrunched against Davis' nose, evidently applied so tightly by the prison's execution team that he had trouble breathing.

"Can you hold that picture up to the people of the state and say this is what we want to do?" Anstead asked Martell. "They look like they come from some horror picture."

Shaw wondered whether the chair can be instantaneous yet cause such "unnecessary violence and mutilation of the body" that it fails constitutional muster.

And Pariente, seen as a critical swing vote along with Justice R. Fred Lewis, questioned whether the chair is consistent with evolving social standards of decency.

Martell acknowledged the photographs look bad, but he said the strap was necessary to anchor the condemned's head against the back of the chair.

"It was not pleasant, but it was what was required," the state lawyer said, adding that the strap was not part of the electrical apparatus, which functioned properly. All methods of execution involve fear and some discomfort, he said. "One of the problems with lethal injection is problems with the tightness of the straps."

But McClain, representing Provenzano and other death row inmates fighting the chair, said execution by electric power survives in Florida because of political popularity and junk science.

The Supreme Court's previous rulings backing the chair were built on false facts, McClain argued, and he reminded justices of three embarrassing legal decisions that failed a time test: the 1857 U.S. Supreme Court decision barring blacks from citizenship, the 1896 decision in which the nation's highest court gave its blessing to racial segregation, and the 1950 Florida Supreme Court decision refusing to allow Virgil Hawkins, an insurance salesman and teacher, into the University of Florida law school because he was black.

It took 30 years for the court to correct itself and allow Hawkins, by then 72, to become a lawyer.

Today, just four states use the electric chair as the sole method of execution. Most switched to lethal injection. Of 142 executions in 1998 and 1999, only 10 were carried out in the electric chair, five of them in Florida.

Even though a few Florida lawmakers say a switch to injection is inevitable, the Legislature has refused to change the method for fear of exacting a political price. However, lawmakers have passed a bill recognizing lethal injection if the chair is ruled unconstitutional.

After Davis' execution, Gov. Jeb Bush quickly backed the chair.

On Tuesday, Bush reiterated his support for the chair. "I'm confident the Supreme Court will rule in our favor," Bush said. "If they don't, we'll change.

"I think that the taking of a life is the more powerful discussion" (rather than the debate over execution method), he said. "The electric chair does that quickly and effectively, and it does it without pain. If I did not believe that, I would not be an advocate of maintaining it."

-- Staff writer Julie Hauserman contributed to this report.

© Copyright 1999 St. Petersburg Times. All rights reserved.