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.