Lawsuit seeks disclosure of state's execution protocol

Tuesday, January 28, 2003

JEFFERSON CITY, Mo. -- A St. Louis lawyer is challenging the state's refusal to fully disclose the procedures it uses when executing a criminal.

Cheryl Rafert, who has defended death row inmates, is seeking a complete copy of the state's Capital Punishment Procedure, which details the execution process.

The state argues that releasing the entire document would jeopardize safety at the maximum security prison in Potosi, where executions are carried out.

Rafert's lawsuit will be heard beginning Thursday in Cole County Circuit Court.

In June 2000, one of Rafert's clients, Bert Hunter, was put to death for murdering an elderly Jefferson City woman and her son. Rafert claimed Hunter was still conscious when chemicals to stop his breathing were administered, causing him to suffer violent convulsions before dying.

Three reporters who witnessed the execution disputed that claim, and then-Gov. Mel Carnahan rejected Rafert's request to put executions on hold until an independent inquiry could be conducted.

Rafert filed a written request seeking the execution protocol after Hunter's death. The state Department of Corrections denied that request, arguing that state law allows certain "offender records" to be withheld, including "any internal administrative report or document relating to institutional security."

After Rafert asked for a copy of the protocol with potentially harmful material removed, she received 13 pages out of a document of at least 76 pages, and information was blacked out on some of the pages.

The American Civil Liberties Union is representing Rafert. Denise Lieberman, legal director for the ACLU of Eastern Missouri, said Missouri's open records law makes no exception for "safety and security" concerns. She said little of the information in the protocol actually relates to legitimate safety and security issues.

In documents filed with the court, however, the state argues that the protocol is an "offender record" and that there are legitimate safety concerns connected with a release of the material.

The state has also argued that many of the details sought in the lawsuit are already public, such as the manner and location of executions, the names of witnesses and the chemicals used in each lethal injection.

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