A reporter who witnessed the execution in 2017 of Arkansas death-row inmate Kenneth Williams filed a motion Wednesday asking a federal judge to quash a subpoena directing him to testify at a trial starting next week on the constitutionality of the state's lethal-injection protocol.
Kelly Kissel, then a news editor for The Associated Press and now a metro editor at The Advocate in Baton Rouge, was one of three media witnesses at Williams' April 27, 2017, execution. In an AP article that followed, he gave his minute-by-minute account of the process, including comments Williams made when asked if he had any "last words," and observations of Williams' visible response to the injection of a lethal three-drug cocktail.
Last week, attorneys who are challenging the state's use of the three drugs -- particularly, the ability of the first-administered drug, midazolam, to render an inmate pain-free before the other two injections -- served Kissel with a subpoena commanding him to testify in the expected two-week non-jury trial before U.S. District Judge Kristine Baker.
The attorneys are representing numerous Arkansas death-row inmates who contend that the current protocol will result in painful executions, in violation of their 8th Amendment rights to be free from cruel and unusual punishment. They say Williams, who was the last of four Arkansas inmates executed in April 2017, "lurched so violently that he caused bruising to his scalp," indicating that he felt pain that the midazolam injection was supposed to prevent.
Under the protocol, an injection of 500 milligrams of the sedative is to be followed by the administration of vercuronium bromide, a paralytic that causes suffocation, and potassium chloride, which causes extreme burning and stops the heart.
Kissel's motion, filed by attorney Vincent Chadick of the Quattlebaum, Grooms & Tull firm in Little Rock, asks the judge to recognize the "reporter's privilege that protects journalists from compelled disclosure in judicial proceedings." He argued that the information that would come from Kissel's testimony can be easily obtained less intrusively from other sources, such as the article itself, which is available on Web-based archives.
"Compelling journalists ... to testify about their observations made while acting in a newsgathering capacity would undermine their and their news organizations' ability to gather and disseminate news to the public," Chadick argued.
"Courts from other jurisdictions, including numerous federal courts, state courts, and circuit courts in Arkansas, have recognized that the First Amendment and analogous state constitutional provisions create a qualified privilege for news reporters and editors that immunizes them from having to respond to subpoenas such as the one issued in this case, except when certain stringent requirements are met," he wrote. He also said that following a 1972 U.S. Supreme Court case, Branzburg v. Hayes, that focused on the privilege, it has been "overwhelmingly" recognized by federal and state courts.
In a pretrial hearing Tuesday, attorney John Williams of the federal public defender's office said he wants to call several people who have witnessed executions in Arkansas and other states to testify about what they saw. Assistant Attorney General Jennifer Merritt objected to testimony from some of those witnesses, including Kissel, who she said weren't identified as potential witnesses by a court deadline.
Baker said she would allow testimony from witnesses who testified in a 2017 hearing in the same case, and she will allow all proposed witnesses who watched executions in other states to proffer their testimony before she decides if it's admissible.
As for Kissel and Jacob Rosenberg, who was a reporter for the Arkansas Times and witnessed the execution of another inmate, Marcel Williams, Baker said that because they witnessed executions in Arkansas, "I'm not as inclined to strike them."
She said that because both men had written about what they witnessed, "I don't think there are any surprises that would be in their testimony." She also said she would consider allowing each to be quickly deposed before the trial, to appease the state.
"There is no overriding need for the information in this case so as to justify impairment of Mr. Kissel's First Amendment interests or of the reporter's privilege, and this court should uphold the privilege in order to protect the media from unwarranted intrusion into its profession and to uphold the liberty of the press," Chadick argued in the motion to quash.
Source: arkansasonline.com, Linda Satter, April 18, 2019
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