tampabay.com

4 reporters subpoenaed

A death row inmate wants their testimony about an execution they witnessed.

By THOMAS C. TOBIN
Published May 11, 2007


A St. Petersburg Times reporter and three other journalists have been subpoenaed to surrender their notes and testify about what they witnessed last year during the botched execution of Angel Diaz.

Attorneys for death row inmate Ian Deco Lightbourne say the journalists' testimony could support their contention that lethal injection is cruel and unusual punishment. But the Times and other news organizations will seek to quash the demand at a hearing today in Ocala.

Diaz's Dec. 13 execution lasted 34 minutes, twice the normal time, prompting the state to close its death chamber pending a review. Gov. Charlie Crist, citing changes in procedures for lethal injections, indicated this week he would start signing death certificates soon.

The subpoenas were issued to Times reporter Chris Tisch, Nathan Crabbe of the Gainesville Sun, Phil Long of the Miami Herald and Ron Word, the longtime Jacksonville correspondent for the Associated Press who has covered about 50 executions.

News reports from Diaz's execution described him wincing and squinting for several minutes, which death penalty opponents say indicates he felt pain.

"It's everything we have been saying all along, " Lightbourne's attorney, Suzanne Keffer, told the Associated Press. "I want their accounts of what they saw at the Angel Diaz execution."

Corrections Department officials who carried out the execution have said they saw no indications Diaz felt pain, which is in contrast to the media reports.

Times attorney Alison Steele said the inmate's attorneys have not met the legal standard for compelling a reporter to testify, which includes establishing that the reporter is a witness of last resort. They must prove that "the same information is not available from alternative sources, " and that it is compelling and relevant, says Steele's motion filed in Marion County Circuit Court.

Attached to the motion are numerous published Times accounts of the execution and the ensuing controversy, including a story that contains a verbatim transcription of the handwritten notes Tisch made while witnessing the death.

The news organizations contend there were numerous other witnesses to the Diaz execution, including Corrections Department personnel and public witnesses, who could testify in the Lightbourne appeal about what happened. The question with those witnesses is whether they are independent enough.

Steele said Florida law for 30 years has granted reporters a privilege to resist subpoenas aimed at their news gathering materials, except in cases where the reporter has witnessed a crime.

The news media act as "the people's observer, " she argued. At executions, which are witnessed by few people, "the news media is exercising its highest calling, " she said.

If forced to hand over their notes and reveal their impressions, reporters surrender independence and become "little more than roving investigators for the government, " Steele said.

"The subpoena should be quashed because reporters are witnesses for the public, not for parties to lawsuits, " said attorney Judy Mercier, who is representing Word and the AP.

Diaz, 55, was condemned for the 1979 murder of a topless club manager in Miami. A review of his execution found that needles went through his veins, sending the lethal drugs into his flesh, not his bloodstream.

Lightbourne, 47, was sentenced to die for the Jan. 17, 1981, murder of Nancy O'Farrell after breaking into her home and stealing some of her belongings. He knew O'Farrell and killed her to avoid identification, according to the state Commission on Capital Cases.

Lightbourne twice has been scheduled to die but has won stays to consider appeals. His latest appeal regarding the lethal injection challenge is pending before the Florida Supreme Court.

Information from the Associated Press was used in this report.