Bid to Televise Executions Becomes Broad Court Test : Prisons: A public broadcasting station’s suit has led to an unprecedented ban of all news media as witnesses.

In 1936, more than 20,000 people crowded around a gallows in Owensboro, Ky., to watch one of the last public executions in the United States. Leaning out windows and perched atop utility poles, they saw a condemned man dangle from a hangman’s noose until dead.

Since then, executions have been moved behind prison walls, viewed only by select officials, citizen witnesses and the press. But now, a bid to present the somber proceedings to perhaps millions of viewers is being made by a San Francisco public broadcasting station in a federal court suit seeking to bring a television camera to the gas chamber for the first time.

In response, state authorities are not only opposing cameras at executions, but also have taken the unprecedented step of barring the news media entirely. As a result, the case has expanded into a broad constitutional test of the media’s right to attend an execution and could end up in the Supreme Court. U.S. District Judge Robert H. Schnacke may rule on the issue as early as Friday.

An attorney for station KQED, William Bennett Turner of San Francisco, contends that the television camera will serve the public interest by providing a neutral, more accurate and complete account of the ultimate criminal punishment.

“KQED does not have an agenda on the death penalty,” Turner said. “We do have an interest in covering the death penalty process from beginning to end. . . . Should executions be held in secret in California, just as they are in totalitarian countries?”

State Deputy Atty. Gen. Karl S. Mayer counters that televised executions could jeopardize prison security, inflaming inmates watching from their cells and placing prison staff members at risk. There is no First Amendment right to attend an execution, even without a camera, he says. Under current state law, the warden is required only to admit 12 reputable people to serve as official witnesses.

“There’s nothing secret about an execution,” said Mayer, appearing with Turner at a Bar Assn. of San Francisco forum last week. “We don’t need pictures of a man inhaling gas to know what’s happening.”

The station may face an uphill battle, in the view of some legal experts. Robert C. Lind Jr., a communications law specialist at Southwestern University School of Law, notes that although the U.S. Supreme Court has upheld news media access to the courtroom, it has done so on the grounds that those proceedings are generally open to the public. That is not the case with executions.

“In a courtroom situation, the hope is that the public and press will be able to scrutinize the judicial system and ensure the defendant has a fair trial,” Lind said. “But I don’t see the same interest at issue in this case, in making sure a sentence is carried out in a particular manner.”

However, UC Berkeley law professor Robert C. Post believes that there is a “very strong case” supporting a constitutional right of access to executions. Although the public is not allowed, the citizen witnesses and press effectively serve in its place, he contends. “They stand in for the public, seeing that its justice is carried out,” he said.

Post also sees no justification for excluding cameras--particularly if it is done merely on grounds of taste. “It should not be up to the government to decide something is not fit for decent people to see,” he said.

The case also has stirred controversy among supporters and opponents of capital punishment, mindful that with 300 inmates on Death Row, California may soon have its first execution since 1967. The case of Robert Alton Harris, the condemned killer regarded as closest to the gas chamber, now is pending before the U.S. 9th Circuit Court of Appeals.

Death Penalty Focus of California, a citizens group opposing capital punishment, says that if there must be executions, they should be televised.

“It’s our hope that by seeing an execution in the intimacy of their own living rooms, people will be forced to confront the question,” said Executive Director Pat Clark. “We firmly believe most people will be outraged and repulsed by this barbaric practice.”

A coalition of victims’ rights groups disagrees--and is urging that viewers withdraw their financial support of the station in protest. At the least, the coalition says, KQED ought to also show a filmed re-creation of the crime.

“This is merely a plot to elicit sympathy for murderers and to try to get a ban on the death penalty,” said Sharon L. Sellitto, secretary of Justice for Murder Victims. “I think it’s a terrible mistake and I don’t think it would deter murder or change people’s minds. . . . And with the pirating (of videotape), who knows what would be done with it? It could become comparable to becoming producers of ‘snuff films.’ ”

In early times, executions in this country were conducted in public, allowing thousands to watch in town squares and other local forums. According to Hugo Adam Bedau’s authoritative book “The Death Penalty in America,” the last to draw thousands took place in Kentucky on Aug. 14, 1936, with the hanging of Rainey Bethea. Nine months later, about 500 gathered to watch the execution of Roscoe Jackson in Galena, Mo., the last held in public.

In California, a law was passed in 1858 that moved executions inside county jails. For more than a century, selected authorities, citizens and reporters were admitted to watch the proceedings. One of the earliest accounts, unearthed by KQED lawyers, was published in December, 1858, describing the hanging of Henry F. W. Mewes.

According to a story in the Daily Evening Bulletin, Mewes addressed a group of about 100 witnesses at a San Francisco jail, acknowledging his crimes and saying that he hoped his example would turn others away from sin.

At the appointed time, the condemned man shook hands with the sheriff and a minister and was “launched into eternity,” in the words of the paper’s correspondent. “He fell perfectly perpendicular about eight feet; for a few minutes there was a nervous tremor in all his members, but soon, after a convulsive struggle or two, (he) became motionless. . . . “

In recent years, news organizations have gone to the Supreme Court to overturn attempts to bar coverage of criminal court proceedings, including preliminary hearings and the often-sensitive selection of jurors in capital cases. Only when the state meets the heavy burden of showing a “compelling interest” are such proceedings to be closed, the justices have held.

The high court has refused to grant reporters special access to prisons, saying that they have no more than the limited right of the public to go inside the walls. As for cameras, federal judges still ban them in the courtroom--and they are allowed in state courts only with the permission of judges.

KQED sued last year after being denied permission to film the scheduled execution of Harris as part of a documentary on the case. The station said that under the traditional rules of pool coverage, it would make its videotape available to other stations.

KQED’s lawyers say that although there may be no general right of access to prisons, authorities cannot suddenly bar the media after allowing such access for more than a century. Moreover, the state cannot discriminate against the news media when it continues to permit citizen witnesses to attend, the station says.

Turning to the issue of televising an execution, KQED notes that pads, pencils and other tools of print media have been permitted at previous executions without adverse consequences. By using a stationary camera to videotape an execution and taking precautions not to show witnesses or staff, the station could use the tools of its trade without disruption or risk to security, the lawyers say. And the station would not broadcast the proceedings without the permission of the condemned prisoner, it says.

KQED is drawing support from a group of 17 news organizations, including the Los Angeles Times, which has expressed concern over the new policy banning reporters. In a “friend of the court” brief filed by San Francisco attorney James F. Brelsford, the group contends that the press acts as the “eyes and ears” of the public at an execution. “The ban would destroy the public’s ability to obtain firsthand, unsanitized information on the implementation of capital punishment,” Brelsford said.

State attorneys, representing San Quentin Warden Daniel B. Vasquez, the defendant in the suit, argue that the press has no constitutional right to watch an execution, and that even if it did, there is no right to bring in cameras or other electronic paraphernalia that could prove disruptive.

Since 1858, the press has attended only by permission of the sheriff or warden, state lawyers note. Unlike a courtroom, a state prison--including the witness area around the gas chamber--is not a public place, the state says. Last year, 16 reporters, including one from The Times, had been granted permission to view the execution of Harris before it was blocked by a federal appeals court judge.

Vasquez testified earlier in the case that he had barred cameras to protect prison security and the somberness and dignity of the occasion, a policy the state contends is related to “legitimate penological interests.”

All news media were treated alike under that policy--free to observe, make notes and report what happened, just as they would have been had they been in a courtroom, the state noted.

Vasquez, faced with a demand to allow cameras, decided to ban all reporters in order to maintain what he viewed as proper control of a volatile institution. He conceded there was no “penological purpose” in barring all press--and said he had “no problem” with admitting the reporters again if they did not bring along cameras.