Should Tape of Harris Execution Be Released? : Courts: A legal fight is expected over releasing the video for broadcast. Some argue that it should be a part of the debate over whether the gas chamber is cruel and unusual punishment.

Locked securely in a federal court safe here is the nation’s first authorized filming of an execution: a court-ordered videotape of the death of Robert Alton Harris that news organizations plan to seek for broadcast on television.

Although a local TV station failed to win approval to film the execution, attorneys say that with the tape officially made for evidence in another case, the way should be clear for its release to the public. Nonetheless, a landmark legal fight over the tape’s release seems assured.

“This is an important historical document,” said William Bennett Turner, a San Francisco lawyer specializing in news media cases. “The idea that it might be destroyed, or live forever in a vault of the court, is unthinkable.”

State prosecutors say they will resist any attempt to duplicate the tape or have it released for public viewing, contending that that would present a threat to prison security.

“Our view is that the tape never should have been made, and depending on the outcome of the proceedings, should be destroyed,” said state Deputy Atty. Gen. Dane R. Gillette. “It is not something that should be publicly shown.”

The unparalleled filming of death in the gas chamber drew relatively little attention in the flurry of court action in the hours before Harris’ execution at 6:21 a.m. April 21.

American Civil Liberties Union lawyers, representing Harris and other inmates in a civil rights suit, went to U.S. District Judge Marilyn Hall Patel shortly after midnight and persuaded her to order the taping in their effort to support a constitutional challenge to the state’s method for executions. California is one of only three states that mandate death by gas. The Legislature is considering a proposal to adopt lethal injections as a substitute for gas.

“Evidence critical to (the Death Row inmates’) claim that execution by lethal gas is tortuous, painful and cruel in violation of the 8th Amendment will be irretrievably lost unless the impending execution is videotape recorded,” Patel said in her four-page order.

Armed with the judge’s order, a defense investigator went to the prison with a camera to film the proceedings. According to state Corrections Department spokesman Tipton C. Kindel, the investigator was taken by prison guards to the gas chamber, where he set up the camera outside the chamber and filmed the execution. As ordered by the judge, the camera focused solely on the inmate, so that guards and other witnesses cannot be seen, Kindel said.

Afterward, the tape was taken by prison authorities to officials at the federal district court, who signed a receipt and placed it in a vault.

The taping of the execution is believed to be the first of its kind. An unauthorized still photograph of an execution was taken by a news photographer at an execution in New York in 1928.

Patel’s order quickly revived a campaign by television stations to obtain film of an execution to present to viewers. A request by a group of news organizations for release of the tape is likely to come soon, lawyers and station officials say.

Two years ago, public broadcasting station KQED filed suit to bring a camera to the gas chamber after being denied permission by corrections authorities to film Harris’ scheduled execution in April, 1990. The station agreed to provide videotape to other stations if it won the suit.

U.S. District Judge Robert H. Schnacke ruled last year that news agencies had no right to film the proceedings. The judge found that prison officials were justifiably concerned that cameras might reveal the identities of guards and witnesses, jeopardizing their safety; that a camera might be thrown through the protective screen of the chamber in protest, and that televising the event might stir unrest among Death Row prisoners and other inmates in already tense California prisons.

State lawyers plan to rely heavily on Schnacke’s findings in opposing release of the tape in the civil rights case pending before Patel. Security concerns weigh strongly against providing the tape to news agencies, state prosecutor Gillette said.

But lawyers for news organizations say Patel’s order to film Harris’ execution as evidence tips the legal balance in their favor. San Francisco attorney Neil L. Shapiro contends that the tape is an official record, requiring its eventual release, and that the security concerns cited by Schnacke have been shown to be largely unwarranted.

“There is also an even stronger public policy argument (for releasing the tape),” said Shapiro. “The death penalty is a very important public issue right now. The Legislature is debating whether to change the mechanism of death away from lethal gas. . . . How can we decide on the propriety or means of the death penalty if we don’t know what it is really like?”

Michael Schwarz, a producer for KQED, said that although the station does not plan to join in the pending legal effort, it is interested in obtaining a copy of the tape for a documentary on the death penalty.

“Judge Patel thought the tape was evidence she needed to decide whether the use of gas was cruel and unusual,” said Schwarz. “Similarly, we think the tape was information the public needs to make up its mind whether the death penalty is proper.”