The Supreme Court requests sealed documents in the case of the death penalty: NPR

The state of Alabama executed convicted murderer Christopher Price last week, just hours after the United States Supreme Court refused to grant a stay of execution.

The action was not particularly unusual, with one exception: half of the briefs in the case had been masked, so that the public could not see them and almost all the minutes were sealed.

It is rare that the Supreme Court authorizes such deletions. On Friday, the Committee of Rapporteurs for Press Freedom and NPR filed an application with the Supreme Court asking it to detach material that had been concealed from public view.

None of the information that has been sealed has anything to do with the guilt of the accused. The information relates more to drugs and the protocol used by Alabama for executions. Price wanted to be run with nitrogen, which he said would be less painful than death by lethal injection with the help of a drug called midazolam, which Alabama finally used for the execution.

The Supreme Court itself has often been involved in a heated debate over the death penalty in recent years, but it has not hidden the differences from the public – until the present case.

All deletions took place at the insistence of Alabama, noted the Committee of Journalists.

"The state has provided no explanation for its stated need for secrecy," citing only its need "to refer to certain materials (…) designated as" confidential, "the committee said. "Alabama has no legitimate interest that warrants sealing its deadly injection protocol or expert evidence regarding the effects of midazolam."

The committee of rapporteurs noted that even in the Pentagon Papers case in 1971 – a case in which the government had claimed an interest in national security to prevent publication – the briefs were unredacted, accessible to the press and the public, and the pleadings were public, with only parts of the court annex are sealed.

In 2018, Chief Justice John Roberts stated that the judiciary was "the most transparent branch of government". And the Supreme Court has long upheld the right of access to a wide range of court proceedings and records, because, as the court said, the constitutional right of access "improves the quality and protects the integrity of the fact-finding process. " and allows "the public to participate in and control the judicial process – an essential element of our self-government structure".

The court also said that court proceedings could not be closed "unless precise and recorded findings show that the fence is essential to preserve higher values" and that the fence is "narrowly designed to serve that interest".

None of these jurisdictions drew such conclusions. Instead, Price's lawyers stated that they had to accept Alabama's request to close the file so that Price's request would be heard by the courts of appeal and, ultimately, for the case to be brought before the Supreme Court.

Defense lawyer Aaron Katz said in an interview that the reason he had agreed to leave the minutes closed and the lower press was that time was running out, the turnaround time being fixed at 30 May.

"In such circumstances, you can not afford any distractions," he said. "You must essentially accept the conditions that the state imposes on you" to obtain the information you need to prove your situation.

Breaking down a "rabbit battle" for public disclosure is "just a waste of time" when you fight for a more humane method of imminent execution, he said.

Katz said that he had asked the state to allow the unredacted briefs at least before the 11th circuit court of appeal, but that the state had refused, as he did so when Katz made the same application for Supreme Court records.

Katie Townsend, Legal Director of the Journalists Committee, said her organization was asking the Supreme Court to lift the seal of the Supreme Court briefs.

The High Court may have accepted Alabama's request to seal the briefs because of time considerations in the application for an emergency stay, but it said the court should not let this precedent to maintain oneself.

Alabama's assertion that it is necessary to keep all this information secret is "crazy," she said. How can it be "that the state draws from it by saying to the public:" We will not tell you our legal arguments, nor allow you to see our evidence, which goes to the heart of the legal question "?" Townsend said.

If this secrecy order were upheld, she said, "other lawyers can not know what the legal arguments or the evidence are in this case". Indeed, in the dissenting opinion filed by four judges in the Price case, the dissenting judges wrote an opinion that referred to the very content of the record that was blocked in plain view.

Katz, Price's attorney, pointed out the problem. "Technically, I can not tell you what my expert said during a testimony that took place in a law firm in Atlanta two weeks ago," he said. "The idea that it is appropriate is pretty absurd."

Mike Lewis, a spokesman for the Attorney General of Alabama, said the state was trying to keep records and arguments secret, "for the sake of the safety of correctional officers as well as inmates. "

But Katz said that he had never tried to reveal the names of the correctional officers or anyone involved in the execution.

The Committee of Rapporteurs emphasizes the availability of appeal files that "go back far in the history of the nation", as well as the opinion given more recently by the Court of Appeal of the District Court.

This decision stated that "the public can not be confident that the courts of appeal of the country issue fair and just opinions drawn from the facts and legal arguments presented by the parties if the case continues with arguments keys and evidence under seal ".

The opinion of the court of appeal was written by Merrick Garland, unsuccessful candidate to the Supreme Court of President Barack Obama, and to which his colleague of the time, Brett, joined Kavanaugh, later appointed to the Supreme Court by President Trump.