Barry Graham: Illusory Flowers in an Empty Sky

Two killers: Charles Ryan and Daniel Wayne Cook

As the Arizona Department of Corrections prepares to kill Daniel Wayne Cook tomorrow, I wonder if his last words will be censored at the whim of Director Charles Ryan.

On July 2, I emailed Ryan the following questions:

• Do you have the legal authority to decide what is offensive? If so, what criteria do you apply?
• Do you have the legal authority to decide what is intended to offend? If so, what method do you use to determine a person’s intentions?
• Does the prisoner have the right to speak before being executed, or is it a privilege that can be granted or denied at the discretion of the Department of Corrections?
• If it is the prisoner’s right to speak, do you have the legal authority to turn off the microphone while a prisoner is saying their last words, if you deem what is being said intentionally offensive? If so, what is the point of law that gives you this authority?

I have received no response.

In his insistence that condemned prisoners refrain from criticizing their captors and killers, AZ Department of Corrections Director Charles Ryan is historically typical. The people who officiate at executions seem to value politeness. The executioner never seems angry. The prisoner is killed, but the killing is strangely passionless. It just seems to be the end result of a bureaucratic procedure, something that the rules demand.

After witnessing the killing of Mary, Queen of Scots, Robert Wynkfield wrote:

Then she, lying very still upon the block, one of the executioners holding her slightly with one of his hands, she endured two strokes of the other executioner with an ax, she making very small noise or none at all, and not stirring any part of her from the place where she lay: And so the executioner cut off her head, saving one little gristle, which being cut asunder, he lift up her head to the view of all the assembly and bade God save the Queen.

This sounds like a description of a medical procedure, something unpleasant that had to be done, and so everyone - especially the patient - bore it with good grace.

Here is how Plato described the death of Socrates, who was surrounded by his chums, one of whom was the executioner:

The boy went out and stayed a long time, then came back with the man who was to administer the poison, which he brought with him in a cup ready for use. And when Socrates saw him, he said: “Well, my good man, you know about these things; what must I do?” “Nothing” he replied, “except drink the poison and walk about till your legs feel heavy; then lie down, and the poison will take effect of itself.”

Socrates agreeably followed his advice, and all those in attendance wept over his death.

Good manners were on display when Eva Dugan, the only woman ever executed (so far) in Arizona was hanged in 1930. As she stood on the scaffold with a black hood over her head, the prison warden clasped her hand and said, “God bless you, Eva.” Unfortunately, the gathering became less elegant when Dugan’s head was pulled off by the noose, and rolled by the feet of the witnesses.

In his insistence that condemned prisoners refrain from criticizing their captors and killers, AZ Department of Corrections Director Charles Ryan is historically typical. The people who officiate at executions seem to value politeness. The executioner never seems angry. The prisoner is killed, but the killing is strangely passionless. It just seems to be the end result of a bureaucratic procedure, something that the rules demand.


After witnessing the killing of Mary, Queen of Scots, Robert Wynkfield wrote:

Then she, lying very still upon the block, one of the executioners holding her slightly with one of his hands, she endured two strokes of the other executioner with an ax, she making very small noise or none at all, and not stirring any part of her from the place where she lay: And so the executioner cut off her head, saving one little gristle, which being cut asunder, he lift up her head to the view of all the assembly and bade God save the Queen.

The boy went out and stayed a long time, then came back with the man who was to administer the poison, which he brought with him in a cup ready for use. And when Socrates saw him, he said: “Well, my good man, you know about these things; what must I do?” “Nothing” he replied, “except drink the poison and walk about till your legs feel heavy; then lie down, and the poison will take effect of itself.”

Charles Ryan

At approximately 11:17 a.m., Mr. Towery gave his last statement.
The evening prior to his execution, I had informed Mr. Towery what he could expect when ADC placed the intravenous (IV) catheters. Mr. Towery then made fists with both hands to show me the veins in each of his arms. He said “With veins like these, how can they miss.”
I advised Mr. Towery that if there were any problems with the procedure or if he had concerns with what was occurring as the IV lines were being inserted, that he should advise the ADC officials who were present in the execution chamber that he wished to speak to his attorney. I further told Mr. Towery if the ADC officials would not allow him to speak with his attorney that he should say words to that effect as part of his last statement.
Mr. Towery was concerned about speaking openly about the procedures, as he had been informed by ADC that his last words would be cut off if he made any statements against ADC.
This concern is consistent with what Richard Bible told me during a morning meeting I had with him on the day of his execution. The date was June 30, 2011. Mr. Bible said that he was told by an ADC official to keep his last statement short, and that if he was critical of the ADC, critical of law enforcement or made disparaging comments about the victim, the microphone would be cut off during his statement. Mr. Bible was also told he would have to rehearse his last statement with an ADC official.
Mr. Towery said that rather than directly state that he asked to talk to his lawyer during the IV insertion procedure, he would say something to the effect of “Hey Dale I should have called you.” He also said that if there were problems with the insertion of the IV lines or that if he was being hurt, he would use the word “mistake” as part of his last statement.
During Mr. Towery’s last words, he said “In the end, I should have called you Dale.” Based on my discussions with Mr. Towery, this phrase meant that he asked to have speak to his lawyers while the catheters were being placed but was denied access.
During Mr. Towery’s last words, he also said that he should have gone left and he went right. He went right when he should have gone left. He then went on to say he made “mistake, after mistake after mistake.” Based on my discussions with Mr. Towery, this phrase meant that there were problems or he was hurt during the insertion of the catheters.

Before Samuel Lopez was executed in Florence, AZ, on June 27, he received a letter, dated June 5, from Charles Ryan, Director of the state’s Department of Corrections, who wrote:

You may choose to make a final statement that is reasonable in length and does not contain vulgar language or intentionally offensive statements directed at the witnesses. The microphone will remain on during your statement. It will be turned off, however, in the event that you use vulgarity or make intentionally offensive statements.

I asked Dale Baich, Federal Public Defender in Phoenix, “Does Ryan have the authority to decide what is offensive, or intended to offend, and to shut off the mic? Does the prisoner have a legal right to last words, or is it discretionary?”

Baich said he didn’t know, but showed me an essay called “The Meaning of Death: Last Words, Last Meals” by law professor and author Linda Ross Meyer. In a footnote, she writes:

I am not aware of a case making an 8th Amendment argument for a “last words” or “last meal” right. But there is at least one case making a First Amendment argument. See Treesh v. Taft, 122 F. Supp.2d 881 (D. Ohio 1999)(challenge to Ohio’s policy of allowing only written last statements. The litigation was later settled when Ohio agreed to allow inmates to give oral last statements to assembled witnesses). See, Kevin Francis O’Neill, Muzzling Death Row Inmates: Applying the First Amendment to Regulations that Restrict a Condemned Prisoner’s Last Words, 33 Ariz. St. L.J. 1159 (2001)(arguing that curtailing or censoring an inmate’s last words to witnesses violates the First Amendment and arguing for an analogy to defendants’ right ofallocution before sentencing)

This morning I emailed the following questions to Charles Ryan:

• Do you have the legal authority to decide what is offensive? If so, what criteria do you apply?
• Do you have the legal authority to decide what is intended to offend? If so, what method do you use to determine a person’s intentions?
• Does the prisoner have the right to speak before being executed, or is it a privilege that can be granted or denied at the discretion of the Department of Corrections?
• If it is the prisoner’s right to speak, do you have the legal authority to turn off the microphone while a prisoner is saying their last words, if you deem what is being said intentionally offensive? If so, what is the point of law that gives you this authority?

Before Samuel Lopez was executed in Florence, AZ, on June 27, he received a letter, dated June 5, from Charles Ryan, Director of the state’s Department of Corrections, who wrote:

You may choose to make a final statement that is reasonable in length and does not contain vulgar language or intentionally offensive statements directed at the witnesses. The microphone will remain on during your statement. It will be turned off, however, in the event that you use vulgarity or make intentionally offensive statements.

I am not aware of a case making an 8th Amendment argument for a “last words” or “last meal” right. But there is at least one case making a First Amendment argument. See Treesh v. Taft, 122 F. Supp.2d 881 (D. Ohio 1999)(challenge to Ohio’s policy of allowing only written last statements. The litigation was later settled when Ohio agreed to allow inmates to give oral last statements to assembled witnesses). See, Kevin Francis O’Neill, Muzzling Death Row Inmates: Applying the First Amendment to Regulations that Restrict a Condemned Prisoner’s Last Words, 33 Ariz. St. L.J. 1159 (2001)(arguing that curtailing or censoring an inmate’s last words to witnesses violates the First Amendment and arguing for an analogy to defendants’ right ofallocution before sentencing)

• Do you have the legal authority to decide what is offensive? If so, what criteria do you apply?
• Do you have the legal authority to decide what is intended to offend? If so, what method do you use to determine a person’s intentions?
• Does the prisoner have the right to speak before being executed, or is it a privilege that can be granted or denied at the discretion of the Department of Corrections?
• If it is the prisoner’s right to speak, do you have the legal authority to turn off the microphone while a prisoner is saying their last words, if you deem what is being said intentionally offensive? If so, what is the point of law that gives you this authority?