As the lawyers in Fierro continued their lawsuit to try to get the federal courts to find execution by lethal gas unconstitutional, the district court allowed the next condemned inmate, David Mason, to be excluded from the class pursuant to his withdrawing any further challenges to his death sentence. California had recently enacted legislation giving inmates a choice between lethal gas and lethal injection. On August 24, 1993, Mason, accused of the murder of five persons, refused to select a method of execution and thus went to the gas chamber pursuant to Penal Code §3604. Right until the end, when he was strapped into the gas chamber, prison officials pressured him to choose—did he want lethal injection instead? Warden Vasquez told Mason he would likely be conscious for two to three seconds, but as it turned out, he remained conscious for three agonizing minutes after the cyanide was released, and his prolonged death struggle shocked many of the witnesses present.46
Shortly after Mason’s gassing, a trial on the plaintiffs’ motion for a preliminary and permanent injunction in Fierro was conducted in San Francisco. It lasted from October 25 to November 5, 1993. The court heard several days of testimony from eight experts and forty-six lay witnesses.47 It also reviewed many scientific articles addressing the effects of lethal gas on the human body and viewed the death house facilities at San Quentin. Some of the evidence used included the state’s own execution records that recorded the nature and duration of each phase of the lethal gas executions, and which, like the eyewitness testimony, indicated that substantial periods of time elapsed before inmates exposed to cyanide gas lost consciousness.
One of the defense experts, Professor John M. Friedberg, M.D., of the University of California at Berkeley, used 113 San Quentin “Lethal Gas Chamber—Execution Records” to estimate the duration of consciousness and awareness of pain experienced by prisoners executed by hydrogen cyanide gas over the past fifty years. The estimates were based on notations completed by the chief prison medical officer attending the executions. Entries made by thirty-one different prison physicians included times for “gas strikes face,” “apparent unconsciousness,” “certain unconsciousness,” and “dead.” There were also lines for “remarks.” One EKG rhythm strip (that of David Mason, who was executed at San Quentin in August 1993) was also available for examination. Friedberg found that the state’s own prison records indicated that average survival time was 9.3 minutes, including 1.6 minutes during which the prisoner was reported to be conscious. In addition, his estimates, which were derived from the records coupled with the extensive medical literature on cyanide, indicated that a typical gassing victim continued to remain conscious for almost five minutes. Friedberg concluded, “Prison estimates of time to certain unconsciousness did not correlate with times to death. Additional comparisons show that physiologically based estimates of minimum consciousness are not correlated with the original estimates from the prison forms. The persistence of consciousness and the pain of myocardial and skeletal muscle ischemia and tetany, induction of autonomic reflexes (e.g., drooling, defecating, emesis), and the terror of slow asphyxiation qualifies this form of execution as cruel and unusual.”48
The state of California relied on only one scientific expert, an army pharmacologist and toxicologist who claimed that cyanide gas caused rapid, virtually painless death. Under questioning, however, he came off as unreliable, and he also seemed to place stock in embarrassing information that had been spouted by discredited Holocaust deniers. The lack of credible scientific witnesses proved to be a major blunder, particularly since the plaintiffs had presented a compelling battery of diverse and credible witnesses and scientific data to support their arguments. As a result, the plaintiffs appeared to have made an exceptionally strong case before Judge Patel.
At that time, connections between the Holocaust deniers and the American execution industry were being hotly exposed. One name that came up in the Fierro trial served as a bombshell against the state of California. Fred A. Leuchter Jr. was a Massachusetts-based consultant who had advised twenty-seven states on execution methods, equipment, and procedures from 1979 to 1990. His self-proclaimed specialties were the electric chair, the gas chamber, and lethal injection. States he advised about lethal gas included Arizona, California, Mississippi, Missouri, and North Carolina. Leuchter received extensive news coverage due to his invention of a lethal injection machine and his authorship of reports denying that gas chambers had been used to kill Jews in the Holocaust. In late 1990 he was exposed as a fraud when it was revealed that he was not a licensed engineer, contrary to his claims, and he became engulfed in an avalanche of negative publicity. At the time it was revealed that some of his work had included refurbishing California’s gas chamber.49
Leuchter’s most controversial activities involved his denial of the Holocaust. In 1988 he had received an advance payment of $37,000 in connection with the defense of Ernst Zündel, a German-born Canadian neo-Nazi who was on trial for violating Canada’s “spreading false news” statute, based on his publication of Holocaust denial pamphlets such as Richard Verrall’s Did Six Million Really Die? and his own screed, The Hitler We Loved. Zündel’s writings had challenged the notion that the Nazis had used hydrocyanic gas to exterminate more than a million persons in gas chambers during World War II, and he claimed that claims about gassing had been fabricated for propaganda purposes.50
Leuchter was best known for having published several reports, widely circulated internationally, in which he purported to have uncovered forensic proof supporting the Holocaust revisionists’ claims.51 Accompanied by a video crew, he had visited several former Nazi death camps and taken scrapings from the walls, ceilings, and floors and collected soil from around the remains of suspected gas chambers. He then took his “forensic evidence” back to Boston for laboratory tests. Then, based on his own analysis, Leuchter prepared technical reports in which he offered numerous conclusions, such as the claim that a lack of Prussian blue coating on the gas chamber walls proved that they had not been subjected to Zyklon-B.52
In 1990 the first of several reputable scholars, Professor Jan Markiewicz, director of the Forensic Institute of Krakow, Poland, conducted his own analysis and reached different conclusions. In fact, his findings refuted Leuchter’s, and he noted that the chemical analysis proved that the gas chambers had remnants of high levels of cyanide whereas the living quarters did not. Leuchter had claimed that the traces of cyanide found in the camps were due to low levels of cyanide exposure from delousing, but his claims did not hold up to serious scrutiny.
For death penalty opponents, one interesting fact about Leuchter is that he was originally referred to Zündel by Bill Armantrout, warden for the Missouri State Penitentiary in Jefferson City, Missouri, and the official responsible for that state’s gas chamber executions. When the state’s sole expert witness regarding cyanide acknowledged knowing Leuchter but failed to dismiss his work and that of other discredited Holocaust deniers, it did not help the state’s case with Judge Patel. After the trial and before the judge’s decision was announced, Leuchter’s bizarre activities received even more embarrassing publicity.
While these events were taking place, another death penalty case reached a head in North Carolina. David Lawson, a white thirty-eightyear-old, had been convicted in 1981 on charges of murder, assault, and breaking and entering (he had allegedly shot two helpless victims in the back of the head during a burglary). Death row inmates in North Carolina had the option of lethal injection, but Lawson refused to choose, saying that doing so would amount to sanctioning his execution, so state law required him to be executed in the gas chamber. His lawyers tried to get the federal courts to find his execution by lethal gas declared unconstitutional. The Phil Donahue Show had sought to obtain permission to have the execution videotaped, and Lawson himself had said that having his execution filmed would give his life meaning. But in June 1994 the U.S. Supreme Court denied Lawson’s petition for a stay of his execution, clearing the way for Lawson’s execution by lethal gas. The Court also denied requests to videotape Lawson’s execution.