A federal judge yesterday ruled that the execution of John Frederick Thanos may be videotaped and his brain waves monitored as possible evidence to determine if death by lethal gas is cruel and unusual punishment.
U.S. District Judge Marvin J. Garbis said the constitutionality of the gas chamber is a "serious question" that should be decided on "the best possible evidence." He agreed with attorneys for another death row inmate that a videotape of Thanos' death could be critical evidence and must be preserved.
Thanos, who confessed to killing three teen-agers during a weeklong crime spree in 1990, has said he wants no more appeals, which could make him the first person executed in Maryland since 1961. He has agreed to the monitoring.
Thanos is waiting out an automatic 240-day stay provided by state law. The earliest he could be executed is March 3.
The next person in line for execution after Thanos is Donald Thomas, who killed Donald and Sarah Spurling during a robbery of their Arbutus home in 1981.
Thomas' attorneys say death by lethal gas is cruel and unusual punishment, an argument they took to federal court after losing on the issue in Baltimore County Circuit Court in October.
At the center of the dispute is how long someone remains conscious after being subjected to cyanide gas. Some say a condemned prisoner is unconscious after 15 seconds, but witnesses have reported apparent conscious movement up to six minutes after the gas is released.
March Stichel, an attorney for Thomas, argued that the videotape and electroencephalograph (EEG) test could help his medical expert, Dr. Richard J. Traystman, determine how long someone remains conscious.
The only known videotape of a gas chamber execution is that of Robert Alton Harris, who died in California in April 1992. Thomas has requested the tape of that execution, which is under court seal, but a federal judge in California is awaiting court action in Maryland before deciding whether to release it.
Richard Rosenblatt, an assistant attorney general who represents the prison system, said he has serious concerns about the "practicalities" of carrying out the judge's order.
"We would oppose anything that would jeopardize the security of the operation or the security of the operators," Mr. Rosenblatt said.
Prosecutors said they would appeal the judge's ruling only if they were dissatisfied with the practical arrangements for the monitoring. Judge Garbis told the attorneys to work on the details of how the EEG and video camera would be set up at the gas chamber in the hospital ward of the Maryland Penitentiary. He suggested that he might visit the gas chamber himself to see if the problems could be worked out.
Maryland's gas chamber is a six-sided chamber, with five windows and one steel door. The prisoner faces the door and two of the windows, with his back to the three windows where official witnesses stand.
Mr. Rosenblatt argued that videotaping could only be done from the witness room and would provide only a picture of the inmate's back, which would be of little use.
But Mr. Stichel sketched a diagram of the gas chamber in court and suggested that the camera could be set up on the other side, in the room where operators of the gas chamber are stationed.
The two windows in the operators' room are now covered with miniblinds, so that no one will know their identity, said Mr. Rosenblatt. "There's too much going on in the [operators' area] to have a camera and tripod set up back there," he said.
Noting advances in technology, Judge Garbis suggested that a camera could be installed inside the gas chamber and turned on remotely. He also suggested that a portable EEG machine might be placed inside the gas chamber, eliminating the need to run wires through the sealed chamber.
The judge and attorneys agreed yesterday that the videotape issue would become moot if the General Assembly changes Maryland's method of execution to lethal injection, as a governor's commission suggested this week.
Maryland is the last state to have lethal gas as its sole means of execution.