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IN THE UNITED STATES DISTRICT COURT 

FOR THE MIDDLE DISTRICT OF ALABAMA 

NORTHERN DIVISION

WILLIE MCNAIR, ) 

 ) 

 Plaintiff/Counter-Defendant, ) 

 ) 

v. ) No. 2:06-cv-00695-WKW-CSC 

 ) 

RICHARD ALLEN, Commissioner, ) 

Alabama Deparment of ) 

Corrections, et al., ) 

 ) 

 Defendants/Counter-Plaintiffs. ) 

__________________________________ 

JAMES CALLAHAN, ) 

 ) 

 Plaintiff/Counter-Defendant, ) 

 ) 

v. ) No. 2:06-cv-00919-WKW-CSC 

 ) 

RICHARD ALLEN, et al., ) 

 ) 

 Defendants/Counter-Plaintiffs. ) 

DEFENDANTS’ MOTION FOR PARTIAL CLOSURE 

OF COURT PROCEEDINGS DURING THE 

TESTIMONY OF CERTAIN WITNESSES

 Defendants respectfully move this Court to enter an order that would require limited 

closure of court proceedings to the public during the testimony of certain members of the 

execution team.1 As set forth below, Defendants, and the State of Alabama, have a compelling 

 

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 Defendants do not ask in this motion that the trial of this action be closed in its entirety. The 

Alabama Department of Corrections reserves the right to file such a motion requesting closure in 

order to protect the confidentiality of its lethal injection protocol. That matter is still under 

consideration by the Department, which is aware of this Court’s pretrial order and the deadlines 

therein. If such a motion is filed, then this request for partial closure, which would apply only to 

the potential testimony of certain witnesses, should be considered a request for alternative relief 

in the event the motion for total closure is denied.

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interest in protecting the anonymity of those who participate in executions. The parties agree 

that these witnesses (if they are in fact required to testify at trial) will not be asked to disclose 

their name or other identifying information, such as their address. Defendants seek reasonable 

additional measures that would prevent the public from viewing the testimony of these witnesses 

and thus being permitted to recognize them. Defendants do not seek here to block the public 

from hearing such testimony, or otherwise learning the substance of their testimony, either 

contemporaneously or through release of transcripts after the fact. 

 This motion addresses only those circumstances where members of the execution team 

may be called upon to testify. Specifically, this motion addresses only those potential witnesses 

designated as EMT-1, EMT-2, DOC-1, DOC-2, and RN. On information and belief, Plaintiffs 

have no present intention to call DOC-1, DOC-2, or RN. While Plaintiffs have issued subpoenas 

for EMT-1 and EMT-2, Defendants have filed (or will file) a separate motion to quash. Thus, it 

may be that none of these witnesses are called upon to testify and that this motion will be moot. 

But in the event that this Court denies Defendants’ Motion to Quash the subpoenas to EMT-1 

and EMT-2, or in the event either party later seeks to call DOC-1, DOC-2, or RN, then 

Defendants respectfully ask that this Court close that portion of the trial or otherwise permit 

those witnesses to testify in a matter that will not be viewed by the public. 

I. COURTS MAY CLOSE PORTIONS OF A TRIAL, OR REQUIRE OTHER 

REASONABLE MEASURES, IN ORDER TO PROTECT IMPORTANT STATE 

INTERESTS. 

 Defendants recognize the importance of public access to judicial proceedings. The 

public’s right of access to criminal proceedings also applies to civil proceedings “which pertain 

to the release or incarceration of prisoners and the conditions of their confinement.” Newman v. 

Graddick, 696 F.2d 796, 801 (11th Cir. 1983). The right of access is not absolute, however. 

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Judicial proceedings may be closed where “necessary to achieve a legitimate purpose.” Id. at 

802. The Court should consider “[l]ess intrusive alternatives” to closure and restrictions on 

access “must be narrowly drawn with only that part of the proceeding as is necessary closed.” 

Id. (remanding so that the trial court could hold a hearing and articulate its reasons for excluding 

the press).2

 When a court is considering a partial closing, the standard is less demanding. “When 

limited closure is at issue, the prejudice asserted need only supply a ‘substantial reason’ for 

closure.” U.S. v. Doe, 63 F.3d 121, 129 (2nd Cir. 1995). “The quantum of prejudice that the 

movant must show increases the more extensive the closure sought would be.” Huminski v. 

Corsones, 396 F.3d 53, 86 (2nd Cir. 2005) (citing Doe, supra). 

 The interests that may trump the right to access take many different forms. Court 

proceedings may, in appropriate circumstances, be closed where necessary to protect trade 

secrets. See In re Iowa Freedom of Info. Council, 724 F.2d 658, 664 (8th Cir. 1983). Other such 

interests include the well-being of a minor, see Globe Newspaper Co. v. Super. Ct. for Norfolk 

County, 457 U.S. 596, 607 (1982); privacy interests of prospective jurors, see Press-Enter. Co. v. 

Super. Ct. of Cal., 464 U.S. 501, 511-512 (1984); privacy interests in wiretapped conversations, 

 

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 Most cases on these issues involve criminal trials, where closure implicates not only the public’s First 

Amendment rights, but also the criminal defendant’s rights under the Sixth Amendment (including the 

right to confront witnesses). To close a criminal trial to the public, “[1] the party seeking to close the 

hearing must advance an overriding interest that is likely to be prejudiced, [2] the closure must be no 

broader than necessary to protect that interest, [3] the trial court must consider reasonable alternatives to 

closing the proceeding, and [4] it must make findings adequate to support the closure.” Waller v. 

Georgia, 467 U.S. 39, 48 (1984). Although the decisions involving criminal cases must consider 

additional interests and more stringent standards, they can be instructive on this Court’s ability to close 

portions of the present trial. For example, in U.S. v. Valenti, the Eleventh Circuit held that trial court did 

not err by closing certain bench conferences to the press, but that transcripts should be released once the 

“danger of prejudice” has passed. 987 F.2d 708 (11th Cir. 1993). If such measures are appropriate in 

criminal proceedings, then certainly they can be used in civil proceedings that do not implicate the Sixth 

Amendment. 

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see In re New York Times Co, 828 F.2d 110, 116 (2d. Cir. 1987); and a criminal defendant’s right 

to a fair trial, see In re Herald Co., 734 F.2d 93, 100 (2nd Cir. 1984). 

 In addition, protecting the confidentiality of government activities, such as ongoing 

undercover investigations, may justify closing portions of a trial to the public. See In re Herald 

Co., 734 F.2d at 100. In Broadhurst v. West, 2006 WL 89946 (S.D.N.Y. 2006) (unreported), a 

district court denied habeas relief to an inmate who complained that his criminal trial was 

improper. The defendant specifically claimed that the trial court erred by granting the 

prosecution’s motion to close the courtroom during testimony of an undercover police officer. 

However, the habeas court denied relief and found that the state had a legitimate interest in 

protecting the anonymity of the officer. Id. The court noted further that the closure was 

narrowly tailored because it was limited to the officer’s testimony and did not apply to other 

portions of the trial, and the defendant (and the defendants’ family members) were permitted to 

remain. Id.

 In this case, and as shown below, the State has a legitimate and important interest in 

protecting the privacy and anonymity of execution team members. That interest will be 

prejudiced if the public can come to court and see who the execution team members are. The 

execution team members would then potentially be subject to harassment and retaliation from 

persons who oppose the death penalty, and, as demonstrated below, such harassment and 

retaliation has occurred in other cases. However, reasonable accommodations can be made that 

will protect that interest and that will still allow the Court to have the information it needs to 

reach a decision in this case and that will allow public scrutiny of the basis for that decision. 

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II. THE STATE HAS A COMPELLING INTEREST IN PROTECTING THE 

ANONYMITY OF MEMBERS OF THE EXECUTION TEAM. 

 The defendants have a strong interest in measures that will protect the anonymity of 

persons who assist in the execution process. Numerous other courts have recognized this 

interest, as demonstrated by the following quotations: 

Defendants’ fear that members of the execution team and their 

families could be subject to retaliation if their identities became 

known to a wider circle of people, including the prison’s inmates, 

certainly is a “legitimate governmental interest.” 

Thompson v. Department of Corrections, 18 P.3d 1198, 1207 (Cal. 2001) (upholding prison 

regulations concerning access to spiritual advisor). 

The identity of the execution team is kept confidential for the 

security of the institution and for the safety of the staff members 

and their families. Members of the execution team and their 

families may be subject to retaliation and harassment if their 

identities became known throughout the institution and the public 

at large. 

Workman v. Campbell, 2002 WL 869963 (Tenn. App. 2002) (unreported decision) (upholding 

prison regulation concerning access to personal spiritual advisor). 

[T]he Defendants have a strong interest in preserving the safety, 

and hence anonymity, of the execution team members and those 

involved with the process. . . . The Defendants are therefore 

entitled to scrupulously protect those interests, both during 

discovery and at any trial, in a manner that they deem most 

appropriate, to the extent that manner does not unduly interfere 

with [the plaintiff’s] need to obtain discovery of relevant 

information. 

Moore v. Rees, ___ F.Supp.2d ___, 2007 WL 1035013 (E.D.Ky. March 30, 2007)(encouraging 

counsel to come to an agreement concerning the requested depositions). See also, Morales v. 

Tilton, 2006 WL 3953137 (slip copy) (N.D. Cal. Sept. 14, 2006) (approving redaction of 

identifying information from documents released to the press) (“the Court has recognized that 

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Defendants have a valid traditional and historical interest in maintaining the anonymity of 

members of the execution team.”). 

 A very quick look at anti-death penalty websites reveals an effort to expose individuals 

who participate in executions, and thus shows that the State’s interest would be prejudiced if 

execution team members are exposed to the public. For example, a Norwegian resident who is a 

member of a prisoner support group said she named doctors who participate in executions in a 

post she made on a lethal-injection blog in hopes that it would open these doctors to public 

scrutiny. http://law.fordham.edu/ihtml/news-2itndetails.ihtml?id=638&nid=468 (last visited 

May 23, 2007). Another anti-death website lists execution team members and highlights those 

names for easy identification. http://lethal-injection-florida.blogspot.com/2007/exectuion-teammembers-in-botched.html (last visited May 23, 2007). That same website had an entry entitled 

“A Florida butcher – called medical expert – disclosed in Florida.” Id. The Department of 

Corrections may be unable to find qualified persons to carry out state law if such individuals fear 

they will be subject to the same treatment. 

 The interest asserted is therefore a real and legitimate one, and is sufficiently important to 

justify an exception to the right of full public access to judicial proceedings. The interest will be

prejudiced if the execution team members are exposed by a requirement that they testify 

publicly. Therefore, the circumstances of this case warrant a partial closing of the courtroom 

during the testimony of these particular witnesses.

III. THE REQUESTED PROCEDURES ARE REASONABLE, NARROWLYTAILORED STEPS THAT WILL NOT IMPEDE PUBLIC ACCESS TO 

JUDICIAL PROCEEDINGS. 

 There are a number of ways to address Defendants’ concerns that will likewise protect 

the public’s interest in open proceedings. For example, instead of closing the entire trial, the 

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court could be closed only when implicated witnesses are called to testify. The transcripts of 

their testimony may be released after the fact, and Defendants do not ask that testimony 

concerning the witnesses’ qualifications and experience be shielded from the public eye. Such a 

procedure would not impair the ability of the Court or Plaintiffs’ counsel from procuring such 

testimony that the Court deems is proper. 

 Other procedures, equally acceptable to the Defendants, could be ordered that would 

prevent the public from viewing the witnesses but would allow the public contemporaneously to 

hear the testimony. For example, Defendants would have no objection to a system that 

broadcast the audio of such testimony to interested persons (so long as it remains true that 

Plaintiffs’ counsel have no intention of asking the witnesses to state their name or other 

identifying information). In the alternative, the witness could testify from behind a screen that 

would block the public from viewing the witness but that would permit the Court, the parties, 

and counsel to see the witness. Many courts have permitted witnesses to testify from behind a 

screen in cases where it is important to protect a witness’s anonymity, such as where a witness is 

an undercover police officer involved in ongoing investigations or whose safety may be 

compromised. See e.g. U.S. v. Lucas, 932 F.2d 1210, 1216-1217 (8th Cir. 1991), cert. denied, 

502 U.S. 949 (1991); U.S. v. George, 1992 WL 200027 (D.D.C. 1992) (unreported). 

 Defendants are open to other accommodations the Court may suggest. Defendants ask 

only that the public not be permitted to view these witnesses. Under the circumstances, and 

where Defendants have demonstrated a legitimate interest that would be prejudiced without such 

measures, a partial closing of the courtroom is justified under the law. 

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 Defendants therefore respectfully ask that this Court order that the trial in the abovestyled matter be closed during the testimony of members of the execution team, or that other 

measures be taken to prevent the public from viewing their testimony. 

 Respectfully submitted, 

TROY KING (KIN047) 

ATTORNEY GENERAL 

BY: 

s/ J. Clayton Crenshaw 

J. Clayton Crenshaw (CRE007)

Assistant Attorney General 

s/ James W. Davis 

James W. Davis (DAV103)

Assistant Attorney General 

OF COUNSEL: 

Office of the Attorney General 

11 South Union Street 

Montgomery, AL 36130 

(334) 242-7300 

(334) 353-8440 Fax 

Email: ccrenshaw@ago.state.al.us 

jimdavis@ago.state.al.us 

CERTIFICATE OF SERVICE

This is to certify that on the 13th day of September, 2007, a copy of the foregoing has 

been electronically filed with the Clerk of the Court using the CM/ECF system, which will 

electronically send a copy of the same to the following: 

Randall S. Susskind 

Cathleen I. Price 

Equal Justice Initiative of Alabama 

122 Commerce Street 

Montgomery, AL 36104 

cprice@eji.org

rsusskind@eji.org

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Vincent R. Fitzpatrick, Jr. (SDNY Bar No. VF2907) 

Heather K. Mcdevitt (SDNY Bar No. HM9973) 

Stephanie Cohen (SDNY Bar No. SM7006) 

White & Case LLP 

1155 Avenue of the Americas 

New York, NY 10036 

Telephone: (212) 819-8200 

Facsimile: (212) 354-8113 

vfitzpatrick@whitecase.com

hmcdevitt@whitecase.com

stephcohen@whitecase.com

OF COUNSEL 

S/ James W. Davis 

James W. Davis (DAV103)

Assistant Attorney General 

office of the Attorney General 

11 South Union Street 

Montgomery, AL 36130 

(334) 242-7300 

(334) 353-8440 Fax 

Email: jimdavis@ago.state.al.us 

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