[Whitfield:] All right, over the years we've heard different arguments as to why a state should not go through with an execution. But is weight a good reason? An Ohio inmate claims he is to obese to die by lethal injection in January, and wants it to be delayed. Our legal guys are back, Avery Friedman in Cleveland, Richard Herman in Las Vegas. All right. Gentlemen, so this convicted killer, Ronald Post weighs 480 pounds. And he has tried to lose more, but at 53, he says you know what, it is not just an issue of his weight, but that his veins are not good enough for lethal injection, and that would constitute a complicated process, which will lead to cruel and unusual punishment. So Avery, you know, what are the options here?
[Friedman:] Well, you know, it is interesting that the opinions about this have been thermo nuclear, everybody says well he shot this lady so we should shoot him but you know, under the constitution that isn't how we do these things. The fact is, that there are legitimate arguments which U.S. attorney judge, Leslie Wells, who has the case, has to decide based on science. To me what's really intriguing here, really intriguing and I haven't seen any opinion on this is that you know what, the prison officials had to know, Fredricka, this was coming, this was coming.
[Whitfield:] Really?
[Friedman:] Why in the world didn't they just do a quick gastro bypass, which by the way, Post had asked for, done. Insurance companies do it. It's done all the time.
[Whitfield:] Really?
[Friedman:] With a gastro bypass, the guy wouldn't be 500 pounds and this issue wouldn't even exist.
[Whitfield:] In order to make sure so a procedure like that
[Friedman:] To make sure
[Whitfield:] To make sure that his execution would be able to go through?
[Friedman:] Absolutely right. Why in the world do these prison officials screw around with this? This thing should have been taken care of a long time ago and the federal judge now has to make the decision. Should have never, never happened.
[Whitfield:] Interesting. So Richard, how often does this happen that somebody's physical condition kind of precludes them from being a eligible candidate for execution, when they have been convicted and they are serving what is left of their life on death row?
[Herman:] You know, Fred, there must be something in the water in Cleveland these days. Avery, come on, this guy has been in prison for almost 30 years.
[Friedman:] That's the point.
[Herman:] They have exhausted every single appeal right they could. He is in a wheelchair right now. He is not going anywhere.
[Friedman:] Yes.
[Herman:] He is going to get stuck with those needles. They are going to give him the three-drug cocktail. He's going down. He says "I tried to lose weight," Fred. "I went on the exercise bike in prison but it broke because I was too fat."
[Friedman:] Yes.
[Herman:] Listen, the fatness didn't preclude him from killing and murdering someone so it's not going to protect him from getting the death penalty.
[Friedman:] Irrelevant.
[Herman:] He exhausted his appeals. He's getting the needles. They're going to find veins. I know doctors who will find those veins, and this guy is going down. He's going to die in prison. They'll execute him.
[Friedman:] Bring the doctors in from Las Vegas.
[Whitfield:] Interesting.
[Herman:] And there are no further defenses. It is over.
[Whitfield:] This is fascinating. Of course, the family of the hotel, the motel clerk that was killed in that 1983 murder is saying this is just another, you know
[Friedman:] That's right. Of course.
[Whitfield:] last-ditch effort to delay his execution. So it will be interesting to see what happens. It is not over yet. OK. Let's talk about another case, I want you gentlemen, to take a swipe at this one. This involving the ACLU that is looking into a case that involves a a cheek swab for DNA. And this taking place involving a person before they have is actually been charged with a crime. And this is all, you know, predicated on an actual California case. Avery, what happened in this case?
[Friedman:] Well, the protester was told by the cops "Look, we'll let you out of jail early if you let us do a little DNA swab." Well, she did. A federal district judge said that was not unconstitutional. Wasn't an unreasonable search. The Federal Court of Appeals, 2-1, said yes, that is not unconstitutional. This week, 11 federal appeals judges got together and heard arguments on the question. Even if they rule that it is unconstitutional, you have courts like the Maryland Supreme Court that said, "Well, it is unconstitutional." So the question is, is this case, a DNA swab going to find itself in the U.S. Supreme Court as an unreasonable search? And that is really the question this presented. Is it any different than fingerprinting? And that's the
[Whitfield:] Well, that was going to be my next question actually, Richard. How is this any different from fingerprinting because you may be suggested to giving up your fingerprint before you are charged and the same is being asked here, giving up the swab before you're charged.
[Herman:] That was one of the arguments made in the Court of Appeals. And the judges completely rejected that argument, Fred. But listen
[Friedman:] Two to one
[Herman:] In 2004, the interesting people in the great state of California, many of whom participate in those legal marijuana sales facilities that they have there, voted in this law, which says that even if even if you are arrested upon a felony arrest, you must give up your DNA swab. You must give a swab upon a felony arrest. The people voted that. So what happened was Avery gave you the facts of the case. It is on appeal right now. Look, defense attorneys argue this all the time, it is an unreasonable search and seizure, you're protected by the fourth amendment. I think Avery this is going to D.C., get your tickets now, this will be in the U.S. Supreme Court.
[Whitfield:] U.S. Supreme Court and it will be very interesting.
[Friedman:] Wow. No kidding. Well, Fredricka's already there. So
[Herman:] Right. That's what they did, Fred.
[Whitfield:] I'm going to camp out in the steps and wait until it happens.
[Friedman:] Right, right.
[Whitfield:] And then I'll consult with you, as well, yes.
[Herman:] And you can swab it, weigh it in and just hang out there.
[Whitfield:] OK, as long as the weather is good. All right, thanks, gentlemen.
[Friedman:] Yes, that's right.
[Whitfield:] Good to see you, always a great treat. Appreciate it. The legal guys are here every Saturday, noon Eastern, to give us their take on the most intriguing legal cases of the day. A suburban Atlanta couple charged with unspeakable crimes. It is a bizarre story that you just have to see to believe.
[David Eagleman, Neuroscientist:] I'm interested in neuro law, because it is really where the rubber hits the road in neuroscience. It's where we can take all the things we're learning about human behavior and how humans are different and translate that into social policy, how we're actually running the system here. I'm David Eagleman and I'm a neuroscientists. At some point there will be a crime committed like the Virginia Tech shooting or the Columbine shooting or the Aurora movie theater shooting. And we will find that the perpetrator had a brain tumor. I'm not suggesting that any of those events were explained by brain tumors but at some point that will happen. And then society is going to have to deal with this very difficult question about this relationship between brain and behavior and this question of culpability.