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Thread: Media Outlets Sue States To Witness Lethal Injection Preparations

  1. #1
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    AP, news groups sue Idaho over execution access

    The Associated Press and 16 other organizations sued the state of Idaho on Tuesday to force officials to let witnesses watch executions from start to finish, arguing that the media has a First Amendment right to view all steps of a lethal injection execution.

    The group asked a U.S. District Court judge to require the state to increase witness access to its executions, starting with the upcoming execution of Richard A. Leavitt, a convicted killer scheduled to be put to death on June 12.

    The AP was joined in the lawsuit by the Idaho Press Club, Idahoans for Openness in Government, the Idaho Statesman, The Times-News, Lewiston Tribune, Moscow-Pullman Daily News and The Spokesman-Review.

    Also joining was Pioneer Newspapers, which owns several newspapers including the Idaho Press-Tribune, the Idaho State Journal, the Rexburg Standard Journal and others.

    Idaho, like most states with lethal injection, bars witnesses from watching as a condemned inmate is brought into the execution chamber, strapped to the table and has IVs inserted into his or her arms. The news organizations say reporters must be able to view executions from start to finish so they can accurately report the events - and any complications that may emerge - to the public.

    Some death row inmates have challenged the constitutionality of lethal injection executions in court, contending that the insertion of the IVs can be easily botched, causing severe pain for the condemned.

    "This lawsuit is really all about obtaining access to the entire execution process for viewing purposes. It's very important in a society such as ours to have full transparency in regards to the exercise of government authority," said Chuck Brown, the attorney representing the news organizations.

    The states that grant access to part of the death penalty process say they do so to protect the anonymity of the execution team. Idaho Department of Correction spokesman Jeff Ray said the department had not yet had a chance to review the lawsuit, and that the state's attorneys would respond to the claims in court.

    The lawsuit relies heavily on a 2002 San Francisco-based federal appeals court ruling that found that witnesses should be allowed to view executions from the moment the condemned enters the death chamber until their final heartbeat.

    Since the ruling, only one state under the court's nine-state jurisdiction is following it: California, where the case arose. Idaho, Arizona, Washington, Montana and Nevada have all barred witnesses from the first half of lethal injection executions.

    Most states nationwide do the same. Of the 27 states that have lethal injection outside of the circuit's jurisdiction, only Ohio and Georgia allow witnesses to see the entire process.

    The lawsuit comes at a time when questions have been raised about whether the lethal cocktail of drugs used in the procedure is effective and whether the execution staff is properly trained.

    The Idaho organizations decided to sue after state officials limited access to the execution of Paul Ezra Rhoades. Put to death in November, Rhoades was the first person to be executed in the state in 17 years, and only the second in the last half-century. Media interest in the event was intense, and the department selected four journalists to view the proceedings.

    But none of the witnesses were allowed to watch as Rhoades entered the death chamber, was strapped to the execution table and had IVs inserted in his arms.

    That portion was of particular interest because in the weeks preceding his death, Rhoades had argued in federal court that those initial steps were the most likely to go awry. His lawyers said an improperly inserted IV could cause him extreme pain.

    At the time, Idaho Department of Correction officials maintained that the first steps of the execution had to be kept private to protect the anonymity of the execution team.

    The 2002 9th U.S. Circuit Court of Appeals case was brought by the California First Amendment Coalition against California Department of Correction officials. The court found that preventing reporters - and through them, the public - from viewing all aspects of executions is an unconstitutional violation of the First Amendment.

    The news media must be allowed to witness executions in their entirety so that the public can have an informed debate about whether execution by lethal injection meets the evolving standards of decency present in a maturing society, the court found.

    "To determine whether lethal injection executions are fairly and humanely administered, or whether they ever can be, citizens must have reliable information about the 'initial procedures' which are invasive, possibly painful and may give rise to serious complications," Judge Raymond Fisher wrote for the unanimous three-judge panel that heard the case.

    http://www.wset.com/story/18598831/a...ecution-access
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    Media Outlets Sue States To Witness Lethal Injection Preparations

    Media asks to witness Arizona lethal-injection preparation

    Last week, a 9th U.S. Circuit Court of Appeals judge questioned why the media had not demanded to witness how Arizona Corrections officials prepare death-row prisoners for execution, and on Tuesday, a media association rose to the challenge.

    The First Amendment Coalition of Arizona Inc. filed a motion in federal court to intervene in a federal lawsuit filed by several Arizona death-row prisoners challenging the state's lethal-injection procedures.

    U.S. District Court Judge Neil Wake denied the coalition the right to intervene, which would have made them plaintiffs in the case. But he did allow the journalists to have "amicus" status, meaning they can file briefs related to the case and still argue the right to witness how executioners insert IV catheters that deliver the lethal drugs.

    One of the prisoners, Samuel Lopez, faces execution June 27. He was supposed to be put to death on May 16, but the Arizona Supreme Court stayed the execution because three members of the state's clemency board had not yet undergone sufficient training to consider Lopez's clemency request.

    At issue, as the 9th Circuit judge wrote, is that "the state insists upon extreme secrecy" in its executions. Attorneys for Lopez and the other defendants have repeatedly detailed how state executioners have struggled to insert the catheters that carry the lethal drugs into prisoners' arms and usually end up surgically implanting a catheter in the prisoners' femoral veins, located in their groin areas.

    One prisoner who was executed, Robert Towery, was allegedly denied the ability to speak to his attorneys when the medical team was unable to find a vein in his arms and instead installed the femoral catheter.

    The attorneys maintain that this comes close to "cruel and unusual punishment," which is barred by the U.S. Constitution. The attorneys asked Arizona's Corrections director to allow them to witness the setting of the catheter lines, but he refused, and they took the case to U.S. District Court in Phoenix and to the appellate court.

    Two of the three judges on the 9th Circuit panel that heard the case turned down the motion for a stay of execution -- which came instead from another court. The third wrote in her dissent: "Witnesses are allowed only at the very end of the lethal injection process, during the actual administration of lethal drugs after the IV lines have been set and the drugs concocted and readied for administration. Most of what can go wrong will go wrong before the small part of the execution process exposed to public view."

    California allows lawyers and media to witness the catheter insertion. Ohio allows it to be viewed over closed-circuit television.

    Lopez's attorneys filed a motion the day before Lopez was supposed to be executed, asking that two of his attorneys be present when the lines were set.

    "Properly setting the IV lines prior to an execution is crucial to ensure that the execution is constitutional and humane," said Dale Baich, one of the attorneys. "This step should be transparent so that the public does not have to rely on one-sided statements by ADC as to what occurs."

    The First Amendment Coalition then filed its own motion.

    "If two lawyers from the plaintiff get to witness it, then why not everyone," attorney Dan Barr said.

    The First Amendment Coalition includes the Arizona Newspapers Association, Arizona Broadcasters Association, Arizona-New Mexico Cable Communications Association, Society of Professional Journalists and Arizona Press Club.

    A spokesman for the Arizona Department of Corrections said the agency had no comment at this time. The assistant Arizona attorney general who represents the department of death-penalty issues had not yet read the motion.

    Read more: http://www.azcentral.com/arizonarepu...#ixzz1vhNe2Gm1
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    Mediation Ordered in Idaho Execution Policy Suit

    A federal judge has ordered mediation talks between Idaho prison officials and more than a dozen news organizations that are challenging a policy that limits public access to lethal injection executions.

    U.S. District Judge Edward J. Lodge handed down the order Thursday, two days after The Associated Press and 16 other news organizations filed a lawsuit seeking to force the Idaho Department of Correction to let witnesses view the execution process from start to finish.

    The lawsuit is not intended to obstruct the state's June 12 scheduled execution of convicted murderer Richard Leavitt. Instead, it focuses on a narrow section of the agency's execution protocol.

    Like most states with lethal injection, Idaho's policy bars witnesses from watching as a condemned inmate is brought into the execution chamber, strapped to the table and has IVs inserted into his or her arms. The news organizations say reporters must be able to view executions from start to finish so they can accurately report the events — and any complications that may emerge — to the public.

    Lodge's order requires the parties to quickly begin nonbinding mediation on or before June 1 under the supervision of Magistrate Judge Candy Dale.

    "Any opportunity to mediate a case is a positive development for both parties," said Chuck Brown, the Lewiston attorney representing the news groups. "It avoids some of the uncertainty of how a third party, in this case a judge, might rule in the future."

    An IDOC spokesman says agency officials are still waiting to be served with the initial complaint filed Tuesday.

    "When we are, we will take appropriate action," said spokesman Jeff Ray.

    The agency has defended its policy on grounds that keeping the first few steps private is essential to protecting the anonymity of the execution team. The agency also denied multiple requests by the news organizations to modify its protocol before the media turned to the federal courts.

    The plaintiffs joining the AP include the Idaho Statesman, The Times-News, Lewiston Tribune, Moscow-Pullman Daily News, Spokesman-Review, Boise Weekly, The Idaho Press Club and Idahoans for Openness in Government. The plaintiffs also include newspapers with Pioneer Newspapers, including the Idaho State Journal and Idaho Press Tribune

    The lawsuit relies heavily on a 2002 San Francisco-based federal appeals court ruling that found that witnesses should be allowed to view executions from the moment the condemned enters the death chamber until their final heartbeat.

    Since the ruling, only two states under the court's nine-state jurisdiction are following it: California, where the case arose, and Nevada, which changed its policy after media challenged rules barring witnesses from viewing the entire process. Idaho, Arizona, Washington and Montana have all barred witnesses from the first portion of lethal injection executions.

    Most states nationwide do the same. Of the 27 states that have lethal injection outside of the circuit's jurisdiction, only Ohio and Georgia allow witnesses to see the entire process.

    The lawsuit comes at a time when questions have been raised about whether the lethal cocktail of drugs used in the procedure is effective and whether the execution staff is properly trained. Some death row inmates have challenged the constitutionality of lethal injection executions in court, contending that the insertion of the IVs can be easily botched, causing severe pain for the condemned.

    http://abcnews.go.com/US/wireStory/m...5#.T77YBFJX_T4
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    Judge: Public won’t get full look at execution process

    The public and attorneys for condemned prisoners won’t be given a behind-the-scenes look at executions in Arizona, a U.S. District Court judge ruled today.

    Judge Neil V. Wake said in a written ruling that attorneys for death-row inmate Samuel Lopez were too late in filing their request to watch executioners strap him down and insert intravenous lines. Lopez, who is one of several death-row inmates who filed suit in February to challenge the state’s execution procedures, is scheduled to die June 27.

    The First Amendment Coalition, a group that represents the media, filed an amicus brief in the litigation, requesting that the entire execution process be opened to the public. Currently, the first glimpse witnesses get of the execution is when the inmate is strapped to a gurney with the lines that carry the lethal drugs already inserted.

    Wake denied the coalition’s request because Lopez didn’t raise a First Amendment claim.

    Dale Baich, a Federal Public Defender representing Lopez, said they are weighing their options on whether to appeal.

    http://azcapitoltimes.com/news/2012/...ution-process/
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    Judge denies injunction in execution case

    A federal judge declined Tuesday to issue a preliminary injunction against limits on witness access to Idaho’s executions, finding that while the news media presented “a strong case on the merits” that the limits are unconstitutional, their timing was poor, because Idaho has an execution coming up on June 12.

    “Simply put, the current scheduled execution does not allow adequate time for discovery, an evidentiary hearing, a ruling by this Court and a potential appeal by the non-successful litigant to the 9th Circuit before the scheduled execution date,” wrote U.S. District Judge Edward Lodge. Lodge said he’d like to hold full hearings on the issue, with any subsequent ruling to apply to future executions – but not to the upcoming one of eastern Idaho murderer Richard Leavitt.

    Following Tuesday’s ruling, a group of Idaho news media outlets and organizations, led by the Associated Press and including The Spokesman-Review, filed a notice of appeal to the 9th Circuit U.S. Court of Appeals; the appellate court has scheduled time for arguments in the case on Thursday. The news groups have been pressing for changes in the procedures since before the November 2011 execution of Paul Ezra Rhoades; they agreed not to sue before that execution when the Idaho Department of Corrections promised to review its policies after that one was completed. However, the department made no change.

    “We’re disappointed that the judge feels there’s not enough time to resolve this before June 12,” said Gary Graham, editor of The Spokesman-Review. “All of the editors and reporters involved here feel it’s critical … that we, the media, have access to this kind of an event. An execution is not something to be taken lightly. … It’s an access issue for us, and we feel the public is best served if the media is there as their representative, to report how the process goes.”

    Idaho’s execution procedures bar witnesses from the early stages of the lethal injection process, including the strapping of the condemned inmate to a gurney and the insertion of IV lines. A 2002 9th Circuit decision specifically held that such restrictions are unconstitutional under the First Amendment, but only two states in the circuit – Nevada and California – have been complying with the 2002 decision. Washington, Idaho, Arizona and Montana all have barred witnesses from the early portions of the procedure, according to the Associated Press; Oregon has conducted no executions since the 2002 decision, and Alaska and Hawaii don’t have the death penalty.

    In Idaho, complying with that decision would mean opening the curtain between the execution chamber and the witness viewing room approximately 20 minutes earlier in the process.

    The Idaho Department of Corrections has defended its procedures, arguing that allowing witnesses to see the early portion of the process would violate the condemned inmate’s privacy and dignity and that of his family, affect other death row inmates, and stress and possibly identify execution team members, though they are masked and in surgical garb.

    “The Court is very concerned that to the extent Plaintiffs could establish the IDOC’s protocol does need to be changed to protect First Amendment rights of the public, there is insufficient time for the IDOC to amend the policies and practice changes in the protocol without a delay in the scheduled execution,” Lodge wrote.

    News media witnesses have attended every Idaho execution but one since 1901; prior to that, Idaho’s executions were conducted at the county level and were mostly public, with hundreds typically attending.

    “The undisputed reality as supported by the newspaper accounts of past executions and the specific language in IDOC’s Protocol 135 (which provides for numerous witnesses including the media), is that some portion of the public has historically viewed the execution process in Idaho,” Lodge wrote in his 20-page decision Tuesday. “Further, this Court agrees with Plaintiffs that society has a critical interest in having at least some members of the public view the government’s implementation of a death warrant.”

    http://www.spokesman.com/stories/201...xecution-case/
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    Court sides with news groups in execution case

    A federal appeals court has sided with The Associated Press and 16 other news organizations in ruling that witnesses should have full viewing access to Idaho's upcoming execution.

    The 9th U.S. Circuit Court of Appeals issued the decision Friday in a lawsuit filed by the news organizations seeking to change Idaho's lethal injection process, saying it's unconstitutionally restrictive.

    The lawsuit aims to strike down a portion of Idaho's regulations that prevent witnesses -- including reporters acting as representatives of the public -- from watching executions until after catheters have been inserted into the veins of death row inmates.

    It's unclear how the ruling will affect the scheduled execution next week of Idaho death row inmate Richard Leavitt.

    http://www.wgme.com/template/inews_w...wgme.com.shtml
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    Execution fight could come to Wash.,

    A federal appeals court ruling requiring that executions be fully open to public witnesses - including the insertion of IVs for lethal injection - could still have ramifications in two Western states that have kept part of their inmate executions from public view.

    Washington state officials are still reviewing the ruling and say they have no immediate plans to change their execution procedures because they have no executions scheduled. Officials in Montana, meanwhile, say they haven't reviewed the ruling because they also have no executions scheduled.

    Arizona and Idaho, where the legal case originated, changed their procedures in two recent executions as a result of the ruling. But whether a legal fight over the issue now looms in Washington and Montana remains to be seen.

    "This is certainly something we're evaluating right now," said Sherilyn Peterson, a defense attorney who has previously challenged Washington's death penalty protocol on behalf of condemned inmates.

    "It's a good time because there isn't an execution scheduled, so if there is going to be a case, better to do it now than wait until the last minute," she said.

    Today, nearly all of the 34 states that use lethal injection restrict access to half of every execution, shielding from view the moment the condemned enters the death chamber and when the IV lines are inserted.

    The San Francisco-based 9th Circuit Court of Appeals ruled in 2002 that every aspect of an execution should be open to witnesses. The ruling applied to the nine Western states in the court's jurisdiction, but four states still kept part of subsequent executions away from public view: Arizona, Idaho, Washington and Montana.

    The states have said the move is necessary to protect the anonymity of the execution team. Open government and journalism groups counter that witnessing all aspects of an execution is the only way to determine if it is being properly carried out.

    The closure also enables prison officials to shield from view issues that could arise during an execution, such as the inmate resisting being taken into the chamber and problems inserting the IV.

    In June, the appeals court upheld another case filed in Idaho by news organizations to gain additional access.

    "This has been an issue forever - ever since they stopped having executions in the public square," said Tim Ford, an attorney representing Washington death row inmate Jonathan Lee Gentry, who was sentenced to death in 1991 for killing a 12-year-old girl in Kitsap County.

    In 1975, Ford successfully fought to overturn a provision in Washington's obscenity law barring witnesses from publicly describing an execution.

    "It's a perennial issue that has come up a lot of places, a lot of times," he said. "It's been a constant attempt to keep as much secrecy around executions as possible."

    Two inmates await execution in Montana's death chamber, a single-wide trailer outside the prison in Deer Lodge. Witnesses sit mere feet away, with no window to separate them from the condemned.

    Montana has carried out three executions since reinstatement of the death penalty in the 1970s, with the most recent in 2006.

    Members of the state's execution team have never raised fears about remaining anonymous because it's never been an issue, said Montana Department of Corrections spokesman Bob Anez. Witnesses are not brought in until the condemned inmate is strapped down and the IV line inserted.

    Seven men await execution at the Washington State Penitentiary in Walla Walla, where the execution chamber sits at the end of Unit 6, an old, brick living unit built in 1932.

    In 1994, condemned inmate Charles Campbell resisted being taken to the death chamber, and prison workers were forced to strap him to a back board for his hanging.

    Washington still offers inmates the option of dying by injection or hanging.

    Members of Washington's execution team also have raised concerns about remaining anonymous. The four-member team resigned in 2009, worried their identities could be exposed during litigation over the constitutionality of the state's method of injection.

    Washington switched from a three-drug protocol to a single-drug method in 2010. A substitute team was hastily assembled later that year for the execution of Cal Coburn Brown, an Oregon convict who raped, tortured and murdered a woman in 1991.

    "These are all things that would have to be taken into consideration," Washington Department of Corrections spokesman Maria Peterson said. "We're in a unique position in Washington, because we don't have many people on death row, and we don't have any executions scheduled, allowing us time to consider everything."

    Sherilyn Peterson, the attorney, said legal arguments against Washington's death penalty have largely focused on cruel and unusual treatment of the condemned, rather than on witness access.

    "But I could certainly see that Washington is vulnerable to the same flaws," she said. "It is imperative for the integrity of the process that the public have full access."

    Earlier in June, members of Idaho's execution team wore surgical scrubs, masks and goggles to shield themselves from witnesses during the execution of Richard Leavitt, who was brought into the chamber on a gurney. And on Wednesday, Arizona executed its fourth inmate this year and first execution where witnesses watched the insertion of the IV.

    Read more here: http://www.thenewstribune.com/2012/0...#storylink=cpy
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    Judge refuses to dismiss newspapers’ suit against Corrections Dept. over restricted access to executions

    A judge has refused to dismiss a complaint by two prominent area newspapers challenging the policies of the state Department of Corrections that limit what journalists and members of the public can and cannot witness during prisoner executions.

    U.S. District Judge Yvette Kane, the chief judge of the Middle District of Pennsylvania, denied in a Jan. 18 order a defense motion to dismiss the case, in which The Philadelphia Inquirer and the Patriot-News of Harrisburg filed suit against John E. Wetzel, the Pennsylvania Department of Corrections secretary, and others over the department’s policy that restricts the ability for journalists to fully report on what occurs during inmate executions.

    The lawsuit, which was filed on Sept. 25 at the federal court in Harrisburg, and previously reported on by the Pennsylvania Record, alleges that while Pennsylvania law requires the presence of witnesses during executions, the reality is that the actual witnessing of the event is severely restricted.

    The plaintiffs, who are being represented by lawyers with the American Civil Liberties Union of Pennsylvania and attorneys with Schnader Harrison Segal & Lewis, contend that all of the pre-work on executions, such as bringing the condemned into the execution chamber, strapping the prisoner onto the gurney, and inserting the intravenous lines that will carry the lethal drug cocktail during capital punishments, is all done behind closed curtains.

    The newspapers argue that reporters should be able to witness these acts so they can fully report on executions to ensure they are being carried out properly.

    The plaintiffs also argue that the Department of Corrections’ protocols require the curtain to the execution chamber to once again be closed before the coroner pronounces the condemned deceased.

    “The DOC’s execution protocols deprive the public of the information necessary to engage in an informed debate about the most severe penalty the government can impose on its citizens,” the lawsuit reads.

    The newspapers had filed for injunctive relief prior to the scheduled executions of two prisoners on death row.

    The issue became somewhat moot, given that both executions ended up being stayed, however, the court still granted the papers’ request for a preliminary injunction permitting them full visual and auditory observation of the execution of Hubert Michael that had been scheduled for Nov. 8.

    The defendants subsequently filed a motion to dismiss arguing that the plaintiffs failed to state a claim on which relief could be granted because, as they contended, there is no recognized First Amendment right to view executions.

    The plaintiffs had retorted that the court’s order granting their motion for a preliminary injunction to view Michael’s execution supported a finding that the plaintiffs have alleged sufficient facts to survive a motion to dismiss.

    Kane agreed with the plaintiffs, writing in her memorandum that the newspapers’ complaint states a claim cognizable under the First Amendment.

    “In their amended complaint, Plaintiffs have alleged facts supporting a claim under the United States Supreme Court and the United States Court of Appeals for the Third Circuit precedent that their First Amendment rights are infringed by the DOC’s lethal injection protocol,” the judge wrote. “The Court therefore finds that Defendants’ motion to dismiss Plaintiff’s amended complaint should be denied.”

    The newspapers have argued all along that they merely seek to ensure that lethal injections are carried out “fairly and humanely.”

    The other defendants named in the litigation are Marirosa Lamas, the superintendent of the State Correctional Institute at Rockview, and John or Jane Doe, who is identified as the prison employee designated as the one in charge of overseeing executions.

    The newspapers’ suit was filed ahead of the scheduled execution of Terrance Williams, who was supposed to be put to death in October for bludgeoning a man to death back in the 1980s.

    The lethal injection was put on hold, however, after a Philadelphia Common Pleas Court judge determined that the jurors in Williams’ trial may have been misled to believe that the crime occurred during the commission of a robbery, as opposed to being a crime of passion; defense attorneys have since argued that the victim had actually been molesting Williams prior to the murder.

    The Nov. 8 scheduled execution of Hubert Michael, convicted in the 1993 murder of a teen from York, Pa., was also halted after the U.S. Third Circuit Court of Appeals decided a stay was in order.

    The appeals court had directed the District Court to address “lingering procedural issues” before the execution could proceed.

    Michael’s lawyers had argued that the inmate suffers from debilitating mental conditions, something that the attorneys’ claim hadn’t been addressed by the courts in the past.

    The death penalty in Pennsylvania is a somewhat touchy legal subject; while capital punishment is technically still on the books, a state execution hasn’t been carried out since the late 1990s, when infamous North Philadelphia torturer-murderer Gary Heidnik was put to death for raping and killing street prostitutes.

    http://pennrecord.com/news/8850-judg...-to-executions
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