Associated Press, news organizations sue Idaho over limited witness access to executions

By REBECCA BOONE May 22, 2012
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BOISE, Idaho (AP) -- 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.

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