June 5, 2012 in Idaho

Idaho has long history of execution witnesses

News media has been present for all but one state procedure
By The Spokesman-Review
 

The 1909 Idaho Daily Statesman published a photo of an invitation sent to the newspaper by the prison warden to attend the execution of Fred Seward.
(Full-size photo)

Appeals court will hear Leavitt’s case

 BOISE – Richard Leavitt, who is scheduled to die June 12 for the 1984 murder and mutilation of Danette Elg in eastern Idaho, has lost three bids to stay his execution in the past five days.

 One of those was immediately appealed to the 9th Circuit U.S. Court of Appeals, which will hear arguments Thursday; the Idaho Supreme Court also heard further arguments Monday from Leavitt’s defense attorney, David Nevin, who contends that a March U.S. Supreme Court decision cleared the way for consideration of Leavitt’s earlier claim of ineffective counsel.

 U.S. District Judge Lynn Winmill dismissed that claim Friday, but Nevin appealed to the 9th Circuit.

 On Monday, U.S. District Judge Edward Lodge dismissed the portion of a lawsuit challenging Idaho’s lethal-injection execution procedure that involves Leavitt, leaving the case active for three other Death Row inmates.

 Late Thursday, the Supreme Court justices dismissed a major filing by Leavitt’s attorneys, a petition to vacate the death warrant and conduct a new hearing.

Betsy Z. Russell

Editor’s note: Reporter Betsy Z. Russell, president of the Idaho Press Club, researched the issue of media witnesses to executions both for this article and for the news media’s court challenge.

BOISE – As Idaho’s news media spar with the state in federal court over limits on access to executions, the case has turned a spotlight on Idaho’s long and consistent history of media witnesses attending its state executions to serve as the eyes and ears of the public.

Media witnesses have been present for all but one Idaho execution since 1901 and published detailed accounts of them.

“The body swung not to the right and left, the rope made not a single twist, but facing the sun in the eastern sky, like one standing erect, all that was mortal of Ed Rice was there before his fellows, while the tide of life fast ebbed away,” the Idaho Daily Statesman reported in 1901, recounting the first state execution held at Idaho’s state prison.

Prior to 1901, executions were conducted at the county level in Idaho, and most were public, with hundreds attending.

Idaho’s news media, including the Associated Press, The Spokesman-Review, the Idaho Press Club and more than a dozen other news outlets and organizations, are suing in federal court over Idaho’s current execution procedures. Witnesses are barred from the first portion of the lethal injection procedure, when the condemned prisoner is strapped down to a gurney and IVs are inserted.

The media have been in discussions with the state over the issue since before Paul Ezra Rhoades was executed in November, but the state has refused to change its procedure. Now, Richard Leavitt is scheduled to die by lethal injection on June 12.

The lawsuit cites a 2002 9th Circuit U.S. Court of Appeals decision that held it was a violation of the 1st Amendment to the U.S. Constitution to exclude media witnesses, and by extension the public, from the full procedure, from the moment the condemned person enters the execution chamber to the time of death. That case was brought by the news media in California. However, only two states in the 9th Circuit – California and Nevada – have been complying with the 2002 decision.

U.S. District Judge Edward Lodge is now considering arguments from the media and from the state, which has defended its procedures; he is expected to rule shortly. The state has argued that allowing witnesses to view the first portion of the procedure would violate the condemned prisoner’s privacy, could impact other Death Row inmates, would cause suffering for the prisoner’s family and friends, and could identify or stress members of the execution team. However, the team is masked and wears surgical garb.

The media, in legal papers filed Monday, argued that 1st Amendment concerns outweigh those issues, and that inmates’ privacy rights are limited.

“Witness attendance at an execution assures public involvement in the process, and transparency fuels informed public debate, which is the main purpose behind granting a right of access to governmental proceedings,” wrote the news media’s attorney, Charles Brown of Lewiston.

No such questions were raised in the early days of Idaho executions.

In 1901, an Idaho Daily Statesman reporter, Fred Flood, wrote that he and other newsmen were ushered into Rice’s cell to hear the death warrant read to the condemned man.

They then followed the prisoner to the gallows where he would be hanged, and reported in detail on the entire procedure, up to when guards placed the body in a coffin and carried it away.

Similar detailed, firsthand accounts were published in the newspapers of the day of executions carried out at the Idaho State Penitentiary in 1904, 1906, 1909, 1924 and 1926.

In 1909, the Idaho Daily Statesman published a photograph of a handwritten, elaborately lettered invitation/ticket the newspaper had received the day before from Warden John W. Snook, stating, “Admit Reporter Boise Statesman to the execution of Fred Seward, May 7th, at 8 o’clock a.m.” The warden signed his name at the bottom with a flourish.

The only state execution at which members of the Idaho news media weren’t present was a hurry-up double hanging in the middle of the night in 1951, when a frightened prison warden who feared inmate riots refused all requests from outside witnesses, had the gallows erected starting at 5 p.m. for the midnight execution, and had all traces of them removed by morning. At Idaho’s last hanging in 1957, several newspaper reporters were present but declined, at the final moment, to enter the observation room at the new indoor gallows.

Idaho has conducted two executions since 1957, both by lethal injection. At each of those, media witnesses were admitted to the execution chamber and documented what they saw.

Associated Press reporter Bob Fick was among the witnesses at the execution of Keith Eugene Wells in 1994. In a 2011 National Public Radio interview, he remembered the lethal injection procedure as “sterile and antiseptic,” in contrast to Wells’ crime, in which Wells beat his two victims to death with a baseball bat at a Boise bar.

In November of 2011, Idaho executed triple murderer Paul Ezra Rhoades. Four media witnesses attended and shared their observations with other reporters and the public. Idaho Press-Tribune reporter Nate Green said the procedure was “very quiet and somber.” He also reported that once Rhoades was dead, a friend of one of Rhoades’ victims muttered, “The devil has gone home.”


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