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Judge denies injunction in execution case

Media plaintiffs appeal decision

BOISE – 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.”