PASADENA, Calif. - A federal appeals court raised sharp questions Thursday about why Idaho’s not complying with its 2002 decision that the First Amendment requires witnesses to be able to view lethal injection executions from start to finish, including the insertion of IVs.
“California’s been doing it, Ohio’s been doing it, Arizona just announced today they’re going to do it,” 9th Circuit Judge Judge Marsha Berzon told Deputy Idaho Attorney General Mike Gilmore. “At least on a preliminary injunction basis, you have put nothing in the record to show that Idaho is different in this regard - that you haven’t done.”
Idaho, Washington and Montana are among four states in the circuit that have been closing off the early portion of their lethal-injection executions from public view despite the decade-old court ruling, but one of them, Arizona, changed its rules this week. There, media witnesses now will be able to view the insertion of the IVs via closed-circuit TV. Arizona’s next execution is scheduled for June 27.
The Associated Press and 16 other news outlets and organizations, including The Spokesman-Review, sued over Idaho’s rules after the state refused to change them, despite talks with the media that have gone on since before Idaho’s last execution in November. On Tuesday, U.S. District Judge Edward Lodge ruled that the media had a “strong case on the merits,” but declined to impose a preliminary injunction, saying there wasn’t sufficient time to change procedures before Idaho’s scheduled June 12 execution of Richard Leavitt.
The news groups appealed to the 9th Circuit, where a three-judge panel, which also included Chief Judge Alex Kozinski, a First Amendment expert and Ronald Reagan appointee, and Judge Stephen Reinhardt, a Jimmy Carter appointee who’s served on the court since 1979, heard arguments Thursday.
At the close of the arguments, the judges asked Gilmore if he’d like to call the warden and see if Idaho would like to change its procedures without an injunction, while the judges had their lunch and before they started writing their opinion. “Is there any point in you talking to the warden in the next hour and getting back to us?” Berzon asked. Kozinski added, “We’re going to be here in the building having lunch. We won’t get any opinion done, I would suspect, in the next two hours or so.”
By mid-afternoon, the court had posted that the arguments were complete in the case and it was under advisement.
Jeff Ray, Idaho Department of Corrections spokesman, said in an email late Thursday afternoon, “We have made no changes to the procedures. We are waiting for a ruling.”
Charles Brown of Lewiston, attorney for the news groups, said, “I felt that the jurists listened to our arguments and I felt good about how everything went, but we’re waiting for the decision.”
Gilmore said one of the concerns leveled by Idaho prison officials was that the identities of the five-member execution team might be made public if the execution is viewed by witnesses from start to finish. “They have a very keen interest in their anonymity,” Gilmore said.
The state also argued that allowing witnesses to see the early stages of the execution would violate the privacy of the condemned prisoner and the sensitivities of his friends and family, and that it could impact other Death Row inmates.
The news groups took issue with Lodge’s finding that Idaho’s procedures could stay as-is for the Leavitt execution and then be altered in the future without harm to the parties involved.
Brown argued this represented a “profound event.”
“The lower court is essentially finding that a First Amendment right can be violated today as long as it is possible for First Amendment rights to be reasserted at some date in the future. Such a finding flies in the face of what our constitutional rights are all about,” Brown said in court documents.
Berzon told Gilmore, “We have multiple cases saying denial of a First Amendment right for a period of time is irreparable harm.”
Staff writer Betsy Z. Russell contributed to this report, as did AP writers Greg Risling in Pasadena and Jessie L. Bonner in Boise.