The 9th Circuit U.S. Court of Appeals sided with the news media late Friday, ordering a preliminary injunction to require Idaho to permit full viewing of the upcoming execution of Richard Leavitt, including early stages in which IVs are inserted to allow lethal drugs to be administered.
The execution is scheduled for Tuesday.
“The State of Idaho has had ample opportunity for the past decade to adopt an execution procedure that reflects this settled law,” the appellate court wrote, reversing U.S. District Judge Edward Lodge’s rejection of a preliminary injunction. “We fault the State, not the media plaintiffs, for our need to consider this question several days before an execution: the State has missed opportunity after opportunity to bring its execution procedures into compliance with the clear law of this circuit.”
The lawsuit was brought by 16 Idaho news outlets and organizations, led by the Associated Press, and also including the Idaho Press Club and The Spokesman-Review. The media groups charged that the state’s execution witness access rules, which prohibited witnesses, including the news media, from seeing the early portions of lethal injection executions, directly violated a 2002 9th Circuit decision. The court agreed.
“We reverse the district court’s denial of a preliminary injunction and remand for the entry of an order requiring the State to allow witnesses to observe Leavitt’s entire execution, ‘from the moment he enters the execution chamber through, to and including, the time he is declared dead,” the appellate court wrote, quoting from its 2002 decision, California First Amendment Coalition v. Woodford.
The three-judge panel, in a unanimous opinion authored by Judge Stephen Reinhardt, found no validity to the state’s claims that an order to pull back the curtain between witnesses and the execution chamber approximately 20 minutes earlier in the process would force delays in the scheduled execution. Instead, the court said only “minimal changes” would be required.
“The First Amendment protects the right to witness executions in their entirety,” the appellate court wrote.
Jeff Ray, spokesman for the Idaho Department of Corrections, said, “We’ll take the necessary measures to ensure that the execution continues as scheduled. We’re still looking it over and figuring out the specifics, but we will do what the court says we need to do, and the execution will continue on Tuesday.”
Charles Brown, the Lewiston, Idaho attorney who represented the news groups in the case, said, “I’m very pleased with not only the results, but their findings throughout the opinion.”
The judges sharply questioned Lodge’s conclusion that the news media wouldn’t be harmed by missing out on early stages of this execution while its case proceeded in court with regard to future ones. “To say that the plaintiffs will not suffer harm because they will be able to witness part of Leavitt’s execution is like saying that the public would not suffer harm were it allowed to read only a portion of the New York Times,” the court wrote. “That the plaintiffs may be able to observe future executions in Idaho does not mean that they are unharmed by the denial of their right to observe this execution. These legal errors constituted an abuse of the district court’s discretion.”
News media groups requested the department to remove the limits on witness access before Idaho’s last execution, the November 2011 execution of Paul Ezra Rhoades. The department promised instead to review its procedures after that execution was completed, but then later refused to change them.
The news groups sued on May 22.
Idaho was among four states in the 9th Circuit that hadn’t been complying with the 2002 decision; the others were Washington, Montana and Arizona, but Arizona announced this week that it was changing its procedures to allow witnesses to view the insertion of IVs via closed-circuit TV.
Idaho defended its procedures, citing four reasons: That opening up the earlier stages to witnesses would violate the privacy of the condemned inmate; that it would offend the sensibilities of his family and friends; that it would impact other Death Row inmates; and that it could lead to identifying or stressing the masked members of the execution team who insert the IV lines and escort the condemned prisoner into the chamber.
Wrote the court, “The State of Idaho already offends the dignity of condemned inmates and the sensibilities of their families and fellow inmates by allowing strangers to watch as they are put to death. It strains credulity for the State to assert that these interests will be offended to a meaningfully greater degree when witnesses are permitted to watch the insertion of intravenous lines than when they are simply allowed to watch the inmates die.”
The concern about anonymity of the execution team was “more substantial,” the court wrote, but it was dealt with in the 2002 decision, which held that surgical garb and masks adequately shield team members’ identities.
Leavitt received the death penalty for the 1984 murder and mutilation of Danette Elg of Blackfoot.