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 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 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.
By midafternoon, the court had posted that the arguments were complete in the case and it was under advisement. Jeff Ray, Idaho Department of Correction 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.