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Media wins execution access case, state pays attorney fees and costs

The state of Idaho and a group of Idaho news media have agreed that all Idaho executions should be open to media witnesses from start to finish, ending a lawsuit brought by the media, and the state has paid the news media's attorney fees and costs of more than $29,000 for the suit. Both sides in the lawsuit today filed a stipulation in federal court declaring that the 9th Circuit U.S. Court of Appeals ruling in the case settles the issues raised, and should be the practice for all future Idaho executions; the appellate court sided with the media.

The stipulation, submitted today to U.S. District Judge Edward Lodge, says witnesses to executions in Idaho will “observe the entire execution from the moment the inmate enters the execution chamber through, to and including, the time the inmate is declared dead.” The two sides also agreed that the state should pay the news media's attorney fees and costs for the case, which came to $29,297; that has now been paid.

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. You can read my full story here at spokesman.com.

State: Execution will be Tues. as scheduled, with the court-required access changes in place

The Idaho Department of Corrections has announced that the execution of Richard Leavitt will go forward as scheduled on Tuesday, with full witness access as required tonight by the 9th Circuit U.S. Court of Appeals. Jeff Ray, department spokesman, 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.” You can read my full story here at spokesman.com.

9th Circuit sides with news media, orders Idaho executions opened up

The 9th Circuit U.S. Court of Appeals has sided with the news media, 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. “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.” You can read the court's 13-page decision here, and read my full story here at spokesman.com.

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.
  

Idaho hasn’t changed execution procedures yet; court decision awaited

The 9th Circuit U.S. Court of Appeals has posted the audio online of this morning's oral arguments on media access to Idaho executions; you can listen here. During the arguments, all three members of the 9th Circuit panel - Chief Judge Alex Kozinski, Judge Marsha Berzon, and Judge Stephen Reinhardt - expressed strong concerns about the state's position in the case, which is that witnesses, including the media, should be excluded from the earlier portion of the lethal injection procedure, including the insertion of IVs to administer the lethal drugs. That specifically contradicts a 2002 9th Circuit case that found that the public has a First Amendment right to see the full execution, including those early stages. Four states in the circuit, including Idaho and Washington, haven't been complying with that ruling, but Arizona has just changed its procedure, allowing witnesses to view the early portion via closed-circuit TV. You can read our full story here at spokesman.com.

“California's been doing it, Ohio's been doing it, Arizona just announced today they're going to do it,” 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.” The state is arguing 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; that it could impact other Death Row inmates; and that it could identify or stress members of the masked execution team, possibly causing them not to want to participate.

The judges also raised questions about the news media's request for a preliminary injunction being rejected on the basis of timeliness, because Richard Leavitt's execution is coming up June 12. They suggested that the upcoming execution, instead, could make the issue “ripe” for decision. When they questioned whether Idaho would have to change its formal protocol for executions in order to draw open the curtain between witnesses and the execution chamber earlier in the process, Gilmore told them, “You would have to change the procedure, but not the protocol.”

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. Within a couple of hours, the court had posted that the arguments are complete in the case and it's under advisement.

Jeff Ray, Idaho Department of Corrections spokesman, said in an email, “We have made no changes to the procedures. We are waiting for a ruling.” He was unable to confirm whether or not Gilmore spoke with the warden today. Gilmore told the Associated Press after the arguments that he would try to reach the warden to see if a policy change could be made in time for next week's execution of Leavitt for the 1984 murder of Blackfoot resident Danette Elg.

Charles Brown of Lewiston, attorney for more than a dozen news media outlets and organizations, led by the Associated Press, that brought the lawsuit, 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.”

9th Circuit asks why Idaho shouldn’t comply with execution access rules, like other states

There was no ruling from the bench, but the 9th Circuit Court of Appeals has asked Idaho officials to see if they can change the state's execution access rules in time for the June 12 execution of Richard Leavitt, to allow the full procedure, including the insertion of IV's, to be viewed by witnesses. During oral arguments this morning in Pasadena, Calif., Judge Marsha Berzon questioned why Idaho should be an exception when other states have decided that entire executions can be seen by the public. “California has been doing it. Ohio has been doing it. Arizona just announced they are going to do it,” Berzon said. “You haven't put anything in the record that Idaho is different in this regard. That you haven't done.”

The news organizations also took issue with Lodge's finding that the lethal injection protocol could be altered in the future without harm to the parties involved. Charles Brown of Lewiston, attorney for the news media, 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. Click below for a full report from AP reporters Greg Risling and Jessie Bonner.

9th Circuit asks if Idaho can make execution access changes in time for June 12 execution

PASADENA, Calif. (AP) ― A federal appeals court in California has asked Idaho prosecutors to inquire whether a prison warden would allow full viewing access to an upcoming execution in a case filed by The Associated Press and 16 other news organizations. The 9th U.S. Circuit Court of Appeals heard arguments Thursday in a lawsuit that seeks to strike a portion of Idaho's regulations preventing witnesses from watching executions until after catheters have been inserted into the veins of death row inmates. Idaho Deputy Attorney General Michael Gilmore says he will try to reach the warden to see if a policy change could be made in time for next week's execution of Richard Leavitt, who was convicted of a 1984 murder. The three-judge panel noted it has already ruled in a California case that every aspect of an execution should be open to witnesses.

News media court case on execution procedures: ‘It’s an access issue’

Here's a link to my full story at spokesman.com on today's developments in the media access execution case, in which a federal judge declined 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; the news media are appealing the ruling.

“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. Leavitt on Tuesday lost a bid in the Idaho Supreme Court to quash his death warrant on due-process grounds; it was the fourth attempt to stay his execution that he's lost in the past week.

“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, one of more than a dozen Idaho media outlets and news groups pressing the lawsuit.  “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.”

News media file notice of appeal over Idaho execution access limits

Idaho's news media, led by the Associated Press, have filed a notice of appeal to the 9th Circuit U.S. Court of Appeals of a federal judge's decision today against issuing a preliminary injunction over constitutional problems with Idaho's execution procedure. The 9th Circuit will hear arguments on Thursday. U.S. District Judge Edward Lodge today ruled that the case is strong on the merits, but just poorly timed, coming so close to the scheduled June 12 execution of Richard Leavitt. Lodge, while ruling against the injunction, said he'd like to hold full evidentiary hearings in the case, which questions restrictions that block witnesses from seeing the early portion of the lethal injection process, including the insertion of IVs. A 2002 9th Circuit case ruled that such restrictions violate the First Amendment.

Judge rejects news groups’ injunction bid based on timing, says case has merit

U.S. District Judge Edward Lodge has issued his ruling in the Idaho news media's bid for a preliminary injunction regarding limits on witness access to the state's execution procedures, finding that while the news media has presented “a strong claims on the merits,” it's just too close to the June 12 execution of Richard Leavitt for him to justify issuing a preliminary injunction. Instead, Lodge said he'd like to hold full evidentiary hearings in the case, with any subsequent ruling to apply to future executions - but not to the upcoming one. An appeal of the ruling to the 9th Circuit U.S. Court of Appeals still is possible; the 9th Circuit has scheduled time for oral arguments in the case for Thursday, should either side appeal.

Numerous Idaho news media outlets and organizations, led by the Associated Press, filed suit over Idaho's execution procedures charging that they violate the First Amendment to the U.S. Constitution, because they bar witness access to 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, California First Amendment Coalition v. Woodford. “The public enjoys a First Amendment right to view executions from the moment the condemned is escorted into the execution chamber, including those ‘initial procedures’ that are inextricably intertwined with the process of putting the condemned inmate to death,” the 9th Circuit court found in that case.

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 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. “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 nonsuccessful litigant to the Ninth Circuit before the scheduled execution date.”

The judge also wrote, “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. 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.”

News media have witnessed all but one Idaho state execution since 1901

As Idaho's news media spar with the state in federal court over limits on access to executions, the case has turned a spotlight onto Idaho's long and consistent history of media witnesses attending its state executions to serve as the eyes and ears of the public. In fact, 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, which bar witnesses 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, another Idaho execution is scheduled: Richard Leavitt is scheduled to die by lethal injection on June 12. You can read my full story here at spokesman.com.