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Crapo, Risch say judicial emergency declaration ‘appropriate,’ cite ‘urgency’

In response to my requests for comment, Idaho Sens. Mike Crapo and Jim Risch issued a five-paragraph statement today about the declaration of a “judicial emergency” in Idaho by the federal court system yesterday due to the lack of a replacement for U.S. District Judge Edward Lodge, who took senior status July 3, leaving Idaho with just one federal district judge. “This is an appropriate designation and all of us involved in the selection process are well aware of the urgency,” the two senators said. Here is their full statement: 

“In response to your inquiry: since Judge Lodge announced retirement we have aggressively pursued his replacement following the clear pathway set out in the constitution which mandates that the president shall nominate and appoint federal judgeships with the advice and consent of the Senate.  This is a three step process: the Senate advises, the President nominates and appoints, and the Senate consents or withholds its consent.  We take this clear constitutional mandate most seriously. 

We are well into the process which started early on when we met with White House counsel and developed understandings of each party’s goals in filling this important lifetime appointment.  All agreed the search would be to find the best person to serve Idaho who was acceptable to the three persons who must agree to the choice, namely the president and the two of us.  We would note that the initial meeting was cordial, respectful, cooperative and productive.  Those circumstances have only improved during our several meetings, discussions and negotiations as we have pursued our common goal of filling this important vacancy.  We want to stress that we have nothing but high praise for the people we are dealing with at the White House and we are confident that we will reach an appropriate conclusion.

Due to its importance all parties are taking the time necessary to reach the best conclusion.  Many people asked us to consider them and we have been doing so.  That type of vetting does take time.

With Judge Lodge’s move to senior status, Idaho joins 27 other federal judicial districts which have been declared by the Judicial Conference of US Courts to have a judicial emergency.  This is an appropriate designation and all of us involved in the selection process are well aware of the urgency.  This underscores what the current Idaho congressional delegation and several predecessor Idaho delegations have been pressing for years and that is a third U.S. District Judge for Idaho.  The caseload in Idaho per judge demonstrates such a need.  Due to the precarious financial condition of the country (2 billion dollars borrowed per day) Congress is not doing much in the way of expanding current programs and thus the difficulty of adding a third judge.

Thank you for your inquiry.  We will continue to pursue the process as quickly and efficiently as possible but with appropriated deliberation and circumspection to see that all applicants receive due consideration and the result is the best for Idaho.  When the process is complete we will of course advise publicly.”

Law prof: Delay in replacing federal judge not fair to Lodge, bad for system; says senators at fault

A law professor at the University of Richmond who watches federal judicial appointments says U.S. District Judge Edward Lodge gave plenty of notice that he planned to take senior status on July 3 – he announced it last Sept. 24. Carl Tobias, Williams Professor at the University of Richmond School of Law, said Idaho’s two GOP senators are at fault for taking so long to recommend possible replacements to the White House, resulting in today’s declaration of a judicial emergency in Idaho, which now has only one full-time federal district judge.

“Judge Lodge is really well respected and he gave them plenty of time, and they just frittered it away, they didn’t take advantage of it,” Tobias said. “If they’d moved quickly when he announced and formed a committee or whatever the vetting process was, we wouldn’t be where we are now. That’s the proper way to do it. Judge Lodge isn’t the one at fault. He gave plenty of notice.”

Idaho Sens. Mike Crapo and Jim Risch began interviewing potential nominees over the winter, and reportedly have just recently submitted four names to the White House for consideration, but they’re not commenting. They’ve said all along they planned a secret process in which only they would review the potential nominees.

“If they want to wait for 2017 for some Republican president to appoint, I think it’ll get ugly,” Tobias said. “I think at some point the Idaho Bar is going to get up on its hind legs and say, ‘This has got to stop.’ … It’s not fair to people who are litigating cases and companies that are litigating cases in federal court.” The civil docket will suffer the most, he said, because criminal cases take precedent.

Idaho has no senior district judges other than Lodge, because all of its past ones have died; the last one, Judge Harold Ryan, died in 1995. The only other alternative for handling the court’s caseload, Tobias said, is bringing in judges from other jurisdictions, which parties typically don’t like. “You’d rather have your own judges,” he said. “And you can’t run a court very long in that way.”

At this point, Tobias said, if the senators and the White House were to agree on a nominee, there still would be many months of delay ahead. “It takes three to five months after submission of a name to the White House for a name to come out, because you need the FBI check, you need the ABA evaluation,” along with other steps, he said. “The quickest I’ve seen that move is like maybe two months.” And the Senate’s August recess is looming. “The senators could move it,” he said. “They could work with the White House and get somebody people could agree on and then push the leadership in the Senate because of the extreme situation.”

“I think the pressure will really build with the emergency vacancy and the lawyers in the state not being able to get trial dates,” Tobias said. “It’s not good for the courts, it’s not good for the people who need to get their cases resolved, not good for the lawyers, not good for judges.”

Plus, he said, the situation is unfair to Lodge, 81. “It means he doesn’t get senior status,” Tobias said. “The whole point of senior status is to get a half-load and bring on new blood and help refresh the court. … He’s such a devoted public servant, I’m sure he’ll just bear up and continue to do it. But that’s just not fair to him or for the system, really.”

Federal courts declare ‘judicial emergency’ in Idaho due to lack of second district judge appointment

The nation’s federal courts have declared a “judicial emergency” in Idaho due to the vacancy in one of the state’s two U.S. district judge positions, created when U.S. District Judge Edward Lodge took senior status on July 3 – and no replacement has been named. It’s one of 28 judicial emergencies currently in effect across the nation; it was declared today by the Judicial Conference of the U.S. Courts. Because Idaho has only two federal district judges, Lodge’s move leaves it with just one, Chief Judge B. Lynn Winmill; you can read my full story here at spokesman.com.

Lodge hasn’t gone far since taking senior status – he’s now presiding over the six-week terrorism trial of Fazliddin Kurbanov, which began with jury selection yesterday in Boise and has opening arguments scheduled to start today. But his move to senior status suggests a decreasing caseload, shifting the burden to Winmill and visiting judges from other jurisdictions; Idaho currently has no other senior judges.

Idaho is one of just three states with only two U.S. district judges; it hasn’t gotten an additional judgeship in 60 years, though its caseloads have soared. Last fall, Idaho GOP Sens. Mike Crapo and Jim Risch announced they’d be screening potential candidates for Lodge’s seat to recommend to the White House for possible appointment. Their process has been entirely secret, and they’ve refused to comment on its status, though it’s been widely rumored in Idaho’s legal community that they’ve now submitted four names to the president for consideration. Boise Mayor Dave Bieter, who is among the state’s highest-ranking elected officials who is of the same party as President Barack Obama, has confirmed he’s submitted three names of his own to the White House. The White House press office, contacted last week, had no comment on the pending appointment.

Federal district judges are lifetime appointees; they are appointed by the president and confirmed by the Senate.

With Idaho now down to just one U.S. district judge, Bieter has submitted three names to White House, senators remain mum

Five days after U.S. District Judge Edward Lodge took senior status on July 3, there’s still no word on a possible replacement. But rumor has it that Idaho GOP Sens. Mike Crapo and Jim Risch have submitted four names for consideration to the White House, and separately, Boise Mayor Dave Bieter’s office confirms that Bieter has submitted three names for consideration.

The replacement judge will be nominated by the president and confirmed by the Senate. Crapo and Risch have been conducting a secret screening process for possible nominees to recommend, and have said little about it. Today, Lindsay Nothern, Crapo’s press secretary, said in an email, “The process is proceeding properly, but we are not at liberty to release details at this point.”

Bieter’s office had no comment beyond confirming that he had submitted three names; as the mayor of the state’s largest city, he’s among Idaho’s highest-ranking elected officials who is of the same party as the president, a Democrat, who will select the nominee.

The process is being closely watched in Idaho, in part because Idaho is one of just three states with only two full-time U.S. district judges; now, with Lodge’s retirement, it has just one, Chief U.S. District Judge B. Lynn Winmill. The state hasn’t gotten an additional judgeship in 60 years, though its caseloads have soared. Just last year, Crapo and Risch introduced legislation calling for a third judgeship for Idaho, but it hasn’t passed. At that time, Risch said, “It is unfair that Idaho is at such a great disadvantage compared to other states of our size. A third judgeship would help in the administration of efficient and effective justice in our state.”

Idaho also is the only state in the 9th Circuit that’s never had a woman U.S. district judge, and one of just two in the nation. When word spread around the state in April that Crapo and Risch had interviewed only four men for the post, the resulting outcry prompted the two to break their silence with a statement, in which they said, “Men and women, sitting judges and attorneys, are being interviewed. The process is ongoing.” They also repeated that they intend their process to be entirely confidential, and that the two senators, both attorneys, were reviewing the potential nominee recommendations personally.

An inquiry today to the White House press office hasn’t yet brought any response.

The last time Idaho got a new federal district judge, in 1995, then-Sens. Larry Craig and Dirk Kempthorne, both Republicans, convened a bipartisan commission, including five Democrats and four Republicans, to vet 38 candidates and make recommendations on a new federal judge. It included Idaho attorneys from both parties, a former U.S. Attorney for Idaho, and the chairs of the House and Senate judiciary committees. The three finalists were then-state 6th District Judge B. Lynn Winmill; Idaho Attorney General Larry EchoHawk; and U.S. Magistrate Judge Larry Boyle of Boise.

Winmill was the commission’s unanimous choice; he was nominated by then-President Bill Clinton and confirmed in late 1995 amid praise from both Craig and Kempthorne.

Open process to seek new Idaho Court of Appeals judge yields four finalists: Three women, one man

Here’s an interesting contrast: While Idaho Sens. Mike Crapo and Jim Risch pursue a secret process to name a recommended replacement for longtime U.S. District Judge Edward Lodge, who will take senior status July 3, a much different and more open process is under way to replace the retiring state Court of Appeals Judge Karen Lansing.

The Idaho Judicial Council issued a notice and call for applications to be received by March 4, and on March 10, published the names of 12 applicants on its website, including state district and magistrate judges, prosecutors, and attorneys from around the state, and solicited comments on the applicants from all members of Idaho’s state bar.

On May 19, 10 of those candidates were interviewed by the Judicial Council. And on May 20, four names were forwarded to Gov. Butch Otter: Dennis Benjamin, a Boise attorney; Molly J. Huskey, a 3rd District judge and former state appellate public defender; Christine M. Salmi, a Boise attorney; and Jayme B. Sullivan, a magistrate judge in Nampa.

Otter will select the new Court of Appeals judge from among those four finalists, who include three women and one man. Lansing, who is retiring June 30 after 22 years on the bench, is currently the only woman serving on either Idaho’s Court of Appeals or its Supreme Court. After her retirement, she will continue to serve the courts part-time as a senior judge.

I reported on April 27 on Risch and Crapo’s secret process for naming a replacement for Lodge; at the time, multiple sources said just four candidates had been interviewed, all of them men, though at least five prominent female Idaho attorneys had applied. Idaho is the only state in the federal 9th Circuit that has never had a woman judge on the U.S. District Court bench; it’s one of just two in the nation. After my article appeared, Risch and Crapo issued a statement saying that both “men and women” were being interviewed and that the process was “ongoing.” “We want a confidential process,” the two senators said in their statement. The word is that now at least two women have been interviewed, but I've received no confirmation of that as yet from the senators.

Crapo and Risch: ‘Men and women are being interviewed’ for fed judgeship

Sens. Mike Crapo and Jim Risch, who have repeatedly declined to comment on the secret selection process they now have under way for a successor to U.S. District Judge Edward Lodge, who is taking senior status on July 3, have just issued this statement:

 “Several news outlets have inquired about the selection of a U.S. District Judge for Idaho. We want a confidential process and applicants have also requested a confidential process.  Men and women, sitting judges and attorneys, are being interviewed. The process is ongoing. The White House will make the final selection with the Senate voting on confirmation of the nomination.”

The Spokesman-Review reported on Tuesday that while Crapo and Risch wouldn't comment, multiple sources say four finalists have been interviewed for the position - all men - while at least five prominent female Idaho attorneys, including the current U.S. Attorney for Idaho and a current U.S. magistrate judge - say they've applied but not been interviewed. Idaho is the only district in the 9th Circuit, and one of just two in the nation, with no female district judge. After the article appeared, I again requested information from Sen. Crapo's office about the selection process, including whether additional finalists have been interviewed, how many applications have been received, and why the senators chose a secret process, in contrast to Idaho's last federal judicial selection process in 1996. This is the first response I've received.

Idaho senators’ secret selection process for new federal judge raises questions, no women interviewed

Idaho is the only state in the 9th Circuit that’s never had a woman U.S. district judge, and members of Idaho’s legal community say a secretive selection process that Idaho Sens. Mike Crapo and Jim Risch have launched to find a replacement for U.S. District Judge Edward Lodge appears to be ignoring female candidates. “We are extremely concerned,” said Peg Dougherty, co-chair of the Judicial Recruitment Committee for Idaho Women Lawyers. Multiple sources say the two senators have interviewed just four candidates – all males. Lodge announced last September that he will take senior status on July 3.

“Are the senators even aware that Idaho is the only state without a woman on the federal court bench at the district level?” Dougherty asked. “If they are aware, do they care?” Neither Crapo nor Risch would comment. “The judgeship application process is entirely confidential and remains ongoing,” said Risch’s press secretary, Suzanne Wrasse. “The senators are working through their confidential process,” said Crapo’s press secretary, Lindsay Nothern. “That’s all I have.”

At least five prominent female Idaho attorneys, including at least one sitting judge and two high-ranking prosecutors, have applied for the position, but not been interviewed, or even heard back from the senators for months. You can read my full story here at spokesman.com.

Want to be a federal district judge? Senators looking for possible nominees

Idaho Sens. Mike Crapo and Jim Risch are asking people interested in becoming Idaho’s next federal district judge – replacing longtime U.S. District Judge Edward Lodge when he takes senior status next summer – to fill out a questionnaire and send it in to their offices. “We’ve had some interest,” said Lindsay Nothern, spokesman for Crapo.

President Barack Obama will name the next judge, and there's no guarantee he'll pick the Idaho GOP senators' nominee, but the Senate does confirm the choice and generally defers to the state's Senate delegation on the pick. Crapo's office says the ideal nominee would be someone "amenable to both parties." It's a lifetime appointment.

Lodge, Idaho’s longest serving judge ever, will take senior status on July 3, 2015; between his state and federal service, he’s been on the bench more than 50 years. Idaho hasn’t had a new federal district judge appointed since 1995, when current U.S. District Judge B. Lynn Winmill was named to the court. He succeeded the late U.S. District Judge Harold Ryan, who took senior status in 1992.

Typically, the highest-ranking member of Idaho’s congressional delegation who is of the same party as the president would play a key role in the nomination, but Idaho doesn’t have any Democrats in its delegation; Crapo and Risch both are Republicans. You can read my full story here at spokesman.com.

Judge Lodge to take senior status in July, Idaho to see first new federal district judge appointed in two decades

U.S. District Judge Edward Lodge will leave active service and take senior status on July 3, 2015, the courts announced today; that means the longtime judge will continue to hear cases, but his position will open and a new district judge will be appointed for Idaho. Lodge’s successor must be nominated by the president and confirmed by the Senate; you can read my full story here at spokesman.com.

Lodge has notified the president and Idaho’s congressional delegation of his intention to take senior status. He is the longest serving active district judge in the history of the Idaho district; between his state and federal judicial career, he has served on the bench for more than 50 years.

"It has been and continues to be an incredible privilege to serve on the same court with Judge Ed Lodge,” said Chief District Judge B. Lynn Winmill. “His judicial legacy is simply unmatched in Idaho's history.   His experience, his judicial temperament, his wisdom, and his thoughtfulness make him the standard by which all other judges must be measured.  Fortunately, Judge Lodge's decision to take senior status means that the District of Idaho will, for many years, continue to be blessed by his unmatched ability and skill as a jurist."

Senior status allows a judge to continue to serve, while reducing his or her caseload over time. Lodge will continue to maintain chambers and staff in Boise.

Idaho hasn’t had a new federal district judge appointed since 1995, when Winmill was named to the court. He succeeded the late U.S. District Judge Harold Ryan, who took senior status in 1992. Said Elizabeth “Libby” Smith, clerk of the court for the district, “This is pretty big news for Idaho.”

Senate panel introduces measure to honor Idaho’s longest-serving judge

Here's a news item from the Associated Press: BOISE, Idaho (AP) — Lawmakers aim to honor the longest-serving judge in Idaho history — and husband of one of their own — by recognizing his tenure. The Senate State Affairs Committee Friday introduced the measure to honor U.S. District Judge Edward Lodge for his more than 50 years on the bench, including as a probate court judge, a state district judge, a federal bankruptcy judge and as a U.S. district judge since 1989. Lodge, the spouse of Republican State Sen. Patti Ann Lodge, has overseen Idaho's biggest cases, from the Ruby Ridge standoff's aftermath to the death penalty case of Joseph Duncan, a convicted child killer. Judge Lodge wasn't in committee Friday, but his wife said with a chuckle she would support the resolution, even if she might be perceived as relatively conflicted.

Judge blocks portions of Boise panhandling ordinance on 1st Amendment grounds

Boise’s anti-panhandling ordinance, which was to take effect today, has been blocked in part by a federal judge. KBOI2 News reports that U.S. District Judge Edward Lodge cited the First Amendment in his 17-page ruling today. “Freedom of speech may be the most important right to protect in order to maintain our republic," he wrote. "The Court is mindful that citizens asking or even begging other citizens for money can make the person being asked feel uncomfortable and imposed upon. But in public places, all citizens must tolerate speech they don't agree with, find to be a nuisance, insulting or outrageous.”

He also wrote, “Certainly, the First Amendment can lead to public inconvenience and annoyance, but such is a minor price to pay when the non-aggressive solicitations at issue can easily be ignored or avoided. The public's interest in restricting a person from asking for money in a non-aggressive manner does not outweigh a person's right to make a request for a charitable contribution."

You can see KBOI2’s full report here. It includes a response from the city of Boise; city officials said they were pleased that the court didn’t strike down portions of the ordinance banning aggressive solicitation and solicitation in the roadway.

Lodge rules Duncan was competent, his death sentence appeal was waived

A federal judge has cleared the way for Joseph Duncan’s execution for the 2005 kidnapping, torture and murder of a 9-year-old North Idaho boy, ruling that Duncan was mentally competent when he gave up the right to appeal his death sentence. U.S. District Judge Edward Lodge issued the ruling today, following a six-week competency hearing Lodge presided over in January and February of this year.

There still could be further appeals, but Lodge’s 66-page ruling was a key step toward Duncan’s execution. The Idaho judge ruled that Duncan is “deemed competent to waive his right to appeal in this matter.”

U.S. Attorney for Idaho Wendy Olson said, “The United States is pleased with this careful, considered decision.” Duncan’s murderous attack on a North Idaho family at their home in 2005 left three other family members dead; only 9-year-old Dylan’s then-8-year-old sister, Shasta, survived the ordeal. You can read my full story here at spokesman.com.

Edward Lodge: On the job 50 years

 BOISE – From the Ruby Ridge standoff to tribal ownership of Lake Coeur d’Alene, from Claude Dallas to Sami al-Hussayen, from mining damage in the Coeur d’Alene Basin to the death penalty trial of child-killer Joseph Duncan, one judge presided.

That judge, U.S. District Judge Edward Lodge, is now the longest-serving judge in Idaho history, marking 50 years on the bench, a milestone few judges achieve. More here. Betsy Russell, SR

Do you plan to stay on the job for 50 years?

Judge Lodge marks 50 years on the bench

From the Ruby Ridge standoff to tribal ownership of Lake Coeur d’Alene, from Claude Dallas to Sami al-Hussayen, from mining damage in the Coeur d’Alene Basin to the death penalty trial of child-killer Joseph Duncan, one judge presided. That judge, U.S. District Judge Edward Lodge, is now the longest-serving judge in Idaho history, marking 50 years on the bench, a milestone few judges achieve. “He has been so involved in the judicial fabric of the state of Idaho, both on the federal court and the state court,” said Idaho Supreme Court Justice Jim Jones. “He sets a high standard for all the rest of us.”

Lodge, 79, was the Idaho’s youngest state district judge when he was appointed in 1965; he’d already served two years as a probate court judge, but was just four years out of law school at the University of Idaho. He became a federal bankruptcy judge in 1988, and a U.S. district judge in 1989. Over his career, he’s said to have presided over more murder trials than any other judge in Idaho. He’s the only judge in the state to preside over two of those at once – in a 1983 case in which Lodge juggled two juries in the courtroom at once, as he tried two co-defendants for raping and murdering a 13-year-old girl. And his landmark ruling that the Coeur d’Alene Tribe owned the southern third of Lake Coeur d’Alene was upheld by the U.S. Supreme Court.

“It has been a great learning experience and an opportunity to deal with issues and problems that you would never be confronted with in any other occupation,” Lodge said. “There is a lot of satisfaction in working out problems and deciding issues that others have not been able to solve.” The U.S. District Court and the Bar will host a celebration marking Lodge’s 50 years on the bench on July 31 at 3 p.m.; you can read my full story here from Sunday's Spokesman-Review.

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.

Racist in murder spree has Idaho ties

California Highway Patrol Officer Duane Nokes takes David Joseph Pedersen into custody following a traffic stop on Marysville Road and Gettys Court near Yuba City, Calif. on Wednesday. (AP Photo/Appeal Democrat, David Bitton)

A white supremacist suspected of murdering two people in Washington and Oregon was convicted of threatening to kill an Idaho-based federal judge in 2001.

David Joseph Pedersen, 31, was sentenced to two years in prison in December 2001 after pleading guilty to mailing threatening communications and threatening to assault and murder U.S District Judge Edward Lodge and mailing threatening communications.

The case was prosecuted in Ada County. Retired Spokesman-Review reporter Bill Morlin has more at the Southern Poverty Law Center's Hatewatch blog.

According to the Associated Press, the paths of a teenager who called his mother daily and Pedersen and his girlfriend, who were fleeing a murder scene in Washington state, crossed in Western Oregon's Willamette Valley less than a week ago.

The teenager who had thoughts of joining the ministry was found dead, the victim of "homicidal violence." The two people who commandeered his car — subjects of a manhunt in the death of a Washington state woman and disappearance of her husband — threw up their hands in surrender to police on Wednesday.

An Oregon sheriff called their weeklong road trip by down the West Coast "a vicious, vile reign of terror." After days of searching on land and air, a California Highway Patrol trooper with a lingering doubt about the white sedan with Oregon plates arrested Pedersen and his girlfriend, Holly Grigsby (pictured right).

Someone stumbled on the teenager, 19-year-old Cody Myers, in the woods in western Oregon on Tuesday. Relatives and friends say he was studious, religious and caring.
  "Cody was devoted to his family. He would've done anything for anybody to help anybody," said Myers' mother, Susan Myers. "He had passion for life, for God, for his beliefs. He didn't deserve this."

Exactly what took place in the woods west of Corvallis, Ore., and outside Philomath near Mary's Peak is unclear. Police know that Grigsby and Pedersen were spotted by a camera at a convenience store on Sunday, where they used a stolen credit card.

The card belonged to Pedersen's stepmother, Leslie Pedersen. She was found dead on Sept. 28. His father, David Jones Pedersen, is still missing.

A martial-arts expert with a prominent white-supremacy tattoo on his neck, Pedersen spent the ages of 16 to 31 in one form of incarceration or another, save for a one-year stretch in the mid-2000s.

Even while in prison, Pedersen couldn't avoid trouble. Major disciplinary infractions included assault, extortion, disobedience, harassment and destruction of property.

Grigsby, whose white supremacist leanings were made clear to her fellow inmates at Coffee Creek Correctional Facility, also found herself in trouble in prison, getting written up for assault and possession of contraband.

Sought in the slayings of Pedersen's stepmother, they went south, to Oregon. Pedersen's father's Jeep went missing with them, and police assume it has been abandoned somewhere in Oregon.

Grigsby was dating Pedersen, but is married to Dannel Larson of Portland, Ore. He told The Associated Press his wife is simply gullible, the victim of a person capable of manipulating her into doing things she never would otherwise

"That man," Larson said, "took her on a road straight to hell."

They somehow came into contact with Myers, who worked two summers for a relative's construction company, said the company's owner, Mike Klein. When the crews would go on the road, Myers (pictured) would call his mother at least once a day.

Myers' parents, brother and sister and other relatives were at a Wednesday night press conference in Salem where police confirmed the body that had been found was the missing teen's.

Myers' mother, Susan, cried at times. Her daughter, Brittany Klein, handed her tissues.

Details remain unclear. Pedersen and Grigsby have been named "persons of interest." They were found with handguns and rifles, all of them loaded, but police have not said how Myers died.

Pedersen and Grigsby come from a world inhabited by convicts, violence and white supremacists.

Grigsby's father, Fred Grigsby of Portland, said his daughter had been involved with white supremacists, and also had battled drug addiction.

"She went to treatment. I thought she got her life together," he told The Associated Press.

Grigsby spent time in prison for a variety of charges beginning in 2006, including identity theft and unauthorized use of a vehicle. After completing probation, she was again sentenced in 2008 on identity theft charges and served two years.

Her boyfriend, Pederson, has a white supremacist tattoo on his neck and convictions dating back to 1997. He was first convicted of robbery at age 16 in Marion County, Ore. and has a spent a total of 13 years in prison for felony offenses that include assault and robbery and sending a letter threatening to kill Judge Lodge.

Pederson was released from prison this past May. His time free of bars and handcuffs lasted 134 days.

On Wednesday afternoon, California Highway Patrol Officer Terry Uhrich was on a routine patrol in rural Yuba County. He spotted a woman standing next to a parked vehicle, three of its doors open. A man was inside the car.

"I pulled up to the side of them, just thinking they were needing assistance or something like that. I asked the female if they were all right. She said they were fine, she was stretching," Uhrich told The AP. "It kind of hit me that dispatch had put out a BOL about an hour and a half before — be on lookout for a stolen vehicle out of Oregon and it had a male and female out of it."

He ran the license number and confirmed it was Cody Myers' vehicle, then began following the couple as they drove slowly down the road. After about two miles, they turned into a side road leading to a church, and Uhrich followed them.

Uhrich turned on his patrol car lights, got out and, using his door as a shield, drew his sidearm and ordered them to turn off the engine. They complied, keeping their hands where he could see them. They occasionally leaned over and kissed.

Other officers arrived within minutes and arrested the couple, finding a rifle and two handguns inside the stolen car. The handguns were within reach of the suspects.

They were taken to a Yuba City police department holding cell to await interviews by the Oregon State Police and Everett, Wash., police.

Uhrich said they acted tranquil, "like they knew it kind of was over."

Uhrich drove Grigsby in the back of his patrol car, while Pederson was taken in a separate car.

Along the way, said Uhrich, Grigsby sang along to a song on the radio — "not a worry in the world."