[Vision2020] Court sides with AP, news groups over execution

[Saundra Lund]

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Court sides with AP, news groups over execution
By JESSIE L. BONNER, Associated Press - 8 hours ago  

BOISE, Idaho (AP) - Prison officials say they'll work to carry out an
execution next week as scheduled, after an appeals court sided with The
Associated Press and other news organizations in ruling that witnesses
should have full viewing access to a convicted killer's lethal injection.

The 9th U.S. Circuit Court of Appeals issued the decision Friday, a day
after hearing arguments in a lawsuit from the 17 news organizations seeking
to change Idaho's protocol, saying it's unconstitutionally restrictive.

The case aimed to strike down a portion of Idaho's regulations that prevent
witnesses - including reporters acting as representatives of the public -
from watching executions until after catheters have been inserted into the
veins of death row inmates.

"Nearly a decade ago, we held in the clearest possible terms that 'the
public enjoys a First Amendment right to view executions from the moment the
condemned is escorted into the execution chamber," the judges said in their
ruling Friday. "The State of Idaho has had ample opportunity for the past
decade to adopt an execution procedure that reflects this settled law."

It's unclear how the ruling will affect the scheduled execution next week of
Idaho death row inmate Richard Leavitt, who was convicted of the 1984 murder
of a Blackfoot woman.

"We, of course, respect the court's decision. We will take the necessary
measures to assure that the execution continues as scheduled," said Idaho
Department of Correction spokesman Jeff Ray.

The lawsuit comes as lethal injections have drawn greater scrutiny, from
whether the drugs are effective to whether the execution personnel are
properly trained.

The news groups launched their appeal after a federal judge Tuesday denied
their request seeking to prevent Leavitt's execution without the changes.

The appellate judges, during arguments Thursday, noted that the 9th Circuit
had already ruled in a 2002 California case that every aspect of an
execution should be open to witnesses, from the moment the condemned enters
the death chamber to the final heartbeat.

The decade-old decision established what was expected of the nine Western
states within the court's jurisdiction. A decade later, four of the states
have kept part of each execution away from public view, according to death
penalty experts.

Idaho, Arizona, Washington and Montana have conducted 14 lethal injections
since the 9th Circuit ruling in 2002, and half of each procedure has been
behind closed doors.

Chuck Brown, an attorney for the news organizations, predicted that the 9th
Circuit ruling over Idaho's execution process will prompt those remaining
states to change their policies to allow for a full viewing of the execution
process.

"That's exactly what will happen," said Brown, who added that the ruling
clears up any uncertainty about the intent of the 9th Circuit's 2002
decision. "It clears up any doubt."

While U.S. District Judge Edward J. Lodge took issue with the timing of the
May 24 request from the news groups, saying it was too close to Leavitt's
execution, the 9th Circuit disagreed, saying the state was at fault. The
appellate judges noted that media representatives had asked prison officials
to alter the execution procedure before November 2011 execution of Paul
Rhoades.

The news organizations filed their case after talks were unsuccessful with
prison officials, who took the position that the 2002 ruling was based on
facts unique to California, Brown said, citing letters from Idaho correction
director Brent Reinke.

"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 ruling also said.

During arguments on Thursday, 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."