By GREG RISLING and JESSIE L. BONNER, Associated Press
PASADENA, Calif. (AP) — A federal appeals court asked Idaho prosecutors on Thursday 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 outlets.
The 9th U.S. Circuit Court of Appeals heard arguments in a lawsuit that seeks to strike 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.
No ruling was issued, but the three-judge panel noted the federal court 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.
The news organizations filed their case last month after talks were unsuccessful with prison officials, who took the position that the 2002 ruling was based on facts unique to California, said Chuck Brown, an attorney for the news organizations, who cited letters from Idaho correction director Brent Reinke.
Outside of court, Idaho Deputy Attorney General Michael Gilmore said 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 the 1984 murder of Blackfoot resident Danette Elg.
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 organizations also asked a federal judge in Idaho to prevent Leavitt's execution from moving forward without the changes, but that request was denied Tuesday.
In his decision, U.S. District Judge Edward J. Lodge said that while the news organizations had presented a strong case in arguing that the execution limits run afoul of freedom of the press provisions, the timing of the claim fell too close to Leavitt's execution date and could cause a delay.
Lodge didn't rule on the merits of the lawsuit, only denying the request for a preliminary injunction.
The media outlets want the 9th Circuit to reverse Lodge's decision, arguing the process is unconstitutionally restrictive.
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.
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.
Brown 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.
Additionally, the news organizations targeted Lodge's finding that their claim was filed too late and if granted could force a delay in Leavitt's execution. The public has an interest in viewing the whole execution process, Lodge said, but it also has an interest in seeing the judgment enforced without disruption.
"Perhaps the department would need to reschedule the execution of Mr. Leavitt for a later date," Brown said.
He added, "perhaps the department could simply draw open the curtains on the preparatory stage and proceed as scheduled with only minor adjustments."
Also Thursday, the Federal Public Defender's Office in Phoenix withdrew its own petition the day after filing it to the 9th Circuit over the same issue in Arizona.