BOISE, Idaho (AP) — A legal challenge seeking full viewing access to Idaho executions will go before a federal appeals court Thursday, with The Associated Press and 16 other news organizations saying the process is unconstitutionally restrictive.
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 filed a federal lawsuit last month seeking to strike the portion of Idaho's regulations that prevent witnesses — including reporters acting as representatives of the public — from viewing executions until after catheters have been inserted into the veins of death row inmates.
The news organizations also asked a judge to prevent next week's execution of Richard Leavitt from moving forward without the changes, but a federal judge denied that request 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 news organizations now are want the 9th Circuit Court of Appeals to reverse Lodge's decision. The hearing is set for Thursday morning in Pasadena, Calif.
The hearing comes five days ahead of Leavitt's scheduled execution. He was convicted of murder in the 1984 killing of Blackfoot resident Danette Elg.
In a brief filed in support their appeal, the news organizations argue the reasons given by the Idaho Department of Correction for closing a portion of the execution process do not pass constitutional muster.
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.
Chuck Brown, an attorney for the news organizations, 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."
The news organizations have cited a 9th Circuit ruling in a 2002 California case that found every aspect of an execution should be open to witnesses, from the moment the condemned enters the death chamber to the final heartbeat. The ruling established what was expected of the nine Western states within the court's jurisdiction.
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.
Deputy Attorney General Michael S. Gilmore, on behalf of state officials, has asked the 9th Circuit to affirm Lodge's ruling.
Gilmore said in court documents that the lower court reviewed the case "under applicable procedural and substantive law. It engaged in a reasoned, record-based analysis that weighed competing factors for and against a preliminary injunction in a measured, articulate manner."