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9th Circuit sides with AP, other news organizations in Idaho execution access case
BOISE, Idaho (AP) ' A federal appeals court sided with The Associated Press and 16 other news organizations Friday in ruling that witnesses should have full viewing access to Idaho's upcoming execution.
The 9th U.S. Circuit Court of Appeals issued the decision a day after hearing arguments in a lawsuit from the news groups seeking to change Idaho's protocol, saying it's unconstitutionally restrictive.
The case aims 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.
The lawsuit comes as lethal injections have drawn greater scrutiny, from whether the drugs are effective to whether the execution personnel are properly trained.
It's unclear how the ruling will affect the scheduled execution next week of Idaho death row inmate Richard Leavitt.
A federal judge Tuesday denied a request from the news groups seeking to prevent Leavitt's execution without the changes. The news organizations appealed that ruling.
The 9th Circuit, during arguments Thursday, noted that 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.
"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."
"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.
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 court asked Idaho prosecutors to inquire whether the prison warden would allow full viewing access to the execution.
Idaho Deputy Attorney General Michael Gilmore said outside of court that he would try to reach the warden to see whether a policy change could be made in time for next Tuesday's execution of Leavitt, who was convicted of the 1984 murder of Blackfoot resident Danette Elg.