BOISE, Idaho – A federal judge on Tuesday denied a petition from The Associated Press and 16 other news groups that want a court to strike down Idaho's policy restricting full access to executions.
The news organizations filed a lawsuit last month over the portion of Idaho's policy that prevents witnesses from viewing lethal injections from start to finish.
The legal challenge came less than three weeks before the June 12 execution of Richard Leavitt, though the media had raised concerns over the policy with the Idaho Department of Correction after the execution of Paul Ezra Rhoades in November.
In his 20-page ruling, U.S. District Judge Edward J. Lodge denied a request for a preliminary injunction that might have required changes before Leavitt's execution. Lodge took issue with the timing of the injunction request filed May 24, saying there was no excuse for the news organizations waiting so soon before Leavitt is scheduled to die for the 1984 murder of Blackfoot resident Danette Elg.
"The claim was brought very late, and if granted, it would undoubtedly change the execution protocol and could disrupt the scheduled execution," Lodge said. "The public has an interest in viewing the whole execution process, but it also has an interest in seeing the judgment enforced without disruption."
The news organizations will appeal to the 9th U.S. Circuit Court of Appeals, said their attorney, Chuck Brown.
An Idaho Department of Corrections spokesman said the agency has no comment on the case.
Prison officials defended their policy in court documents filed late last week. They say keeping the curtain closed on the first few steps is essential to protecting the anonymity of execution team members. Under the current protocol, a small group of witnesses, including members of news organizations who act as representatives of the public, do not see, for instance, the insertion of the intravenous catheters that deliver the fatal drug mixture.
Lodge found that the news organizations' arguments are strong, but he said they had a higher hurdle given the timing issue.
The judge said he was "very concerned" that to the extent the news organizations could establish that the execution policy needs to be changed to protect the First Amendment rights of the public, there was simply not enough time for the Correction Department to make changes without a delay in Leavitt's execution.
"Plaintiffs ignore how heavily courts have emphasized the need for challenges related to executions to be brought in a timely manner, so as not to delay the scheduled execution," Lodge said. "Here, there is a high likelihood that opening the entire execution to the public will delay the execution."
The legal issues being raised by the case are significant and warrant a full evidentiary hearing, Lodge said. But until the matter can be fully litigated, the judge found that Idaho's execution protocol should remain unchanged.
"There will most likely be other executions in the future and if Plaintiffs are successful after a full evidentiary hearing, the protocol can be changed without any harm to Plaintiffs, the public or Defendants," Lodge said.
The San Francisco-based 9th Circuit ruled in 2002 that every aspect of an execution should be open to witnesses, from the moment the condemned enters the death chamber to his or her final heartbeat.
The ruling 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 and an Associated Press review.
Idaho, Arizona, Washington and Montana have conducted 14 lethal injections since the ruling, and half of each procedure has been behind closed doors.