Arizona Must Keep Execution Chamber Mics Hot, Ninth Circuit Rules

(AP Photo/Ted S. Warren, File)

(CN) – The Ninth Circuit ruled Tuesday that the Arizona Department of Corrections’ policy of turning off an execution chamber microphone during lethal injection goes against the public’s right of access to government proceedings.

The opinion reverses in part a decision by U.S. District Judge Neil Wake, who previously dismissed claims brought by seven death-row inmates claiming a lack of transparency in Arizona’s execution process.

U.S. Circuit Judge Paul Watford, on behalf of the majority, cited concerns with the Department of Corrections’ “shroud of secrecy” and its past issues of changing lethal-injection protocols at the last minute before issuing its ruling.

“We conclude that the First Amendment right of access to governmental proceedings encompasses a right to hear the sounds of executions in their entirety,” wrote Watford, an Obama appointee. “We also conclude that on the facts alleged, Arizona’s restrictions on press and public access to the sounds of executions impermissibly burden that right.”

The court found that public viewing of executions plays an important part in the function of capital punishment.

“Execution witnesses need to be able to observe and report on the entire process so that the public can determine whether lethal injections are fairly and humanely administered,” Watford said. “Barring witnesses from hearing sounds after the insertion of intravenous lines means that the public will not have full information regarding the administration of lethal-injection drugs and the prisoner’s experience as he dies.”

In 2014, Arizona used a combination of the sedative midazolam and the painkiller hydromorphone to execute convicted double-murderer Joseph Wood. According to witnesses, Wood was strapped to a gurney for almost two hours, snorting and gasping for air before his eventual death.

Wood was a plaintiff in the underlying lawsuit.

The inmates, who were later joined in their challenge by the First Amendment Coalition, had also challenged the Department of Corrections’ failure to disclosure the quality of lethal-injection drugs and the qualifications of the execution team members.

The court sided with Judge Wake on that point, finding that public and media access to information about lethal-injection drugs is not encompassed by the First Amendment.

“The panel also held that because the First Amendment right of access to governmental proceedings did not entitle the plaintiffs to information regarding execution drugs and personnel as a matter of law, the district court did not abuse its discretion by dismissing with prejudice those aspects of the plaintiffs’ claim relating to such information,” Watford wrote.

In a partial dissent, U.S. Circuit Judge Marsha Berzon disagreed with this aspect of the court’s ruling.

According to Berzon, the inmates’ claims that Arizona deliberately concealed information on the execution process using a “range of strategies” carried weight.

“The inmates have plausibly alleged Arizona’s deliberate concealment of a range of information through barriers which take a variety of forms. On the merits, only those barriers proven to have been erected in a deliberate attempt to interfere with litigation efforts could violate the First Amendment,” Berzon, a Bill Clinton appointee, wrote. “But the inmates must be permitted to make that showing. Today’s opinion denies them that opportunity.”

The ruling states that while the U.S. Supreme Court has previously found that the public has a right to the transcripts of certain criminal proceedings, execution drugs and team members are not related to transcripts.

U.S. Circuit Judge Johnnie Rawlinson, also a Clinton appointee, rounded out the panel.

There are 116 people currently on death row in Arizona. The state has not executed a prisoner since Wood.

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