(CN) – When convicted murderer Richard Leavitt is executed Tuesday in Idaho, the media must be allowed to view the entire process, from his entry into the death chamber through the insertion of the lethal injection, the 9th Circuit ruled.
Previously Idaho had allowed news organizations to view only the final stages of an execution, from the reading of the death warrant to the pronouncement of death.
After the state denied such access for a 2011 execution, the Associated Press and several other media outlets filed suit. They claimed that limiting the public’s surrogate to viewing certain portions of a state-sponsored execution violated the First Amendment. A federal judge refused their request for an injunction, but the 9th Circuit reversed late Friday.
A three-judge panel of the federal appeals court found that Idaho had failed to show a penological interest in keeping the process closed and secret.
The court’s 2002 resolution of California First Amendment Coalition v. Woodford already found that the initial stages of an execution are “inextricably intertwined” with the eventual execution.
“The state of Idaho has had ample opportunity for the past decade to adopt an execution procedure that reflects this settled law,” Judge Stephen Reinhardt wrote for the panel. “It can hardly complain that it has been unaware of the binding precedent, since the media coalition specifically cited California First Amendment Coalition in asking the state to alter its execution procedure prior to the November 2011 execution of Paul Rhoades. The state has nonetheless failed to bring its procedure into compliance with the law – either in the days prior to the Rhoades execution or in the succeeding months, when it met with the media coalition to discuss the matter. The state has persisted in its intransigence even after we suggested at oral argument that a voluntary amendment (like the one that Arizona recently adopted) might avert the need for an injunction. The State’s complaints about the last-minute nature of this litigation ignore this history.” (Parentheses in original.)
Idaho argued that it needed to keep the process closed to protect the dignity of the condemned and the anonymity of the executioners.
The Pasadena-based panel remained unconvinced.
“The state of Idaho already offends the dignity of condemned inmates and the sensibilities of their families and fellow inmates by allowing strangers to watch as they are put to death,” the ruling states. “It strains credulity for the state to assert that these interests will be offended to a meaningfully greater degree when witnesses are permitted to watch the insertion of intravenous lines than when they are simply allowed to watch the inmates die.”
Leavitt was sentenced to death for the grisly murder of Danette Jean Elg in 1984. In a separate ruling Friday, the 9th Circuit denied Leavitt’s appeal for relief from his sentence. Leavitt argued unsuccessfully that he had received ineffective assistance of counsel, and he failed to show that a lab should subject the case evidence to forensic testing.
When the 9th Circuit rejected a different appeal from Leavitt last year, it noted that he murdered Eng with 15 strokes of a knife and butchered her body as she lay dying on her punctured waterbed. Leavitt’s ex-wife had testified that she once saw Leavitt hack out the sexual organs of a female deer in the same manner to “play with.”
In a dissent to that opinion, Judge Stephen Reinhardt said the particularly “horrendous” nature of the crime should indicate “that there was something radically wrong with Leavitt, who was otherwise a law-abiding citizen, a father and a husband.”
Reinhardt lauded a new neurological examination as “powerful mitigating evidence.”
An Idaho state judge issued Leavitt’s death warrant on May 17. The execution is set for 10 a.m. on Tuesday. The U.S. Supreme Court refused late Monday to stay the execution.