Federal judge rules execution access lawsuit can move forward

A lawsuit seeking an injunction to prevent the state from carrying out any executions until all aspects of the process are made public will be allowed to move forward with all claims, a federal judge ruled Friday.

In May, the state asked the court to deny claims made by the plaintiffs, a group of media outlets represented by attorneys from Davis Wright Tremaine LLP, Keker, Van Nest & Peters LLP and the American Civil Liberties Union, arguing they should be allowed to witness the process of preparing lethal injection chemicals and any efforts to provide medical assistance in the event of a botched execution on a First Amendment basis. Los Angeles Times Communications LLC v. Kernan et al., 18-CV2146 (N.D. Cal., filed Apr. 11, 2018).

In the state's motion, the defense claimed the media's right to view the mixing of lethal chemicals and the medical treatment of inmates was not established by law.

"Plaintiffs merely describe what they believe they are entitled to observe, but provide no factual support for how such observations would have any significant positive role in the functioning of the execution process," the state said in its brief.

U.S. District Judge Richard G. Seeborg of San Francisco sided with plaintiffs' attorneys rebuttal that the assertion prematurely inserts an affirmative defense at the pleading stage.

"The burden remains with the state to propose a legitimate penological interest if one exists," Seeborg wrote in his order. "The state appears to concede no legitimate penological purpose in concealing the lethal chemical preparations in the Infusion Control Room, for present purposes, since it identifies no such interest in its briefing."

"Based on the briefing, we have a strong case there's not a legitimate purpose for denying public access," said Davis Wright attorney Thomas R. Burke, who is representing the Los Angeles Times and KQED in the suit. "There's a strong indication there really isn't one..."

Burke, who has represented a number of media clients, said reporters from the Times and KQED have routinely attended executions, though none have been carried out in California since 2006. But new regulations implemented by the Department of Corrections in March would allow for some parts of the process to unfold behind the scenes.

The injection itself, which used to be a single chemical but now is a combination of a few, is prepared outside the presence of witnesses.It is administered into the intravenous tubing in an out-of-view chamber and a curtain is pulled when administrators deem the execution to be over.

That could be when the inmate is deceased, but it may also be when an execution is botched, and the inmate is given medical attention.

According to Burke, Seeborg presented attorneys with a hypothetical Thursday: Does the curtain get pulled if an inmate does not die from the injection but then get pulled back for witnesses to view him if he dies from cardiac arrest minutes later?

Deputy Attorney General Jay M. Goldman told the judge the department pulls the curtain when the intent of the state goes from attempting to execute to attempting to provide medical aid.

Seeborg addressed those remarks in a footnote to the order, writing, "This argument, however, appears to be premised on the flawed notion that the condemned is no longer at risk of dying as a consequence of the execution process being suspended."

The complaint specifically states the plaintiffs are not making a case for or against the death penalty. But the matter is proceeding in the shadow of Morales v. Tilton, 465 F. Supp. 2d 972 (N.D. Cal. 2006), a case in which a federal judge halted all executions after a botched execution resulted in pain so extreme the judge said it violated the inmate's Eighth Amendment rights.

Christopher S. Sun, an attorney at Keker, which along with the American Civil Liberties Union is representing a group of media outlets under the umbrella of the San Francisco Progressive Media Center, said the two cases are connected but different.

"Morales is a challenge to the death penalty procedures with respect to the Eighth Amendment," he explained. "Public access to execution procedures, which is at issue in our case, allows courts and the public to determine whether or not lethal injection executions are consistent with our societal values and the evolving standards of decency that are the basis of the Eighth Amendment."

The attorney general's office deferred comment to the Department of Corrections and Rehabilitation, the named defendant in the case. In an email Friday, department spokesperson Terry Thornton said it was reviewing the judge's order.