Jon Campisi Jan. 29, 2013, 9:10am

A judge has refused to dismiss a complaint by two prominent area newspapers challenging the policies of the state Department of Corrections that limit what journalists and members of the public can and cannot witness during prisoner executions.

U.S. District Judge Yvette Kane, the chief judge of the Middle District of Pennsylvania, denied in a Jan. 18 order a defense motion to dismiss the case, in which The Philadelphia Inquirer and the Patriot-News of Harrisburg filed suit against John E. Wetzel, the Pennsylvania Department of Corrections secretary, and others over the department’s policy that restricts the ability for journalists to fully report on what occurs during inmate executions.

The lawsuit, which was filed on Sept. 25 at the federal court in Harrisburg, and previously reported on by the Pennsylvania Record, alleges that while Pennsylvania law requires the presence of witnesses during executions, the reality is that the actual witnessing of the event is severely restricted.

The plaintiffs, who are being represented by lawyers with the American Civil Liberties Union of Pennsylvania and attorneys with Schnader Harrison Segal & Lewis, contend that all of the pre-work on executions, such as bringing the condemned into the execution chamber, strapping the prisoner onto the gurney, and inserting the intravenous lines that will carry the lethal drug cocktail during capital punishments, is all done behind closed curtains.

The newspapers argue that reporters should be able to witness these acts so they can fully report on executions to ensure they are being carried out properly.

The plaintiffs also argue that the Department of Corrections’ protocols require the curtain to the execution chamber to once again be closed before the coroner pronounces the condemned deceased.

“The DOC’s execution protocols deprive the public of the information necessary to engage in an informed debate about the most severe penalty the government can impose on its citizens,” the lawsuit reads.

The newspapers had filed for injunctive relief prior to the scheduled executions of two prisoners on death row.

The issue became somewhat moot, given that both executions ended up being stayed, however, the court still granted the papers’ request for a preliminary injunction permitting them full visual and auditory observation of the execution of Hubert Michael that had been scheduled for Nov. 8.

The defendants subsequently filed a motion to dismiss arguing that the plaintiffs failed to state a claim on which relief could be granted because, as they contended, there is no recognized First Amendment right to view executions.

The plaintiffs had retorted that the court’s order granting their motion for a preliminary injunction to view Michael’s execution supported a finding that the plaintiffs have alleged sufficient facts to survive a motion to dismiss.

Kane agreed with the plaintiffs, writing in her memorandum that the newspapers’ complaint states a claim cognizable under the First Amendment.

“In their amended complaint, Plaintiffs have alleged facts supporting a claim under the United States Supreme Court and the United States Court of Appeals for the Third Circuit precedent that their First Amendment rights are infringed by the DOC’s lethal injection protocol,” the judge wrote. “The Court therefore finds that Defendants’ motion to dismiss Plaintiff’s amended complaint should be denied.”

The newspapers have argued all along that they merely seek to ensure that lethal injections are carried out “fairly and humanely.”

The other defendants named in the litigation are Marirosa Lamas, the superintendent of the State Correctional Institute at Rockview, and John or Jane Doe, who is identified as the prison employee designated as the one in charge of overseeing executions.

The newspapers’ suit was filed ahead of the scheduled execution of Terrance Williams, who was supposed to be put to death in October for bludgeoning a man to death back in the 1980s.

The lethal injection was put on hold, however, after a Philadelphia Common Pleas Court judge determined that the jurors in Williams’ trial may have been misled to believe that the crime occurred during the commission of a robbery, as opposed to being a crime of passion; defense attorneys have since argued that the victim had actually been molesting Williams prior to the murder.

The Nov. 8 scheduled execution of Hubert Michael, convicted in the 1993 murder of a teen from York, Pa., was also halted after the U.S. Third Circuit Court of Appeals decided a stay was in order.

The appeals court had directed the District Court to address “lingering procedural issues” before the execution could proceed.

Michael’s lawyers had argued that the inmate suffers from debilitating mental conditions, something that the attorneys’ claim hadn’t been addressed by the courts in the past.

The death penalty in Pennsylvania is a somewhat touchy legal subject; while capital punishment is technically still on the books, a state execution hasn’t been carried out since the late 1990s, when infamous North Philadelphia torturer-murderer Gary Heidnik was put to death for raping and killing street prostitutes.

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