Pa. newspapers sue commonwealth over limited access to prisoner executions

By Jon Campisi | Oct 22, 2012

Two prominent Pennsylvania daily newspapers are embroiled in litigation against the

state Department of Corrections and various officials over a policy that bars the media and members of the public from fully viewing inmate executions.

Attorneys for the Philadelphia Inquirer and the Patriot-News of Harrisburg filed suit in the Middle District of Pennsylvania late last month over allegations that the media has been prevented from viewing executions from start to finish, something the plaintiffs desire to do to ensure that lethal injections are “fairly and humanely” administered.

“This information is best gathered first-hand or from the media, which serves as the public’s surrogate,” the lawsuit states, quoting from the 2002 U.S. Ninth Circuit Court of Appeals case in California First Amendment Coalition v. Woodford.

Lawyers with the American Civil Liberties Union of Pennsylvania and attorneys with the firm Schnader Harrison Segal & Lewis LLP filed suit Sept. 25 at the federal court in Harrisburg on behalf of the two papers.

The defendants named in the case are John E. Wetzel, the secretary of the Pennsylvania Department of Corrections; Marirosa Lamas, the superintendent of the State Correctional Institute at Rockview; and John or Jane Doe, who is identified as the man or woman who Lamas has designated to supervise executions at SCI Rockview.

The state prison at Rockview, which is located in Centre County, houses Pennsylvania’s death chamber.

The lawsuit alleges that while Pennsylvania law requires the presence of witnesses during executions, in reality, the actual witnessing of the event is strictly limited.

The plaintiffs claim that as per Department of Corrections Protocol, essentially all of the pre-work, such as bring the condemned into the execution chamber, strapping the person to the gurney, and inserting the intravenous lines that will administer the lethal drug cocktail, is completed behind the cover of a curtain.

Only after all of these actions are complete, the lawsuit states, is the curtain covering the window between the execution chamber and the public observation room opened.

The suit claims that the DOC’s protocols prevent witnesses, including the media, from observing a condemned inmate’s demeanor, the demeanor of those who escorted the inmate into the chamber and prepare the person for execution; prevents witnesses from viewing the amount of force used on the condemned individual; prevents witnesses from seeing the type and severity of complications, if any, that arise during the catheterization process; and prevents witnesses, including members of the media, from observing the amount of pain a condemned inmate might exhibit during the preparation process.

“Indeed, the first time the witnesses see the condemned, he or she is already in the execution chamber, immobilized on the injection table – the witnesses see none of the processes leading up to that point,” the complaint states.

The suit then notes that after “flat-lining” occurs, the curtain is again closed, with witnesses unable to view the coroner enter the room and pronounce the condemned deceased.

The DOC’s protocols manual, which attorneys wrote has been heavily redacted, doesn’t indicate whether the execution process is audible to the witnesses in the observation room.

The plaintiffs basically argue that the DOC’s protocols are unconstitutional because they don’t allow for the protection of the public’s First Amendment right to hear the condemned person’s final statement.

“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 states.

The plaintiffs seek declaratory judgment that the DOC’s policies and protocols are unconstitutional.

The newspapers also desire to have an injunction issued preventing the DOC from carrying out any executions until these issues are addressed by the court.

The lawsuit was filed prior to the scheduled execution of Terrance Williams, who was set to be put to death earlier this month before a Philadelphia Common Pleas Court judge stayed the execution.

Williams was convicted back in the 1980s of bludgeoning a man to death.

His lawyers sought to have the execution stayed on the grounds that the jury during Williams’ trial was not given an accurate portrayal of the victim; the jurors believed the crime had happened during a robbery, while defense lawyers contended that the victim had actually been molesting Williams prior to the murder.

The newspapers filed suit in preparation of Williams’ pending execution.

While not entirely moot, the situation doesn’t appear as pressing now as it did before the decision was made to halt Williams’ execution, since the last time the death penalty was carried out in Pennsylvania was back in 1999.

That year, the commonwealth executed infamous torture-murderer Gary Heidnik who was convicted of raping and killing street prostitutes in his North Philadelphia rowhome.

There is another execution scheduled for early next month, however, making the litigation again somewhat timely.

As for the civil case, records show that on Oct. 15, attorneys for the defendants filed a motion to dismiss the plaintiffs’ complaint for failure to state a claim.

In his memorandum in support of the motion, Timothy E. Gates, deputy chief counsel for the Pennsylvania Department of Corrections, wrote that whether or not Pennsylvania should keep the curtain to the execution chamber open from the time a condemned inmate enters the chamber is a question of policy for the Pennsylvania General Assembly and state officials and not a question governed by the First Amendment.

Gates and plaintiffs’ attorney Paul Titus sparred in federal court in Harrisburg on Oct. 18, according to a report in the Inquirer.

During arguments before U.S. District Judge Yvette Kane, Gates reiterated the defense claim that this is not a First Amendment issue, while Titus countered that the media, as the public watchdog, has the right to view uncensored executions.

“There is a strong societal interest in the death penalty,” Titus said, according to the newspaper. “It’s almost Orwellian to say you should do this behind closed doors. Whether you’re for the death penalty or not, the public is entitled to know.”

According to the Inquirer, Hubert Michael, convicted in 1993 of killing a York teenager, is scheduled to die by lethal injection on Nov. 8.

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