PENNSYLVANIA RECORD

In just two day’s time, convicted murderer Hubert L. Michael, Jr., who pleaded guilty in

October 1994 to kidnapping and killing a teenage girl in York County, is scheduled to face lethal injection at the Rockview State Correctional Institution in Centre County.

Gov. Tom Corbett signed Michael’s death warrant in mid-September.

The prisoner has exhausted his legal appeals.

The death chamber in central Pennsylvania appears ready to welcome the condemned man.

There’s just one problem – litigation pending in the federal court in Harrisburg might prevent the execution from moving forward, similar to how a Philadelphia judge’s decision to halt another execution in October prevented that death penalty from being carried out.

In late September, two of the regions biggest daily papers, The Philadelphia Inquirer and the Harrisburg Patriot-News, filed suit against John E. Wetzel, the secretary of the Pennsylvania Department of Corrections, over claims that the department was unconstitutionally denying members of the media the right to witness prisoner executions from start to finish.

The plaintiffs claim that the press has a First Amendment right to witness executions in their entirety, and that the corrections department’s closing of the curtain to the execution chamber prior to the actual act being carried out violates that right.

The federal lawsuit was filed on Sept. 25 by lawyers with the American Civil Liberties Union of Pennsylvania and attorneys with the firm Schnader Harrison Segal & Lewis LLP.

In addition to Wetzel, the other defendants named in the litigation are Marirosa Lamas, the superintendent of SCI Rockview, and John or Jane Doe, who is identified as the person designated to supervise executions at the state prison.

On Oct. 28, the plaintiffs’ lawyers filed a memorandum of law in support of their motion for a temporary restraining order and preliminary injunction barring any future executions from being carried out until the legal issues surrounding state-sponsored killings are resolved.

In the their motion, plaintiffs’ attorneys wrote that the defendants’ assertions that the First Amendment’s right of access extends only to criminal trials is unsupported by the factual record before the court.

“Third Circuit [Court of Appeals] precedent shows that the First Amendment right of access extends beyond criminal trials,” the motion reads. “And the contention that lethal injection team members might be subject to retaliation if witnesses see them dressed in surgical garb is simply not supported by the facts.”

The court record shows that a hearing took place at the federal court in Harrisburg on Oct. 17, during which various testimonial and documentary evidence was entered into the record, including the testimony of Susan McNaughton, the Department of Corrections’ press secretary, who said she knew of no incidents from any state in which correctional personnel who are visible to the witnesses while carrying out executions faced retaliation as a result.

The hearing also saw evidence that showed the states of California and Ohio permit witnesses to view executions in their entirety, according to the plaintiffs’ most recent motion.

Furthermore, documentation introduced during the hearing showed that witnesses to executions in Pennsylvania have historically been able to see and hear the entire executions, although that appears to have changed in recent time with revised prison policy, the crux of which is the basis for the current litigation.

Attorneys for the state Corrections Department previously said 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 to the U.S. Constitution.

The plaintiffs, however, have disputed this argument, something that is reflected in their most recent motion.

“Defendants’ entire argument with respect to the public interest is that the state legislature has authorized the restrictive procedures, and therefore, the public interest is served by following the legislature’s dictates,” the motion reads. “By this logic, no state statute should ever be enjoined, because all such statutes, by definition, reflect the public interest.”

The matter seems extremely timely given the fact that Michael, the convicted York, Pa. killer, is scheduled to meet his fate on Nov. 8.

At the same time, however, history has proven that the urgency of the matter might not be as dire as some predict.

Last month, Terrance Williams was scheduled to be put to death by the commonwealth for a 1980s bludgeoning murder.

But his execution was stayed by a Philadelphia Common Pleas Court judge who cited lingering questions surrounding what information the jury who had convicted Williams was given regarding the background of the condemned inmate; jurors had originally been told the murder was committed during a robbery, while Williams’ lawyers are now saying the murder victim had molested Williams prior to the slaying.

As for the upcoming execution of Michael, it seems unlikely it would move forward given both the current litigation and the fact that nobody has been involuntarily put to death in Pennsylvania since the execution of infamous North Philadelphia torture-murderer Gary Heidnik back in 1999, despite the fact that the death penalty is still technically on the books in the commonwealth.

However, the Pennsylvania Supreme Court on Monday did refuse to stay Michael's execution, technically paving the way for the condemned prisoner to face lethal injection on Thursday.

As for the newspapers’ case against the state regarding the openness of executions, the defendants have denied that they are committing constitutional violations in their policy of only showing a portion of the execution to the media and others in the public observation room.

In a one-page motion filed on Oct. 29, lawyer Timothy E. Gates, deputy chief counsel for the Pennsylvania Department of Corrections, said that the plaintiffs’ complaint should be dismissed for failure to state a claim upon which relief may be granted.

A day later, the court docket shows, Stephen J. Shapiro, an attorney with plaintiffs’ firm Schnader Harrison Segal & Lewis, sent U.S. District Judge Yvette Kane a letter saying that the Patriot-News has selected reporter Donald Gilliland to witness the scheduled Nov. 8 execution of Hubert Michael.

Whether or not there will be an execution for Gilliland to witness remains to be seen.