Pa. newspapers win injunction in executions case; Hubert Michael scheduled to die Thursday

By Jon Campisi | Nov 8, 2012

A federal judge in Harrisburg has granted a temporary restraining order and preliminary

injunction barring the state Department of Corrections from denying full “visual and auditory” access to prisoner executions conducted in the commonwealth.

U.S. District Judge Yvette Kane issued her ruling on Nov. 6, one day prior to the scheduled execution of York County killer Hubert Michael, 56, who pleaded guilty to the July 1993 shooting death of 16-year-old Trista Eng.

The ruling was also issued the same day that the Pennsylvania Board of Pardons denied Michael’s bid for clemency, according to local news reports.

The state Supreme Court also recently denied a request to stay the execution.

Gov. Tom Corbett had signed Michael’s death warrant back in September.

Kane’s ruling could pave the way for Michael to be put to death by lethal injection Thursday evening at the Rockview State Correctional Institution.

If the execution is carried out, Michael will be the first condemned prisoner to be involuntarily put to death by the state since the execution of infamous North Philadelphia murderer Gary Heidnik back in 1999.

Kane’s ruling means members of the press and other witnesses in the public observation room at Rockview must be allowed to witness Michael’s execution from start to finish without any view-blocking or other hindering measures.

The case was initiated by the Philadelphia Inquirer and the Harrisburg Patriot-News, whose lawyers argued that denying full access to prisoner executions constitutes a violation of the media’s First Amendment rights.

Under Corrections Department protocols adopted earlier this year, witnesses to executions would only be able to see the condemned for a brief period.

The curtain to the public observation room was to be kept closed while the inmate enters the execution chamber, is secured to the table, and outfitted with intravenous lines that would carry the lethal drug cocktail throughout the prisoner’s system.

The newspapers argued that the First Amendment guarantees them the right to observe executions in their entirety.

Kane’s ruling says that full access to Pennsylvania’s execution process will allow for a more thorough evaluation of how the commonwealth’s procedures comport with “evolving constitutional standards.”

The ruling states that condemned inmates challenging the constitutionality of state lethal injection protocols have claimed that the potential failure of state agencies to properly follow their protocols will lead to severe pain when the drugs are administered, thus violating the Eighth Amendment’s prohibition on cruel and unusual punishment.

The newspapers had argued that it must be able to witness executions in their entirety to ensure that prisoners are being put to death properly.

“The Court finds that permitting the press to witness all phases of the execution contributes to the proper functioning of the execution process, in part because it allows the press to contribute to an informed discussion of the Commonwealth’s lethal injection procedures,” Kane wrote.

The Department of Corrections had argued in motions that allowing full view of the execution team could put those employees in potential danger.

While Kane determined that protecting the lethal injection team constitutes a “significant governmental interest,” it does not outweigh the plaintiffs’ First Amendment right of public access to the extent that a curtain must obscure the execution chamber whenever the lethal injection team is present.

Kane wrote that the plaintiffs have shown a likelihood of succeeding on the merits of their motion for a preliminary injunction.

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