Law­suit seek­ing more ex­e­cu­tion trans­parency in Vir­ginia tossed

Richmond Times-Dispatch - - NEWS - BY FRANK GREEN Rich­mond Times-Dis­patch fgreen@times­dis­patch.com (804) 649-6340

RICH­MOND TIMES-DIS­PATCH

A fed­eral law­suit filed by the Rich­mond Times­Dis­patch and other me­dia or­ga­ni­za­tions aimed at al­low­ing of­fi­cial and me­dia wit­nesses to view Vir­ginia’s en­tire ex­e­cu­tion pro­ce­dures was tossed out Wed­nes­day by a fed­eral judge.

In a 30-page mem­o­ran­dum, U.S. District Judge Robert E. Payne cited de­ci­sions in other states and held that the First Amend­ment does not re­quire that wit­nesses and the me­dia be able to ob­serve the en­tire ex­e­cu­tion process.

While there is a right of ac­cess to the ad­ju­di­ca­tion process, it does not ex­tend to the im­ple­men­ta­tion of car­ry­ing out a sen­tence, con­cluded Payne. The cases he cited in­cluded one in Ok­la­homa and one in Arkansas.

The news or­ga­ni­za­tions sued last year, claim­ing that the First Amend­ment guar­an­tees the public a right of ac­cess to the en­tirety of ex­e­cu­tions. Se­crecy sur­round­ing ex­e­cu­tions has in­creased in Vir­ginia and in other states in re­cent years, in part be­cause of the in­creas­ing scarcity of the drugs needed to carry out ex­e­cu­tions by in­jec­tion.

In ad­di­tion to The Times-Dis­patch, the other plain­tiffs are The As­so­ci­ated

Press; The (Staunton and Way­nes­boro) News Leader, owned by Gan­nett Co.; and Guardian News and Me­dia LLC, es­tab­lished by The Guardian news­pa­per in Lon­don. The me­dia or­ga­ni­za­tions are rep­re­sented by the Me­dia Free­dom & In­for­ma­tion Ac­cess Clinic at the Yale Law School and lawyers with the Rich­mond law firm Chris­tian & Bar­ton LLP.

The Vir­ginia Depart­ment of Cor­rec­tions, rep­re­sented by the Vir­ginia At­tor­ney Gen­eral’s Of­fice, asked Payne to dis­miss the suit on sev­eral grounds.

In its mo­tion seek­ing dis­missal, the at­tor­ney gen­eral ar­gued that “the First Amend­ment to the United States Con­sti­tu­tion guar­an­tees a right of public ac­cess to crim­i­nal court pro­ceed­ings. The United States Supreme Court has made clear, how­ever, that this con­sti­tu­tional right of ac­cess does not ex­tend be­yond the prison door.

The at­tor­ney gen­eral’s of­fice added: “For well over a cen­tury, Vir­ginia has man­dated — by statute — that ex­e­cu­tions be con­ducted in pri­vate, on the other side of a prison door. Par­tic­u­larly con­sid­er­ing that Vir­ginia has long since closed off whole­sale public ac­cess to ex­e­cu­tions, there is no First Amend­ment ‘right’ to wit­ness an ex­e­cu­tion in this com­mon­wealth. If this were true, states could be com­pelled to broad­cast ex­e­cu­tions for public view­ing, a po­si­tion that has been uni­ver­sally re­jected by ev­ery court to have con­sid­ered it.”

Charles Crain, with the Me­dia Free­dom & In­for­ma­tion Ac­cess Clinic, said: “We’re dis­ap­pointed, of course, and are dis­cussing how to pro­ceed.”

Depart­ment of Cor­rec­tions pol­icy al­lows the ad­mis­sion of up to six ci­ti­zens and four me­dia rep­re­sen­ta­tives.

Be­fore 2017, most of the steps in Vir­ginia’s elec­tro­cu­tions had been vis­i­ble to wit­nesses. More of the lethal in­jec­tion pro­ce­dure had been vis­i­ble, too, although the place­ment of IV lines and the elec­trodes for the car­diac mon­i­tor on the in­mate has been done be­hind a cur­tain.

Prison pol­icy was changed to con­ceal more af­ter the Jan. 18, 2017, ex­e­cu­tion of Ricky Gray, which was de­layed more than half an hour by ac­tiv­ity con­ducted be­hind the closed cur­tain.

Vir­ginia has con­ducted 113 ex­e­cu­tions since the U.S. Supreme Court al­lowed the death penalty to re­sume in 1976. The toll ties it with Ok­la­homa for the sec­ond most in the coun­try, be­hind only Texas with 568.

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