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California and the West

Federal Judge Upholds Media Access to Executions

Courts: Jurist rules that the state cannot bar witnesses from observing as Robert Lee Massie is prepared for death.

March 20, 2001|MAURA DOLAN | TIMES LEGAL AFFAIRS WRITER

SAN FRANCISCO — A federal judge ruled that witnesses, including the news media, may watch the entire execution of convicted murderer Robert Lee Massie, who is scheduled to be put to death next week.

U.S. District Judge Vaughn R. Walker decided that the state cannot prevent witnesses from watching Massie as he is escorted into the death chamber, strapped onto a gurney and inserted with intravenous lines.

"The public has a keen interest in witnessing the manner by which government wields its most devastating power: the power to take a life," Walker said.

Whatever one's view of the death penalty, "it should not be carried out behind closed doors," Walker concluded.

His decision, made Friday and received by lawyers in the case Monday, was a victory for the news media and the American Civil Liberties Union. The state plans to appeal to the U.S. 9th Circuit Court of Appeals.

Walker ruled in 1997 that reporters had the right to view an execution in its entirety, but his order was in effect for only one execution, that of Keith Williams, before the 9th Circuit reinstated restrictions in 1998.

At that time, the 9th Circuit told Walker to determine whether there was substantial evidence that the restrictions on viewing were an exaggerated response to security and safety concerns. The state has argued that participants in the execution might be endangered if their identities were revealed.

After a trial, Walker ruled in August that the entire execution must be visible. The state asked him to put his order on hold for the Massie execution pending 9th Circuit review.

In refusing, Walker wrote that execution staff can wear surgical masks to hide their identity. "An account of the execution proceedings given to the media by prison staff is no substitute for media access to the actual events," Walker said.

Alan Schlosser, managing attorney of the ACLU of Northern California, which argued for full access along with news media representatives, said the state wants part of the execution curtained "to control information and sanitize lethal injection as a clinical method of execution."

During the trial before Walker, memorandums from the state revealed that corrections officials wanted to keep the curtain closed in case an inmate struggled and had to be subdued, Schlosser said.

"They didn't want that to be reported as brutality or as excessive force," the lawyer said.

Terry Francke, general counsel of the California First Amendment Coalition, one of the plaintiffs, said he expects that the 9th Circuit will grant the state's request and block Walker's order until a full review is completed, probably in the fall.

But Michael Kass, the lawyer for the plaintiffs, said the appeals court may refuse to block the order because it followed a full trial of the evidence.

Russ Heimerich, a spokesman for the California Department of Corrections, said he has notyet seen the order but said it came as no surprise. A spokesman for Atty. Gen. Bill Lockyer said state lawyers will ask the 9th Circuit today to block the order.

Massie was sentenced to death for the 1979 murder of a liquor store clerk. The case attracted attention because he had been sentenced to death once before for a murder in 1965. His first death sentence was commuted in 1972 when the state Supreme Court deemed capital punishment unconstitutional.

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