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The 9th Circuit U.S. Court of Appeals on Friday threw open the curtain on California’s death penalty, saying witnesses can view executions from beginning to end. A unanimous three-judge panel ruled that California Department of Corrections’ policy preventing the viewing of a condemned inmate until he has been strapped to a gurney and prison staff have left the chamber violates the public’s First Amendment rights. “We hold that Procedure 770 is an exaggerated, unreasonable response to prison officials’ legitimate concerns about the safety of prison staff,” Judge Raymond Fisher wrote. The decision is also important because it put into law books what has long been tradition — executions are to be public events. It is the first court to address the issue, said Alan Schlosser, legal director of the American Civil Liberties Union’s Northern California chapter. Patterned after a Texas procedure, 770 was implemented by California prison officials when the state switched its execution method from the gas chamber to lethal injections. Under 770, a curtain in the execution chamber is drawn while the prisoner is escorted into the chamber, strapped to a gurney and intravenous lines are inserted into his arms. Members of the public and media representatives are then allowed to watch as a deadly mix of chemicals is released into the condemned man’s veins. The state argued that the public has no right to view “initial execution procedures,” and that 770 is needed to protect the anonymity and safety of prison staff. The ruling affirms findings by U.S. District Judge Vaughn Walker, who had been reversed by the 9th Circuit in an earlier summary judgment motion. After a two-day trial, Walker essentially reinstated his prior ruling. During trial, the plaintiffs produced a CDC memo detailing prison officials’ fear that any struggle between prison staff and a condemned inmate would be seen as excessive force. Walker found, and the 9th Circuit agreed, that not only were the state’s reasons for Procedure 770 unfounded, but that the policy could be seen as an attempt to avoid criticism of the state’s death penalty procedures. “I think, in part, it was an effort to cut off information,” Schlosser said. Fisher wrote that witnessing the entire process is crucial for determining whether it is just. “To determine whether lethal injection executions are fairly and humanely administered, or whether they ever can be, citizens must have reliable information about the ‘initial procedures,’ which are invasive, possibly painful, and may give rise to serious complications,” Fisher wrote. “This information is best gathered first-hand or from the media, which serves as the public’s surrogate.” The plaintiffs in California First Amendment Coalition v. Woodford, 02 C.D.O.S. 6953, presented evidence that since at least the 12th century executions have been public. When they began to be moved inside prison walls during the 19th century, California preserved the right of the public to view them through representative witnesses. Friday’s ruling held that the right is also derived from the U.S. Constitution. Schlosser said eyewitness testimony about the process was crucial in Northern District Chief Judge Marilyn Hall Patel’s ruling that effectively ended the use of the state’s gas chamber. Since the change to lethal injections, nine California prisoners have been executed. Three have been executed under Walker’s court orders allowing witnesses to view the entire process. One inmate, Robert Lee Massie, sped his death by waiving any appeals. Press reports indicated Massie had no change of heart and was calm throughout the process. The last inmate to die at San Quentin State Prison was Stephen Wayne Anderson, whose execution was also without incident. “There have been very few struggles in execution history and none in the recent history of lethal injections,” Schlosser said. “We’re gratified the 9th Circuit recognized the right of the press under the First Amendment to witness these important events and to have a full report � because without that, the public debate about these events will not be fully informed,” said Steinhart & Falconer partner Roger Myers, who filed a brief on behalf of several news agencies. Both Walker and the appellate court found that Procedure 770 was fraught with problems. For example, a condemned inmate spends several hours with his executioners and guards before being led to death. During that time, both Walker and the 9th Circuit noted, the inmate could easily call his lawyer or his family and identify his keepers. “As the district court found, Procedure 770 contains loopholes that undermine its rationality and the credibility of defendants’ concerns for anonymity,” Fisher wrote. The attorney general’s office said it was reviewing the decision and did not want to comment.

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