First Amendment Rights of Witnesses to Execution in PA Protected

On November 6, 2012, Chief Judge Yvette Kane of the United States District Court for the Middle District of Pennsylvania granted an injunction against the Pennsylvania Department of Corrections barring them from preventing witnesses, including members of the press, from observing the full execution process of Herbert Michael. Mr. Michael is scheduled to be executed on November 8. Schnader attorneys Stephen J. Shapiro, Paul H. Titus and H. Justin Park represented The Patriot-News and The Philadelphia Inquirer in their suit against the PA DOC.

The newspapers filed the suit shortly before the anticipated execution of Terrence Williams, which had been scheduled for October 3, 2012. However, a Pennsylvania court stayed the Williams execution and ordered a new penalty phase proceeding. The complaint against the DOC moved forward, though, given the scheduled execution of Mr. Michael a month later.

Judge Kane ordered the DOC to provide witnesses to the execution of Mr. Michael with “full visual and auditory observation of the execution.” Before the Court’s ruling, the DOC only permitted witnesses to executions to see the inmate as he was injected with lethal drugs. By drawing  a curtain over the window between the witness room and the execution chamber, witnesses were prevented them from observing the process of preparing the inmate for execution and the examination conducted to ascertain whether he had died.    

In her memorandum, Judge Kane held that the witnesses to executions have a qualified First Amendment right to view the entire execution and that interfering with that right would cause irreparable injury by preventing the press, as surrogates for the public, from covering the entire execution. Although Judge Kane acknowledged that the DOC had a legitimate interest in protecting the identities of those who participate in executions, she held that the DOC could accomplish that goal without barring witnesses from viewing the execution. Finally, Judge Kane explained that allowing reporters to observe the entire execution will contribute to the “wide freedom in matters of adult public discourse” guaranteed by the First Amendment.

Updated 11/9/12: the U.S. Third Circuit Court of Appeals issued a stay of execution on November 8th, which was later affirmed by the U.S. Supreme Court. The case has returned to U.S. District Judge John E. Jones III.