A federal judge denied a bid by five news outlets to guarantee media access to Indiana’s next execution, set for just after midnight Tuesday.
During a Friday morning hearing in Evansville, in Indiana’s southern district, lawyers representing five news entities — including the Indiana Capital Chronicle — argued that a state law barring press from witnessing state executions violates the First Amendment.
The plaintiffs asked Judge Matthew Brookman to issue a preliminary injunction that would block the state law, for now, and ensure that journalists have access to the scheduled execution of death row inmate Benjamin Ritchie at the Indiana State Prison in Michigan City, as well as future executions during the pendency of the case.
Up for debate, as well, is a Department of Correction (DOC) policy that says press “shall not be permitted to witness the execution.”
In a 14-page ruling issued late Friday, Brookman rejected the preliminary injunction request, writing in his order that executions fall outside the criminal adjudication process, meaning First Amendment protections do not apply.
Brookman also rejected the argument that Indiana’s law discriminates against journalists by allowing spiritual advisors and family members to attend while barring the press. “At bottom, Indiana law treats members of the press the same as members of the public at large,” he wrote.
The judge additionally said that “the mere fact that some narrowly defined members of the public (who may also be journalists) can attend the execution does not mean that the press are singled out for differential treatment.”
The ruling means that Tuesday’s execution will proceed without independent media witnesses unless Ritchie names a reporter as one of his five personal guests.
News reporters are granted access to a designated area outside of the Indiana State Prison but are not permitted to directly witness the state’s actions — unless invited by the condemned to fill one of the five spots.
The Indiana Attorney General’s Office pushed back in the hearing, arguing that journalists have no constitutional right, or privilege, to witness executions.
Jeff Garn, representing the state, emphasized that any last-minute changes to add media to the upcoming execution’s witness lists would disrupt a “highly-coordinated” process that’s been rehearsed for months by DOC staff.
He questioned, too, whether the state prison’s two designated execution chamber witness rooms can be modified — in a matter of days — to accommodate additional capacity.
Room for reporters
Attorneys with the Reporters Committee for the Freedom of the Press are representing the news entities, which include the Capital Chronicle, The Associated Press, Gannett, Circle City Broadcasting and TEGNA.
Lin Weeks, on behalf of the plaintiffs, maintained Friday that public access to executions is crucial for ensuring transparency and accountability as the state carries out “the most severe” punishment it can impose. Journalists, he said, serve as surrogates of the public.
“Public access ensures executions are competently and humanely administered,” Weeks told the court, adding that details, including any “missteps,” about such procedures “should be known to members of the public.”
“The public,” he continued, “needs to see justice carried out.”
Weeks said media-reported information is also of importance to other condemned inmates awaiting to be put to death. Ritchie and six other men are currently on death row at Indiana State Prison.
The news organizations’ underlying complaint centers on an Indiana law that limits attendance at executions to: the warden, a warden’s designated assistant, the prison physician, another physician, a spiritual advisor, a prison chaplain, five friends or relatives of the inmate and eight members of the victim’s family.
Weeks said the plaintiffs are seeking four witness spots specifically for reporters. Current law and DOC policy only allow 13 witnesses total.
Those four witnesses could be included in the 13 allowed currently, or additional spots could be added to one or both rooms that provide visibility into the execution chamber, Weeks told the judge.
He said the Capital Chronicle and other news outlets have requested spots on Ritchie’s witness list but have so far been denied.
Reporters from all five news entities have covered portions of the case and The Associated Press regularly covers executions nationwide.
Indiana is one of 27 states with the death penalty, but one of only two states — along with Wyoming — that doesn’t include media witnesses at executions.
Senior Reporter Casey Smith witnessed December’s state execution of Joseph Corcoran — via the inmate’s guest list.
Weeks also held that Indiana’s law treats the press more harshly than other members of the public. While victims’ families and a condemned person’s friends or clergy may attend, the media is explicitly barred unless a journalist is handpicked by the inmate.
He additionally pointed out that up to 10 journalists are allowed to observe federal executions conducted at the U.S. Penitentiary in Terre Haute. Closed-circuit television has also been available in the past for federal prison executions to be viewed outside the designated witness areas.
State says request comes ‘too late’
Garn, however, argued that executions are not public events and that media have no inherent right to witness them.
“They do not have a right to observe the execution,” Garn said, maintaining that executions differ from criminal trials, for example. “This is not a (public) proceeding. This is an operation, carrying out a sentence of an incarcerated person.”
He said it’s “unclear” how DOC staff would accommodate media if a short-notice injunction is granted.
“This case was brought too late for the execution scheduled on Tuesday,” Garn reiterated.
He emphasized that chairs in the execution chamber’s two witness rooms “are literally bolted to the floor,” leaving limited flexibility for additional observers.
He said the plaintiffs filed their primary injunction request “too late,” noting that the state requested an execution date for Ritchie in September, and a challenge to state law “should have been filed earlier.” The Indiana Supreme Court set the execution date April 15.
Indiana State Prison Warden Ron Neal, one of the defendants — and the only person to provide witness testimony before the court at the Friday hearing — also raised concerns about the confidentiality of execution team members.
“If the identities of those involved are not protected, I wouldn’t have a team,” the warden said.
Neal presided over Corcoran’s execution in December. Before that, he was involved in the 2009 state execution of Eric Wrinkles — the last death sentence to be carried out before Indiana’s 15-year execution hiatus.
He said the execution room for the condemned holding five witnesses is “tight” and “very limited.” His court declaration said it was 10-by-10 feet.
Online descriptions of a 10-by-10 foot-storage unit say it is equivalent to a small bedroom or half of a one-car-garage.
The Capital Chronicle’s experience at the December execution found there were four chairs in the condemned witness room bolted to the two-levels of the riser. In addition, there were three empty chairs elsewhere in the room. Two guards also were in the room.
After an execution date is set, Neal said DOC staff practice the process at least once each week ahead of the execution date.
Communication between the prison and offices of the governor and the attorney general are tested. An intravenous line is inserted “into a live (volunteer) every time” a training is held.
Staff are also taught the precise steps taken to escort witnesses to and from the execution chamber. Neal conceded, though, that “there’s always a possibility that folks don’t show up, and we plan accordingly.”
All DOC employees involved in the process then participate in a full, step-by-step “dress rehearsal” the day before a scheduled execution, Neal said.
“We go to great lengths … just as we would on the day of an execution,” he told the court. “We take it very seriously … we don’t want to make any mistakes.”
Garn suggested the case could be more appropriately litigated after the current execution, and even mentioned a possible future settlement conference.
Weeks, referencing Neal’s testimony, argued that DOC staff are trained “to handle flexibility in the number of people” who attend as witnesses.
The media attorney argued that DOC staff have accommodated changes to witness lists before — even in the days preceding an execution — and could still do so before Tuesday.
Gov. Mike Braun rejected a clemency plea from Ritchie on Wednesday, one day after the Indiana Parole Board recommended that the death row inmate’s upcoming execution proceed as scheduled.
Ritchie, who fatally shot Beech Grove law enforcement officer William Toney during a police pursuit on Sept. 29, 2000, had petitioned the board to commute his death sentence to life without parole.