U.S. District Judge Edward Lodge has issued his ruling in the Idaho news media's bid for a preliminary injunction regarding limits on witness access to the state's execution procedures, finding that while the news media has presented "a strong claims on the merits," it's just too close to the June 12 execution of Richard Leavitt for him to justify issuing a preliminary injunction. Instead, Lodge said he'd like to hold full evidentiary hearings in the case, with any subsequent ruling to apply to future executions - but not to the upcoming one. An appeal of the ruling to the 9th Circuit U.S. Court of Appeals still is possible; the 9th Circuit has scheduled time for oral arguments in the case for Thursday, should either side appeal.

Numerous Idaho news media outlets and organizations, led by the Associated Press, filed suit over Idaho's execution procedures charging that they violate the First Amendment to the U.S. Constitution, because they bar witness access to the early stages of the lethal injection process, including the strapping of the condemned inmate to a gurney and the insertion of IV lines. A 2002 9th Circuit decision specifically held that such restrictions are unconstitutional under the First Amendment, but only two states in the circuit - Nevada and California - have been complying with the 2002 decision, California First Amendment Coalition v. Woodford. “The public enjoys a First Amendment right to view executions from the moment the condemned is escorted into the execution chamber, including those ‘initial procedures’ that are inextricably intertwined with the process of putting the condemned inmate to death,” the 9th Circuit court found in that case.

In Idaho, complying with that decision would mean opening the curtain between the execution chamber and the witness viewing room approximately 20 minutes earlier in the process.

"The Court is very concerned that to the extent Plaintiffs could establish the IDOC’s protocol does need to be changed to protect First Amendment rights of the public, there is insufficient time for the IDOC to amend the policies and practice changes in the protocol without a delay in the scheduled execution," Lodge wrote. "Simply put, the current scheduled execution does not allow adequate time for discovery, an evidentiary hearing, a ruling by this Court and a potential appeal by the nonsuccessful litigant to the Ninth Circuit before the scheduled execution date."

The judge also wrote, "The undisputed reality as supported by the newspaper accounts of past executions and the specific language in IDOC’s Protocol 135 (which provides for numerous witnesses including the media), is that some portion of the public has historically viewed the execution process in Idaho. Further, this Court agrees with Plaintiffs that society has a critical interest in having at least some members of the public view the government’s implementation of a death warrant."