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In 2002, the 9th U.S. Circuit Court of Appeals rejected that argument, saying there were other ways to protect their identity. Execution team members could wear surgical masks, hats and gloves, the court noted. "Independent public scrutiny -- made possible by the public and media witnesses to an execution
-- plays a significant role in the proper functioning of capital punishment," the judges ruled. The ruling applies to a region that stretches from Montana to Hawaii and Alaska. Alaska, Hawaii, Guam and the Northern Mariana Islands do not have the death penalty, and Oregon currently has a moratorium on executions. Only California has followed the ruling. Outside the region, there are 27 states that use lethal injection. Ohio changed its rules in 2004 after the American Civil Liberties Union threatened to sue. For 25 years, Georgia has allowed a reporter to act as a "monitor" during the process, while other witnesses enter the viewing chamber later. In Idaho, when made aware of the 2002 court ruling, state officials said the decision did not apply to their procedures. "The circumstances of the case are unique to California," said Idaho deputy attorney general for prisons, Mark Kubinski. But Kubinski, other state attorneys, the governor's office and corrections officials have refused to say exactly why. Kubinski said the protocol balances the public's right to witness executions with the state's obligation to carry it out "in a safe and professional manner, while maintaining respect and dignity for all parties." During Idaho's most recent execution, Paul Ezra Rhoades, who was convicted of killing three people in 1987, could not be seen as he was brought into the death chamber. When the curtains were drawn, IVs were already connected. When asked by a reporter about what happened before the curtains were opened, the corrections director, Brent Reinke, said the procedure was somber and professional and described how the IVs and other equipment was inserted. Rhoades' attorneys had sued in federal court, arguing that Idaho's death penalty protocol created the opportunity for several excruciating errors. Of most concern was incorrect IV placement, which could leave him paralyzed but conscious. The legal scholars contacted by the AP who reviewed the California court case said it would be difficult to find a ruling that applies more closely to Idaho's policies. Jen Moreno, a staff attorney with the Death Penalty Clinic at the University of California's Berkeley Law, said the ruling sets precedent for all states within the 9th Circuit and that the non-complying states would likely be forced to change their policies if they were challenged in federal court. Moreno said the process of setting the IVs is the most crucial part of lethal injection because, if it is done incorrectly, the rest of the execution can go awry. "The fact that the states are hiding one of the most important parts of the execution, setting the IV, really means that what the public does see is not going to be very telling of whether it was a humane execution," she said.
[Associated
Press;
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