Privacy not guaranteed in discussing execution method, U.S. judge rules

SAN JOSE —  A federal judge Friday refused to guarantee state officials privacy in their discussions over revising the state’s method of executing prisoners by lethal injection.

Denying a protective order sought by the state, U.S. District Judge Jeremy Fogel instead said he would bar opposing attorneys from seeking information about the state’s deliberations until they are concluded and a proposed new protocol for lethal injection is unveiled May 15.

After the state has proposed a new protocol, Fogel said, he would consider on an individual basis requests from lawyers for more information about how California officials arrived at their decision. He also told lawyers for the state that all evidence relevant to the new protocol must be preserved.

Gov. Arnold Schwarzenegger had asked the judge to shield the deliberations from public view so participants would feel comfortable discussing options without fear that they might be subpoenaed.

Fogel said he understood that the state wanted “some space to conduct the process” and “space is something I think the court can produce.”

Fogel added that he was “very grateful for the governor’s engagement in the matter” and didn’t “want to do anything to discourage it.”

Fogel’s compromise, reached during a court hearing here, appeared to satisfy lawyers on all sides of the dispute. In addition to lawyers for condemned inmate Michael Morales, the American Civil Liberties Union Foundation of Northern California and the media had argued against protecting the deliberations from public view.

Supervising Deputy Atty. Gen. Ronald S. Mathias said he was grateful that Fogel had given state officials “the breathing room” to deliberate now without having to disclose the nature of the deliberations. Although Fogel said he might rule that some of the discussions must be made public later, Mathias said, “the judge said we will cross that bridge when we get there.”

Karl Olson, an attorney for the media, including The Times, told Fogel that reporters may seek information about the talks by filing requests through the state’s Public Records Act.

Fogel ruled in December that California’s method of executing prisoners by lethal injection violated the U.S. Constitution’s prohibition against cruel and unusual punishment. He called the system “broken” but said it could be “fixed.”

The state agreed to revise lethal injection methods and make public its proposal May 15.

Fogel ruled after a trial triggered by a challenge from Morales, who was sentenced to death more than 20 years ago for murdering Terri Winchell, a Lodi teenager.

maura.dolan@latimes.com