[00:00:00] Speaker 04:
May it please the court christina shindali on behalf of the idaho department of correction director brie derrick I would like to reserve three minutes for rebuttal The district court granted unprecedented access to execution steps personnel and places when it issued a preliminary injunction restraining the department from carrying out any lethal injection execution unless idoc grants access to all

[00:00:29] Speaker 04:
tasks associated with the preparation and administration of the lethal injection drugs.

[00:00:35] Speaker 03:
Well, first of all, my understanding is that what he granted, and if this isn't clear, I think we can make it clear, only began from the time that the defendant was taken out and put in the

[00:00:53] Speaker 03:
There were two rooms where he was treated, I gather, but the first of those rooms.

[00:00:58] Speaker 03:
Nothing before that.

[00:00:59] Speaker 04:
Your Honor, the plain language of the injunction says all tasks associated with the preparation.

[00:01:04] Speaker 03:
Well, that's my understanding, and let's assume that if that's not the case, that we would make it the case.

[00:01:10] Speaker 03:
So let's presume that that's what we're talking about.

[00:01:12] Speaker 03:
Thank you, Your Honor.

[00:01:14] Speaker 04:
The injunction, even as limited by

[00:01:19] Speaker 04:
the court's interpretation, it still far exceeds what the First Amendment grants as access to an execution process.

[00:01:28] Speaker 04:
It is overly broad, and it fails to comply with the Prison Litigation Reform Act.

[00:01:33] Speaker 04:
IDOC submits that the execution protocol in place already satisfies the right of access

[00:01:39] Speaker 04:
that this circuit has recognized.

[00:01:42] Speaker 04:
This circuit has three cases that established the right of access to execution processes.

[00:01:48] Speaker 01:
Specifically... Let me just understand the particular context here.

[00:01:52] Speaker 01:
Are the steps that are at issue in the medical preparation room, are they steps that are taken after the defendant has entered the execution chamber?

[00:02:04] Speaker 04:
Yes, Your Honor.

[00:02:05] Speaker 04:
The process that Idaho, the Idaho Department of Correction undertakes is as follows.

[00:02:10] Speaker 04:
The condemned individual is placed onto a medical grade gurney, is taken to the medication, I'm sorry, the execution preparation room.

[00:02:20] Speaker 04:
At that point, the IV

[00:02:24] Speaker 04:
The IV ports are then inserted while that is visible to all of the witnesses in the witness rooms.

[00:02:31] Speaker 04:
And just to interrupt for a minute, by the medical team, the same medical team that's later in the other room.

[00:02:38] Speaker 04:
Some of the medical team members do insert the IV catheters, yes, Your Honor.

[00:02:43] Speaker 04:
And they are dressed in scrubs and stuff.

[00:02:46] Speaker 04:
Yes, Your Honor, they're in scrubs, they have masks, then they have caps.

[00:02:49] Speaker 01:
Okay, go ahead.

[00:02:50] Speaker 01:
Then why doesn't this fall within the

[00:02:54] Speaker 01:
earlier language of our holding in Woodford that the public enjoys the First Amendment right to view executions from the moment the condemned is escorted into the execution chamber, which you said this is after, including those initial procedures that are inextricably intertwined with the process of putting the condemned inmate to death.

[00:03:17] Speaker 01:
Aren't these inextricably intertwined with that process?

[00:03:21] Speaker 04:
Your Honor, these particular acts are the acts that are participated and are conducted by the executioner rather than the events that occur in the execution chamber.

[00:03:30] Speaker 04:
Woodford... Not what that sentence says.

[00:03:33] Speaker 04:
Woodford specifically said that the events are once the condemned individual enters the chamber and is attached to the mechanism of death.

[00:03:43] Speaker 04:
And so the Idaho Department of Correction has assured that those events are in fact observed.

[00:03:48] Speaker 01:
Do you think it would be consistent with Woodford if you had the chamber and then you put a divider in the chamber and then put all the people involved in the execution on the other side of the divider and so the

[00:04:02] Speaker 01:
the public would only see the defendant on the gurney receiving it.

[00:04:09] Speaker 01:
In your view, that would then be consistent with what we've said in our prior cases?

[00:04:13] Speaker 04:
Yes, Your Honor.

[00:04:14] Speaker 04:
Woodford, Ryan, and Otter all say that the acts that are subject to public access, which would be the press's access in this- So all the personnel involved could be put behind a screen and just have the defendant out with

[00:04:30] Speaker 01:
With tubes and no one sees anyone else involved the department submits that Woodford's Precedent would require that's exactly what's happening here, right?

[00:04:40] Speaker 03:
I mean, it's not a barrier.

[00:04:41] Speaker 04:
It's a room, but it's essentially it's the wall Correct once the condemned individual is connected with the apparatus of death then the team of

[00:04:51] Speaker 04:
vacates the execution chamber, and then they do monitor the lines themselves, but the administration of the chemical is conducted from a screened room.

[00:05:01] Speaker 00:
And particularly.

[00:05:01] Speaker 00:
But just back to Judge Collins's question, the magistrate judge understood Woodford not to apply to this case, meaning she did not consider herself bound by Woodford.

[00:05:16] Speaker 00:
She extended Woodford in order to reach the conclusion that she did.

[00:05:20] Speaker 04:
Yet she explicitly found that twice in her order.

[00:05:23] Speaker 04:
It's at the two excerpt of records, pages 127 and 130, where the district court specifically said that she was extending Woodford, that Woodford, Ryan, and Otter did not mandate her preliminary injunction.

[00:05:36] Speaker 04:
She found that it was an extension of Woodford.

[00:05:38] Speaker 04:
And the department respectfully submits that that extension is not required under the First Amendment and violates the PLRA.

[00:05:48] Speaker 04:
With respect to the extension of Woodford the test on what access if any is granted under the first amendment There are two tests this circuit has determined that the appropriate test is the experience and logic test set out in press

[00:06:05] Speaker 04:
Enterprise and that those two prongs include the experience prong which is is there a historical basis for believing that the place and process has been accessible to the public so how do we analyze that because I mean it is sort of it depends on what we're looking at is the place because if it is the place of execution

[00:06:30] Speaker 00:
Would you agree that there is a historical precedent for allowing the place of execution to be publicly accessible?

[00:06:38] Speaker 04:
There is a historical basis for believing that there has been limited access granted by either the legislatures or the executives who are carrying out an execution.

[00:06:51] Speaker 04:
There's been limited access to the place and the condemned.

[00:06:55] Speaker 03:
Is this an open question?

[00:06:56] Speaker 03:
Wasn't that resolved by Woodford and Miss Progeny?

[00:06:59] Speaker 04:
So to the extent that Woodford finds a limited right under the First Amendment, the department does submit that it conflicts with Calderon, which was the earlier case.

[00:07:10] Speaker 03:
But to the extent that's a very big part of your brief, and I don't understand it.

[00:07:15] Speaker 03:
Because Woodford said specifically that we're bound by Calderon.

[00:07:21] Speaker 03:
And Calderon remanded to do exactly what the district court

[00:07:24] Speaker 03:
in the appeal that resulted in Woodford did.

[00:07:28] Speaker 03:
And the Court of Appeals opinion recognizes and applies the standard, the exaggerated standard from Calderon.

[00:07:38] Speaker 03:
So how could there be a conflict?

[00:07:40] Speaker 04:
In Calderon, that panel in Calderon found that the California policy which allowed access

[00:07:48] Speaker 04:
to the chamber and the condemned at the time of entry until death was sufficient to satisfy First Amendment.

[00:07:54] Speaker 03:
And then it said, after it said that, it's confusing.

[00:07:59] Speaker 03:
But after it said that, it said, and we're remanding for, essentially, it seemed to be finding that there wasn't summary judgment on the record.

[00:08:08] Speaker 03:
And then it set out what the standard was, and that was the standard that wasn't applied in Woodford, so they're completely consistent.

[00:08:14] Speaker 04:
Looking at the district court opinion on remand, the district court specifically

[00:08:18] Speaker 04:
acknowledged that it had some limiting law issued by the Ninth Circuit in Calderon and then said respectfully, I'm going to hold an evidentiary hearing and I'm going to apply the facts to the standard.

[00:08:29] Speaker 04:
He was challenged to hold an evidentiary hearing.

[00:08:31] Speaker 04:
Your Honor, he was, the district court on remand was to determine whether or not... Anyway, I don't think it's your strongest argument.

[00:08:37] Speaker 04:
Let's put it that way.

[00:08:38] Speaker 04:
Thank you, Your Honor.

[00:08:39] Speaker 04:
Thank you, Your Honor.

[00:08:40] Speaker 04:
Even considering that Woodford is good law, as this panel could be,

[00:08:45] Speaker 04:
Likely would find in a would apply under Woodford the department's execution protocol Meets the standards there's no reason and in fact there's no legal basis for extending the holding in Woodford which says that the public has a

[00:09:03] Speaker 04:
The public, as represented by the press, has a right to observe the condemned in the place of execution and attach the apparatus of death.

[00:09:10] Speaker 04:
And that's exactly what the department provides.

[00:09:12] Speaker 04:
From the moment that the condemned is placed on the gurney, is taken to the preparation room, has the IV insertion done, and then is transported to the execution chamber and is connected to the IV tubing.

[00:09:27] Speaker 03:
Aside from the preparation stuff.

[00:09:29] Speaker 03:
What they don't see is the transmission of the chemical to the individual.

[00:09:39] Speaker 03:
It's going through a wall.

[00:09:41] Speaker 03:
That's a little bit artificial.

[00:09:43] Speaker 03:
Usually, I can't think of any other instance in which people's IVs are communicated through walls.

[00:09:50] Speaker 04:
Your Honor, the one item, the action that is not observed is the pressure on the plunger that then puts the chemical into the tubing, and then the tubing is itself visible, and the effect on the condemned is visible.

[00:10:05] Speaker 03:
Well, some of the tubing is visible.

[00:10:07] Speaker 04:
The tubing connected to the condemned is visible, Your Honor.

[00:10:10] Speaker 04:
From the wall forward, but not from the wall back.

[00:10:12] Speaker 04:
Yes, the tubing is visible up to the wall, and then what occurs in the chemical room is not visible to the press or to the public.

[00:10:22] Speaker 04:
And under the Press Enterprise 2 test, there's no reason to extend Woodford to include visibility or access to the executioner.

[00:10:32] Speaker 04:
The historical analysis would demonstrate that there has been, since the 18

[00:10:39] Speaker 04:
Early to mid 1800s, execution states have been closing their executions.

[00:10:46] Speaker 04:
Our brief addresses that in pages 43 and 44, footnotes 9 through 41, identifies all of those state statutes that have closed executions to or from the public.

[00:10:58] Speaker 04:
Instead, they were moved inside or indoors or behind closed walls, and Idaho is no different than any of the other states.

[00:11:05] Speaker 04:
In 1899, when Idaho, in its first statutes related after it gained statehood,

[00:11:13] Speaker 04:
At that point, it went from a sheriff and a local execution process to a state and a prison-based execution process, at which point the public was excluded.

[00:11:24] Speaker 04:
All of those executions occurred behind closed walls or in a building, and the only access that was granted

[00:11:32] Speaker 04:
was as set out by the legislature or by the wardens.

[00:11:35] Speaker 04:
In other words.

[00:11:36] Speaker 03:
Again, I don't understand why Woodford didn't resolve this on a nationwide basis, not an Idaho-specific basis, the history and relevance of the history.

[00:11:46] Speaker 03:
Why are we going back over it?

[00:11:48] Speaker 04:
In Woodford, the circuit specifically determined that under the historical analysis of press enterprise, that the historical access was to the mechanism of death in the condemned, not the executioner.

[00:12:02] Speaker 04:
That it was from the moment that the condemned entered, whether it was the gallows, where the gallows could be secreted and hidden from public view, whether it was the execution

[00:12:14] Speaker 04:
the electric chair, whether it was a room where there was a gallows, that in all of that historical analysis, the court in Woodford specifically found that the access was to the condemned and the mechanism of death, not to the executioner.

[00:12:30] Speaker 04:
And this particular injunction extends that access to the executioner and a place that the condemned never enters.

[00:12:38] Speaker 04:
And that is the extension that has been ordered by the district court, and that exceeds the authority and the requirement as set forth in Woodford, Ryan, and Otter.

[00:12:50] Speaker 04:
In addition, the other part of the press enterprise test is the logic prong, and that is whether the access would play a positive role in the functioning of government.

[00:13:00] Speaker 04:
And the department respectfully submits that it would not under these circumstances.

[00:13:04] Speaker 04:
And there's a specific reason why.

[00:13:07] Speaker 04:
In the injunction, to the extent that if it is limited to just viewing the plunger and placing the chemical into the tubing, the only thing that would be gained is the plunger.

[00:13:19] Speaker 04:
In other words, this is a chemical that is clear.

[00:13:22] Speaker 04:
There is no way to observe what happens to that chemical once it enters the tubing until it reaches the body of the condemned.

[00:13:31] Speaker 03:
So if, for example, when you put the chemical in, there was a leakage,

[00:13:35] Speaker 04:
At that inch you could see that you could see the chemical entering Potentially you might see a leakage.

[00:13:43] Speaker 04:
It is a clear fluid.

[00:13:44] Speaker 04:
It's arguable whether or not that would be visible But what would be visible is the impact on the condemned person and their body which is the access that has been granted in wooden in Woodford Ryan and Otter and nothing in that

[00:13:59] Speaker 04:
Chemical room is anything that would provide any additional information to the extent that there's a need to know when chemical is pushed then that can be done and it is Going to be done by the department by a light and verbal authorization or confirmation by the warden that that is a system that if it's the actual administration of the chemical meaning when is it when is it administered how many doses are administered if you just switch curious a little bit because you're running low on time and

[00:14:28] Speaker 03:
and talk about what the governmental interests are in proceeding in this very weird fashion.

[00:14:37] Speaker 03:
The governmental interests in proceeding this way and having a separate room and having the IV come through a wall

[00:14:46] Speaker 03:
So you can see part of the tube, but not the other part of the tube.

[00:14:49] Speaker 03:
But what is the interest in doing it this way?

[00:14:52] Speaker 04:
The interest is in controlling access to all of the rooms.

[00:14:55] Speaker 04:
That particular chemical room also contains all of the supplies and all of the other items.

[00:14:59] Speaker 03:
But there's no access.

[00:15:00] Speaker 03:
No one's going to go see anything.

[00:15:02] Speaker 03:
And the cameras doesn't have to look at the whole room.

[00:15:04] Speaker 03:
It just looks at whatever's being done that's part of the execution.

[00:15:09] Speaker 04:
And the department respectfully submits that the injunction is much broader than that and must be reversed.

[00:15:14] Speaker 04:
If this court were to determine that an alternative is that it should be limited, then at the most, that should be what is granted.

[00:15:21] Speaker 04:
The department submits that this injunction is improvident.

[00:15:27] Speaker 03:
I think it's clear that he meant the preparations he was talking about with the preparations after the guy got to the

[00:15:34] Speaker 03:
First room, but if that's not clear we can make it clear.

[00:15:39] Speaker 03:
What else was not clear?

[00:15:41] Speaker 04:
It's not clear to the extent that if the access has to be to the entirety of the chemical preparation room them I'm sorry the medical preparation room meaning all of the medical team and what they're doing never said that The injunction doesn't say that

[00:15:58] Speaker 04:
Okay, the department understands the court's limiting on that injunction.

[00:16:03] Speaker 04:
The injunction on its face does include that.

[00:16:05] Speaker 00:
You might get some of what you want.

[00:16:08] Speaker 04:
As it currently states.

[00:16:09] Speaker 00:
But let's ask that.

[00:16:10] Speaker 00:
I think what Judge Berzon is asking is, are you concerned if it were so narrow that it was only the tubes, I guess.

[00:16:19] Speaker 04:
And what was being put in the tubes.

[00:16:21] Speaker 00:
Yeah.

[00:16:22] Speaker 00:
Do you still have the concern?

[00:16:24] Speaker 04:
The department still does have the concern because the department respectfully submits there's no First Amendment right of access to the information that's being ordered.

[00:16:31] Speaker 00:
Because of that or because of the potential of disclosing medical examiners?

[00:16:36] Speaker 04:
So we would start with no right and then if there is a right, the department would submit that there are legitimate reasons, valid penological interests for why that should not be accessible.

[00:16:45] Speaker 01:
What the order says is that the motion is granted insofar as defendant must provide

[00:16:52] Speaker 01:
execution witnesses with audio and visual access to the preparation and administration of the lethal injection drugs.

[00:17:02] Speaker 01:
That seems to give you some discretion about how to aim the camera to stay within just what the district court required and not to include things the district court didn't require.

[00:17:15] Speaker 01:
So is that tailoring built in already?

[00:17:17] Speaker 04:
But tailoring is not built into the injunction.

[00:17:20] Speaker 04:
That is an overly broad injunction because it does not limit in time or scope what must be made available and accessible to the press and the public in this case.

[00:17:30] Speaker 01:
What do you mean in time?

[00:17:31] Speaker 04:
So preparation starts the day before when it comes to the chemicals.

[00:17:36] Speaker 01:
But Woodford, the right recognized in Woodford, and even as extended here,

[00:17:41] Speaker 01:
is right from the moment the defendant enters the execution chamber.

[00:17:46] Speaker 01:
Never mind my first question to you was, what are the processes we were talking about here take place after that moment?

[00:17:53] Speaker 01:
So I don't read anything in the order as saying you need to give any access prior to the moment the defendant enters the chamber.

[00:18:02] Speaker 04:
Thank you, Your Honor.

[00:18:03] Speaker 04:
And with that caveat, there are still concerns about whether or not there's right of access to the executioner in the place of execution outside of the place where the condemned is.

[00:18:15] Speaker 03:
So what exactly is the interest?

[00:18:18] Speaker 03:
Is it an interest in anonymity or a concern for the safety of the executioners?

[00:18:24] Speaker 03:
Correct.

[00:18:25] Speaker 03:
But two things about that.

[00:18:28] Speaker 03:
One is that at least some of them are already being seen at the beginning.

[00:18:35] Speaker 03:
Right?

[00:18:35] Speaker 03:
Some of them, yes.

[00:18:36] Speaker 03:
Right.

[00:18:36] Speaker 03:
OK.

[00:18:37] Speaker 03:
So it's not a very strong interest.

[00:18:41] Speaker 03:
Second of all, when they are seen at the beginning, they're in scrubs and masks and stuff.

[00:18:47] Speaker 03:
And they can do the same thing in the medical room.

[00:18:52] Speaker 03:
Right.

[00:18:53] Speaker 04:
With respect to the garb that can be wearing the clothing.

[00:18:56] Speaker 04:
Yes, your honor.

[00:18:57] Speaker 04:
All right.

[00:18:57] Speaker 04:
So what's the problem?

[00:18:59] Speaker 04:
The problem is currently the medical team operates silently.

[00:19:04] Speaker 04:
So when they're in the medical preparation room, the execution preparation room and the execution chamber, they are communicating silently.

[00:19:12] Speaker 04:
They are moving around except for the medical team leader.

[00:19:15] Speaker 04:
He's the only one that

[00:19:17] Speaker 04:
That makes any audible sounds everybody else on the team operates silently in the chemical preparation I'm sorry in the medical team room.

[00:19:27] Speaker 04:
They don't currently have that limitation because They are not well.

[00:19:30] Speaker 04:
They don't currently have it, but they could have it

[00:19:33] Speaker 04:
And then they would be unable to communicate with the team leader and with the warden and with the director.

[00:19:38] Speaker 04:
And so if there were issues that they found in the medical team room, they would not be able to communicate that.

[00:19:44] Speaker 03:
And the reason you want them to be silent is because somebody might recognize their voice?

[00:19:49] Speaker 04:
Yes, Your Honor.

[00:19:50] Speaker 04:
That there would be, there's anonymity issues with respect to their voices.

[00:19:55] Speaker 01:
And the department has concerns about that.

[00:19:57] Speaker 01:
So what are the kinds of issues that might arise that they might need to communicate?

[00:20:01] Speaker 04:
So the protocol itself sets out what happens if there is something that is located or something that's noticed about the the syringes themselves.

[00:20:11] Speaker 04:
So when the chemical is drawn if there's an issue with that they would communicate that to the warden and then they would engage.

[00:20:17] Speaker 03:
So what about at the other end when they're in the room with the person and they're putting IV in his arm and certainly

[00:20:24] Speaker 04:
issues could arise.

[00:20:26] Speaker 04:
And that would be, again, the cameras are focused on the condemned and on the actions that are occurring with the body of the individual.

[00:20:32] Speaker 04:
OK.

[00:20:32] Speaker 04:
But what about the somewhat ephemeral communication issue?

[00:20:38] Speaker 04:
So they're communicating with each other silently.

[00:20:40] Speaker 04:
So they're not having to communicate with individuals in a different place.

[00:20:44] Speaker 00:
Oh, I understand that.

[00:20:44] Speaker 00:
Because as I understand it, in the last execution in Idaho, they weren't able to find a vein, correct?

[00:20:50] Speaker 00:
That is correct.

[00:20:52] Speaker 00:
For injection.

[00:20:54] Speaker 00:
being observed by the press at the time that was happening.

[00:20:57] Speaker 04:
Yes, so at that time we didn't have, the department did not have a separate preparation room.

[00:21:01] Speaker 03:
Oh, the same thing happened now.

[00:21:02] Speaker 03:
Nobody would see it, even though it was a central part of what they should have seen if they were going to see the whole execution.

[00:21:09] Speaker 04:
No, they would see it.

[00:21:09] Speaker 04:
We have a separate execution preparation room where it is accessible by camera and audio access.

[00:21:17] Speaker 04:
So what happens during the IV insertion is visible and audio, but that's the condemned is being monitored.

[00:21:23] Speaker 04:
In other words, the condemned's voice can be heard.

[00:21:27] Speaker 00:
Hold on, that wouldn't happen in the medical room.

[00:21:31] Speaker 00:
That would happen in the room where he was.

[00:21:34] Speaker 00:
I mean, the insertion of the IV would happen in his room.

[00:21:36] Speaker 00:
You can't do that in a different room.

[00:21:38] Speaker 04:
So the insertion does happen in a camera room.

[00:21:43] Speaker 04:
So we have a separate sterile suite that the department created, and they did that in case there was a need for a central line.

[00:21:50] Speaker 04:
So we have a separate room.

[00:21:51] Speaker 04:
And then the individual is transported.

[00:21:53] Speaker 04:
It's all in the same unit.

[00:21:54] Speaker 00:
Oh, but hold on.

[00:21:55] Speaker 00:
So the IV is inserted in a separate room.

[00:21:58] Speaker 00:
So there's three rooms.

[00:22:00] Speaker 00:
It's inserted in the second room.

[00:22:01] Speaker 00:
And then after the insertion, then he comes into the execution room.

[00:22:05] Speaker 04:
Yes.

[00:22:05] Speaker 04:
And then once he is... But that's visible in that second room.

[00:22:09] Speaker 04:
Yes, both the preparation room and the execution unit are fully visible, one by camera, one through a window interplay.

[00:22:17] Speaker 04:
The only room that is not accessible is the medical team room where the chemical is pushed, and that's the event that occurs aside from other team issues.

[00:22:26] Speaker 04:
And I'm well over my time.

[00:22:27] Speaker 00:
We've taken you over, but we'll give you some time for rebuttal.

[00:22:30] Speaker 04:
Thank you.

[00:22:30] Speaker 04:
I appreciate it.

[00:22:44] Speaker 02:
May it please the court, your honors, my name is Wendy Olson, and I represent the appellees in this case, the Associated Press, the McClatchy Company, which does business in Idaho, is the Idaho Statesman, and EastIdahoNews.com.

[00:23:00] Speaker 02:
These media organizations seek their First Amendment right of access, which they do as surrogates for the public, to portions of the Idaho lethal injection execution process that are not currently open and that are inextricably intertwined with execution of the condemned individual.

[00:23:18] Speaker 02:
Specifically, they seek the audio and visual access that Judge Grasham granted below to the medical team room where, under current protocols,

[00:23:28] Speaker 02:
the lethal injection drugs are administered to the condemned individual.

[00:23:33] Speaker 02:
That this process currently happens behind closed doors.

[00:23:37] Speaker 01:
Well, it's where the path of the drug starts, but where they're actually administered, they do come in the room through the tube, and at that point, where they're actually administered, everyone gets to see that.

[00:23:51] Speaker 02:
That's correct, Your Honor.

[00:23:52] Speaker 02:
But when they are, as my colleague acknowledged, when the

[00:23:56] Speaker 02:
plunger is plunged, so when the process starts, that happens in an entirely different room.

[00:24:02] Speaker 02:
And as Judge Grasham herself said in her order, the court struggles to think of a more vital step of the execution process than the actions taken by the medical team

[00:24:15] Speaker 02:
while in the medical team room, because without such actions, the execution... If you're watching a hanging, you have to see the person who pulls the lever.

[00:24:24] Speaker 01:
They couldn't put that behind a screen.

[00:24:27] Speaker 02:
I don't think so, Your Honor, and I think historically they haven't... But why?

[00:24:29] Speaker 01:
I mean, you see the floor drop and the defendant, you get to observe.

[00:24:36] Speaker 01:
everything that happens you get to observe his condition whether he suffers whether there's complications why do you need to see the person who pushes the button pulls the lever because that's the point at which the execution begins and there might be complications with

[00:24:52] Speaker 00:
Initiating and using that mechanism to initiate but there might be complications even before that I mean that can't be the basis They could mix the wrong drugs before they put it in you would agree You don't have access to that for drugs that are mixed hours before They're inserted into the even into the plunger area.

[00:25:11] Speaker 02:
Yeah, I would agree your honor I think that I would posit that as a slightly different comparison, so it would be and as has happened

[00:25:20] Speaker 02:
if there are more drugs administered than are necessary.

[00:25:23] Speaker 00:
Or worse, less drugs than are necessary, which has also happened.

[00:25:28] Speaker 02:
Yes, and I think in Ms.

[00:25:30] Speaker 02:
Boone's declaration, which Judge Grasham had in front of her when she made her findings,

[00:25:36] Speaker 02:
on this issue and decided that these processes were inextricably intertwined.

[00:25:40] Speaker 02:
There was an execution in Texas where the attorney general came out later and said, yep, we think there was too many drugs administered.

[00:25:49] Speaker 02:
And then there was a similar incident in Arizona where there was reporting on that.

[00:25:53] Speaker 03:
And so that's my hypothetical of a leak, if there were a leak.

[00:25:56] Speaker 03:
in the two before it got to the hole in the wall, presumably there would be less administered than it was intended to be administered.

[00:26:07] Speaker 02:
Correct.

[00:26:07] Speaker 02:
And I think, Your Honor, going back to Judge Collins' initial question about the lever to pull the gallows, to pull the trapdoor rather, if the mechanism wasn't working and there had to be some extra

[00:26:24] Speaker 02:
Pulled a lever and came off.

[00:26:27] Speaker 02:
Yes, and I think that lever cracked.

[00:26:29] Speaker 02:
That initiation of the execution, I think, we take the position is inextricably intertwined part of the process.

[00:26:38] Speaker 00:
But my pushback is, I mean, this whole inextricably intertwined language is problematic in and of itself, because as this colloquy is just demonstrating, it doesn't provide the full answer here, because the mixture

[00:26:52] Speaker 00:
You know of I mean, let's go back months before where they get the drugs is also inextricably intertwined.

[00:27:01] Speaker 00:
I mean, there might be two different producers, you know, one of which is more credible than the other in actually giving.

[00:27:08] Speaker 00:
And I think that goes to the question that Judge Collins asked of my colleague initially, and that is that

[00:27:31] Speaker 02:
Woodford, I think, sets out that this ability to have First Amendment access to an execution begins from the time the condemned is executed into the chamber.

[00:27:42] Speaker 00:
Well, so you disagree with the magistrate judge here, because the magistrate judge said Woodford did not control this situation.

[00:27:49] Speaker 00:
You disagree with that, and you think we are bound by Woodford if we apply it to rule in your favor.

[00:27:57] Speaker 02:
You're right.

[00:27:58] Speaker 02:
I think that Judge Grasham

[00:28:00] Speaker 02:
found that Woodford does apply.

[00:28:02] Speaker 02:
I think what she said was that there had not yet been a case that Woodford was controlling law.

[00:28:07] Speaker 00:
It sets out that... No, no, this is what she said.

[00:28:10] Speaker 00:
There is currently no binding precedent explicitly providing general audio and visual access to the medical team room.

[00:28:18] Speaker 00:
I mean, she said Woodford does not control this case.

[00:28:22] Speaker 00:
Now, she extended Woodford.

[00:28:25] Speaker 02:
Your Honor, I guess I would, I think that phrasing comes later in her opinion.

[00:28:31] Speaker 02:
She starts out looking at Woodford.

[00:28:33] Speaker 03:
Well, what difference does this make?

[00:28:34] Speaker 03:
I mean, this is a legal question.

[00:28:36] Speaker 03:
And if she looked at Woodford in a more limited way, I mean, Woodford says that the public enjoys a First Amendment right to 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

[00:28:55] Speaker 03:
the condemned inmate to death.

[00:28:56] Speaker 03:
Now, I tend to agree with Judge Nelson that inextricably intertwined is terrible language.

[00:29:01] Speaker 03:
It's used all over the place and it always muddies up the situation.

[00:29:06] Speaker 03:
And here, it's not a question of being intertwined.

[00:29:10] Speaker 03:
It's a straight line

[00:29:12] Speaker 03:
process that if you don't do this, you can't have that.

[00:29:17] Speaker 03:
So it's not a question of being somehow mushed up in it.

[00:29:20] Speaker 03:
It's actually what's causing the execution.

[00:29:23] Speaker 03:
There may be other things that are somehow to the side, but this is not to the side.

[00:29:29] Speaker 03:
It's right in the middle.

[00:29:31] Speaker 02:
I think Judge Grasham absolutely recognized that Woodford was the governing law, but what she also recognized- One question.

[00:29:39] Speaker 01:
In Calderon, we did say

[00:29:41] Speaker 01:
that whatever First Amendment right might exist to view executions, the right is severely limited.

[00:29:48] Speaker 01:
And then it adopted what is essentially the Turner versus Safley standard.

[00:29:53] Speaker 01:
And we acknowledge in the subsequent Woodford that the standard is Turner.

[00:29:58] Speaker 01:
But Turner is essentially rational basis, very deferential.

[00:30:02] Speaker 01:
And that does not seem to be what the district court here did.

[00:30:06] Speaker 01:
It doesn't seem very deferential or rational basis.

[00:30:08] Speaker 01:
It seems like least restrictive means.

[00:30:12] Speaker 02:
Respectfully, Your Honor, I disagree.

[00:30:14] Speaker 02:
I think the court obviously used the Turner test, and it looked to what were the legitimate penological interests that the state asserted, and the state asserted the anonymity and safety of the medical team members

[00:30:30] Speaker 02:
as well as, secondly, the cost of any renovations.

[00:30:33] Speaker 02:
And then the court analyzed that.

[00:30:36] Speaker 02:
And the court said, look, this question about anonymity and safety really was already addressed by the Ninth Circuit in Woodford and then again by the Ninth Circuit in Otter.

[00:30:48] Speaker 02:
And in Otter, the Ninth Circuit was very pointed to the state of Idaho and said, look, you have given us nothing but speculation.

[00:30:56] Speaker 02:
about why there would be any concern.

[00:30:58] Speaker 01:
She seemed to require an affirmative evidentiary showing of the sort that, you know, is more as typical of intermediate scrutiny rather than Turner.

[00:31:10] Speaker 02:
I think what she required is that it not just be speculation, and to use that term a couple of times, and I think she did that because that's what the court said in Otter.

[00:31:18] Speaker 01:
Well, basis tests would normally say, well, what might reasonably occur, and, you know, is that

[00:31:25] Speaker 01:
Related to a legitimate interest.

[00:31:27] Speaker 01:
We don't require affirmative proof and that just got labeled as speculation It changes the Turner standard.

[00:31:33] Speaker 01:
That's my concern.

[00:31:35] Speaker 02:
I think it also your honor She turned to what is I guess it's truly the fourth Part of the Turner standard and that's whether it's an exaggerated response in which you went through Part of the analysis that judge Berzon went through on the people are in the medical turner makes very clear that that is not meant to be least restrictive means

[00:31:52] Speaker 02:
I absolutely agree, Your Honor, and I don't think that the court applied a least restricted means test here.

[00:31:59] Speaker 02:
It said, look, this concern that you've asserted here... This is not a least restrictive alternative test.

[00:32:06] Speaker 01:
I'm reading from Turner.

[00:32:08] Speaker 01:
Prison officials do not have to set up and shoot down every conceivable alternative method of accommodating the claimant's constitutional complaint.

[00:32:18] Speaker 02:
Did she follow that here?

[00:32:20] Speaker 02:
I think she did, Your Honor, for two reasons.

[00:32:22] Speaker 02:
One, she went back to Woodford and Otter and said, look, this interest that you're asserting, we've already considered and rejected it in Woodford and Otter.

[00:32:33] Speaker 02:
And that was all the evidence that was before her at that stage.

[00:32:38] Speaker 02:
There was evidence in the record from Ms.

[00:32:41] Speaker 02:
Boone's declaration.

[00:32:42] Speaker 02:
It is a single paragraph.

[00:32:43] Speaker 02:
I think it's paragraph 13.

[00:32:45] Speaker 02:
But she says, and she had attended two prior executions and was there for the failed execution of Mr. Creech.

[00:32:53] Speaker 02:
She's the Associated Press reporter.

[00:32:55] Speaker 02:
And she said, I have never been able to tell who the people are in the medical garb.

[00:33:01] Speaker 02:
what they had on so they appear in the in the execution chamber and in the execution preparation room in this garb and no one has been able to identify them so insisting them that in addition to that they have to put up these walls where they can't be seen

[00:33:19] Speaker 02:
shows that what they're doing is an exaggerated response.

[00:33:21] Speaker 00:
I don't know that that's right.

[00:33:23] Speaker 00:
If we're going to look to a history analysis, it seems that the history of executioners was a closely guarded secret.

[00:33:35] Speaker 00:
very see I mean these these people were ostracized in the communities and it often passed from you know through a hereditary process because it couldn't no one else would do this stuff because they and that's why they were always um uh protected so I mean I don't I'm not sure what your argument is you're not denying that the the state's interest is legitimate in in protecting their anonymity you're just saying they're going about it in too too careful of a

[00:34:05] Speaker 00:
of a process.

[00:34:08] Speaker 02:
Yes, and that's exactly what the court found.

[00:34:10] Speaker 00:
The court said, yes, this is a legitimate penological interest, took it very seriously, and then said... But is that... Do you agree that that is reviewed under a rational basis review?

[00:34:21] Speaker 02:
It's under the Turner standard, which I think, Your Honor, is rationally related to... Well, I thought... I mean, Turner is not just a rational basis.

[00:34:28] Speaker 03:
test because it has four prongs.

[00:34:31] Speaker 03:
Right.

[00:34:32] Speaker 03:
Of which the first, I think, is actually enunciated as reasonable rather than rational.

[00:34:38] Speaker 03:
I'm not sure about that.

[00:34:39] Speaker 03:
But if that makes a difference.

[00:34:41] Speaker 03:
But it's a reticulated version.

[00:34:48] Speaker 03:
And I think that's important.

[00:34:49] Speaker 03:
In particular, what in Calderon, the remand was on the exaggerated part of it, and that was what

[00:34:57] Speaker 03:
Woodford was writing about.

[00:35:00] Speaker 03:
And that's what Otter, it seems to me, which is probably the closest student case, applied.

[00:35:09] Speaker 02:
I agree, Your Honor.

[00:35:10] Speaker 02:
And that's exactly why, when you go through the Turner factors, the first step is this.

[00:35:15] Speaker 02:
And I think you're right.

[00:35:15] Speaker 02:
It's reasonably related to a legitimate penological interest.

[00:35:19] Speaker 00:
But you don't seem to really be questioning that part of it.

[00:35:22] Speaker 00:
Or maybe you are.

[00:35:23] Speaker 00:
You're saying this particular process isn't reasonable.

[00:35:27] Speaker 02:
What I'm saying is that it is a legitimate, penological interest to maintain the anonymity and the safety of the medical team members.

[00:35:35] Speaker 02:
And the district court, Judge Grasham, did that as well.

[00:35:38] Speaker 02:
So then the next part of it is, is it reasonably related or is it an exaggerated response?

[00:35:44] Speaker 02:
And Judge Grasham made findings that it was an exaggerated response.

[00:35:50] Speaker 02:
And she did that by looking at this circuit's opinion in Woodford, this circuit's opinion in Otter,

[00:35:56] Speaker 02:
And the fact that there was nothing on the record before her different from the state than had been in front of the Ninth Circuit in Otter.

[00:36:04] Speaker 02:
And the Ninth Circuit in Otter very much took the state to task, asked her in oral argument, tell us why you need these things, offered to let them bring forth evidence, tell us now here in oral argument.

[00:36:17] Speaker 02:
They couldn't do that at all.

[00:36:18] Speaker 02:
And here we are 13 and a half years later, and it's the same bare bones argument.

[00:36:24] Speaker 02:
There was evidence in the record about

[00:36:26] Speaker 02:
whether or not the processes that they already followed did meet their legitimate penological interest.

[00:36:36] Speaker 02:
have on medical garb.

[00:36:38] Speaker 02:
So that was a step that they had taken and it had worked.

[00:36:41] Speaker 02:
Ms.

[00:36:41] Speaker 02:
Boone testified that she had never, not testified, Ms.

[00:36:45] Speaker 02:
Boone said in her declaration that she had never in the three executions that she had witnessed, she had never been able to tell who was on the medical team.

[00:36:55] Speaker 03:
In the First Amendment Coalition case there wasn't, what this has come down to as I understand it is

[00:37:05] Speaker 03:
restricting the sound, that they don't want to be able to hear the voice.

[00:37:09] Speaker 03:
And that's exactly what FACA was about, right?

[00:37:13] Speaker 03:
Because they want you to turn off the sound.

[00:37:19] Speaker 03:
And the holding there was that they couldn't restrict

[00:37:29] Speaker 03:
access to the sounds of the execution when it was part of the execution.

[00:37:35] Speaker 03:
So that's essentially what they're trying to do here.

[00:37:38] Speaker 02:
I think that's the concern that they have is they wouldn't want people to hear that sound.

[00:37:44] Speaker 02:
And so I think, Your Honor, yes, they're saying there's a part of this that we don't want you to see or hear because people might have to talk.

[00:37:51] Speaker 00:
And are you disagreeing with that aspect of it?

[00:37:53] Speaker 00:
I mean, are you just, are you, would you,

[00:37:56] Speaker 00:
I guess I need to go back and look at the language, but if it was just the camera and no sound, are you saying, no, we need the sound as well?

[00:38:04] Speaker 02:
Yes, because I think that would be directly in violation of Ryan, which is an earlier decision of this court from- That's the First Amendment Coalition case, and it says- Right, from 2019.

[00:38:15] Speaker 03:
That the historical tradition of public access described in which it includes the ability to hear the sounds of executions.

[00:38:23] Speaker 01:
But and I also think your honor that when we talk to see the entirety of the executions, I mean, but I really think this comes down to the fourth prong of Turner because, you know, at the first prong,

[00:38:35] Speaker 01:
It's whether there's a valid rational connection between the prison regulation legitimate government interest put forward to justify it.

[00:38:42] Speaker 01:
There's certainly a rational connection between having the medical team in a separate room for anonymity purposes.

[00:38:49] Speaker 01:
But your real argument is that there's other ways to do it and the standard there is

[00:38:54] Speaker 01:
If you can point to an alternative that fully accommodates the prisoners' rights at de minimis cost to valid penological interests, the court may consider that as evidence that the regulation does not satisfy the reasonable relationship standard.

[00:39:09] Speaker 01:
But one of their arguments is that the audio will reveal who the people are.

[00:39:16] Speaker 01:
So that doesn't fully accommodate the interests.

[00:39:18] Speaker 01:
What's your response to that?

[00:39:20] Speaker 02:
Well, Your Honor, I would say the response to that is the California First, or excuse me, I think it's the First Amendment Coalition versus Ryan case where it was, I think, very clear.

[00:39:29] Speaker 00:
Well, you just think our precedent forecloses that.

[00:39:31] Speaker 00:
Correct, Your Honor.

[00:39:33] Speaker 01:
But did that deal with the voices of persons who were, you know, the actual initiators of the process?

[00:39:44] Speaker 01:
I thought the focus was on the voice of the condemned.

[00:39:49] Speaker 02:
Or anyone who was speaking in the execution chamber, your honor.

[00:39:53] Speaker 01:
But you have that.

[00:39:55] Speaker 01:
What you don't have is the potential voices of people who are pushing the plunger.

[00:40:01] Speaker 02:
Your honor, I would submit that that part of what would go on in the medical team room would absolutely be critical to the proper understanding or the proper functioning of

[00:40:13] Speaker 03:
the execution procedures because it... And Ryan directly addressed that.

[00:40:16] Speaker 03:
So to the extent that the execution team members could be identified by the sound of their voices, so witnesses can already hear their voices during the initial stages of the execution.

[00:40:27] Speaker 03:
I guess that's not necessarily true here, but they can see them during the initial stages of the execution.

[00:40:35] Speaker 03:
So go ahead.

[00:40:37] Speaker 00:
I mean, so you agree

[00:40:40] Speaker 00:
Let me ask you this question.

[00:40:41] Speaker 00:
Do you agree hearing their voices is different than seeing them in scrubs as far as the potential to identify them?

[00:40:49] Speaker 02:
Absolutely, your honor.

[00:40:51] Speaker 02:
You know, there are lots of ways to identify people and voice has long been a way to identify people.

[00:40:58] Speaker 02:
I think given that the medical team members may also be speaking in the preparation room and the likelihood of anyone

[00:41:08] Speaker 02:
who is a witness being familiar enough with the voices to hear it in such a small snippets, I think it's exceptionally unlikely that that would provide any greater identification than is already made available when they're in the execution room.

[00:41:24] Speaker 00:
But the state has said we're worried about it.

[00:41:27] Speaker 00:
So what, I mean, is there any way, maybe from your perspective there's not, is there any way to alleviate this in a way that would

[00:41:36] Speaker 00:
I mean, if sound were to shut off, you're saying you would disagree with that.

[00:41:41] Speaker 00:
You think that that's inconsistent with Ryan.

[00:41:43] Speaker 00:
It can't be ordered that way.

[00:41:46] Speaker 01:
I mean, here's the problem with Ryan.

[00:41:48] Speaker 01:
The reason why we rejected anonymity in Ryan as a justification for turning off the sound

[00:41:56] Speaker 01:
is that to the extent that execution team members could be identified by the sound of their voices, witnesses can already hear their voices during the initial stages of the execution.

[00:42:08] Speaker 01:
But this is set up so that that's not true.

[00:42:10] Speaker 01:
So Ryan is not controlling on this case, it seems to me.

[00:42:15] Speaker 02:
Well, Your Honor, I may have misunderstood my colleague in the record, but my understanding is that the people in the medical team room

[00:42:21] Speaker 02:
are some of the same people who are in the execution preparation room.

[00:42:25] Speaker 02:
So a way they could handle that certainly would be to only... Because they don't speak in the other room.

[00:42:29] Speaker 03:
I don't know.

[00:42:30] Speaker 03:
It seems a little weird.

[00:42:31] Speaker 03:
I don't know how they would do that, but they can speak low.

[00:42:36] Speaker 02:
So I simply don't think that they... And it sounds like if they speak in the medical team room, the things they would be speaking about would be precisely the events in a execution

[00:42:48] Speaker 02:
that witnesses would need to be able to see.

[00:42:51] Speaker 00:
Well, I'm not sure there's a lot of disagreement about that.

[00:42:54] Speaker 00:
The question is, does the penological interest overrule that?

[00:42:57] Speaker 00:
And what we're hearing is

[00:43:00] Speaker 00:
They have a reasonable belief that those voices should be protected.

[00:43:07] Speaker 00:
You're saying, no, they shouldn't be protected because that's important information.

[00:43:11] Speaker 00:
Maybe what we need is a separate transcript.

[00:43:17] Speaker 00:
Maybe this is your proposal, is there's a separate transcription.

[00:43:20] Speaker 00:
AI can do crazy things these days.

[00:43:24] Speaker 00:
You know, there's a separate transcription that, you know, says what they're saying but doesn't give their voice.

[00:43:30] Speaker 00:
But that hasn't been proposed, I take it.

[00:43:35] Speaker 02:
Yeah, I think the... I think, Your Honor, there are lots of things that the state could do probably to provide meaningful access.

[00:43:44] Speaker 00:
But Turner seems to require you to come forward with those alternatives that would meet the... the... the penological interests.

[00:43:54] Speaker 02:
Well, Your Honor, but for the fact that these interests had already been rejected, that would probably be the case.

[00:44:00] Speaker 02:
And also, as the only evidence in the record, before Judge Grasham, and so I think it's not an erroneous finding of fact, is that people who have been witnesses or person, Ms.

[00:44:12] Speaker 02:
Boone,

[00:44:13] Speaker 00:
that were not identified in the past.

[00:44:15] Speaker 02:
Correct.

[00:44:16] Speaker 02:
Okay.

[00:44:16] Speaker 00:
And Your Honor, I'm over time but... Yeah, thank you.

[00:44:19] Speaker 00:
Thank you very much.

[00:44:20] Speaker 00:
I appreciate it, Your Honor.

[00:44:21] Speaker 00:
Thank you.

[00:44:21] Speaker 03:
Let me just... We asked you to write these briefs about the new protocol and I gather there's agreement between the parties that there's not mootness because it's possible that there will be... Yes, I think both of our supplemental briefs said that the matter is not moot

[00:44:41] Speaker 02:
We had suggested that the court stay its decision here.

[00:44:45] Speaker 02:
Frankly, we were anticipating the state will take a different position.

[00:44:48] Speaker 02:
And that's, I guess, one of the challenges of simultaneous briefing.

[00:44:51] Speaker 02:
But we're not asking for that anymore.

[00:44:52] Speaker 02:
But thank you, Your Honor.

[00:44:54] Speaker 00:
OK.

[00:44:54] Speaker 00:
Thank you.

[00:44:55] Speaker 00:
Thank you very much for your argument.

[00:44:56] Speaker 00:
We'll give you two minutes for rebuttal.

[00:45:02] Speaker 00:
Or did she have more than two minutes?

[00:45:03] Speaker 00:
I didn't mean to cut her.

[00:45:04] Speaker 00:
Oh, no.

[00:45:05] Speaker 00:
She was over before you.

[00:45:07] Speaker 04:
Thank you.

[00:45:09] Speaker 04:
Specifically addressing, I believe, questions by Judges Berzon and Collins.

[00:45:14] Speaker 04:
They specifically were talking about Ryan.

[00:45:16] Speaker 01:
And in looking at Ryan, the issue- Do they, do the members who pushed the plunger in the medical room, do they speak at any point in the execution chamber in an earlier part of the process?

[00:45:30] Speaker 01:
No, Your Honor.

[00:45:31] Speaker 01:
So the only individual- Record, say that one way.

[00:45:33] Speaker 04:
Is there anything in the record on that point?

[00:45:36] Speaker 04:
I don't believe it is in the record, Your Honor, because we were not at a stage in this litigation where the defendants bore the burden.

[00:45:43] Speaker 01:
If the audio requirement were taken away from the district court's injunction, wouldn't that then now under Turner Factor IV fully accommodate your anonymity concern?

[00:45:56] Speaker 01:
Because then you just have the same interest.

[00:45:59] Speaker 01:
They wear the scrubs.

[00:45:59] Speaker 01:
They're seen at different points.

[00:46:02] Speaker 01:
Seems to fully satisfy, so I don't see how you're getting the visual part out.

[00:46:07] Speaker 01:
The audio may be different.

[00:46:10] Speaker 04:
Not to belabor, obviously, the defendant's position on the extent of Woodford, but to the extent that the court is asking, would that satisfy the anonymity concern, it would.

[00:46:20] Speaker 04:
With respect to that other issue of what else is going on.

[00:46:23] Speaker 01:
Do you then have a further interest that would justify a restriction?

[00:46:28] Speaker 01:
Beyond anonymity, or is that you're done at that point?

[00:46:31] Speaker 04:
The issues with respect to conflict and issues raised by sound in the medical team room are the primary concerns.

[00:46:39] Speaker 04:
It has to do with anonymity, but it also has to do with interference, with audible sounds coming from the chemical room, from the medical team room, and with audible sounds of the condemned in the chamber.

[00:46:50] Speaker 04:
There's some very grave concerns about whether or not the condemned would be able to be modified and monitored if sound from the medical team room.

[00:47:01] Speaker 03:
Well, since you don't do it, we don't know.

[00:47:03] Speaker 03:
But did the injunction require that there be a microphone?

[00:47:08] Speaker 03:
It required audio access.

[00:47:10] Speaker 04:
Right.

[00:47:11] Speaker 00:
Because of Ryan, presumably.

[00:47:13] Speaker 04:
I would presume.

[00:47:14] Speaker 00:
But I just want to make sure I understood.

[00:47:16] Speaker 00:
You were saying that if we took out the audio portion, you'd be satisfied with the injunction as is.

[00:47:21] Speaker 00:
Well, largely satisfied.

[00:47:23] Speaker 00:
Satisfied enough to drop your appeal?

[00:47:26] Speaker 04:
We would be satisfied if the court were to determine that the injunction needs to be modified.

[00:47:31] Speaker 04:
The defendants submit that it's not necessary and that it should be vacated for all of the reasons, meaning that it's not required.

[00:47:37] Speaker 03:
My understanding is your position is there is absolutely no access right.

[00:47:40] Speaker 03:
And I mean, are you dropping that position?

[00:47:43] Speaker 04:
No, Your Honor.

[00:47:44] Speaker 04:
We would submit there's no right.

[00:47:45] Speaker 00:
Well, so in answer to my question, you're saying even if we said audio is cut off, you would still be maintaining your challenge because you don't think the video access is

[00:47:56] Speaker 01:
Warranted under the first amendment correct, but it's not but I'm trying to understand you're saying there isn't a right of access at all period full stop and But if we get past that and we say there is a right of access and now we have to look at interests under the Turner analysis

[00:48:13] Speaker 01:
We've already now settled that the anonymity issue is fully accommodated if the audio is removed and the video is left in place.

[00:48:22] Speaker 01:
Do you then, under the Turner analysis, have another interest that will justify blocking the video, assuming we think that there's otherwise a threshold right of access?

[00:48:32] Speaker 01:
Do you see where I'm getting at?

[00:48:34] Speaker 04:
If we're passed that no access, no extension of Woodford, and now we're just doing the Turner versus Sackley.

[00:48:40] Speaker 01:
Exactly.

[00:48:41] Speaker 04:
Do you have anything other than anonymity that will knock out the video aspect in your view?

[00:48:47] Speaker 04:
As long as the video is, again, it must be very pointed and directed.

[00:48:52] Speaker 00:
Which you don't think is permissible, but we tend to have a different view.

[00:48:55] Speaker 03:
But you also raised, and I gather you're dropping, the notion that there's a cause problem.

[00:49:01] Speaker 04:
Currently right now the F block is under is under renovation And so I'm not sure and I don't think that the department has a cost analysis because we're having to renovate because of the change to execution Methods, so I don't at this point think that that is a point that somehow the configuration is going to have to accommodate both methods it will your honor and

[00:49:24] Speaker 01:
But I want to make sure I get your answer to this question before we leave, which is, is there another interest in the Turner analysis, assuming you've lost everything else and we're down to Turner, is there an interest you assert that you think will block the video access?

[00:49:42] Speaker 04:
The video access to the entirety of the room, yes, for all of the reasons set forth in the brief.

[00:49:47] Speaker 01:
I already read the language, and I think it's pretty clear.

[00:49:50] Speaker 01:
It gives you the ability to direct the camera to capture the activity that is the subject of the injunction and exclude other things.

[00:50:00] Speaker 04:
Then on the court's very limited question, then no, there are no other penological interests when it is that very targeted video.

[00:50:07] Speaker 04:
The department doesn't have any further.

[00:50:09] Speaker 00:
We've made some progress today.

[00:50:10] Speaker 00:
We thank you.

[00:50:10] Speaker 04:
Thank you both very much.

[00:50:12] Speaker 00:
Thank you.

[00:50:13] Speaker 00:
Seriously, thank you.

[00:50:14] Speaker 00:
This is a very important case.

[00:50:15] Speaker 00:
We appreciate the importance of it, and we very much appreciate the professionalism in the courtroom today.

[00:50:22] Speaker 00:
With that, the case is submitted, and we will take yet another short recess before we come back to hear our fourth and final case.