Updated, 4:27 p.m.
A federal appeals court ruled Tuesday that Hustler magazine publisher Larry Flynt has the right to intervene in two cases challenging Missouri’s execution protocol.
Flynt had sought to unseal judicial records in the cases, but a federal judge found that Flynt’s “generalized interest” did not justify intervention.
In reversing that decision, the 8th U.S. Circuit Court of Appeals ruled that the judge applied the wrong legal standard.
In 1978, Flynt was shot and paralyzed from the waist down by Joseph Franklin, who was a plaintiff in both cases. Franklin was executed by the state of Missouri in November 2013 – the same day that Flynt’s motion to intervene in one of the cases was denied.
Flynt opposes the death penalty and had campaigned for Franklin’s clemency.
The lawsuits in question were filed by Missouri prisoners on death row. One of them alleged that Missouri’s lethal-injection methods violated the Constitution’s protection against cruel and unusual punishment. The other claimed that the execution protocol violated the federal Controlled Substances Act and the Food, Drug and Cosmetic Act.
Both cases were dismissed. The constitutional challenge was thrown out on the merits and the statutory challenge was thrown out because it had become moot after Missouri changed its execution protocol. But records in a case can be unsealed even after the disputes at issue have been resolved.
“Mr. Flynt’s intervention isn’t about challenging the execution protocol,” says Tony Rothert, legal director of the American Civil Liberties Union of Missouri, which represented Flynt. “It’s about challenging the decision to seal judicial records.”
More than a dozen media organizations, including the New York Times Co., The Washington Post and the Missouri Press Association filed briefs supporting Flynt’s position.
Missouri’s execution protocol is shrouded in secrecy and was the subject of two other lawsuits filed last year in Cole County state court. One was filed by five news organizations, including The Kansas City Star and The St. Louis Post-Dispatch. The other was filed by the ACLU of Missouri on behalf of a St. Louis public radio reporter and the Reporters Committee for Freedom of the Press. A decision in both cases is expected any day.
The Cole County suits claim the Missouri Department of Corrections stopped providing the public with information about the drugs it uses in lethal injections. Without that information, the suits say, the public can’t provide meaningful oversight over executions carried out in its name.
“Today’s case was about records that have been filed in court, records that have become part of the federal judicial system, and whether or not the public has a right to see those,” Rothert says. “The cases in Cole County have to do with internal records of the Department of Corrections and whether, under Missouri law, those are open and public records.”
The Cole County suits were filed after the botched execution in Oklahoma of a death-row inmate. Oklahoma used a three-drug cocktail to execute convicted murderer Clayton Lockett, who died of an apparent heart attack 43 minutes after the procedure started. Lockett was seen to mumble and writhe in pain with an IV in his groin.
Like other states, Missouri has had trouble finding lethal injection drugs after European and American drug makers began balking at providing them. Missouri and other states have resorted to largely unregulated compounding pharmacies, often keeping the sources of the drugs secret.
Dan Margolies, editor of the Heartland Health Monitor team, is based at KCUR.