"Delaware: High court hears execution protocol arguments," is the AP report via the Delmarva Daily Times.
Delaware prison officials violated state law by adopting a new lethal injection protocol without allowing for public review or comment, a lawyer representing a condemned ax murderer told the state Supreme Court on Wednesday.
But an attorney for the Department of Correction argued that a lower court judge was correct in ruling that DOC policies and procedures are confidential and not subject to disclosure without written authorization from the DOC commissioner.
The dispute involves a lawsuit in which convicted killer Robert Jackson III argues that officials violated the state's Administrative Procedures Act in adopting a new execution protocol last year.
Federal public defender Michael Wiseman told the court that the DOC is not among the agencies, such as the University of Delaware, specifically exempted from the Act. He also noted that the DOC has posted certain policies on its Web site, and that any claim of confidentiality regarding the execution protocol was waived when the DOC posted a version of it on its Web site.
"As long as we're talking lethal injection procedures, that cat is out of the bag," said Wiseman, who represents Jackson and other death row inmates in a separate class-action lawsuit in federal court challenging Delaware's use of lethal injection.
Justice Randy Holland noted that the protocol posted on the DOC Web site contains redactions, but Wiseman suggested that the redactions apply to prison security, not the execution procedures that are of interest to his clients, and to the public.
Deputy Attorney General Greg Smith noted that the DOC has never published its policies or regulations for public review in the monthly Delaware Register of Regulations, as other agencies subject to the Act do. He also said that DOC commissioner Carl Danberg's decision to post a redacted version of the execution protocol on the Web does not amount to a blanket waiver of confidentiality.
Wiseman admitted that juxtaposing the Act with the law on DOC confidentiality results in an ambiguity that the Supreme Court needs to resolve.
The court has not indicated when it will rule. Earlier coverage of the issue in Delaware is here and here.
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