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Larry Flynt Might Get Access to Sealed Execution Records

By Casey C. Sullivan, Esq. on April 07, 2015 3:50 PM

Infamous pornographer Larry Flynt may be allowed to intervene in two Missouri death penalty cases and access previously sealed records following a ruling by the Eight Circuit today. The cases challenged the constitutionality of Missouri's execution methods.

Flynt, who gained notoriety as the outspoken founder of Hustler magazine, sought to intervene in the lawsuits as a publisher and death penalty opponent. Intervention could give him access to documents previously sealed by the court, including the identities of participants in the states' executions. Joseph Franklin, who shot and paralyzed Flynt in 1978, was also a party to the suits before he was executed for other crimes in 2013.

Sealed Documents in Contested Executions

The lawsuits came during a time when Missouri was increasing its rate of executions, setting records for most state executions in 2014. Simultaneously, the death penalty has come under renewed public scrutiny after several botched executions occurred following the removal of traditional lethal injection drugs from the marketplace.

The two cases that Flynt sought to intervene in, Ringo v. Lombardi and Zink v. Lombardi, challenged Missouri's execution protocol alleging that Missouri's lethal injection cocktail amounted to cruel and unusual punishment. In both cases, numerous documents were sealed from public view, with no indication of what they contain or why they were sealed. Flynt's intervention could lead to the documents being unsealed.

District Court Wrongly Denied Intervention

The district court had denied Flynt's motion to intervene on the grounds that "a generalized interest in the subject of litigation does not justify intervention." That's the wrong standard, the Eight found on appeal.

Intervention normally requires an intervener to have a claim with question of law or fact in common with the existing litigation. It's clear that Flynt had no such claim here. However, those who intervene for limited purposes are held to a lower standard. A party intervening for the purpose of unsealing records, and not to litigate the claim on the merits, does not require an independent basis of jurisdiction at all.

Flynt was represented by the legal director of the state ACLU and his case was supported by amicus briefs from The New York Times, Washington Post, Politico and Public Citizen.

The district court must still rule on whether or not the documents should be unsealed. What the sealed records could reveal is unknown, but Flynt hopes they will include information on the anesthesiologist who administered the executions, according to Reuters.

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