Trial Tests Media’s Right at Executions : Constitution: The suit was brought by a TV station that was denied a request to videotape a scheduled gassing of a killer. Since then, all news outlets have been banned.

An apparently skeptical federal judge opened trial Monday in a novel constitutional test of whether television cameras and the rest of the news media must be allowed at executions at San Quentin State Prison.

U.S. District Judge Robert H. Schnacke declared at the outset that he was quite satisfied that the press had no such right of access under the 1st Amendment. He said there may be other constitutional issues at stake--and refused, for the time being, a request by state authorities to dismiss the case.

Testimony began in the non-jury case brought by San Francisco public television station KQED against San Quentin Warden Daniel Vasquez. The suit originally challenged the state’s refusal to allow the station to videotape the scheduled execution last April of condemned killer Robert Alton Harris, whose case remains under appeal.

The scope of the trial was widened substantially last week when Vasquez, expressing concern over losing control of prison operations, issued a new order barring all news media from being present at an execution. The order overturned a longtime policy in which reporters, without cameras or recorders, were permitted to be present at executions.

On Monday, state Deputy Atty. Gen. Karl Mayer urged the judge to uphold the warden’s ban on the press, saying that while the news media may have a right to access to trials and other courtroom proceedings, there was no similar right to presence at an execution. “Exposing an inmate in the act of dying does not serve the same public purpose,” Mayer said.

An attorney for the station, William Bennett Turner of San Francisco, argued that the state should not be allowed to bar the news media after decades of allowing its presence. “There is a right to have the press and the public present at an important event in our criminal justice system,” Turner said.

No executions have been televised in the United States. California corrections officials have strongly opposed KQED’s bid to set a precedent, warning that it could cause unrest among prisoners and invade the privacy of guards and others on hand at the execution.

There has been no execution in California since 1967, but there are 296 convicted murderers facing the death penalty. Under state law, executions must be witnessed by “at least 12 reputable persons.” In the past, up to 14 reporters had been allowed to be present, along with the official witnesses.

Schnacke several times expressed deep doubt that the right to freedom of the press guaranteed news media the right to witness executions. He did say that the station might be able to claim it was unfairly denied equal protection of the law if it were shown that the state’s policy allowed favored reporters to be present as official witnesses but barred access to others.

The first witness in the case, KQED current affairs director Michael Schwarz, testified that were the station allowed to film the proceedings, it would do so discreetly. Before releasing a videotape for broadcast, it would block out the identities of guards or witnesses, he said.

Under sharp questioning by Schnacke, Schwarz conceded that the station, in filming the event, also would attempt to pick up any sounds from the enclosed gas chamber.

“That’s what you want,” said the judge. “If you got a scream, it would be a lot more salable product, would it not?”

“That’s not our motivation,” responded Schwarz. “Our purpose is journalistic and not commercial.”

Later, under cross-examination by state Deputy Atty. Gen. Paul Gifford, Schwarz said the station would broadcast an execution only after careful review and only during late hours, when children were less likely to be watching television. Schwarz, questioned again by Schnacke, added that if the film were shared with other stations, there was no guarantee that the execution would not be shown on regular evening news programs.