Larry Flynt Seeks to Intervene in Missouri Execution Lawsuits

ST. LOUIS, Missouri—Remember Joseph Paul Franklin? He's the racist serial killer jackass who shot Larry Flynt and his attorney, Gene Reeves Jr., as they were walking out of the courthouse in Lawrence, Georgia, where Flynt was fighting an obscenity case. The shooting, which Franklin later said was due to Flynt's having published photos of interracial sex in Hustler, left Flynt partially paralyzed and confined to a wheelchair. But before Franklin was executed on November 20, 2013 (for the 1977 murder of Gerald Gordon), he became a plaintiff in two lawsuits, Zink v. Lombardi and Ringo v. Lombardi, both of which challenged the way Missouri executes its death row inmates. Flynt had urged clemency for Franklin the month before his execution, arguing that "a government that forbids killing among its citizens should not be in the business of killing people itself." But despite Franklin's execution, his name lives on as one of the plaintiffs in the above-noted lawsuits, and Flynt hasn't given up his quest to save other prisoners from suffering Franklin's fate—and 16 mainstream media outlets and public interest groups are supporting his battle. According to the per curiam opinion published by the Eighth Circuit Court of Appeals, the Ringo lawsuit focuses on the drugs used in Missouri's executions, and charges that they violate both the federal Controlled Substances Act and the Food, Drug and Cosmetic Act, while the Zink case argues that Missouri's execution protocols violate the Eighth Amendment prohibition against cruel and unusual punishment, as well as due process, ex post facto application of the law, and other claims. What Flynt is currently concerned with is the fact that in connection with Missouri's execution process, a federal judge has sealed certain documents or docket entries, making them inaccessible to the public—and in the Ringo case, this was done by mutual consent of the parties. Trouble is, that judge never announced a reason why those documents and entries were sealed—and now Flynt, as publisher of Hustler and a death penalty opponent, wants to see what the state wants to keep hidden. Flynt's interest is personal as well, since the man who shot him remains a plaintiff in both cases, though the Ringo case had already been dismissed by the district court before Flynt filed his Motion to Intervene. Of course, ever since Hollingsworth v. Perry, the same-sex marriage in California case, various parties' standing to intervene in criminal and civil cases has come under greater scrutiny, and indeed, the presiding judge in the Zink case denied Flynt's Motion, ruling that "[a] generalized interest in a subject of litigation does not justify intervention." The Zink defendants argued that Flynt didn't need to intervene in their case; that he could have filed a separate lawsuit to expose the hidden documents and entries, and therefore he'd suffer no harm in being unable to intervene in Zink. The Eighth Circuit disagreed, saying that that Flynt's Motion was "an appropriate procedural vehicle for parties seeking to intervene for the purpose of obtaining judicial records." "[W]here a party is seeking to intervene in a case for the limited purpose of unsealing judicial records, most circuits have found that 'there is no reason to require such a strong nexus of fact or law'," the Eight Circuit panel ruled, adding, "Furthermore, when a party is seeking to intervene only to modify a protective order or unseal documents, and not to litigate a claim on the merits, an independent basis of jurisdiction is not required... For the reasons stated above, we reverse the orders of the district court and direct that Flynt be allowed to intervene. We remand the cases to the district court for proceedings consistent with this opinion." “I’m delighted with the decision, and hope it’s another stepping stone toward the abolition of capital punishment in our country,” Flynt told AVN. The extent of Flynt's intervention in the remaining case will be determined by the district court, and it remains unclear what Flynt expects to find once the documents and docket entries are unsealed, but whatever emerges will undoubtedly be reported in Hustler.