DENYING MR. DIAZ’S DEMANDS FOR ADDITIONAL PUBLIC RECORDS

THE LOWER COURT ERRED IN DENYING MR. DIAZ’S DEMANDS FOR ADDITIONAL PUBLIC RECORDS PURSUANT TO FLA. R. CRIM. P. 3.852(I) AND (H)(3), IN VIOLATION OF THE EIGHTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE I, §§ 9 AND 17 OF THE FLORIDA CONSTITUTION.

On November 1, 2006, collateral counsel filed Demands for Additional

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Public Records pursuant to Fla. R. Crim. P. 3.852(i)(hereinafter "lethal injection demands) from the Medical Examiner - 8th District, the Office of the Attorney General, Florida Department of Corrections and the Warden of Florida State Prison (PC-R2. 787-792). These "i" demands related to Mr. Diaz’s pending Rule 3.851 Motion challenging the constitutionality of Florida’s use of lethal injection. Subsequently, on November 15, 2006, written objections were filed by the Department of Corrections and by the Attorney General’s Office, who filed its own objection, as well as objections on behalf of the medical examiner and the Governor’s Office (PC-R.2 814-826).

Governor Bush signed Mr. Diaz’s death warrant on November 14, 2006. On November 15, 2006, this Court ordered that all matters pending in the trial court be acted on and orders disposing of those matters be entered by November 22, 2006. On November 16, 2006, the circuit court ordered an emergency hearing for November 17, 2006, "to argue all pending motions, including the Amended Motion for Postconviction Relief and the Public Records Requests." The court further ordered that "any emergency motions shall be filed and faxed to the court by 4:00 p.m. on November 16, 2006." (Order Setting Emergency Hearing, November 16, 2006).

A. 3.852(i) Demands Filed November 1, 2006 (Lethal injection demands)

The lower court’s November 21, 2006 Order Denying Request for

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Additional Public Records addresses only the demands for public records filed before Mr. Diaz’s death warrant was signed (PC-R. 1528-1529). These demands involved records regarding Florida’s use of lethal injection. The lower court found that all of Mr. Diaz’s demands in this regard "are overbroad and are not designed to lead to relevant and discoverable evidence." (PC-R2. 1529).

The State argued that the 3.852(i) demands were untimely and overbroad and unduly burdensome (PC-R2. 1146). Collateral Counsel objected to the Assistant Attorney General speaking on behalf of the agencies, who had counsel and were not present at the hearing. (Id.) The assistant attorney general represented to the court that she had been requested by the agencies to represent them (PC-R2. 1447).

At the outset, it is important to note that this Court’s opinions in Hill v. State, 921 So. 2d 579 (Fla. 2006), and Rutherford v. State, 926 So. 2d 1100 (Fla. 2006), regarding public records requests do not control this case. Both Mr. Hill and Mr. Rutherford were under warrant at the time they made their public records requests relating to lethal injection, so their requests were governed by Fla. R. Crim. P. 3.852(h)(3), which does not allow requests to agencies from which the inmate has not previously requested records. Mr. Diaz was not under warrant at the time of making the requests, and therefore his records requests fall under Fla. R. Crim. P. 3.852(i).

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At the hearing, collateral counsel argued that the 3.852(i) demands stated specifically what counsel was seeking and were not unduly burdensome (PC-R2. 1461-1462, 1448-1452). The records requested, including the types and doses of drugs used, the order in which they are injected, and the method used to inject the drugs, would either be admissible evidence or were reasonably calculated to lead to admissible evidence in the form of expert opinions as to whether lethal injection, as conducted under Florida’s protocol, causes unnecessary pain. (Id.)

As argued supra, new evidence suggests that lethal injection may cause extremely painful and torturous death such as would violate the Eighth Amendment. Since this research was developed in other jurisdictions, Mr. Diaz’s expert witnesses would need to review records related to Florida’s lethal injection protocol in order to apply the new research to Florida’s procedures. The requested records are necessary for Mr. Diaz’s experts to determine whether Florida’s lethal injection procedures pose a risk of causing an unnecessarily painful and torturous death.

In order to fairly form an opinion on the lethal injection protocol, the experts would have to know the qualifications of the personnel involved in the execution. Lethal injection requires the mixing of drugs, insertion of IV catheters, administration of drugs, and other tasks requiring medical training and skills. The use of unqualified and untrained personnel would make it more likely that errors

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will occur and that the designated drugs will not function as intended under the protocol, causing unnecessary suffering.

The experts would also need to review reports of observations of previous executions by lethal injection, including autopsies and toxicology reports and reports of complications, in order to form an opinion on the likelihood that condemned inmates in Florida have suffered painful and torturous deaths by lethal injection. It would also be necessary for the experts to review the documents related to the adoption of lethal injection as a means of execution in Florida in order to assess, among other issues, the criteria used for choosing the lethal injection protocols, whether the protocols were evaluated scientifically before being adopted, whether alternative protocols were considered, and whether there was an awareness of the risk of inflicting pain. Only after reviewing these records would Mr. Diaz’s expert witnesses be able to testify fully and fairly.

Additionally, the lower court made factual findings which are unsupported by the record. For example, the court found that Mr. Diaz should have requested records from the Medical Examiner’s Office "prior to filing the 2006 motion and not at the Huff hearing" (PC-R2. 1528). The records sought pertained only to the post-mortem examinations of Hill, Rutherford and Rolling. With the exception of Hill, these records would not have existed prior to the filing of Mr. Diaz’s motion to vacate on September 25, 2006. The court made additional bizarre findings that

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2 While Mr. Diaz has received a copy of DOC’s new protocol, the new protocol generates many additional questions and concerns. It further indicates that additional documentation is being kept pertaining to executions. Specifically, DOC indicates that it creates and maintains checklists after each execution. Counsel is entitled to copies of the checklists for the three most recent executions.

have no basis in the record, but appear to be based on the Court’s personal opinion.

Since the lethal injection protocol itself would be admissible evidence,2 and since expert testimony on the issue of whether lethal injection is constitutional would be admissible, all of the records sought were reasonably calculated to lead to admissible evidence, and the lower court abused its discretion in finding that this requirement of Fla. R. Crim. P. 3.852(i) was not met.

B. 3.852(h)(3) and (i) Demands filed November 17

Pursuant to Rule 3.852(h)(3), Mr. Diaz had until November 24, 2006, to file Demands for Additional Public Records. On November 16, 2006, two days after the death warrant was signed, collateral counsel sent Demands for Additional Public Records by Federal Express to Miami-Dade Department of Corrections, Office of the Medical Examiner, Department of Health, Office of Executive Clemency, Florida Department of Law Enforcement and Office of the State Attorney, 11th Circuit (PC-R2. 1386-1425). Collateral counsel also sent demands pursuant to Fla. R. Crim. P. 3.852(i) to Division of Elections, Judicial Qualifications Commission, and the Office of the Attorney General, with affidavits as required under that rule (Id.). The demands were filed in open court on

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November 17, 2006 (PC-R2. 1443). Pursuant to Mr. Diaz’s successive Rule 3.851 motion filed on November 27, 2006, Mr. Diaz filed two additional public records demands pursuant to Rule 3.852(i) on November 29, 2006. The trial court likewise denied these demands.

The State argued at the November 17 emergency hearing that Mr. Diaz’s 3.852(h)(3) demands were untimely because the court had set a deadline of 4:00 p.m. on November 16. The court heard argument on the merits of Mr. Diaz’s pending Rule 3.851 Motion but did not immediately rule on the substance of the motion, the lethal injection demands, or the 3.852(h)(3) demands. The court set a subsequent hearing for November 21, 2006. Collateral counsel sought to clarify whether the court would consider the merits of the 3.852(h)(3) demands:

MS. KEFFER: If I could clarify, I know the State’s argument was that I should not be allowed to file the public records demands or they should not be addressed, you should deny them outright, and I did not file them in the time frame. If that is what you are going to address, we should wait to see what your ruling is as to whether I can even file them or whether--

THE COURT: Yes.

***

MS. KEFFER: I wanted to clarify how you are treating those demands.

MS. JAGGARD: And the State’s position is not only that they should not be considered, they were not timely and improper. They are a last minute fishing expedition requesting any and all records.

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MS. KEFFER: But if we are going to get into those kinds of arguments, that is a public records hearing. And whether or not your Honor is going to deny them outright – I understand the State’s argument that you should deny them outright because they are not timely. I have to address why they are timely, if [the State] wants to get into specifics about fishing expeditions and everything else. . .that’s putting the cart before the horse.

THE COURT: I think so.

MS. KEFFER: As to whether you are going to consider them --

MS. JAGGARD: You sent out an order you were considering every and all evidence in this case today...

THE COURT: Well, I want you to know so everything could be done before the very last minute. If necessary, I would have to see you on Monday [November 20].

(PC-R2. 1484-1485).

Subsequently, on November 20, 2006, the Attorney General’s Office filed a written "Global Objection" on behalf of all agencies (PC-R2 1541-1547). The court did not conduct a hearing on Monday, November 20, nor did counsel receive any indication that the court would conduct a public records hearing. At the scheduled November 21st hearing, the State argued "on behalf of all the agencies served" that "in addition to it being filed after the pleading deadline these [3.852(h)(3)] requests are remarkably similar to the requests made in Mills v. State, 786 So. 2d 547 (Fla. 2001)" and "were nothing more than a last minute fishing expedition." (PC-R2. 1503). Collateral counsel again objected to the State representing all agencies served with a demand (PC-R2. 1506). The assistant

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3 Contrary to the State’s representation, counsel for one of the agencies, Department of State Division of Elections, informed collateral counsel that she specifically did not request that the Attorney General represent her agency in this matter.

attorney general represented to the court that she had been requested by the agencies to represent them, however collateral counsel was not notified of this.3 Collateral counsel attempted to make argument on the demands and to the sweeping objection made by the State, however, the court indicated that the demands for additional public records were being denied (PC-R2. 1510). Again, when counsel requested to make argument for purposes of appeal, the court questioned counsel as to the timing of filing the demands and stated that she made her ruling (PC-R2. 1510-1512).

In its November 21, 2006 Order Denying Demand for Additional Public Records Filed November 17, 2006 the lower court denied all of Mr. Diaz’s public records pursuant to 3.852(h)(3) (PC-R2. 1532-1535). The court’s order does not address the issue of timeliness, which was the basis for the court’s refusal to hear further argument on the demands. Rather, the court made findings regarding each agency that are not supported by any facts elicited at the November 17 or 21 hearings, and are unsupported by the record. For example, the court found that the demand for the Medical Examiner’s file was "unlikely to lead to discoverable evidence" and denied the request, in part, because Mr. Diaz had not previously requested records as required under Rule 3.852(h)(3) (PC-R2. 1532). In fact, had

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he been given the opportunity, Mr. Diaz would have shown at a proper public records hearing that he had requested records from the Medical Examiner on September 18, 1989. Similarly, the lower court denied Mr. Diaz’s request for information from the Department of Health, Judicial Qualifications Commission and Division of Elections, without hearing argument, by simply stating that the requests are "unlikely to lead to discoverable evidence." (PC-R2. 1532-1533).

The court denied Mr. Diaz’s demands from several law enforcement agencies and the State Attorney’s Office for records related to himself and his co-defendants (PC-R2. 1532-1535). The 3.852(h)(3) demands sent to the Florida Department of Law Enforcement and the Office of the State Attorney requested, inter alia, criminal records related to the jurors in Mr. Diaz’s case. Whether or not any of the jurors had any criminal history and/or involvement with the criminal justice system, law enforcement or the state is relevant because it gives rise to a claim for relief if a juror failed to disclose this information to the court at the time of trial. In Buenoano v. State, 708 So. 2d 941 (Fla. 1998), this Court made it clear that any such claim will be procedurally barred if counsel fails to exercise due diligence.

Likewise, the records requested pursuant to 3.852(i) from the Division of Elections and the Judicial Qualifications Commission were not extensive. The only request made was for records regarding Judge Amy Steele Donner. These

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4 At the hearing counsel explained that she had copies of previous records requests to each agency that the 3.852(h)(3) demands were sent (PC-R2. 1510-1511).

, 49 F.3d 1483 (11th Cir. 1995). Mr. Diaz is prohibited from questioning a judge directly without first showing good cause. State v. Lewisrecords are necessary to investigate a claim whether the trial judge received contributions from any persons having an interest in Mr. Diaz’s case. See Lightbourne v. State, 549 So. 2d 1364 (Fla. 1989); Porter v. Singletary, 656 So. 2d 1248 (Fla. 1994); Porter v. Singletary. As a result, Mr. Diaz has no other means of establishing good cause.

In denying Mr. Diaz’s demands, the court relied, in part, on this Court’s emphasis in Glock v. Moore, 776 So. 2d 243 (Fla. 2001), that

The language of section 119.19 and of rule 3.852 clearly provides for the production of public records after the governor has signed a death warrant.

***

This language was intended to and does convey to the reader the fact that a public records request under this rule is intended as an update of the information previously received or requested.

(PC-R2. 1534, citing Glock v. Moore, 776 So. 2d at 253, citing Sims v. State, 753 So. 2d 66, 70, (emphasis in original)). To the extent that the court found Mr. Diaz’s 3.852(h)(3) demands were not an "update" of previously received records, this finding is demonstrably false. Had he been given the opportunity4, Mr. Diaz would have shown that he requested records from Florida State Prison on August

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5 At the time of Mr. Diaz’s original requests, Department of Business and Professional Regulation was the appropriate agency for requesting records regarding medical professionals. The Department of Health has since assumed the responsibility of maintaining such records, and the recent 3.852(h)(3) demand was properly directed to them.

30, 1989, May 27, 1990 and February 8, 1991; Metro-Date Police Department and Florida Department of Law Enforcement on September 6, 1989; Department of Business and Professional Regulation5 on February 13, 1991; Dade County Medical Examiner on September 18, 1989; and Dade County jail on September 20, 1989. Each of Mr. Diaz’s 3.852(h)(3) demands were for updated information consistent with the intent of the rule.

Similarly, the court’s reliance on Sims and Glock for the finding that "all of the additional demands were either overbroad, do not seek relevant information or likely to result in admissible evidence [sic]" (PC-R2. 1534) is misplaced here. Mr. Diaz was never afforded an opportunity to be heard on his public records demands or to adequately address the State’s global objection on behalf of the agencies, despite having requested that the court conduct a proper public records hearing with the agencies present.

At the November 21st hearing, the State argued that this Court’s holding in Mills v. State, which relied on Glock and Sims, prevented Mr. Diaz from obtaining additional records (PC-R2. 1503). In Mills, collateral counsel under warrant filed 3.852(h)(3) demands for records from several agencies. Rather than voicing a

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6 Mr. Diaz’s medical records are of particular importance to the instant proceedings where he is alleging that errors will occur during the execution and

"global" objection, the agencies complied, at least in part, with the demands. The circuit court conducted public records hearings at which each agency, represented by counsel, argued their objections. The court carefully considered the substance of each demand and ordered that several agencies produce records over objection. Furthermore, many of the agencies produced some records, while objecting to producing everything contained in the demands. While the court denied production of many of the requested records, Mr. Mills did obtain records.

Such is not the case here. Mr. Diaz filed his demands pursuant to 3.852(h)(3) within the time required by this Court. The circuit court failed to conduct a proper public records hearing to address the demands, in part because the demands were made after the trial court’s imposed deadline. The lower court did not set a public records hearing, but heard argument without the agencies being noticed or present. Collateral counsel objected to the Attorney General representing every agency and noted that, as was the case in Mills, prior to the Attorney General’s self-appointment as counsel, many of the agencies would comply in part with the demands even if they objected to them in part (PC-R2. 1507-1511). Counsel pointed out that she has never had an objection to updated Department of Corrections records on her own client (PC-R2. 1507).6

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that the designated drugs for carrying out lethal injection will not function as intended under the protocol, causing unnecessary suffering.

Mr. Diaz sought public records pursuant to Fla. Stat. Ch. 119 and Fla. R. Crim. P. 3.852(h)(3) and (i). See Ventura v. State, 673 So. 2d 479 (Fla. 1996); Muehleman v. Dugger, 634 So. 2d 480 (Fla. 1993); Walton v. Dugger, 634 So. 2d 1059 (Fla. 1993); Mendyk v. State, 592 So. 2d 1076 (Fla. 1992); State v. Kokal, 562 So. 2d 324 (Fla. 1990); Provenzano v. Dugger, 561 So. 2d 541 (Fla. 1990). Counsel for Mr. Diaz has the duty to seek and obtain every public record in existence in this case. Porter v. State, 653 So. 2d 375 (Fla. 1995), cert. denied 115 S. Ct. 1816 (1995). This Court has ruled that collateral counsel must obtain every public record in existence regarding a capital case or else a procedural default will be assessed against the defendant. Porter v. State, 653 So. 2d 375 (Fla. 1995). However, a concomitant obligation under relevant case law as well as Chapter 119 rests with the State to furnish the requested materials. Ventura v. State, 673 So. 2d 479 (Fla. 1996). When the State's inaction in failing to disclose public records results in a capital post conviction litigant's inability to fully plead claims for relief, the State is estopped from claiming that the post conviction motion should be denied or dismissed. Id. ("The State cannot fail to furnish relevant information and then argue that the claim need not be heard on its merits because of an asserted procedural default that was caused by the State's failure to act").

This Court applies the "abuse of discretion" standard when reviewing

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appeals from denials of requests for public records. Hill v. State, 921 So. 2d 579 (Fla. 2006). "Discretion is abused only when the judicial action is arbitrary, fanciful, or unreasonable, which is another way of saying that discretion is abused only where no reasonable person would take the view adopted by the trial court." Parker v. State, 904 So. 2d 370, 379 (Fla. 2005).

The lower court here abused its discretion in several respects. First, the court ignored Fla. R. Crim. P. 3.852(h)(3) which provides ten days from the signing of a death warrant for collateral counsel to file demands for additional public records. Rather, the court imposed its own arbitrary and unreasonable rule, allowing Mr. Diaz only two days to request records. Second, the court sustained the State’s "global" objection on behalf of every served agency to Mr. Diaz’s demands without the opportunity to respond specifically to each agency’s objections, relying on factual findings that are demonstrably false. No reasonable person would take the view adopted by the lower court. Mr. Diaz’s rights to access to the courts, equal protection and effective legal representation are being denied because the circuit court has denied access to public records to which he is entitled. This Court should remand this case to the circuit court for full public records disclosure.