The Florida whitewash report

The Governor’s Commission on
Administration of Lethal Injection

John W. “Bill” Jennings
Senator Victor Crist
Rodney Doss
Harley Lappin
Honorable Stan Morris
Dr. Steve Morris
Representative Dennis Ross
Harry K. Singletary
Dr. Peter Springer
Carolyn Snurkowski
Dr. David Varlotta


Final Report
With
Findings and Recommendations
Presented to the
Honorable Charlie Crist
Governor of Florida

March 1, 2007

TABLE OF CONTENTS
Introduction................................................................................................2
The Commission’s Meetings .....................................................................3
Areas of Inquiry.........................................................................................5
Legal Overview ..........................................................................................6
Findings and Recommendations ..............................................................8
Findings..........................................................................................8
Recommendations..........................................................................9
Chairman’s Closing Comments..............................................................14
Appendix A...............................................................................................15
Appendix B...............................................................................................16
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The Governor’s Commission on Administration of Lethal Injection

John W. “Bill” Jennings
Senator Victor Crist
Rodney Doss
Harley Lappin
Honorable Stan Morris
Dr. Steve Morris
Representative Dennis Ross
Harry K. Singletary
Dr. Peter Springer
Carolyn Snurkowski
Dr. David Varlotta

March 1, 2007

INTRODUCTION

On December 13, 2006, the execution of Angel Diaz created concerns whether Florida’s lethal
injection protocols were being adequately implemented by the Florida Department of
Corrections. The amount of time required to effectuate death, eyewitness accounts of the
execution and the preliminary autopsy findings prepared by William Hamilton, M.D., the Chief
Medical Examiner for the Eighth Circuit, called into question the adequacy of the lethal injection
protocols and the Department of Corrections’ ability to implement them in a manner consistent
with the Eighth Amendment to the United States Constitution.

As a result, then Governor Jeb Bush issued Executive Order 06-260 on December 15, 2006,
which created the Governor’s Commission on Administration of Lethal Injection to “review the
method in which the lethal injection protocols are administered by the Department of Corrections
and to make findings and recommendations as to how administration of the procedures and
protocols can be revised”. The Commission’s purpose and mission was limited to evaluating
these protocols and not the “policy decisions of the Legislature in enacting a death penalty or the
means chosen by the Legislature for implementing the state’s death penalty.” While limited to
evaluating Florida’s lethal injection procedures and protocols, the Commission was given broad
authority to re-evaluate the lethal injection process including “enforcement of those procedures
and protocols.”

Chapter 922 is the only legislative expression of Florida’s method of execution which, under
section 922.105, Florida Statutes (2006), calls for executions to be by either electrocution or
lethal injection. Chapter 922 does not delineate with any detail how Florida’s death penalty by
lethal injection is to be implemented. The promulgation of procedures and protocols for
implementing the death penalty by lethal injection was left to the discretion of the Department of
Corrections.

Once this Commission was fully comprised by the current Governor, the commissioners set out
to fully investigate Florida’s method of execution consistent with the mandate of the Executive
Order.

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THE COMMISSION’S MEETINGS

The Commission met eight times in a manner that was open, transparent and conducive to citizen
input on this vital issue consistent with Article I, Section 24(b) of the Florida Constitution and
Florida’s “Sunshine Act” under Chapter 286 of the Florida Statutes. The Commission first
convened on January 29, 2007, and met subsequently on February 5th, 9th, 12th, 19th 24th,, 25th,
and 28th. During these meetings, numerous witnesses testified before the Commission, pages of
documentary evidence were received and public comments, both oral and written, were given.
An account of the evidence received by the Commission follows.

January 29th, 2007

The Commission heard testimony from the Following witnesses:
Neal Dupree: The Capital Collateral Regional Counsel for the Southern Region of Florida and
attorney for Angel Diaz.
Randall Bryant: Warden of the Florida State Prison.
Randall Polk: Assistant Warden of the Florida State Prison.
William F. Mathews, P.A.: A physician’s assistant employed by the Florida Department of
Corrections.

February 5th, 2007

The Commission heard testimony from the following witness:

Denise Clark, D.O.: an osteopathic physician trained in vein therapy.

February 9th, 2007

The Commission heard testimony from the following witnesses:

Timothy J. Westveer: Inspector with the Office of Executive Investigations, Internal Affairs
Unit, for the Florida Department of Law Enforcement.

Nikolaus Gravenstein, M.D.: An anesthesiologist and professor at the University of Florida.
Primary Executioner: Anonymous testimony from the primary executioner employed by the
Florida Department of Corrections.

A Medically Qualified Member of the Execution Team: Anonymous testimony from a medically
qualified member of the execution team.

The Commission also received comments from the public:

Carol Weihrer
Gavin Lee
Mark Elliot
Sol Otero


February 12th, 2007

The Commission heard testimony from the following witnesses:

Brenda Whitehead: A correctional specialist employed by the Florida Department of Corrections
who witnessed the execution of Angel Diaz.

Bruce A. Goldberger, Ph.D, D.A.B.F.T.: A forensic toxicologist employed at the University of
Florida who conducted a blood analysis on samples taken from Angel Diaz.

Mark Heath, M.D.: An anesthesiologist employed by Columbia University.

William F. Hamilton ,M.D.: The Medical Examiner for the Eighth District of Florida who
performed the autopsy on Angel Diaz.

February 19th, 2007

The Commission heard testimony from the following witnesses:

Mark Dershwitz, M.D., Ph.D.: An anesthesiologist with a Ph.D. in Pharmacology with the
Department of Anesthesiology at the University of Massachusetts.

George B. Sapp: Assistant Secretary for Institutions for the Florida Department of Corrections.

James R. McDonough: Secretary of the Florida Department of Corrections.

A Medically Qualified Member of the Execution Team: Anonymous testimony from a medically
qualified member of the execution team.

Bonita Sorenson, M.D.: An employee of the Florida Department of Health and a member of the
December 15, 2006, Department of Corrections’ Task Force.

Maximillian J. Changus: Attorney supervisor in the Office of G
eneral Counsel for the Florida

Department of Corrections and member of the December 15, 2006, Department of Corrections’
Task Force.

The Commission also received comments from the public:
Mary Berglund

February 24th, 2007

The Commission conducted a workshop session concerning this report.
February 25th, 2007
The Commission conducted a workshop session concerning this report.
February 28th, 2007
The Commission met telephonically by means of a conference call and conducted a workshop
session concerning this report. As a result of this meeting, the final draft of this report was
written and approved.

AREAS OF INQUIRY

Much of the Commission’s work focused on the execution of Angel Diaz on December 13, 2006.
This was aided by the Summary of Findings of the Department of Corrections’ Task Force
Regarding the December 13, 2006, Execution of Angel Diaz which was submitted on December
20, 2006, to James R. McDonough, Secretary of the Florida Department of Corrections. In
summary, the task force report offered adequate details surrounding the execution of Angel Diaz,
finding that several protocols were not followed that day.

The Commission built on this foundation by calling several individuals of the execution team
from the Department of Corrections responsible for carrying out the lethal injection protocols
during the execution of Angel Diaz. This proved to be a difficult task, complicated by the
executioners’ desire for anonymity under Florida Statues and a number of medical personnel
requests to maintain their anonymity. The task was also complicated because the Commission
lacked the ability to subpoena witnesses.

Further restraints were placed on the Commission by the very nature of the lethal injection
procedure itself. The use of medical personnel in capital punishment presents a profound
dilemma. Every medical organization that has commented has taken a similar position. Medical
personnel are prohibited from participating in executions and rendering technical advice. This
prohibition hindered the Commission’s ability to gather information.

Many members of the
medical profession were reluctant to appear in front of the Commission and were likewise
reluctant to testify in the context of lethal injection. The Commission was also concerned that
this prohibition may limit the best advice, the latest technology and the most capable individuals
to enact lethal injection. This issue also limited the medical members of the Commission from
offering advice or recommending suggestions during this process. Although the execution by
lethal injection process is not a medical procedure; the process does require some qualified
medical personnel to successfully accomplish a humane and lawful execution.

Both medical and legal ethics regulating each profession limited inquiry of those commissioners
affiliated with either profession. These Commission members appreciate the other
Commissioners’ understanding of these ethical issues.

Despite the above issues, the Commission was able to convene in a manner that was collegial,
deliberate and dedicated to the mandate bestowed upon it by the Governor. As a result, the
Commission is proposing several findings and recommendations to be considered by those who
create policy and those charged with its implementation.


LEGAL OVERVIEW

Lethal injection is currently the method of execution used by 37 of the 38 capital punishment
states. The Florida Supreme Court, like other State and federal courts, has regularly rejected
arguments that lethal injection as a method of execution is cruel and unusual. Sims v. State, 754
So. 2d 657 (Fla. 2000); Rolling v. State, 944 So. 2d 176, 179 (Fla. 2006); Rutherford v. State,
926 So. 2d 1100, 1113-14 (Fla. 2006); Hill v. State, 921 So. 2d 579, 582-83 (Fla. 2006); Diaz v.
State, 945 So. 2d 1136 (Fla. 2006). No court thus far has held that lethal injection is cruel and
unusual punishment in violation of the Eighth Amendment of the United States Constitution.

The courts and legal articles acknowledge that humane concerns formed a large part of the
motivation in adopting lethal injection as the presumptive method of execution in most states,
and it has been observed that “with lethal injection, we know exactly what the person is going
through because it's exactly what someone undergoing surgery experiences.” Jonathan S.
Abernethy, The Methodology of Death: Re-examining the Deterrence Rationale, 27 Colum.
Hum. Rts. L. Rev. 379, 414 (1996).

The lethal injection procedure used by most states, originated in Oklahoma when Senator Bill
Dawson asked Dr. Stanley Deutsch, then chair of the Anesthesiology Department at Oklahoma
University Medical School, to recommend a method for executing prisoners through the
administration of intravenous drugs. In a responsive letter, Dr. Deutsch recommended the
administration of an "ultra short acting barbiturate" to induce unconsciousness, followed by the
administration of a neuromuscular blocking drug to induce paralysis and death.

See Deborah W.Denno, When Legislatures Delegate Death: The Troubling Paradox Behind State Uses of
Electrocution and Lethal Injection and What It Says About Us, 63 Ohio St. L.J. 63, 95-97 (2002).

Shortly thereafter, in 1977, Oklahoma became the first state to adopt lethal injection as an
execution method, employing the protocol described in Dr. Deutsch's letter. See Rebecca
Brannan, Sentence and Punishment: Change Method of Executing Individuals Convicted of
Capital Crimes from Electrocution to Lethal Injection, 17 Ga. St. U. L. Rev. 116, 121 (2000).
The first lethal injection execution occurred in Texas in 1982. Christina Michalos, Medical
Ethics and the Execution Process in the United States of America, 16 Med. & L. 125, 126
(1997).

The Eighth Amendment prohibits punishments that are "incompatible with 'the evolving
standards of decency that mark the progress of a maturing society.' " Estelle v. Gamble, 429 U.S.
97, 102, 50 L. Ed. 2d 251, 97 S. Ct. 285 (1976) (quoting Trop v. Dulles, 356 U.S. 86, 101, 2 L.
Ed. 2d 630, 78 S. Ct. 590 (1958)(plurality opinion)). In the context of executions, the Eighth
Amendment prohibits punishments that "involve the unnecessary and wanton infliction of pain,"

Gregg v. Georgia, 428 U.S. 153, 173, 49 L. Ed. 2d 859, 96 S. Ct. 2909 (1976), "involve torture
or a lingering death," In re Kemmler, 136 U.S. 436, 447, 34 L. Ed. 519, 10 S. Ct. 930 (1890), or
do not accord with "the dignity of man, which is the basic concept underlying the Eighth
Amendment," Gregg, 428 U.S. at 173 (internal quotation marks and citation omitted).

The Ninth
Circuit, for example, has held that execution by hanging under the State of Washington's
protocols did not constitute cruel and unusual punishment based on the district court's findings
that the "mechanisms involved in bringing about unconsciousness and death in judicial hanging
occur extremely rapidly, that unconsciousness was likely to be immediate or within a matter of
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seconds, and that death would follow rapidly thereafter." Campbell v. Wood, 18 F.3d 662, 687
(9th Cir. 1994) (en banc); Note: Louisiana ex rel. Francis v. Resweber, 329 U.S. 459 (1946).
The Eighth Amendment prohibits punishments that involve the unnecessary and wanton
inflictions of pain, or that are inconsistent with evolving standards of decency that mark the
progress of a maturing society. Estelle v. Gamble, 429 U.S. 97, 102-03 (1976); Furman v.
Georgia, 408 U.S. 238, 269-70 (1972); Gregg v. Georgia, 428 U.S. at 173 (opinion of Stewart,
Powell, Stevens, JJ.). Punishments are cruel when they involve torture or a lingering death.

In re
Kemmler, 136 U.S. 436, 447 (1890). A method of execution is considered to be cruel and
unusual punishment under the Federal Constitution when the procedure for execution creates “a
substantial risk of wanton and unnecessary infliction of pain, torture or lingering death”. Gregg
v. Georgia, supra. In reviewing whether the method of execution is a constitutional violation,
courts must consider whether it is contrary to evolving standards of decency that mark the
progress of a maturing society. See Baze v. Rees, 2006 Ky. LEXIS 301 (Ky. 2006); Trop v.
Dulles, 356 U.S. 86 (1958); Roper v. Simmons, 543 U.S. 551 (2005); Solem v. Helm, 463 U.S.
277, 292 (1983).

The United States Supreme Court has analyzed challenges to a method for carrying out the
punishment, as to: (1) whether a method of execution comports with the contemporary norms
and standards of society, ("the clearest and most reliable objective evidence of contemporary
values is the legislation enacted by the country's legislatures." Penry v. Lynaugh, 492 U.S. 302,
331 (1989)); (2) whether a method of execution offends the dignity of the prisoner and society;
(3) whether a method of execution inflicts unnecessary physical pain; and (4) whether a method
of execution inflicts unnecessary psychological suffering. Weems v. United States, 217 U.S. 349,
373 (19–20). In considering objections to a particular execution method, the "methodology
review focuses more heavily on objective evidence of the pain involved in the challenged
method." Campbell, 18 F.3d at 682. To that end, "the objective evidence, though of great
importance, [does] not 'wholly determine' the controversy, 'for the Constitution contemplates that
in the end our own judgment will be brought to bear on the question of the acceptability of the
death penalty under the Eighth Amendment.' " Atkins v. Virginia, 536 U.S. 304, 312, 153 L. Ed.
2d 335, 122 S. Ct. 2242 (2002) (quoting Coker, 433 U.S. at 597). See Beardslee v. Woodford,
395 F.3d 1064, 1070-71 (9th Cir. 2005).

These factors dictate that punishments may not include “torture, lingering death, wanton
infliction of pain, or like methods.” Estelle v. Gamble, 429 U.S. 97, 102 (1976); In re Kemmler,
136 U.S. 436, 447 (1890), but the Court has likewise held that the afore-noted does not
contemplate a totally painless execution.

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FINDINGS AND RECOMMENDTIONS

As a result of the review of testimony, written reports, Commission transcripts, articles and
documents submitted to the Commission, it is the conclusion of the Commission that there are
conflicts that the Commission believes that it has resolved that lead to our findings and
recommendations. Examples of these resolved conflicts are as follows:

1. The execution team failed to ensure that a successful IV access was maintained
throughout the execution of Angel Diaz.

2. Failure of the execution team to follow the existing protocols in the delivery of the
chemicals.

3. The protocols as written are insufficient to properly carry out an execution when
complications arise.

4. Failure of the training of the execution team members.

5. Failure of the training to provide adequate guidelines when complications occur.

6. There was a failure of leadership as to how to proceed when a complication arose in
the execution process.

7. There was inadequate communication between the execution team members and the
warden who was not informed of the problem and the changes implemented.
However, the Commission discovered during its investigation that there are other conflicts which
remain unresolved. Examples of these unresolved conflicts are as follows:

1. Observations of the inmate during the execution process, including movement of the
body, facial movements and verbal comments

2. Conflicting testimony of the expert medical witnesses regarding the impact of drugs,
absorption of drugs, etc.

FINDINGS

1. Execution of inmate Diaz took 34 minutes, which was substantially longer than in any
previous lethal injection execution in Florida. This was reflected in the testimony of all
witnesses or participants in the Diaz execution, who had also witnessed prior executions
by lethal injection.

2. The preponderance of physical evidence demonstrates that venous access at the time of
execution was improperly maintained and administered. This was derived from the
testimony of William F. Mathews P.A., Dr. William F. Hamilton, M.D. and FDLE
Inspector Timothy J. Westveer.

3. The Department of Corrections failed to follow their August 16, 2006 Protocols, which
resulted in the administration of the lethal chemicals to inmate Diaz at least in part
subcutaneously. This was derived from the December 20, 2006, Department of
Corrections report and testimony of William F. Mathews, P.A., Dr. William F. Hamilton,
M.D. and FDLE Inspector Timothy J. Westveer.

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4. There was inadequate training as to the August 16, 2006 Protocols. This was derived
from testimony of the Primary Executioner, FDLE Inspector Westveer, and a Medically
Qualified Member of the Execution Team.

5. Failure to adhere to Department of Corrections Protocol 14 (e) and the fact that this
protocol inadequately provides direction when changing to the secondary site (B), that
the lethal chemicals are to commence from the second rack (B) in the order described in
protocol 14 (d). In this instance, the sequence in which the drugs were actually
administered and the rack from which they were taken, created the opportunity, with or
without the venous access failure, to allow the second chemical, pancuronium bromide,
and the third chemical, potassium chloride, to take affect before the first drug, sodium
pentothal, was able to fully take effect.

6. Because of the findings above, it is impossible for the Commission to reach a conclusion
as to whether inmate Angel Diaz was in pain.

RECOMMENDATIONS: (see attachment (A) for The Physicians’ Statement)
The Commission recommends that the Florida Department of Corrections, in consultation with
other entities in the State of Florida, consider modifications to its written policies and
procedures:

a. Related to the implementation of lethal injections carried out by officers and agents of
the State of Florida;

b. Implement written policies, practices, and procedures related to ensuring optimal
supervision and management of every lethal injection procedure by the appropriate
officials, including the selection of personnel involved in each part of the lethal injection
procedure;

c. Implement a comprehensive, systematic procedure for ensuring that persons selected
to perform these official duties related to carrying out lethal injections are suitably
qualified and trained to perform the assigned duties.

A. PROTOCOLS, PROCEDURES, CHECKLISTS AND DOCUMENTATION:
1. EXECUTION PROTOCOL

a. Develop and implement written procedures that clearly establish the chain of
command in the lethal injection process, to include that the Warden (or other such person
designated by the Secretary, Florida Department of Corrections) has final and ultimate
decision making authority in each and every aspect of the lethal injection process.
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b. Develop and implement procedures to insure that there is effective two-way audio
communication between the execution team members in the Chemical Room and the
execution team members in the Death Chamber (for example, a dedicated frequency
should be considered).

2. DOCUMENTATION OF ACTIONS AND PROCEDURES:

a. Develop and implement procedures which require that any step or function which is
required to be documented on a checklist or other document(s) be verified by utilization
of the execution team member’s initials or other identifier.

b. Develop and implement procedures to monitor and document all stages of the lethal
injection process, including the administration of the lethal chemicals.

c. Change the designation of the lines used for the IVs and racks holding the lethal
chemicals so that one has a number designation and the other has a letter designation.

d. Implement a change so that the primary FDLE agent will be located in the Chemical
Room, and the agent’s responsibilities are to include documenting and keeping a detailed
log as to what occurs in the Chemical Room at a minimum of 30 second intervals. The
log should be available at the post execution debriefing.

e. A second FDLE agent should be added to the procedures. This agent will be located in
the Witness Room, and will be responsible for keeping a detailed log of what is occurring
in the Death Chamber at a minimum of 30 seconds intervals. The log should be available
for the post execution debriefing.

f. The duties of both the primary and secondary FDLE Agent should be defined in detail
by the Department of Corrections and the Florida Department of Law Enforcement.

g. The debriefing process following an execution should be a formal process that details
who should participate and what should be covered. A written record of the debriefing
should be produced.

3. LETHAL INJECTION CHEMICAL PREPARATION

Develop and implement a procedure to ensure that each syringe used in the lethal
injection process is appropriately labeled, including the name of the chemical contained
therein.

4. ESTABLISHING INTRAVENOUS (IV) ACCESS:

a. Develop and implement a procedure which requires that the condemned inmate be
individually assessed by appropriately trained and qualified persons at a minimum of one
11
week prior to the scheduled execution. The results of this examination shall be
documented in the appropriate record.

b. Develop and implement a process to determine the most suitable method of
venous access (peripheral or femoral) for the lethal injection process, considering the
technical skills of available personnel and the individual circumstances of the
condemned inmate.

c. Develop and implement procedures for gaining venous access to the condemned
inmate which do not require movement of the condemned person after venous access
is obtained. These procedures should optimize the length of tubing, so that it is as
short as possible.

d. Develop and implement procedures to ensure that unexpected event(s) are
identified, including inability to access a venous site, problems with tubing, apparent
consciousness of the inmate, etc. In the event that an above describe event(s) occurs,
the execution process should be interrupted, appropriate persons advised, and
corrective steps discussed and implemented before resuming the execution process.

e. Develop and implement procedures to allow for the monitoring of the condemned
inmate’s restraints and the adhesive tape to eliminate the risk of restricting the flow of
lethal chemicals through the IV line.

f. Develop and implement procedures to insure that a closed circuit monitoring of the
inmate in the Death Chamber by the execution team members in the Chemical Room.
This should include at a minimum the condemned inmate’s face and IV access points.
No recordings by the closed circuit monitor should be made.

5. ADMINISTRATION OF LETHAL CHEMICALS:

a. Develop and implement procedures to ensure that the condemned inmate is
unconscious after the administration of the first lethal chemical, sodium pentothal,
before initiating administration of the second and third lethal chemicals. Under no
circumstances should the execution continue with the second and third lethal
chemical without the Warden’s authorization.

b. Develop and implement procedures to ensure that if at any stage of the
administration of the lethal chemicals a decision is made to change IV sites or utilize
a secondary site, that the entire lethal chemical administration process is re-initiated
from the beginning (syringe # 1{sodium pentothal}), unless the Warden, in
consultation with available medical staff, determines that the process may be reinitiated
at a different stage.

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B. DEVELOPMENT OF COMMAND STRUCTURE AND INFLUENCE AND
SELECTION OF PERSONNEL INVOLVED IN THE LETHAL INJECTION
PROCESS:

1. Develop and implement written procedures that clearly establish and define the role of
each person in the lethal injection process, including the duties required of the position,
the expected outcome of each duty or function to be observed or performed, the necessity
for compliance with established procedures, that person’s responsibility to perform duties
as set forth in the protocol or procedure, and to provide necessary information to
supervisory level personnel as is needed or required.

2. Consider limiting appointment of persons as members of the execution team, who are
otherwise responsible for the routine care and custody of condemned inmates.

3. Consider assigning as few individuals to the Death Chamber as possible to enhance an
unobstructed view of the condemned inmate.

4. Develop and implement clearly defined duties for the two FDLE agents who should
document what occurs during the execution.

5. Establish that the Warden is responsible for each and every decision during the
execution, after receiving input from other members of the execution team.
C. DEVELOPMENT AND IMPLEMENTATION OF TRAINING PROCEDURES
FOR PERSONS INVOLVED IN THE LETHAL INJECTION PROCESS:

1. Develop and implement a training program for all persons involved in the lethal
injection process. This training program should consider including a requirement for
periodic exercises involving all team members and the representative(s) from FDLE. If
not feasible for persons to be involved in the periodic training, a procedure should be
established to ensure that the person performing a given function is proficient to perform
that task. The training program should be documented as to the participants (by name or
other identifier) and the function rehearsed. A procedure should be developed and
implemented in which each training exercise is critiqued at all levels to address
contingencies and the response to those contingencies.

2. Develop and implement procedures which review foreseeable lethal injection
contingencies and formulate responses to the contingencies which are rehearsed in the
periodic training.

3. Develop and implement written policies, practices, and procedures requiring all team
members who participate in an actual execution to have completed, to the satisfaction of
the Warden or designee, any and all training necessary to ensure the team member is
qualified to perform the specific function or task in a lethal injection.

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D. MISCELLANEOUS RECOMMENDATIONS RELATED TO THE FLORIDA
LETHAL INJECTION PROCESS:

1. Develop and implement procedures to ensure that a member of the execution team is
able to communicate in the primary language of the inmate being executed.

2. Install additional clocks and any additional necessary lighting in the Death Chamber.

3. It is the Commission's opinion that an agency following the procedures framed in our
recommendations can carry out an execution utilizing the three proscribed chemicals
identified in the Florida Department of Corrections’ August 16, 2006, protocol within the
existing parameters of the Constitution. However, the Commission suggest, that the
Governor have the Florida Department of Corrections on an ongoing basis explore other
more recently developed chemicals for use in a lethal injection execution with specific
consideration and evaluation of the need of a paralytic drug like pancuronium bromide in
an effort to make the lethal injection execution procedure less problematic.

Respectfully Submitted,
The Commission

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CHAIRMAN’S CLOSING COMMENTS

I feel it is important to recognize several individuals for their contribution to the
Commission’s effort in fulfilling the task assigned to it by the Governor. I wish to thank
Governor Crist for giving me the opportunity to serve the citizens of the State of Florida.
Next, I wish to recognize the enormous sacrifice of time and energy by each and every
commissioner. Without their dedication to this task, it would have been impossible for the
Commission to have accomplished its work in a timely manner. Additionally, Gerald
Curington, Deputy Chief of the Governor’s Legal Staff, was instrumental in assisting the
Commission in navigating the early fiscal and structural requirements. Kathy Torian,
Governor’s Deputy Press Secretary, cheerfully provided all the meeting notifications to the
news media on what always seemed like short notice. A special thanks to Max Changus,
Deputy Council for the Department of Corrections, who was constantly required to produce
Department of Corrections’ personnel to testify before the Commission with only minimum
notice. The Florida Bar’s willingness in providing a meeting room, and daily assistance with
the little details was of significant assistance to the Commission in its work. I wish to voice
my appreciation to Pat Gleason of the Governor’s staff, who was continually providing much
appreciated advice on the Florida Sunshine Law requirements. Finally, I would like express
my appreciation to the members of my office, who were constantly required to assist me on
this project, while continuing to perform their normal duties. In particular, I wish to mention
the efforts of Peter Cannon of my staff, who worked tirelessly behind the scenes, so that the
Commissioners had all of the materials, as well as coordinating the witnesses and producing
the meeting agendas. I hope that by acknowledging these individuals that it is apparent to
everyone that this was a group effort, which was made possible by the dedication,
congeniality and perseverance of everyone, but especially the Commission members.
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APPENDIX A

The Physicians’ Statement
The American Medical Association has maintained a Code of Ethics for Physicians since
1847. This Code is regularly updated and revised and is currently relevant, it is also
extremely specific when addressing physician participation in legal executions, including
lethal injection. According to the Code a physician is prohibited from participating in an
execution, observing an execution, and assisting in an execution including providing
technical advice. Indeed, countless organizations representing medical and clinical
professions have adopted a similar position.

When asked to participate in the Lethal Injection Commission for the State of Florida we
physicians were faced with a dilemma. Should we decline the request of the State and let
others decide the direction of the Commission’s actions, or should we involve ourselves
at the risk of being labeled unethical physicians? Ultimately we agreed to serve as we
trust that the State neither wants to create unethical physicians, nor would it be interested
in consulting physicians willing to operate outside of their ethical boundaries.

It is our contention from testimony of witnesses and interacting with the other
Commission members that authoritative bodies in this country are tending to require
more sophisticated medical techniques and personnel to administer the lethal injection.
This is a legal and societal problem, not a medical one. A physician must always act in
the best interest of the individual as they apply their knowledge and skill; otherwise they
risk damage to the trust that patients place in their physician. Maintaining a patient’s
trust is paramount. A physician must always place the individual’s interest above all else.
Physician participation in lethal injection places this trust in jeopardy.

We physicians are aware that the Commission rendered specific recommendations in its
report. We have refrained from rendering our medical expertise or consent to these
specific recommendations. After hearing the testimony of the witnesses and through our
deliberations, it is of great concern to us that this task may require the use of medical
personnel. The participation of these individuals requires them to operate outside the
ethical boundaries of their profession. This is a unique situation. We know of no other
occasion where the State employs the services of individuals operating outside of the
ethical boundaries of their profession. This is not a desirable situation. It is also our
conclusion that because of the above noted points, the inherent risks, and therefore the
potential unreliability of lethal injection cannot be fully mitigated.

Respectfully,
Steve Morris, M.D.
Peter Springer, M.D., F.A.C.E.P.
Dave Varlotta, D.O.
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APPENDIX B

February 28, 2007

Mr. John W. “Bill” Jennings
Chairman

Governor’s Commission on
Administration of Lethal Injection
3801 Corporex Drive, Suite 210
Tampa, Florida 33619

RE: Objection to Commission Statement
Dear Chairman:
I must first observe that it has been a great pleasure to work
with you and the other esteemed members of the Governor’s Commission
on Administration of Lethal Injection. While the task assigned the
Commission was serious and challenging, getting to know and work
with the Commission members was rewarding and educational.
I write this letter however, to register my concerns that, in
questioning whether the lethal drugs utilized in Florida’s method of
execution should be evaluated, the Commission has moved beyond the
mission and purpose assigned by Governor Bush in Executive Order 06-
260. That Order set forth that the Commission’s “purpose and
mission shall be limited to evaluating Florida's lethal injection
procedures and protocols, including enforcement of those procedures
and protocols, and shall not extend to re-evaluating the policy
decisions of the Legislature in enacting a death penalty or the
means chosen by the Legislature for implementing the state's death
penalty.”

While the Commission clearly addressed a number of very
important issues regarding needed enhancements of the existing
protocols and shoring up identified lapses in the adherence to the
existing protocols, the issues identified by the Commission dealt
with personnel matters, the failure to properly deliver the lethal
drugs and the failure to follow current protocols once a problem was
detected, not the use of particular drugs set forth in the
Department of Corrections’ protocols.

Because I believe the Commission was not authorized to expand
its charge beyond the Governor’s Executive Order, I must
respectfully voice my dissent regarding the overreaching of the
Commission’s remarks on this point.

Sincerely yours,
17
Carolyn M. Snurkowski