Monday, 20 August 2007

Aggressive attack in State reply, trying to push Florida Supreme Court to end Angel Diaz investigations

v. Case No.: SC07-1499

COMES NOW the State of Florida, and replies as follows to
Lightbourne’s response to the State’s petition for review of
non-final order and for a protective order. For the reasons
pleaded, the State is entitled to the relief it seeks.
On pages 1-12 of his response, Lightbourne has set out a
lengthy and argumentative “introduction” which, in material
part, is not germane to the narrow issue of whether a visit and
witness of a walk-through is appropriate based on the posture of
this case. None of the factual averments contained in the
introduction are admitted. Specific averments, which deserve a
brief response, are addressed below.
According to Lightbourne, his request to view a walk-
through is based on the July 19, 2007, testimony of Warden
Cannon. (Response, at 19). If that is true, then Lightbourne

cannot support his claims of diligence when he waited almost a
month (until August 9, 2007) to file his request. At the time of
Warden Cannon’s testimony on July 19, 2007, there were no
additional dates set for “further evidentiary hearing” beyond
July 20, 2007. The trial court had set “that week” to complete
all testimony and it was the understanding of all the parties
that testimony would end on July 20, 2007. In fact, because
defense expert witness Heath was not able to timely appear on
July 19, 2007, as promised, the State insisted that the hearing
continue over the weekend. And, in fact, two additional days of
testimony were held: Saturday, July 21, 2007, (when Dr. Heath
testified all day), and Sunday, July 22, 2007, when the State’s
rebuttal case was presented. If any need for the visit and/or
walk-through were pertinent it was at the point when
Lightbourne’s counsel believed all evidentiary matters would
end, which was on or before the close of their case on Saturday,
July 21, 2007. In fact, neither side was aware that the trial
court might open up time for additional evidence until the end
of the day on Sunday, July 22, 2007, following the trial court’s
oral pronouncement. The delay has now expanded to the instant
issue, and not only underscores the abusive nature of
Lightbourne’s request, but also emphasizes the dilatory tactics
that have been employed throughout this litigation.1
1 Likewise, Lightbourne’s claim that he has not sought to delay

this case rings hollow. He has sought multiple continuances in
the circuit court (beginning before the case was even set for
hearing and continuing thereafter), including the present
motions for more hearing time in the trial court. And, in this
Court, Lightbourne again sought extension of the long-standing
deadlines, an attempt which was denied on August 14, 2007.
On page 4 of the response, Lightbourne lists seven “events”
that occurred as a result of the Diaz execution. The true facts,
as borne out in the 3000-plus pages of transcript this case has
generated to date, are that each of those matters has been
exhaustively and painfully explored, with the result that
nothing remains but for the circuit court (or now this Court) to
determine if the August 1, 2007, procedures for execution comply
with the circuit court’s July 31, 2007, order. This case has
narrowed to that fine point, and it is time for the matter to be
To the extent that Lightbourne criticizes the State for
framing the issue as being the “impact of those events [Diaz] on
the issue of the constitutionality of Florida’s lethal injection
procedures,” that language is taken squarely from this Court’s
April 16, 2007, order in Lightbourne v. State, SC06-1241. This
Court’s language is clear, and is not subject to interpretation.
In fact, because of the position taken by the Department to move
forward and embrace the Governor’s Commission on the
Administration of Lethal Injection recommendations in the May 9,
2007, procedures for lethal injection and, then again, to add

more specificity to the issues based on the trial court’s oral
pronouncements in the August 1, 2007, procedures, the underlying
issue of the Diaz execution is no longer relevant to the matter
at hand. Smith v. Secretary, Department of Corrections¸ (Case
No. 8:06-cv-01330-T-17MAP decided August 7, 2007). This petition
was made necessary because the issues have not been narrowed as
this Court framed them. Because the issues have not been
properly narrowed below, the circuit court has now made a ruling
that is irrelevant to the issues that this Court has
established. That failing has worked to the detriment of the
State throughout the eleven days of hearings that have already
been conducted, and culminated in the ruling that made this
petition necessary.
To the extent that Lightbourne complains, on page 7 of the
response, that a drawing of the execution area was “handed” to
him during the hearing, that argument is misleading by its
omissions. The true facts are that an earlier (not to scale)
diagram of the area was known to Lightbourne and was marked as a
joint exhibit on June 18, 2007. (See Exhibit 9 to the Petition
referencing Joint Exhibit 10 in the lower court). Lightbourne’s
claims are baseless. The later, more architecturally pleasing
diagram that was produced, was introduced by the State to more
correctly reflect the modernization of the facility undertaken

2 After these records were produced, they seem to have become of
de minimus interest to Lightbourne.
by Department to ensure a better viewing of an execution by
lethal injection. (Exhibit 1 attached hereto).
References to the 300 pages of public records documents
provided by the Attorney General’s and the Governor’s offices
which were turned over timely after the trial court ruled and
were timely placed in the records repository are irrelevant to
any issue. Nothing nefarious was ever asserted by Lightbourne’s
attorneys from those documents.2 Moreover, while counsel for
Lightbourne admittedly were responsible for handling their case,
the fact remains that during most of the proceedings, there were
five attorneys at Lightbourne’s counsel table and at least one
investigator present -- review of the records should not have
presented an insurmountable task.
To the extent Lightbourne observes that the photographs
admitted do not provide an adequate view of the facilities, for
example, the vantage point of the “medically qualified”
personnel’s view of the gurney, the photographs in fact do. One
of the photographs introduced into evidence was taken of the
gurney looking through the window where the executioners and the
medically qualified personnel are placed. (See Exhibit 10,
attached to the State’s Petition).

To the extent that Lightbourne complains, in a footnote on
page 9 of the response, that the State drafted the order that
the trial judge entered on July 31, 2007, the true facts are
that Lightbourne never voiced any objection to that order as
submitted by the State or signed by the judge. He cannot
resurrect a claim related to that order at this late date, and
his complaints are without legal basis.
Lightbourne misconstrues the basis upon which this Court’s
jurisdiction rests. There is no question that the circuit court
has ordered the Florida Department of Corrections to allow
Lightbourne’s attorneys access to the execution chamber and its
surrounding area, and that the circuit court has ordered the
Department to conduct a “walk-through” of an execution by lethal
injection for the benefit of Lightbourne’s attorneys. While
Lightbourne tries to couch the court’s order as merely one for
“discovery,” nothing could be farther from the truth. The court
has ordered the Department to open the doors to a maximum
security facility, and allow numerous persons into one of the
most secure areas inside that facility. That is far more than a
“routine” discovery order, and, unless this Court exercises its
jurisdiction to review that order, the State will have no
opportunity to address and correct the lower court’s error.

3 On page 19 of the response, Lightbourne attempts to misconstrue
testimony to suggest that Warden Cannon’s testimony was “untrue”
about the training schedule. (V12, R1990, transcript of
evidentiary hearing July 19, 2007). Whether there is training
scheduled between August 8 and August 27, 2007 is of no moment
since the Court indicated that he was only available after
August 28, 2007. That is not to say that the Court sought to be
present but rather that if any walk through were to occur that
was the time the Court was available. Without more specifics as
to the how this all was to be accomplished it would seem
ludicrous for the Department to agree to allow Lightbourne’s
counsel to view the facilities without the judge being present.
(Exhibit 2 attached hereto is a CD with a complete copy of the
transcripts of the evidentiary hearing in the lower court).
Moreover, the lower court has in effect directed the
Department of Corrections to conduct a walk-through of a mock
execution. In fact, the Department’s personnel who testified
stated that there had been walk-throughs (actually training)
conducted before the entry of the court’s order. However, there
is nothing in the record to support the suggestion that any
training session is scheduled for the week of August 28, 2007.3
Presently, the testimony establishes that members of the
execution team come from the Department’s facilities all over
the State. Any compelled walk-through, under the lower court’s
order, would require travel to Florida State Prison to conduct a
demonstration for Lightbourne’s counsel. With all respect, the
circuit court does not have that authority. Unless this Court
corrects the lower court’s departure form the essential
requirements of law, the State will suffer irreparable harm.

4 The circuit court’s order is completely non-specific as to when
the “inspection” may occur or who may attend. It is unlimited in
any fashion. The implication is that the judge intends to attend
because it states that he will not be available before August
28, 2007. If that is in fact the case, that means that the event
must take place during the week of August 28 in order to meet
the schedule established by this Court.
In an attempt to uphold the circuit court’s ultra vires
order, Lightbourne categorizes that order as no more than an
order granting discovery. That misleading description ignores
the broad effect of that order, ignores the implications of it,
and disregards the invasion of the province of the executive
branch of State government. For those reasons, this Court should
grant the relief requested by the State, and set that order
In Allen, this Court emphasized the respect that the
separation of powers doctrine is due:
We find the resolution of the separation of powers
claim to be dispositive in this case. Article II,
section 3 of the Florida Constitution prohibits the
members of one branch of government from exercising
"any powers appertaining to either of the other
branches unless expressly provided herein."
Allen v. Butterworth, 756 So. 2d 52, 59 (Fla. 2000). There can
hardly be any power more exclusively and firmly rooted in the
executive branch than the operation of Florida’s prisons. Yet,
the circuit court has entered an order invading that exclusive
authority on a whim. Despite the fact that numerous photographs

5 Lightbourne complains that he does not know how long the
intravenous tubing is. Response, at 23. Lightbourne’s attorneys
do not need to travel to Florida State Prison to answer that
question, an approach that resembles swatting a fly with a
hammer. A simple stipulation could resolve that question if
counsel would but ask. At the least, less onerous (and far
simpler) means exist to answer that question. Lewis, supra.
and an architectural drawing are in evidence, and, more
importantly, despite the fact that a visit and walk-through will
shed no light on the issues at hand before the trial court,5 and
despite the fact that Lightbourne has not and cannot articulate
any gain that he does not already have if allowed into Florida
State Prison, it is clear that the actions of the trial court
are unwarranted and wrong. The opportunity to interfere with and
disrupt the operation of that facility, as well as every other
Department facilities statewide, that will have personnel
removed by court order to travel to Florida State Prison for a
purposeless exercise, is glaring. Instead of acknowledging the
facts, that the Department has worked to enhance the lethal
injection process and ensure the dignity of the condemned
through the continuing review of the procedures, the circuit
court has entered an order that substantially directs the micro-
management of day-to-day operations of the Florida prison system
and their procedures. That is beyond the authority, let alone
any authorized discretion of the circuit court, contrary to the
dictates of Allen, supra.

In addition to usurping the authority of the executive
branch, the circuit court has abused its discretion in ordering
“limited discovery” under Lewis when the information sought is
available, and in evidence, anyway. While Lightbourne complains
that photographs and drawings of the execution area should have
been produced earlier in the proceedings, the fact remains that
he has them, and used them extensively in questioning witnesses,
including his death penalty expert, Dr. Heath. There was no
difficulty by Dr. Heath in recognizing from the photographs and
diagrams, what he characterized as similar facilities seen in
other states’ death chambers. (V17, R2610, transcript of
evidentiary hearing July 21, 2007). Moreover, Lightbourne never
claimed any deficiency with respect to the quality and quantity
of those photographs, nor did his expert, Dr. Heath, express a
need for more information. In Lewis, this Court held:
The trial judge, in deciding whether to allow this
limited form of discovery, shall consider the issues
presented, the elapsed time between the conviction and
the post-conviction hearing, any burdens placed on the
opposing party and witnesses, alternative means of
securing the evidence, and any other relevant facts.
See People ex rel. Daley v. Fitzgerald, 123 Ill. 2d
175, 526 N.E.2d 131, 135, 121 Ill. Dec. 937 (Ill.
1988). This opinion shall not be interpreted as
automatically allowing discovery under rule 3.850, nor
is it an expansion of the discovery procedures
established in rule 3.220. We conclude that this
inherent authority should be used only upon a showing
of good cause.

6 In plain terms, Lightbourne has photographs depicting the area
he wants to view. He is entitled to no more. There must be an
end point to this litigation, and it has been reached. This case
should be decided, not prolonged through endless, abusive,
demands for “discovery” which are no more than tactics for
State v. Lewis, 656 So. 2d 1248, 1250 (Fla. 1994) (emphasis
added). It is clear that the circuit court considered none of
the relevant factors identified in Lewis, and, in doing so, was
lead into an improper attempt to act in an executive capacity.
While the issue is controlled by the separation of powers
doctrine (and the circuit court’s failure to honor it), the
matter is also disposed of on a secondary level -- there has
been no showing of good cause under Lewis, and the order that
resulted is an abuse of discretion.6

The circuit court’s order allowing a viewing of the
execution chamber by defense counsel and requiring the
Department to conduct a walk-through of a mock execution is an
unauthorized exercise of authority that is vested solely in the
executive branch. Further, there has been, and cannot be, any
showing of good cause supporting the court’s order. Because that
is so, the circuit court’s order is an abuse of discretion.
Unless this Court sets aside the lower court’s order, that
court’s departure from the essential requirements will result in
irreparable damage to the State.
Respectfully submitted,
Senior Assistant Attorney General
Florida Bar #998818
444 Seabreeze Blvd., 5th Floor
Daytona Beach, FL 32118
(386) 238-4990
FAX (386) 226-0457

I HEREBY CERTIFY that a true and correct copy of the above
has been furnished by E-mail and U.S. Mail to: Suzanne Myers
Keffer, Assistant CCRC-South, 101 NE Third Ave., Suite 400, Ft.
Lauderdale, Florida 33301; and by U.S. Mail to: Rock E. Hooker,
Office of the State Attorney, 19 N.W. Pine Avenue, Ocala, FL
34475, and Judge Carven D. Angel, Circuit Court Judge, Marion
County Justice Center, 110 N.W. First Ave., Ocala, Florida 34475
on this __ day of August, 2007.
Of Counsel

BILL McCOLLUM, etc., et al.,
v. Case No.: SC07-1499
Circuit Court No. 1981-170 CF
Exhibit 1. Copy of State Exhibit 7A lodged in Circuit Court

Exhibit 2. CD containing complete transcripts of evidentiary
hearing held in Circuit Court May 18 and 21, June
18 and 19,and July 17-22, 2007

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