http://www.angel-diaz.us/lethal/responsetorenewed.htm
http://www.angel-diaz.us/lethal/Filed_08-22-2007_ResponseToRenewedMotioinVacate.pdf
IN THE SUPREME COURT OF FLORIDA
http://www.angel-diaz.us/lethal/Filed_08-22-2007_ResponseToRenewedMotioinVacate.pdf
IN THE SUPREME COURT OF FLORIDA
IAN DECO LIGHTBOURNE
Petitioner(s), Case No. SC06-2391
v.
BILL McCOLLUM
Respondent(s)
/
RESPONSE TO “RENEWED EMERGENCY MOTION TO VACATE”
SCHEDULING ORDER
COMES NOW the State of Florida, and responds as follows to
Lightbourne’s “renewed emergency motion to vacate scheduling
order.” For the reasons set out herein, that motion should be
denied.
Lightbourne’s “renewed emergency motion to vacate scheduling
order.” For the reasons set out herein, that motion should be
denied.
1. This motion is Lightbourne’s latest attempt to delay the
proceedings in this case -- this Court has, through repeated
orders, directed that the proceedings will be concluded in the
circuit court on or before September 10, 2007. Lightbourne has
sought multiple continuances, both in the circuit court and in
this Court, and, to date, has spread the evidentiary hearing
over eleven days, many of which were devoted to cumulative,
redundant evidence concerning the events of the December 13,
2006, execution of Angel Diaz. Those facts are no longer in
dispute.
proceedings in this case -- this Court has, through repeated
orders, directed that the proceedings will be concluded in the
circuit court on or before September 10, 2007. Lightbourne has
sought multiple continuances, both in the circuit court and in
this Court, and, to date, has spread the evidentiary hearing
over eleven days, many of which were devoted to cumulative,
redundant evidence concerning the events of the December 13,
2006, execution of Angel Diaz. Those facts are no longer in
dispute.
2. In addition to the eleven days that have already been
devoted to hearing Lightbourne’s claim, four (4) additional days
are set aside for hearing beginning on August 28, 2007. The
devoted to hearing Lightbourne’s claim, four (4) additional days
are set aside for hearing beginning on August 28, 2007. The
circuit court has ordered that Lightbourne shall have two (2)
days to present his case, and the State shall have two (2) days.
In light of the extensive, and often cumulative, presentation
that has already taken place, such a limitation can hardly be
described as draconian.
3. Despite the narrow focus that this proceeding has
reached, and despite the limited time remaining for conclusion
of this case prior to the end of the relinquishment, Lightbourne
filed a witness list on August 17, 2007, that listed 25
individually-named witnesses. On August 21, 2007, (after the
time for filing his witness list had passed), Lightbourne added
two (2) additional individuals to that witness list. At this
time, he has identified 27 witnesses that he intends to present
over the course of two (2) days.
reached, and despite the limited time remaining for conclusion
of this case prior to the end of the relinquishment, Lightbourne
filed a witness list on August 17, 2007, that listed 25
individually-named witnesses. On August 21, 2007, (after the
time for filing his witness list had passed), Lightbourne added
two (2) additional individuals to that witness list. At this
time, he has identified 27 witnesses that he intends to present
over the course of two (2) days.
4. The bad faith that permeates Lightbourne’s lengthy
witness list is demonstrated by the fact that he has listed, by
description, seven (7) individuals (medical-type personnel and
executioners) whose identity is protected by statute, and whose
testimony was foreclosed by the trial court prior to the filing
of the witness list. (Appendix 1). Of the other persons named on
the witness list, a majority of those individuals can present
only cumulative testimony.1
witness list is demonstrated by the fact that he has listed, by
description, seven (7) individuals (medical-type personnel and
executioners) whose identity is protected by statute, and whose
testimony was foreclosed by the trial court prior to the filing
of the witness list. (Appendix 1). Of the other persons named on
the witness list, a majority of those individuals can present
only cumulative testimony.1
1 Lightbourne complains that various motions to quash and for
protective orders have been filed. Paragraph 4 demonstrates that
protective orders have been filed. Paragraph 4 demonstrates that
those motions were necessitated by the abusive litigation
tactics Lightbourne has employed by, inter alia, seeking to
present witnesses when the circuit court has already ruled that
he cannot call those confidential witnesses. A further motion to
quash deals with subpoenas directed to Assistant Attorneys
General Snurkowski and Nunnelley, who are counsel in this case.
A previous subpoena to AAG Nunnelley was quashed earlier in this
case.
2 The State’s petition was filed on August 10, 2007, and this
Court’s order was issued on August 20, 2007. Again, the State
should not be criticized for exercising its’ right to seek
review.
Court’s order was issued on August 20, 2007. Again, the State
should not be criticized for exercising its’ right to seek
review.
5. In a remarkable demonstration of ad hominem abuse,
Lightbourne attacks counsel for the State because counsel was
unavailable to attend a hearing “on outstanding motions” during
the week of August 13, 2007, due to the undersigned’s
obligations in the Mark Dean Schwab death warrant case. Given
that the matters underlying this most recent motion for a
continuance (viewing the death chamber) did not occur until the
week of August 20, 2007, Lightbourne’s personal attacks have no
basis in reality.
Lightbourne attacks counsel for the State because counsel was
unavailable to attend a hearing “on outstanding motions” during
the week of August 13, 2007, due to the undersigned’s
obligations in the Mark Dean Schwab death warrant case. Given
that the matters underlying this most recent motion for a
continuance (viewing the death chamber) did not occur until the
week of August 20, 2007, Lightbourne’s personal attacks have no
basis in reality.
6. Lightbourne likewise criticizes the State’s decision to
seek review of the circuit court’s order allowing a viewing of
the death chamber and a “walk-through.” Given that this Court
issued an order specifying the parameters of that viewing, the
State’s petition for review was obviously well-founded.2
seek review of the circuit court’s order allowing a viewing of
the death chamber and a “walk-through.” Given that this Court
issued an order specifying the parameters of that viewing, the
State’s petition for review was obviously well-founded.2
7. To the extent that Lightbourne criticizes the Department
of Corrections for insisting that the factual determinations
discussed in this Court’s order on the State’s petition for
of Corrections for insisting that the factual determinations
discussed in this Court’s order on the State’s petition for
3 As noted in the State’s motion to clarify the order on the
petition for review of non-final order (SC07-1499), counsel for
Lightbourne has persisted in contacting counsel for the
Department of Corrections directly to “work out the details” of
any viewing. While Lightbourne piously asserts that he did this
to speed the process along, the fact remains that the Office of
the Attorney General is counsel of record for the State in all
legal challenges related to this case. Lightbourne has pointedly
refused to contact the Attorney General’s Office about any of
these matters, apparently preferring to contact this office’s
client (the Department of Corrections) directly. That is
improper.
review of non-final order be made, that argument is frivolous.
The State intends to follow this Court’s order, which requires
the circuit court to make certain determinations before any
viewing or walk-through takes place. To suggest that the State
should disregard this Court’s order is absurd.3
The State intends to follow this Court’s order, which requires
the circuit court to make certain determinations before any
viewing or walk-through takes place. To suggest that the State
should disregard this Court’s order is absurd.3
8. To the extent that Lightbourne invokes his right to due
process, it is true that both parties are entitled to a full and
fair hearing. However, Lightbourne is not entitled to a hearing
that is tilted in his favor, nor is he entitled to litigate this
proceeding indefinitely. The issues have been greatly narrowed
over the eleven days so far expended on this case, to the point
that all that remains is whether the procedures for execution by
lethal injection that took effect on August 1, 2007, comport
with the July 31, 2007, order of the circuit court. Simply put,
there is little remaining to do. There is certainly nothing that
requires the presentation of 27 witnesses. This case can be
process, it is true that both parties are entitled to a full and
fair hearing. However, Lightbourne is not entitled to a hearing
that is tilted in his favor, nor is he entitled to litigate this
proceeding indefinitely. The issues have been greatly narrowed
over the eleven days so far expended on this case, to the point
that all that remains is whether the procedures for execution by
lethal injection that took effect on August 1, 2007, comport
with the July 31, 2007, order of the circuit court. Simply put,
there is little remaining to do. There is certainly nothing that
requires the presentation of 27 witnesses. This case can be
4 Lightbourne complains that he is not being allowed “to make the
record he feels” is appropriate. (emphasis in original).
Lightbourne does not control the schedule of the Courts, nor are
the rules of evidence and procedure suspended for Lightbourne’s
benefit. It is axiomatic that death-sentenced inmates covet
delay if nothing better can be had, and Lightbourne has had
years of it. As the Eleventh Circuit has pointed out, “[w]e do
not have one set of rules for petitioners and their attorneys in
capital cases and another set for everyone else.” Jackson v.
Crosby, 375 F.3d 1291, 1300 (11th Cir. 2004). Lightbourne does
not control this litigation, the courts do.
concluded in the time allotted, and Lightbourne’s most recent
motion seeking delay should be denied.
motion seeking delay should be denied.
9. While Lightbourne complains that he has “been
effectively denied access to the court for two full weeks,” he
has never identified what it is that he would have done during
that period of time.4 As discussed above, the viewing of the
death chamber issue was pending before this Court until August
20, 2007 -- just what Lightbourne could have done in circuit
court while that court’s order allowing a viewing/walk-through
was on review to this Court is unexplained.
effectively denied access to the court for two full weeks,” he
has never identified what it is that he would have done during
that period of time.4 As discussed above, the viewing of the
death chamber issue was pending before this Court until August
20, 2007 -- just what Lightbourne could have done in circuit
court while that court’s order allowing a viewing/walk-through
was on review to this Court is unexplained.
WHEREFORE, based upon the foregoing, there is no basis for
any delay. Lightbourne’s continual suggestions that additional
time is necessary are untoward, and the claim that justice will
be denied unless this Court’s August 6, 2007, timetable is
vacated has no justification. There is no good faith basis for
any further delay.
any delay. Lightbourne’s continual suggestions that additional
time is necessary are untoward, and the claim that justice will
be denied unless this Court’s August 6, 2007, timetable is
vacated has no justification. There is no good faith basis for
any further delay.
Respectfully submitted,
BILL McCOLLUM
ATTORNEY GENERAL
_______________________________
KENNETH S. NUNNELLEY
Senior Assistant Attorney General
Florida Bar #998818
Florida Bar #998818
444 Seabreeze Blvd., 5th Floor
Daytona Beach, FL 32118
(386) 238-4990
FAX (386) 226-0457
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the above
has been furnished by FAX and U.S. Mail to: Suzanne Myers
Keefer, Assistant CCRC-South, 101 NE Third Ave., Suite 400, Ft.
Lauderdale, Florida 33301, and 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., Room 3A, Ocala, Florida 34475 on
this day of August, 2007.
has been furnished by FAX and U.S. Mail to: Suzanne Myers
Keefer, Assistant CCRC-South, 101 NE Third Ave., Suite 400, Ft.
Lauderdale, Florida 33301, and 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., Room 3A, Ocala, Florida 34475 on
this day of August, 2007.
_______________________________
Of Counsel
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