http://www.angel-diaz.us/lethal/motiontovacate.htm
http://www.angel-diaz.us/lethal/Filed_08-09-2007_MotionVacateSchedulingOrder.pdf
http://www.angel-diaz.us/lethal/Filed_08-06-2007_Order.pdf
IN THE SUPREME COURT OF FLORIDA
http://www.angel-diaz.us/lethal/Filed_08-09-2007_MotionVacateSchedulingOrder.pdf
http://www.angel-diaz.us/lethal/Filed_08-06-2007_Order.pdf
IN THE SUPREME COURT OF FLORIDA
IAN DECO LIGHTBOURNE,
Petitioner,
Case No. SC06-2391
v.
BILL McCOLLUM, ET AL.,
Respondents.
Respondents.
PETITIONER'S EMERGENCY MOTION TO VACATE THE SCHEDULING ORDER
WHICH TERMINATES JURISDICTION IN THE CIRCUIT COURT
ON SEPTEMBER 10, 2007 BASED ON GOOD CAUSE
WHICH TERMINATES JURISDICTION IN THE CIRCUIT COURT
ON SEPTEMBER 10, 2007 BASED ON GOOD CAUSE
COMES NOW the Petitioner, IAN DECO LIGHTBOURNE, through
undersigned counsel, and hereby files the following Motion to
Vacate the Scheduling Order Based on Good Cause. In support of
this motion, Mr. Lightbourne submits the following:
1. Upon this Court's request, the Honorable Judge Carven
Angel issued a status report to this Court on July 17, 2007,
indicating that a final order could be entered by September 10,
2007. On July 18, 2007, this Court issued a scheduling order in
the above-styled cause based on the good faith representations
contained within the circuit court's status report. At the time
that the status report was provided to this Court, the
evidentiary hearings had not concluded and the lower court had
heard virtually none of the testimony or evidence concerning the
Angel issued a status report to this Court on July 17, 2007,
indicating that a final order could be entered by September 10,
2007. On July 18, 2007, this Court issued a scheduling order in
the above-styled cause based on the good faith representations
contained within the circuit court's status report. At the time
that the status report was provided to this Court, the
evidentiary hearings had not concluded and the lower court had
heard virtually none of the testimony or evidence concerning the
1
new lethal inj ection protocols that were promulgated by the
Department of Corrections on May 9, 2007. 1
2. On July 22, 2007, the lower court orally pronounced
that he was granting a temporary injunction and ordered the
Department of Corrections to make changes to the existing lethal
injection procedures. The lower court further stated that once
any changes were submitted to the court, additional hearings
would be necessary. See July 22, 2007 Transcript (Attachment
that he was granting a temporary injunction and ordered the
Department of Corrections to make changes to the existing lethal
injection procedures. The lower court further stated that once
any changes were submitted to the court, additional hearings
would be necessary. See July 22, 2007 Transcript (Attachment
A) .
3. The Department of Corrections issued a new lethal
injection procedure on August 1, 2007. The State moved for a
final hearing to be set for September 5, 2007. The circuit
court granted the motion and set aside eight days for the
hearing.
4. On Monday, August 6, 2007, this Court issued an order
stating that the July 18, 2007 scheduling order will govern this
proceeding unless the parties show good cause no later than
August 10, 2007 as to why additional time is required to
injection procedure on August 1, 2007. The State moved for a
final hearing to be set for September 5, 2007. The circuit
court granted the motion and set aside eight days for the
hearing.
4. On Monday, August 6, 2007, this Court issued an order
stating that the July 18, 2007 scheduling order will govern this
proceeding unless the parties show good cause no later than
August 10, 2007 as to why additional time is required to
I The lower court heard testimony primarily regarding the events
that surrounded the botched execution of Angel Diaz on May 18
and 21, 2007 and June 18-19, 2007. Mr. Lightbourne was still in
the process of discovering any substantive changes the
Department alleged to have made during the hearings held in
July. It was also discovered in July, after this Court set the
briefing schedule, that the process had not been completed even
as Florida's chosen method of execution was being challenged.
Mr. Lightbourne still has no information that the Department of
Corrections has completed its plans for execution as of this
date.
2
conclude the proceedings and for the trial court to enter a
final order. Good cause exists to vacate the scheduling order
as it currently stands.
5. Due process requires a reasonable opportunity to be
heard in a full and fair adversarial proceeding. Cleveland Ed.
Of Educ. v. Loudermill, 470 U.S. 532, 542 (1985) ("essential
principle of due process is that a deprivation of life ...be
preceded by notice and opportunity for hearing appropriate to
the nature of the case") (emphasis added). Additional time for
the completion of the hearing on remand is required to conclude
the proceedings and for the trial court to enter a final order.
As a result of the expedited process and truncated briefing
schedule, Mr. Lightbourne is being denied his right to make the
record he feels is "necessary for the full and fair
consideration of the merits of the case." Taylor v. Crawford,
445 F. 3d 1095 (8~ Cir. 2006).
6. Throughout the course of these proceedings, Petitioner
Lightbourne has had problems obtaining public records and other
discovery from the State. The State and the Department of
Corrections have obj ected to each and every request for public
records made by counsel for Petitioner Lightbourne pursuant to
Rule 3.852 (i) . Yet, despite having obj ected to turning over
public records, the State several times during the proceedings
handed documents to counsel for Petitioner Lightbourne just
heard in a full and fair adversarial proceeding. Cleveland Ed.
Of Educ. v. Loudermill, 470 U.S. 532, 542 (1985) ("essential
principle of due process is that a deprivation of life ...be
preceded by notice and opportunity for hearing appropriate to
the nature of the case") (emphasis added). Additional time for
the completion of the hearing on remand is required to conclude
the proceedings and for the trial court to enter a final order.
As a result of the expedited process and truncated briefing
schedule, Mr. Lightbourne is being denied his right to make the
record he feels is "necessary for the full and fair
consideration of the merits of the case." Taylor v. Crawford,
445 F. 3d 1095 (8~ Cir. 2006).
6. Throughout the course of these proceedings, Petitioner
Lightbourne has had problems obtaining public records and other
discovery from the State. The State and the Department of
Corrections have obj ected to each and every request for public
records made by counsel for Petitioner Lightbourne pursuant to
Rule 3.852 (i) . Yet, despite having obj ected to turning over
public records, the State several times during the proceedings
handed documents to counsel for Petitioner Lightbourne just
3
prior to counsel calling witnesses to whose testimony those
documents were relevant. As a result, defense counsel was
forced to rearrange the order of its witnesses in order to have
time to review new documents and consult experts regarding them. 2
7. When Judge Angel made his oral pronouncement on July
22, 2007, he ordered that the final hearing in this case would
begin no sooner than five weeks from the date that the
Department of Corrections released the anticipated new lethal
injection protocol in order to allow sufficient time for pre
trial discovery. It was clear that Judge Angel was concerned
with ensuring that the parties would have an adequate time to
prepare for the final phase of the litigation:
2 On July 16, 2007, the day before the evidentiary proceedings
continued, the trial court held a public records hearing at
which time Mr. Lightbourne was handed several hundred pages of
documents by the Attorney General's Office. The Department of
Corrections turned over three execution checklists that the
Department only agreed to provide after it was revealed that a
judge in another case ordered the checklists to be disclosed.
The Department of Corrections maintained objections to the
remainder of the documents and the Petitioner's motion to
continue based on the withholding of the public records, made
after the trial court set the schedule for the final order, was
denied.
continued, the trial court held a public records hearing at
which time Mr. Lightbourne was handed several hundred pages of
documents by the Attorney General's Office. The Department of
Corrections turned over three execution checklists that the
Department only agreed to provide after it was revealed that a
judge in another case ordered the checklists to be disclosed.
The Department of Corrections maintained objections to the
remainder of the documents and the Petitioner's motion to
continue based on the withholding of the public records, made
after the trial court set the schedule for the final order, was
denied.
During the course of the hearing, the State was allowed to use
documents that Mr. Lightbourne had been denied access to which
included photographs and diagrams of the execution chamber and
drafts of checklists created by the Department of Corrections.
Mr. Lightbourne was also provided with names of personnel who
would be participating in future executions but was forced to
question these witnesses without the benefit of time to conduct
any investigation into their background.
documents that Mr. Lightbourne had been denied access to which
included photographs and diagrams of the execution chamber and
drafts of checklists created by the Department of Corrections.
Mr. Lightbourne was also provided with names of personnel who
would be participating in future executions but was forced to
question these witnesses without the benefit of time to conduct
any investigation into their background.
4
That will give us time to address things like
controversies over who -what kind of evidence we're
going to need, and depositions, and things like that,
evidentiary procedure issues, like taking the
testimony of certain witnesses. So hopefully five
weeks will give counsel enough to complete pre-trial
discovery and get ready for final hearing. And we
would schedule a final hearing no sooner than five
weeks after the Department come out with their
protocol.
(07/22/07 T. 2965) (emphasis added) .
8. It was also clear that the trial judge was aware that
once the Department of Corrections addresses the court's
preliminary concerns, Mr. Lightbourne would be given the
opportunity to raise additional concerns:
I may not have addressed all the issues the defendant
may have contemplated in what he's requesting relief
from. We're sort of at a temporary stopping point. I
don't know what else they might want to address or get
into the record.
may have contemplated in what he's requesting relief
from. We're sort of at a temporary stopping point. I
don't know what else they might want to address or get
into the record.
(7/22/07 T. 2961).
9. The Department of Corrections has just released a new
lethal injection protocol on August 1, 2007. These protocols do
not address the failures that led to the botched execution of
Angel Diaz. It is necessary for Petitioner Lightbourne to
consult with experts regarding the changes and seek additional
public records relating to this new protocol; all of this takes
time.
10. Even though this is Mr. Lightbourne's case and it is
he who bears the burden of proof, it was the State that moved
for the scheduling of the final hearing to begin on September 5,
lethal injection protocol on August 1, 2007. These protocols do
not address the failures that led to the botched execution of
Angel Diaz. It is necessary for Petitioner Lightbourne to
consult with experts regarding the changes and seek additional
public records relating to this new protocol; all of this takes
time.
10. Even though this is Mr. Lightbourne's case and it is
he who bears the burden of proof, it was the State that moved
for the scheduling of the final hearing to begin on September 5,
5
2007, without consultation with Mr. Lightbourne. The State's
motion is misleading in that it asserts that a "hearing on that
date will allow a final order to be entered by this court by
September 10, 2007, as set out in this Court's July 17, 2007,
status report to the Florida Supreme Court." This statement
completely ignores the fact that the original status report was
based on the information that the parties had at the time. At
this point in the litigation, there is no rational basis, legal
or otherwise, to adhere to the original dates. The events that
occurred following the circuit court's July 17, 2007 status
report, including the issuance of a temporary injunction and the
contemplation of additional hearings, require that the time
limits be extended.
11. Furthermore, the circuit court initially scheduled the
final hearing in this case to begin on September 5, 2007, and
noted that the court had set aside a total of eight days to
complete the hearing. However, at the status conference held on
August 7, 2007, it was clear that Judge Angel was concerned with
final hearing in this case to begin on September 5, 2007, and
noted that the court had set aside a total of eight days to
complete the hearing. However, at the status conference held on
August 7, 2007, it was clear that Judge Angel was concerned with
this Court's order that the proceedings should conclude by
September 10, 2007. See August 7, 2007 Transcript (Attachment
B) .
12. As a direct result, the lower court moved the date of
the hearing to August 28, 2007 and limited the defense
September 10, 2007. See August 7, 2007 Transcript (Attachment
B) .
12. As a direct result, the lower court moved the date of
the hearing to August 28, 2007 and limited the defense
6
presentation of witnesses to two days at the State's insistence.3
Of special concern is the fact that the Mr. Lightbourne's
expert, Dr. Mark Heath, will be out of the county until the
beginning of September. Additionally, the parties are expected
to provide written closing arguments by Tuesday, September 4,
2007, without the benefit of the transcripts.
13. This Court remanded the case to the circuit court for
a full and fair hearing concerning the series of events that
occurred following the execution of Angel Diaz and the impact of
3 After the evidentiary hearing is concluded in the trial court,
additional time is necessary in order to provide argument to the
trial court prior to the entry of a final order. When the trial
court notified this Court on July 17, 2007 that it would enter a
final order by September 10, 2007, that date took into account
time for the hearing transcripts to be prepared, three weeks for
the parties to submit written closing arguments, and eight days
for the trial court to enter a final order. As the trial court
agreed on July 16, 2007, written closing arguments are necessary
in this case where numerous witnesses have testified, and will
testify, on many complex subjects. The testimony thus far has
involved days of technical and scientific information from
experts from various disciplines concerning Florida's chosen
method of execution and the failures that were evident in the
execution of Angel Diaz. Mr. Lightbourne must be allowed to
fully apprise the lower court as to the constitutional concerns
in this case -he has never had an opportunity to do so because
the trial court cut off all further questioning and issued an
oral pronouncement in court.
additional time is necessary in order to provide argument to the
trial court prior to the entry of a final order. When the trial
court notified this Court on July 17, 2007 that it would enter a
final order by September 10, 2007, that date took into account
time for the hearing transcripts to be prepared, three weeks for
the parties to submit written closing arguments, and eight days
for the trial court to enter a final order. As the trial court
agreed on July 16, 2007, written closing arguments are necessary
in this case where numerous witnesses have testified, and will
testify, on many complex subjects. The testimony thus far has
involved days of technical and scientific information from
experts from various disciplines concerning Florida's chosen
method of execution and the failures that were evident in the
execution of Angel Diaz. Mr. Lightbourne must be allowed to
fully apprise the lower court as to the constitutional concerns
in this case -he has never had an opportunity to do so because
the trial court cut off all further questioning and issued an
oral pronouncement in court.
Furthermore, on July 20, 2007, the trial court overruled the
objections of the Department of Corrections and ordered the
Department to turn over all public records sought by Petitioner
Lightbourne in his Rule 3.852 (i) request dated May 31, 2007.
Although counsel for the Department represented that he would
turn over the records the following week, nothing was provided
until August 6, 2007. Most of the records ordered to be
produced remain outstanding.
objections of the Department of Corrections and ordered the
Department to turn over all public records sought by Petitioner
Lightbourne in his Rule 3.852 (i) request dated May 31, 2007.
Although counsel for the Department represented that he would
turn over the records the following week, nothing was provided
until August 6, 2007. Most of the records ordered to be
produced remain outstanding.
7
those events on the issue of the constitutionality of Florida's
lethal injection procedures. At every step off the way there
has been timely progress on this case. Most of the attorneys on
both sides do not live in Ocala, Florida and court has been held
on the weekend. Despite the fact that the Florida Department of
Corrections did not issue its new or revised protocols until May
9, 2007, the hearing commenced on May 18, 2007.
14. There is simply no basis for this case to be rushed
along to the detriment of Mr. Lightbourne' s due process rights
and a sound reasoned decision-making process. In Taylor v.
Crawford, In that case, Mr. Taylor alleged that the expedited
and truncated hearing in the district court denied him due
process and argued that the State's interest in carrying out an
execution was elevated above the his interest in properly
presenting his constitutional claim. The Eighth Circuit
agreed to remand the case for a full hearing on the issues ~[i]n
view of the existing record, the importance of the issue to this
plaintiff as well as others, and the likelihood of the
recurrence of these identical issues. " Taylor, 445 F. 3dat
1099.
15. Petitioner Lightbourne has the right to a full and
fair hearing, due process, and to be free from cruel and unusual
punishment under the Fifth, Eighth, and Fourteenth Amendments to
the United States Constitution as well as the corresponding
along to the detriment of Mr. Lightbourne' s due process rights
and a sound reasoned decision-making process. In Taylor v.
Crawford, In that case, Mr. Taylor alleged that the expedited
and truncated hearing in the district court denied him due
process and argued that the State's interest in carrying out an
execution was elevated above the his interest in properly
presenting his constitutional claim. The Eighth Circuit
agreed to remand the case for a full hearing on the issues ~[i]n
view of the existing record, the importance of the issue to this
plaintiff as well as others, and the likelihood of the
recurrence of these identical issues. " Taylor, 445 F. 3dat
1099.
15. Petitioner Lightbourne has the right to a full and
fair hearing, due process, and to be free from cruel and unusual
punishment under the Fifth, Eighth, and Fourteenth Amendments to
the United States Constitution as well as the corresponding
8
provisions of the Florida Constitution. Based on these
interests, Mr. Lightbourne motion is based on good faith and not
for the purpose of delay.
WHEREFORE, Petitioner Lightbourne respectfully requests
that this Court grant this Motion and vacate the current
scheduling order until such time that the lower court can
provide a new time frame for the conclusion of the proceedings
based on the events that have transpired since the lower court's
July 17, 2007 status report.
that this Court grant this Motion and vacate the current
scheduling order until such time that the lower court can
provide a new time frame for the conclusion of the proceedings
based on the events that have transpired since the lower court's
July 17, 2007 status report.
Respectfully submitted,
SUZANNE MYERS KEFFER
Assistant CCRC
Florida Bar No. 0150177
Assistant CCRC
Florida Bar No. 0150177
ANNA-LIISA NIXON
Staff Attorney
Florida Bar No. 0026283
Staff Attorney
Florida Bar No. 0026283
OFFICE OF THE CAPITAL
COLLATERAL REGIONAL COUNSEL
COLLATERAL REGIONAL COUNSEL
3rd
101 N.E. Ave., Suite 400
Ft. Lauderdale, FL 33301
Ft. Lauderdale, FL 33301
(954) 713-1284
COUNSEL FOR MR. LIGHTBOURNE
COUNSEL FOR MR. LIGHTBOURNE
9
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the
foregoing has been furnished by u.s. Mail and facsimile to
Kenneth S. Nunnelley, Assistant Attorney General, 444 Seabreeze
Blvd, 5th Floor, Daytona Beach, FL 32118; Rock E. Hooker,
Assistant State Attorney, 19 NW Pine Avenue, Ocala, FL 34475;
Maximillian J. Changus, Assistant General Counsel, Florida
Department of Corrections, 2601 Blair Stone Road, Tallahassee,
Assistant State Attorney, 19 NW Pine Avenue, Ocala, FL 34475;
Maximillian J. Changus, Assistant General Counsel, Florida
Department of Corrections, 2601 Blair Stone Road, Tallahassee,
FL 32399; and the Honorable Carven D. Angel, Circuit Court
Judge, Marion County Judicial Center, 110 NW First Avenue,
Ocala, FL 34475 on this day of August, 2007.
Judge, Marion County Judicial Center, 110 NW First Avenue,
Ocala, FL 34475 on this day of August, 2007.
SUZANNE MYERS KEFFER
Assistant CCRC
Florida Bar No. 0150177
Assistant CCRC
Florida Bar No. 0150177
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