Florida - PETITIONER'S RESPONSE TO STATE'S MOTION TO RECALL THE MANDATE

NO. ~~06-2391

2307 AN 15 p 1: 29

IAN DECO LIGHTBOURNE,
petitioner, CLERK. SUPREHEc0un7

v.

BILL McCOLLm, ET AL-I
Respondents.

PETITIONER'S RESPONSE TO STATE'S MOTION TO RECALL THE MANDATE

COMES NOW, IAN DECO LIGHTBOURNE, Petitioner, by and through
undersigned counsel and responds to the State's Motion to Recall
the Mandate. Mr. Lightbourne states:

1. On December 14, 2006, following the botched execution
of Angel Diaz, Mr. Lightbourne filed an Emergency Petition
Seeking to Invoke This Court's All Writs Jurisdiction.
2. On the same date Mr. Lightbourne's All Writs Petition
was filed, this Court relinquished jurisdiction to the circuit
court and ordered that 'all other issues raised by Petitioner
Lightbourne shall be acted on by the circuit court as soon as
possible." Lightbourne v. Crist, SC06-2391, December 14, 2006.
3. At the time of filing the All Writs Petition, Mr.
Lightbourne's Rule 3.851 appeal challenging lethal injection was
pending before this Court. On April 16, 2007, the Court
affirmed the circuit court s denial his lethal injection
claim, but stated:

as a result of Angel Diaz's execution by
lethal injection, a series of events


occurred that the trial court could not have
considered in denying Lightbourne's motion.
The impact of those events on the issue of
the constitutionality of Florida's lethal
injection procedures is currently being
litigated in the circuit court pursuant to
this Court's relinquishment order in
Lightbourne v. McCollum, SC06-2391.

Lightbourne v. State of Florida, SC06-1241, April 16, 2007.

This Court acknowledged the "better course is to allow that case

to proceed [ .I "

4. As a result of the relinquishment, the circuit court

held evidentiary hearings on May 18 and 21, 2007, June 18 and

19, 2007 and July 17-22, 2007.

5. Upon this Court's request, the Honorable Judge Carven

Angel issued a status report 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.

6. On July 22, 2007, the lower court orally pronounced

that it was granting a temporary injunction and ordered the

Department of Corrections to make changes to the existing lethal

1 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 new lethal injection protocols that were promulgated by the
Department of Corrections on May 9, 2007.


injection procedures. (Attachment A). The lower court signed a
written order, submitted by Petitioners, on July 31, 2007.

7. Contrary to the State's representations, the circuit
court's ruling was not a final order. While the circuit court
judge initially agreed with the characterization of his order as
final, it was the State who argued and persuaded the judge it
was non-final. There was much discussion below regarding the
status of the circuit court's pronouncement as final or non-
final. Petitioners argued to the circuit court that this could
not be a final order if further proceedings were being ordered
by the court (T. 07/22/07 at 2946). At one point the judge also
agreed that the proceedings were at a temporary stopping point.

(T. 07/22/07 at 2961) (emphasis added). Ultimately, the parties
and the judge agreed that his ruling was a temporary injunction.
The State indicated:

So a temporary injunction is the proper
terminology, which is in itself a non-f inal
non-appealable order, I believe.

(T. 07/22/07 at 2968). The circuit court agreed (Id. at 2969).

8. 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.


9. 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
conclude the proceedings and for the trial court to enter a
final order. On August 9, 2007, Mr. Lightbourne filed an
Emergency Motion to Vacate the Scheduling Order Which Terminates
Jurisdiction in the Circuit Court on September 10, 2007 Based on
Good Cause. The Petitioner's responded. On August 14, 2007,
this Court denied Mr. Lightbourne's motion.
10. A status hearing was held on August 7, 2007. At that
time, 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). As a
direct result, the lower court moved the date of the hearing to
August 28, 2007 and limited the defense presentation of
witnesses to two days at the Staters insistence.
11. Subsequent to the status hearing, Mr. Lightbourne has
filed two motions requesting to depose various Department of
Corrections personnel involved in drafting and/or promulgating
the August 1, 2007 lethal injection procedures and Department of
Corrections personnel known to be participating in future
executions. Mr. Lightbourne's motions to depose were based in
part on the circuit court's limitation on the presentation of


evidence in Mr. Lightbourne's case in chief to only two days.
Mr. Lightbourne asserted that it was necessary to depose these
individuals in order to learn what testimony they can provide
and in order to narrow the scope of their testimony to fit the
time constraints placed on Mr. Lightbourne.

12. Mr. Lightbourne also filed a Motion to Compel the
Department of Corrections to disclose records which were ordered
to be disclosed on July 20, 2007. Mr. Lightbourne has yet to
receive records responsive to the entirety of his public records
demand filed on May 31, 2007. The circuit court found Mr.
Lightbourne entitled to these records.
13. Mr. Lightbourne filed a Motion to View the Execution
Chamber and Witness a Walk-Through. The issue of viewing the
chamber and witnessing a walk-through was not raised as a
dilatory tactic to delay the proceedings in the circuit court
and the remand of this Court. In fact, this request was made at
least twice previously by Mr. Lightbourne. During the
questioning of a Department of Corrections witness, Mr.
Lightbourne specifically asked the circuit court to grant a
request for Mr. Lightbourne's team and experts to visit the
death row chamber (T. 06/19/07 at 1193). The court denied the
request but agreed that a visit to the chamber might be helpful
(Id.).


14. On July 21, 2007, Mr. Lightbourne filed a Motion to
Leave the Evidentiary Hearing Open based in part on the
disclosure of public records just 5 days earlier and the fact
that the Department of Corrections had been ordered to comply
with Mr. Lightbourne's public records demand on July 20, 2007.
In that motion, Mr. Lightbourne requested an opportunity to view
the execution chamber and to observe a mock execution. The
circuit court also raised the issue. Following the circuit
court's oral pronouncement on July 22, 2007, the circuit court
returned to the bench to ask defense counsel "have you had an
opportunity, or do you need, or are you expecting or looking
forward to an opportunity to go through the death house or death
chamber up there -in order to review those things?" (T.
07/22/07 at 2973). Mr. Lightbourne also filed on July 21,
2007, a motion for testimony from the "Medically Qualified Team
Members" and the Executioners. This motion is still pending.
15. Mr. Lightbourne filed demands for additional public
records directed to the Office of the Attorney General, Office
of the Governor and the Department of Corrections based on yet
another new lethal injection procedure.
16. Contrary to the Staters assertion that each motion is
seeking to delay the final hearing, not one of the motions filed
in the circuit court has requested a continuance or additional
time at this juncture. Rather, Mr. Lightbourne has sought a


hearing below as soon as possible to address those matters, and

if necessary act on those matters, prior to the start of the

final hearing on August 28, 2007. It is the State that is

attempting to delay matters and deny Mr. Lightbourne due process

by preventing those matters from being heard in a timely manner

prior to the start of the hearing. 2

17. Also, the State complains that "Lightbourne even filed

a motion in this Court requesting this Court to vacate its

Undersigned counsel contacted the circuit court judge's
judicial assistant on Monday, August 13, 2007 to set a pre-trial
hearing on all motions for Friday, August 17, 2007, but was
informed that a hearing could not be set without the agreement
of all parties. Undersigned counsel sent a letter by fax to all
parties on Monday, August 13, 2007 inquiring as to their
availability for a pre-trial hearing on Friday, August 17, 2007.
Assistant Attorney General Kenneth Nunnelley was the only party
who responded via a faxed letter. Mr. Nunnelley notified
undersigned counsel that he had another hearing scheduled for
Friday and therefore would not be available for a hearing in Mr.
Lightbourne's case. Furthermore, Mr. Nunnelley advised
undersigned counsel that he "will not be available for a hearing
of any sort during this week, and cannot make arrangements for
substitute counsel to appear." Undersigned counsel replied to
Mr. Nunnelley in a letter via fax and reminded him that the
circuit court would not be available for any hearings after this
Friday, August 17, 2007 until the beginning of the final hearing
in this case on Tuesday, August 28, 2007. Undersigned counsel
requested that Mr. Nunnelley advise whether he would be
available for a hearing on Wednesday, August 15 or Thursday,
August 16, 2007. Mr. Nunnelly responded that he was not
available due to the litigation of the instant case in this
Court and pending litigation in a separate case with a death
warrant pending. Due to the impass regarding scheduling, Mr.
Lightbourne filed a motion in the circuit court seeking
resolution of the scheduling difficulties.


scheduling order." (Motion at 3). It was Mr. Lightbourne's
understanding that this Court expressly authorized the parties
to file a motion showing good cause 'why additional time is
required to conclude the proceedings and for the trial court to
enter a final order" and indicated 'if the parties demonstrate
good cause, the Court will modify the scheduling order."
Lightbourne v. McCollum, SC06-2391, August 6, 2007. Despite Mr.
Lightbourne's good faith belief that good cause exists for
extending the time frames, this Court denied his motion on
August 14, 2007.

18. Mr. Lightbourne has adhered to all time frames of this
Court, the circuit court and the Florida Rules of Criminal
Procedure governing postconviction proceedings. At every step
of the way there has been timely progress on this case.
19. The State's motion provides no new argument other than
that which has already been heard and rejected by the circuit
court. Further, the argument here is identical to that set
forth in the State's Petition for Review of Non-Final Order and
Motion for Protective Order. The State provides no authority
for recalling the remand.
20. Contrary to the State's assertion, the issue remaining
is not whether the August 1, 2007 procedures comply with the
circuit court's July 31, 2007 order. The issue is whether the
August 1, 2007 lethal injection procedures fully address the


failures that led to the botched execution of Angel Diaz and

whether the procedures involve the foreseeable risk of the

unnecessary and wanton infliction of pain contrary to

contemporary standards of decency in violation of the Eighth

Amendment to the U.S. Constitution.

21. It is clear that circuit court's granting of a

temporary injunction on July 22, 2007, and in its July 31, 2007

written order, contemplated further hearings in this matter:

So, obviously, I think we're going to have

some further evidentiary hearing. And I

didn't mean to cut you off earlier, but why

go ahead with the cross examination of this

witness, or call another witness, when we

know we're going to have another evidentiary

hearing to consider whether the stay should

be lifted? And that's going to take us a

little bit of time.

(T. 7/22/07, p. 2942) (emphasis added). The Court further

recognized that all of Mr. Lightbourne's concerns may not have

been addressed:

Well, 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 may want to

address or get into the record.

(T. 07/22/07 at 2961) (emphasis added).

22. The new protocol does not address the concerns

outlined by the Court, but more importantly does not address Mr.


Lightbourne's constitutional concerns. The State ignores the
fact that the preliminary ruling by the circuit court on July
22, 2007 was based on the court's own concerns regarding the
procedures at that point in the proceedings. At no time has Mr.
Lightbourne had the opportunity to provide argument to the
circuit court as to his constitutional concerns with respect to
the evidence presented or the latest lethal injection procedures
promulgated on August 1, 2007.

23. Further hearings and argument, as scheduled by the
circuit court, are necessary for Mr. Lightbourne to demonstrate
these concerns. The circuit court has scheduled final hearings
for August 28-31, 2007 and ordered that closing arguments be
provided by September 5, 2007 by 5:00 p.m. in order to comply
with this Court's schedule that a final order be entered
September 10, 2007. The circuit court is in the best position,
having heard testimony and argument and reviewed evidence over
the course of several months, to make a final determination as
to the constitutionality of the August 1, 2007 lethal injection
procedures. There is no authority to expedite the schedule even
further or remove jurisdiction from the circuit court.

WHEREFORE, Mr. Lightbourne, through undersigned counsel,
respectfully requests this Court deny the State's Motion to
Recall the Remand.


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

Carolyn Snurkowski, Assistant Attorney General, Office of the

Attorney General, The Capitol, Tallahassee, Florida, 32399-1050,

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,

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.

Respectfully submitted,

SUZAJTNE MYERS KEFFER
Assistant CCRC
Florida Bar No. 0150177

ANNA-LIISA NIXON
Staff Attorney
Florida Bar No. 0026283

OFFICE OF THE CAPITAL
COLLATERAL REGIONAL COUNSEL
101 N.E. 3rdAve., Suite 400
Ft. Lauderdale, FL 33301

(954) 713-1284
COUNSEL FOR MR. LIGHTBOURNE