Friday, 10 August 2007

Florida - Transcript from the status conference in Marion Court August 7, 2007


CASE NO. 42-1981-CF-170
PROCEEDINGS: Status Conference re
Hearing Concerning Lethal Injection
(Diaz Issue)
BEFORE: Honorable Carven D. Angel
Circuit Judge
Fifth Judicial Circuit
In and For Marion County, Florida
REPORTED BY: Kelly Owen McCall, RPR
Stenographic Court Reporter
Notary Public
State of Florida at Large
DATE AND TIME: August 7, 2007; 10:30 a.m.
PLACE: Judge Angel's Chambers
Marion County Judicial Center
Ocala, Florida

Assistant Attorney Generals
Office of the Attorney General
444 Seabreeze Blvd., 5th Floor
Daytona Beach, Florida 32118
Assistant State Attorney
State Attorney's Office Building
19 NW Pine Avenue
Ocala, Florida 34470
(Appearing by Telephone)
(Appearing by Telephone)
Law Office of the CCRC-South
101 NE Third Avenue, Suite 400
Fort Lauderdale, Florida 33301
Attorneys for Defendant
Office of General Counsel
Florida Department of Corrections
2601 Blair Stone Road
Tallahassee, Florida 34399-2500
Attorneys for Department of Corrections
Gail Watson, Judicial Assistant

August 7, 2007 1:37 p.m.
THE COURT: Okay. I think everyone is else here.
It looks like we might be trumped by the Supreme
Court. I think they want us to wind up whatever it
is we are doing down here.
So my first question in that regard is how about
we get started on August the 28th?
MS. KEFFER: Judge, Susan Keffer of CRCC. My
only response to that would be is that the Florida
Supreme Court in their order did allow until this
Friday for the parties to file any motions for
extensions of time on that schedule, showing good
And I would let the Court know that I intend on
filing something with the Florida Supreme Court by
Friday. So I don't know that --until that's done, I
mean -THE
COURT: What about August 28th? Does that
work for everybody, Tuesday?
MR. NUNNELLEY: It works for us, Judge. We will
make it work.
MS. KEFFER: Judge, the only problem, again, that
I have with that is we are back where we were in
February and March of this year, being we have a new

protocol, there has been changes made to the
protocol. I understand that my office had received a
copy on August 1st.
I, as I had indicated to the Court, was out of
the country from the 28th through the 5th. I got
back in the office briefly yesterday. I have had a
chance to, you know, look over it in the few hours I
was in the office yesterday.
At this point, we need an opportunity and I
think Your Honor had made mention of this on Sunday,
I think it was the 22nd, that there may need to be an
opportunity for discovery, additional public records
requests. And based on my initial review, I think
certainly that is the case.
I would like to also point out that the Court had
ordered the Department of Corrections to turn over
public records pursuant to our last public records
That was supposed to be done by the end of the
week. I think it was supposed to be done by the
27th, the Court had contemplated. Mr. Changus had
indicated he thought he could get that done by
midweek that same week. I haven't received those
records yet.
So not only have I not received what had been

previously ordered, I anticipate that there will be
additional demands based on the new protocol, as well
as several motions with regard to the new protocol,
and I think that there are some discovery issues that
may be appropriate.
MR. CHANGUS: Your Honor, just since there was
some comments about public records, just for the
record on that, due to the fact that, from the
hearing on Sunday, it seemed like there were other
directions from this Court. And, obviously, we have
the Supreme Court's time frames in mind and so forth.
As Your Honor is aware at this point, we have
produced new protocols. And that was the first step
that I took. And then I looked to go and try to
comply with public records requests.
I have brought documents related to that request
here today. I have a copy for the folks here, I will
file a copy with the repository, and I have a copy to
file, as well.
So we have got these time-pressed frames and
we're trying to comply with all the obligations as
best we can, as we have tried to throughout.
THE COURT: I would say that we ought to --we

originally talked or I think I entered a notice for
hearing on September 5. I would say we probably need
to back up to Tuesday, the 28th.
MR. NUNNELLEY: I think we do, too, Your Honor,
THE COURT: Let the Supreme Court --if they want
to give us more time, counsel can request it, to see
if they want to give us more time.
MR. NUNNELLEY: Well, Judge, the other issue, I
guess --I think the 28th is a good idea. I think we
need to do whatever we're going to do to wrap this
case up on the 28th.
THE COURT: Or that week.
MR. NUNNELLEY: Well, Judge
THE COURT: We could take Tuesday, Wednesday,
Thursday, Friday to wrap it up.
MR. NUNNELLEY: Well, Judge, I would suggest that
what is appropriate at this point is not to go replow
what we have already done.
This Court entered an order on the 22nd and told
the Department of Corrections do these things to
these protocols.
THE COURT: Well, let me ask you this. If we
started on the 28th, how much time does defense -how
many witnesses would defense anticipate bringing?

MS. KEFFER: Your Honor, to be honest at this
point, I don't know, having looked at the protocol
yesterday. You know, I know that also there may be a
problem with availability of one witness. I think
that we intend to call Dr. Heath back, and he is out
of the country for three weeks. My understanding is
he leaves at the end of this week and he is gone for
three weeks.
You know, at this point, I don't see a problem
with leaving this set for September 5th, let this
proceed, and let us do what we need to do.
We are not under --and, you know, like I said, I
will be filing something with the Florida Supreme
Court to meet their deadline of August 10th regarding
this order, but this case is not under a warrant. It
has never been under a warrant. We are not under the
time constraints of that.
THE COURT: Well, I have got big, bold letters
here: No continuances will be granted except by
showing of extreme hardship. So that means August
28th to me.
MR. NUNNELLEY: Judge, I think the Supreme Court
has said that this case is a high priority case.
THE COURT: They wanted it concluded.
MR. NUNNELLEY: And while it is not under a

warrant, they are treating this as an extremely
high-priority matter. And I think we need to move it
forward. And if the Supreme Court wants to give
Ms. Keffer more time, and if she can convince them
that she needs more time, then, you know, that's what
we will do.
THE COURT: How many witnesses do you think the
State will need?
MR. NUNNELLEY: Judge, I don't think we need -that
anybody needs to present any witnesses. What
would suggest is the appropriate thing to do at this
point is set a cut-off in advance of the 28th for the
submission of any written arguments that the parties
wish to make.
And then we can come in here on the 28th, and we
can argue what we have submitted, and respond to any
questions the Court may have.
But, Judge, this Court has ruled. This Court has
entered an order. The Florida Department of
Corrections has endeavored to comply with that order.
And where we are in the process of this case
right now is Your Honor needs to decide if the
Department of Corrections followed your order and did
what you told them to or if they did not.
We are not in the point now of bringing in

Dr. Heath to give us more testimony about whether
these protocols comport with the Eighth Amendment.
He can't do that. It is not allowed for him to do
that. 703 doesn't let an expert testify about a
legal conclusion. And that's where we are at this
If they want to submit an affidavit from
Dr. Heath, that's fine. You know, bring it on. But
to suggest
This case needs to be resolved. This case needs
to be decided and it needs to be decided on the 28th.
We don't need an evidentiary hearing. We don't need
to replow the ground that's already been --that we
have already been over. And we need to deal with
this Court's order, DOC's compliance with it.
Now, the State will certainly be happy to submit
a written closing, summarizing the Court's order and
cross-referencing back to the new procedures at a
date set by this Court.
THE COURT: Well, it isn't like we are just now
getting started on this. I know all the things you
are talking about, but this has been going on since
January, so it isn't like, you know, we are seven or
eight months down the road, trying to figure out what
witnesses, if any, to bring. I assume some

information was known about that back in January.
So I would suggest that we schedule this for
hearing on the 28th, conclude it on the Friday, the
31st. Everything should be presented within that
time frame.
And witnesses, y'all ought to exchange witnesses,
if there are going to be any, by, I would say,
Friday, the 17th. So everybody is going to have a
week's notice of something --of what's going to be
happening on the 28th.
MR. NUNNELLEY: Judge, if we --if I could have
till the 21st to produce a witness list in response?
THE COURT: Both parties can -

MR. NUNNELLEY: Well, if they will produce theirs
on the 17th, I'll decide what I'm going to do, since
they can't tell me what they are going to do now, and
I will file a witness list by the 21st.
MS. KEFFER: Judge, I don't know why we --you
know, previously we filed simultaneous witness lists,
so I don't know why we can't do that again on the
You know, I have indicated to the Court, I have
been saying this all along, there has been -MR.
NUNNELLEY: Then make it the 17th and we'll
file it simultaneously, Your Honor.

MS. KEFFER: Excuse me, Mr. Nunnelley, I'm still
talking. If I could finish, please.
As I have been saying all along, that this has
been rushed through for the purpose of litigation.
Mr. Changus testified to that on the stand. Your
Honor expressed those concerns on the 22nd.
This is not supposed to be something just for
litigation. And that is exactly what is being done
here. It is being rushed through for the purposes of
litigation, not to ensure that this is an adequate
procedure, that this is being done appropriately, in
a manner which comports with the Eighth Amendment.
There has been no opportunity for discovery on
this new protocol. There are changes made to this
protocol that require discovery, that require
investigation, that require consultation with an
expert to see if those changes, in fact, address
concerns that the Defendant has repeatedly set forth.
And we need the opportunity to do that. So I am
going to object, again, to it being set on the 28th.
If we are going to be compelled to turn over witness
lists, then I would suggest that we both turn them
over on the 21st.
MR. NUNNELLEY: Let's make it the 17th, Judge.
MS. KEFFER: And I think that between now and the

17th, there needs to be opportunities for hearings.
There will be public records demands forthcoming and
I will advise the Court there will be motions
THE COURT: Okay. Well, I assume the Supreme
Court was concerned about what happened in the Diaz
execution, and I guess they expected us to deal with
that, and they want us to conclude the hearing here.
So I will go ahead and say we will schedule the
hearing on the 28th, everybody can provide their
witnesses on the 17th, and we will hopefully conclude
on Friday, the 31st.
THE COURT: I think they were expecting the final
order by September 10.
MR. NUNNELLEY: Yes, Your Honor.
THE COURT: It is possible that, it is possible
that we could go over to the first week of September.
We are looking at a holiday in there somewhere.
MR. NUNNELLEY: We are, Your Honor. The 31st is,
you know, the Friday before Labor Day.
THE COURT: Hold on just a minute.
(In-place recess.)
THE COURT: Well, we could go to the next week, I
guess, the 3rd of September. I guess the Supreme

Court is wanting an order September the 10th, so -

THE COURT: Actually, this says on or before the
10th all evidentiary proceedings shall be concluded,
with a final order entered and trial court
jurisdiction terminated. So
MR. NUNNELLEY: They are expecting this case to
be out of this Court and back to them on or before
September 10, Judge.
THE COURT: Correct.
MR. NUNNELLEY: I think the clean import of their
order is the sooner they get it back, the better.
THE COURT: I would suggest that we conclude
everything the 28th through the 31st.
MR. NUNNELLEY: Judge, I would ask the Court to
expand that order setting the hearing for the 28th
through the 31st just a little bit. This case can't
be opened up now. The issues have narrowed
themselves over the course of this hearing.
THE COURT: Well, you can object when they start
doing things that we don't need to get into.
MR. NUNNELLEY: Well, Judge, I think we need
to I think we probably need an order from the
Court that this is all, the new protocols and the
compliance with this Court's order.

THE COURT: Well, I don't know what all they want
to litigate. I suppose they can litigate -

MR. NUNNELLEY: Well, and that's why you are
going to have to tell them, Judge, because,
otherwise, we are going to be hear through the end of
THE COURT: Well, I guess you will need to object
if they start going far afield. I suppose their
pleadings have raised whatever they want to raise.
MR. NUNNELLEY: And its limited to the pleadings.
Judge, the second thing I would ask that you -the
second thing that I would ask is that the Court
order that this case is going to finish at the close
of business on August the 31st.
I would suggest, Judge, that you tell CCRC that
they have x-amount of time to put their case on, and
use it how they see fit; but once they run out of
time, it's the State's case.
Because despite the repeated statements that this
case is not under warrant, this order from the
Supreme Court doesn't leave any doubt whatsoever
about just how seriously that court is taking this
THE COURT: Well, I guess we will give the
defense two days and the State two days.

MR. NUNNELLEY: Works for me, Judge.
MS. KEFFER: Your Honor, I'm going to object to
that. Again, at this point, I have no idea who the
witnesses are that I'm going to be calling, I have no
discovery. And so I am going to object to that time
I also would like to put on the record that this
is not the State's hearing. This is
Mr. Lightbourne's hearing. He has the burden of
proof here. He has the burden of proof to establish
certain things and to set forth what it is he's
This has never been or it should not have been a
hearing for the State to prove that the protocol is
okay. It's Mr. Lightbourne's burden. He brought
these claims.
And so the State has pushed us and pushed us into
these hearings and tried to dictate what it is they
think it's all about. And that's not the case.
THE COURT: And I have overruled most everything
they have raised in that regard, I think. So I will
overrule their objections again, but -

Now, you can tell the Supreme Court that we can
schedule hearings all the next week, if they want to
do that; 4, 5, 6 and 7, and we will do that. I will

do whatever they tell me to do, actually. Whatever
they tell me to do, we will do it.
MR. NUNNELLEY: So two days for the State?
THE COURT: It sounds like they want to conclude
this, and so we will say the 28th through the 31st,
conclude it on the 31st.
MR. NUNNELLEY: Two days defense, two days State?
THE COURT: Two days defense, two days State.
MR. NUNNELLEY: Very good, Your Honor.
THE COURT: Okay. Before you go, I can give you
an order on that. Hold on just a minute.
(In-place recess.)
THE COURT: We will get you --one more thing.
We will get you an order before you leave.
(In-place recess.)
THE COURT: Is that all we need to do today?
MR. NUNNELLEY: Judge, just a couple of other
things. I think we probably need to --we have a
December I'm sorry --August 17 witness list
We probably need to set some times for the
defense to file any public records demands they are
going to file and any discovery demands they're goin9
to file.
If they are going to file discovery demands, then

we need to be thinking about the possibility of
having to have a hearing on those, if we object to
THE COURT: I guess we can address that when it
comes up.
MR. NUNNELLEY: Well, Judge, I am just concerned
that we are going to see 119 demands or public
records demands coming in after the witness lists.
Of course, as Ms. Keffer reminds us, she is the
master of her case and she plays it how she sees fit
to do so.
THE COURT: Whatever we are going to do, we are
going to end this on the 31st, so -

MS. KEFFER: Your Honor, I think that, you know,
the defense has been pretty timely with everything
that they have done. Obviously, my interest is in
getting the records.
So, you know, that being said, I don't think that
in the past anything has been that untimely. So
other than that, I don't know that any deadlines need
to be set. Obviously, I'm aware that three weeks
from today we are starting a hearing.
MR. NUNNELLEY: Your Honor, would you entertain
closing arguments on Tuesday, September --written

closings rather, not oral closings, but written
closings on September 4, to be submitted to the Court
by fax by 2:00, Tuesday afternoon, the 4th?
THE COURT: Sure, that would be fine. Okay.
Anything else?
MS. KEFFER: I am sorry. By what time on the 4th
are you saying?
MS. KEFFER: Your Honor, could I just ask that
that be at least by 5: 00, or by the 5th? I have got
a public records hearing in another case at 10:00
a.m. that morning that is set aside for two hours.
So I would like to have the opportunity
THE COURT: That will be fine; 5:00 on the 5th.
MS. KEFFER: On the 5th.
THE COURT: That will be fine.
MR. NUNNELLEY: On the 5th, Judge? That's the
day your order is due.
THE COURT: No, that's the 10th.
MR. NUNNELLEY: I'm sorry. My bad. I'm sorry,
Your Honor.
THE COURT: The 10th. That will be fine.
MR. CHANGUS: Your Honor, just for the purposes
of public records, I have done my best to compile
this. If there is anything else that I discover,

will pass it along. This is a copy for the clerk, as
THE COURT: Thank you. Very good.
Okay. Anything else?
MR. CHANGUS: And, also, we will put these in the
repository, as is appropriate. And as far as any,
you know, records requests that come, I will try to
move as quickly as I can on them, as well.
THE COURT: If there is nothing else, we will be
adjourned. See you on the 28th.
(Proceedings concluded at 1:55 p.m.)

I, Kelly Owen McCall, RPR, FPR, Stenographic Court
Reporter, do hereby certify that I was authorized to and did
stenographically report the foregoing proceedings taken
Number 42-1981-CF-170; and that the foregoing pages, numbered
1 through 19, inclusive, constitute a true and correct
record of the proceedings to the best of my ability.
I FURTHER CERTIFY that I am not a relative or
employee or attorney or counsel of any of the parties
hereto, nor a relative or employee of such attorney or
counsel, nor am I financially interested in the action.
WITNESS MY HAND this 8th day of August 2007
at Ocala, Marion County, Florida.
Stenographic Court Reporter

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