MOTION FOR CLARIFICATION

http://www.angel-diaz.us/lethal/motionforclarification.htm

http://www.angel-diaz.us/lethal/Filed_08-22-2007_MotionClarification.pdf

IN THE SUPREME COURT OF FLORIDA

STATE OF FLORIDA

Petitioner(s), Case No. SC07-1499

v.

IAN DECO LIGHTBOURNE

Respondent(s)

/

MOTION FOR CLARIFICATION

COMES NOW the State of Florida, by and through counsel, and
moves this Court for clarification of its August 20, 2007, order
on the State’s petition for review of non-final order. In
support of this motion, the State submits the following:

1. On August 20, 2007, this Court entered the following
order on the State’s petition for review:

The Court having determined that the trial court order
does not depart from the essential requirements of law
under particular circumstances of this case and is not
beyond the scope of the remand, Petitioner's Petition
for Review of NonFinal Order is hereby denied.
However, this denial is subject to the trial court
determining factual issues regarding whether and when
a walk through is currently scheduled and the details
of the view of the death chamber and a walk through.
If the trial court determines that there is no
regularly scheduled walk through before the end of the
relinquishment, the trial court shall deny the request
for walk through. (Emphasis added).

2. On August 21, 2007, at approximately 3:00 PM, the
undersigned received a motion filed by Lightbourne entitled
“motion for an immediate hearing.” (A copy of that motion is
attached.) Attached to that motion as an exhibit was a letter

from Lightbourne’s attorney to Department of Corrections
Assistant General Counsel Maximillian Changus which attempted to
“arrange” for all five of Lightbourne’s attorneys to “view the
chamber and/or witness a walk-through” at Florida State Prison
before the final hearing begins on August 28, 2007. According to
Lightbourne, Circuit Judge Angel is on vacation until August 28,
2007. The court order, the subject of the State’s petition for
review of a non-final order, clearly stated that the circuit
judge was available to travel to Florida State Prison beginning
on August 28, 2007. The trial court, as well as this Court,
contemplated, at a minimum, judicial oversight and supervision
would occur during any visit and walk-through that might be
scheduled between August 28, 2007, and the end of the
relinquishment. Therefore, whether any simulation or review of
the process occurs prior to the August 28, 2007, availability
date of the trial court could not have been a part of, and was
not contemplated by, this Court’s August 20, 2007, Order.

3. The Department has repeatedly provided that “simulations
and reviews of the process shall be considered training
exercises.” And, that the “team warden . . ., will conduct
simulations of the execution process on a quarterly basis at a
minimum or more often as needed as determined by the team
warden.” Based upon the last hearing before the trial court on
August 7, 2007, the trial court decided that four additional

days were available, two days for Lightbourne and two days for
the State, between August 28 and August 31, 2007. At the end of
the day, on August 31, 2007, or sooner, all matters would come
to an end. Based upon that action, the State informed this Court
that no simulations or review of the process had been scheduled
during that time frame.

4. The terms of the trial court order clearly contemplated
that the trial judge would be attending any viewing or walk-
through, and this Court’s order explicitly requires the trial
court to make factual findings before any viewing took place.
This Court’s order states:

However, this denial is subject to the trial court
determining factual issues regarding whether and when
a walk through is currently scheduled and the details
of the view of the death chamber and a walk through.
If the trial court determines that there is no
regularly scheduled walk through before the end of the
relinquishment, the trial court shall deny the request
for walk through.

None of those judicial determinations have taken place, but,
despite the plain language of this Court’s order, Lightbourne is
attempting to arrange for a viewing without any judicial
oversight. That is contrary to the “factual determination” to be
made by the trial court as set forth in the order of this Court.
The State moves this Court for clarification of the portion of
its order to providing that no viewing of any sort shall take

place until the factual issues have been determined by the trial
court.

5. This Court’s order does not provide for Lightbourne to
“work out the details” with the Department of Corrections
without counsel for the State being present or at the very
minimum, receiving prior notification to contacting the
Department-- instead, Lightbourne is tasked with securing a
determination from the trial court of the factual issues
outlined by this Court.1

6. Specifically, the trial court must make and the
Department (and the State) is entitled to preliminary, factual
findings whether a walk-through will occur during this period,
and then, if a walk-through is scheduled”

(a) How the trial court intends to insulate and protect the
identities of protected personnel;

(b) The length of time any walk-through will be;

(c) Whether a complete run through or any or all
contingencies will be required;

(d) How many walk-throughs will occur and whether
Lightbourne’s defense team will have free range of the
death chamber;

1 Lest there be any confusion, lead counsel for the Petitioner is
the Office of the Attorney General, not counsel for the
Department of Corrections, when it comes to legal challenges
pending before the Courts.

(e) Whether any questions or interruptions will be
permitted during any portion of a walk-through;

(f) Whether Lightbourne’s counsel will be permitted to have
an expert or other witnesses present;

(g) Whether any drawings, video or audio recordings will be
permitted; and,

(h) Whether any of Lightbourne’s defense team will be
permitted to become witnesses based on what they observe.

WHEREFORE, the State moves this Court to clarify its order
of August 20, 2007, to make clear that judicial oversight of any
viewing and/or walk-through is required, but only after the
factual determinations ordered by this Court have been made. The
State, under the terms of this Court’s order, is entitled to a
judicial determination of the details of any viewing of the
death chamber or witnessing of a walk-through, and moves this
Court to clarify its order to state, explicitly, that no such
proceedings shall occur until the trial court has determined the
details thereof.

Respectfully submitted,

BILL McCOLLUM

ATTORNEY GENERAL

_______________________________

KENNETH S. NUNNELLEY

Senior Assistant Attorney General

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.

_______________________________

Of Counsel