MOTION TO LEAVE EVIDENTIARY HEARING OPEN - Florida

IN THE CIRCUIT COURT OF THE
FIFTH JUDICIAL CIRCUIT,
IN AND FOR MARION COUNTY,
FLORIDA
STAvs.
TE OF FLORIDA,
Plaintiff
Case No. 1981-170-CF-A-01

IAN DECO LIGHTBOURNE,
Defendant.

MOTION TO LEAVE EVIDENTIARY HEARING OPEN
Defendant, IAN DECO LIGHTBOURNE, by and through undersigned counsel, hereby

files this Motion to Leave Evidentiary Hearing Open. In support thereof, Mr. Lightbourne
submits as follows:

1. On May 18, 2007, this Court began hearing testimony in Mr. Lightbourne's
evidentiary hearing concerning the botched Angel Diaz execution, the events following it,
including the Department of Corrections' (DOC) new lethal injection protocol, released May 9,
2007, and the impact of those events on the issue of the constitutionality of Florida's lethal
injection procedures. At a pre-trial hearing on May 11, 2007, counsel for Mr. Lightbourne
moved for a continuance of this evidentiary hearing, arguing that counsel needed time to
research the new protocol, seek new public records concerning the protocol, and consult with
experts regarding the protocol. This Court denied that motion and the evidentiary hearing
commenced on May 18,2007.

2. On May 31, 2007, counsel for Mr. Lightbourne filed 3.852(i) demands to DOC,
Florida Department of Law Enforcement (FDLE), the Attorney General's Office, and the

Governor's Office. A public records hearing on the demands to the Attorney General's Office

and the Governor's Office was held on June 18, 2007. During that hearing, counsel for DOC
agreed to turn over, within seven days, all execution checklists and/ or logs that existed for all of
the previous executions by lethal injection. (June 18, 2007 hearing transcript, p. 667). On June
28, 2007, this Court ordered the Attorney General's Office and the Governor's Office to turn
over certain records to counsel for Mr. Lightbourne. On July 16, 2007, the eve of the final
scheduled days of this evidentiary hearing, the Attorney General's Office and the Governor's
Office turned over more than 300 pages of public records sought by Mr. Lightbourne.

3. A public records hearing on Mr. Lightbourne's 3.852 demands to DOC was held
on July 16, 2007. At that time, counsel for DOC turned over to counsel for Mr. Lightbourne
execution checklists for Clarence Hill, Arthur Rutherford, and Danny Rolling, three weeks after
they were promised. Counsel for DOC objected to turning over any other of the public records
concerning the May 9, 2007 protocol sought by Mr. Lightbourne. On July 19, 2007, DOC
Secretary James McDonough testified that part of his mission during his tenure at DOC has been
to make the way in which DOC carries out the execution process more transparent and open to
the public. He also testified that he was not aware that Mr. Lightbourne had requested public
records from DOC and that DOC had objected to turning over any records. On July 20, 2007,
this Court granted Mr. Lightbourne's Rule 3.852(i) request to DOC and ordered DOC to turn
over all the requested records. The fact remains, however, that counsel for Mr. Lightbourne has
been forced to question approximately twenty DOC witnesses without those records to which
this Court has found Mr. Lightbourne is entitled.
4. The evidentiary hearing continued on the morning of July 17, 2007. During that
morning, the State handed counsel for Mr. Lightbourne a diagram that the State represented to
reflect recent renovations to the execution chamber, as well as a twenty page technical manual

for the video camera system recently installed in the execution chamber. These are documents
which were included in the public records demand that Mr. Lightbourne sent to DOC on May 31,
2007, and which DOC objected to turning over the previous day. Mr. Lightbourne's counsel was
forced to continue examining witnesses without the opportunity to consult their expert regarding
the documents, and without even the opportunity to consult an architectural or engineering expert
to understand the technical meaning of the documents.

5. Also on July 17, 2007, Mr. Lightboume's counsel learned for the first time the
names of the warden who has been chosen to be in charge of future executions and the warden
who has been chosen to be second in command at future executions. On July 19, 2007, Mr.
Lightbourne took testimony from Warden Timothy Cannon, the warden in charge of future
executions, and learned the names of members of the new execution team.
6. On July 18, 2007, Mr. Lightbourne's counsel was handed copies of photographs
which were represented to be of the execution chamber and surrounding areas. While the
photographs depict some of the changes to the execution chamber and surrounding areas, they do
not, by any means, represent a complete picture of the area. For example, the defense has not
been given any photographs that show the view of the gurney in the execution chamber from the
viewpoint of the "medically qualified" personnel who, based on the testimony before this Court,
are supposed to be continuously monitoring the IV sites and the consciousness of the
condemned. There has been conflicting testimony over where the "medically qualified"
personnel would stand and what distance that position is from the gurney and the video monitor.
7. Furthermore, based on the questions and comments of the State, it seems as
though the State has viewed the execution chamber, while counsel for Mr. Lightbourne has had
no opportunity to do so. During the State's direct examination of Robert Wheeler, Assistant

General Counsel to the Governor, Assistant Attorney General Kenneth Nunnelley asked how Mr.
Wheeler was dressed during his observation of the mock execution on July 11,2007. When Mr.
Wheeler indicated that he was dressed in a suit, Mr. Nunnelley commented that "It gets hot back
there."

8. There has been testimony that DOC invited several dignitaries, including the
Governor's assistant general counsel, to tour the execution chamber and surrounding areas, and
to observe a recent walk-through of a mock execution. In order to help evaluate DOC'S ability to
follow the new protocol, counsel for Mr. Lightbourne and this Court should also have an
opportunity to view the execution chamber and to observe a mock execution, which, according to
Warden Cannon, occur every other week.
9. At every turn, Mr. Lightbourne has been forced to move forward without public
records, without discovery, and without sufficient opportunity to review those records that are
turned over at the last minute. Mr. Lightbourne's counsel has been forced to try to elicit
information from DOC witnesses on the stand for the very first time and has continually been
confronted with new names, new documents, and new information, all of which have long been
known to the State.
10. Counsel has a duty to assist in preserving Mr. Lightbourne's right to receive a
fbll, fair, and adequate opportunity to vindicate his constitutional rights pursuant to the
postconviction process established under Art. I, 17, Fla. Const., Art. V, $ 3(b)(9), Fla. Const.,
Fla. R. App. P. 9.030(a), and Fla. R. Crim. P. 3.851. See, e.g., Holland v. State, 503 So. 2d 1250
(Fla 1987). Florida's constitution and law, as well as the Constitution of the United States,
guarantee Mr. Lightbourne that opportunity.

11. The process will fail in Mr. Lightbourne's case unless this Court orders the
evidentiary hearing left open until counsel for Mr. Lightbourne has received public records fiom
DOC, had an opportunity to thoroughly review them and consult experts regarding them, and had
an opportunity to view the execution chamber and observe a walk-through of a mock execution.
Due process, equal protection, the Sixth Amendment, and the Eighth Amendment's "need for
reliability in the determination that death is the appropriate punishment," Woodson v. North
Carolina, 428 U.S.280,304 (1976), countenance no less.
12. This Court should not require a defendant to present his case and later be put to
death without having a full, fair, and proper opportunity to be heard. Mr. Lightbourne, because
of circumstances beyond his control, will be denied the occasion of such a hearing should this
Court deny his motion to leave open this evidentiary hearing until he has had an opportunity to
thoroughly review the promised DOC records and consult experts regarding them, and an
opportunity to view the execution chamber and observe a walk-through of a mock execution.

WHEREFORE, Mr. Lightboume respectfully requests that this Court order the
evidentiary hearing left open until this Court has ruled on the public records demands to DOC,
and until undersigned counsel has had an opportunity to view the execution chamber.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true copy of the to Leave Evidentiary
Hearing Open has been furnished by hand delivery to on Jula, 2007.

Florida Bar No. 01 50 177

ANNA-LIISA NIXON
Staff Attorney
Florida Bar No. 0026283

Capital Collateral Regional
Counsel -South
101 NE Third Avenue, Suite 400
Ft. Lauderdale, FL 33301

(954) 713-1284

Attorneys for Mr. Lightbourne

Copies furnished to:

Kenneth S. Nunnelley
Assistant Attorney General
Floor,
Daytona Beach, FL 321 1 8

Rock E. Hooker
Assistant State Attorney
19NW Pine Avenue
Ocala, FL 34475

The Honorable Carven D. Angel
Circuit Court Judge
Marion County Judicial Center
1 10 NW First Avenue
Ocala, FL 34475

5' Seabreeze Blvd, 444