RESPONDENT'S RESPONSE TO PETITION FOR REVIEW OF NON-FINAL ORDER AND MOTION FOR PROTECTIVE ORDER

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IN THE SUPREME COURT OF FLORIDA 3;!{[ji.7JLs 0, H/i.[-lB.

BILL McCOLLUM, etc., ET AL.,
Petitioners, C:!,.ERK, SUf'FIEP!E COURT

Case No. ~~07-1499

IAN DECO LIGHTBOURNE
Respondent.

/

RESPONDENT'S RESPONSE TO PETITION FOR REVIEW OF NON-FINAL
ORDER AND MOTION FOR PROTECTIVE ORDER

COMES NOW the Respondent, IAN DECO LIGHTBOURNE, by and
through undersigned counsel, and hereby responds to
Petitioner' s Petition for Review of Non-Final Order and
Motion for Protective Order. Respondent states:

Introduction

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. Mr.
Lightbourne requested in that petition that a special
master be appointed to hear and receive scientifically
reliable evidence regarding the conscious pain and
suffering experienced by the condemned during lethal
injection. In support of that request, Mr. Lightbourne
argued that the factual underpinnings of Sims v. State, 754
So. 2d 657 (Fla. 2000) are no longer valid. Because
concerns regarding insufficient anesthesia and lack of


monitoring became a stark reality during Mr. Diazls
execution, Mr. Lightbourne argued that Mr. Diaz's execution
would be the best evidence of the unnecessary and wanton
infliction of pain caused by the lethal injection procedure
used by the State of Florida. Mr. Diaz's execution was
newly discovered evidence of the pain and suffering
inherent in Florida's lethal injection procedure. Mr.
Lightbourne was requesting an evidentiary hearing and a
determination regarding whether the State of Florida's
current lethal injection procedures, created behind closed
doors by an agency making policy outside the scope of its
usual business, involve the unnecessary and wanton
infliction of pain contrary to contemporary standards of
decency in violation of the Eighth Amendment to the U.S.
Constitution and the corresponding provision of the Florida
Constitution.

On the same date Mr. Lightbourne's All Writs Petition
was filed, this Court ordered that "all other issues raised
by Petitioner Lightbourne shall be acted on by the circuit
court as soon as possible." Lightbourne v. Christ, SC06-
2391, December 14, 2006. The issues raised by Mr.
Lightbourne were not limited to the events of the Diaz
execution.

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,
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 "
The Petitioner attempts to narrow the issues before

the circuit court by misconstruing this Court's April 16,
2007 order. (Petition at 2). The Petitioner restates the
issue as the "impact of Diaz execution on the
constitutionality of Florida's lethal injection proceduresN
(Id.). Mr. Lightbourne disagrees with the Petitioner's
framing of the issues. Rather, the Court contemplated that
the circuit court could not have considered, when denying
Mr. Lightbourne's Rule 3.851 motion, the Diaz execution,
the series of events that occurred as a result of the Diaz
execution and the impact of the execution and series of


events on the constitutionality of Florida's lethal
injection procedures.

The series of events which were the result of the Diaz
execution necessarily include the Department of Corrections
December 14, 2006 Task Force to investigate the execution
of Angel Diaz and subsequent f indingsI1 Governor Bush's
December 15, 2006 executive order, the Governor' s
Commission on the Administration of Lethal Injection

(Commission), the Commission's March 1, 2007 Final Report, 2
and the Department of Corrections Response to the
Commission's final report .3 Furthermore, the May 9, 2007
lethal inj ection procedures and ultimately the August 1,
2007 lethal injection procedures, are the direct result of
the events that occurred as a result of the Diaz execution.
But for the Diaz execution, and the events that followed,
the Department of Corrections would not have twice
promulgated new procedures.

Summary of the Findings of the Department of Corrections'
Task Force Regarding the December 13, 2006 Execution of
Angel Diaz, submitted December 20, 2006 to James R.
McDonough.

Final Report with Findings and Recommendations of the
Governor's Commission on the Administration of Lethal
Injection, issued 03/01/07.

Department of Correctionsr Amended Response to The
Governor's Commission on Administration of Lethal
Injection's Final Report With Findings and Recommendations,
submitted 05/07/07.


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. Throughout the
proceedings, the Petitioners have continued to play hide
and seek, objecting to public records demands, but later
producing the very same documents requested during the
testimony of witnesses.

On May 18, 2007, this circuit 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.
The circuit court denied that motion and the evidentiary
hearing commenced on May 18, 2007.

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 Off ice, and the


Governor1 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, the circuit
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 General1 s Off ice and the Governor's Off ice turned
over more than 300 pages of public records sought by Mr.
Lightbourne.

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.

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 uhderstand the technical meaning of
the documents.

Also on July 17, 2007, Mr. Lightbourne'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.

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 circuit 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.

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

(T. 07/19/07 at 2077, 2110) (emphasis added). 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, the circuit
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 the circuit court

has found Mr. Lightbourne is entitled.
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.
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. (Attachment A). The lower
court signed a written order, submitted by Petitioners, on

July 31, 2007.4

4 The circuit court requested Mr. Lightbourne draft an order
reflecting his oral pronouncement. The State vehemently
objected to Mr. Lightbourne drafting the order arguing:

Your honor, I am going to object to the
defendant being given permission to
tell the Court whatever else they think
is appropriate in a grant of temporary
relief" (T. 7/22/07 at 2943).

Yet, this is precisely what the State did in the order it
submitted. While Mr. Lightbourne likewise submitted an


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.
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.

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

order for the court's consideration, counsel for Mr.
Lightbourne was very careful to merely reference this
court's oral pronouncement for fear that he would be making
factual findings for the Court. It is Mr. Lightbourne's
position that the court's oral pronouncement of July 22,
2007 is the best record of the circuit court's findings.


(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
State's insistence.

As the circuit court has determined, additional
hearings are necessary to address whether the temporary
stay and/or injunction should be lifted (T. 7/22/07, p.
2942) and contemplated additional discovery would be
appropriate (T. 07/22/07 at 2965). The circuit court
further recognized that all of Mr. Lightbourne's concerns
may not have been addressed with his preliminary ruling (T.
07/22/07 at 2961).

The issue raised in Mr. Lightbourne1s All Writs
Petition was and remains that the State of Florida1 s lethal
injection procedures violate the Eighth Amendment to the

U.S. Constitution and the corresponding provision of the
Florida Constitution. While Mr. Lightbourne could not have
anticipated in December 2006 two new protocols being
issued, changes in personnel and training and renovations
to the execution chamber, these new procedures and various
changes are fully encompassed in the issues raised by Mr.
Lightbourne in his All Writs Petition. 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, nor has Mr. Lightbourne
had the opportunity to challenge yet another new lethal
inj ection procedure.

On August 8, 2007, Mr. Lightbourne filed a Motion to
View the Execution Chamber and Witness a Walk-Through. On
August 9, 2007, the Petitioner responded. On the same
date, the circuit court granted Mr. Lightbourne's motion.
Petitioner filed the instant appeal and Mr. Lightbourne
timely replies.

Jurisdiction

To invoke this Court's jurisdiction and obtain relief,
the State "must establish that the order compelling
discovery does not conform to the essential requirements of
law and may cause irreparable injury for which appellate
review will be inadequate." Trepal v. State, 754 So. 2d 702

(Fla. 2000). The State has failed to demonstrate that
compliance with Judge Angel's order will expose them to
irreparable harm, other than a generalized complaint that
the lower court did not "explain how a Walk-Through can be
conducted without revealing the identities of personnel
specifically exempted from disclosure by Section

945.10(1) (g) .Ir (Petition at 12). The State fails to cite
any authority to establish that the lower court is required
to make such an explanation. Rather, maintaining secrecy


and security are the responsibility of the Department of
Corrections. In any event, there is no reason that
measures cannot be implemented to secure the identity of
execution personnel at a Walk-Through. Any "irreparable
harm" to the Department or the State would be the result of
their failings, rather than compliance with Judge Angel's
order.

Argument

The Petitioners argue that the State of Florida and
the Department of Corrections will suffer irreparable harm
from the circuit court's departure from the essential
requirements of the law, arguing that the circuit court
exceeded the jurisdiction allowed by this Court and his
authority as a member of the judicial branch in granting
Mr. Lightbourne's motion to view the execution chamber and
witness a walk-through. The Petitioner's argument is
nothing more than disagreement with the circuit court
judge's granting of a temporary injunction and
determination that the injunction can only be lifted
through further hearings. In order to further their
position that the circuit court has exceeded its
jurisdiction and that Mr. Lightbourne is engaging in
dilatory tactics, Petitioners misrepresent the record
below.


The Petitioners argue that in granting Mr.
Lightbourne's motion, the circuit court judge has invaded
the province of the executive branch. Petitioners argument
in this regard seems to be two-fold. First, Petitioners
argue that the Department of Corrections has complied with
the judge's oral pronouncements and he has not indicated
any deficiencies with the August 1, 2007 protocol. In so
arguing, the Petitioners acknowledge that the judge has the
authority to order the Department of Corrections to make
changes to the lethal injection procedures. Yet, they
argue that the circuit court judge does not have the
authority to order discovery from the Department of
Corrections.

In State v. Lewis, 656 So. 2d 1248 (Fla. 1994), the
Florida Supreme Court held it is within the trial judge's
inherent authority to allow limited discovery in
postconviction proceedings. Specifically, the Court
acknowledged that in post-conviction proceedings, "on a
motion which sets forth good reason [the court] may allow
limited discovery into matters which are relevant and
material." Lewis at 1250. Lewis further finds that 'the
trial judge, in deciding whether to allow this limited form
of discovery, shall consider the issues presented, the
elapsed time between the conviction and the post-conviction


hearing, any burdens placed on the opposing party and
witnesses, alternative means of securing the evidence, and
any other relevant facts." Id. The Petitioners assert no
evidence that the judge did not engage in this process. In
fact, the judge's order sets forth that "nothing shall be
done to compromise the confidentiality of the persons whose
identity is not to be disclosed" and affirms that
arrangements for viewing the chamber or witnessing a walk-
through "shall not delay the final hearing previously
scheduled." The circuit judge was well within his
authority in granting Mr. Lightbourne's discovery motion.

The Petitioners specifically complain that the circuit
court has not found "any deficiencies with the August 1,
2007, protocols currently in place, albeit the Circuit
Court judge clearly stated in his July 22, 2007 oral
pronouncements that this was a final order and the
Department has complied." (Petition at 7). 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
made clear that this was temporary, indicating not final:


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). Ultimately, the
parties and the judge agreed that his ruling was a
temporary injunction. Petitioners specifically stated:
So a temporary injunction is the proper
terminology, which is in itself a non-
final non-appealable order, I believe.

(T. 07/22/07 at 2968). The circuit court agreed (Id. at
2969). The Petitioner is overlooking the fact that the
circuit court set the final hearing to determine whether
deficiencies remain with the latest protocol and whether
lifting the temporary injunction appropriate.
Petitioners cannot now claim that the circuit court order
was final because it suits their latest complaints.

The second prong of the Petitioner's argument asserts
that the circuit court judge violated the separation of
powers doctrine. petitioner's separation of powers argument
is misplaced. While it is true that this Court has
traditionally applied a strict separation of powers
doctrine, that doctrine is not implicated by the issues
currently before the Court.


This Court has distinguished the two "fundamental
prohibitions" of the doctrine:

The first is that no branch may encroach upon the
powers of another. See, e.g., Pepper v. Pepper, 66 So.
2d 280, 284 (Fla. 1953). The second is that no branch
may delegate to another branch its constitutionally
assigned power. See, e.g., Smith v. State, 537 So. 2d
982, 987 (Fla. 1989) .

Chiles v. Children A, B, C, D, E 6; F, 589 So. 2d 260 (Fla.

1991). Judge Angel has violated neither prohibition.

Contrary to the State's assertion, by merely exercising its

discretion in granting discovery, the circuit court has not
delegated a constitutionally assigned power, nor encroached
on the powers of another branch.

The cases relied on by Petitioners do not support
their contention. In Deprt of Corrections v. Grubbs, 844
So. 2d 1147 (Fla. 2d DCA 2004), the ~istrict Court of
Appeal held that, "where the legislature has determined

that all those who are placed on community supervision for,
inter alia, committing a lewd and lascivious act must as a
condition of that supervision participate in and
successfully complete a sex offender treatment program at
their own expense," the Department of Corrections may not
be ordered to pay for Grugg's sex offender treatment. The
DCA reasoned that "the judiciary branch may not interfere
with legislative discretion in determining the funds


required of an executive agency nor with the agency's
executive discretion in spending appropriated funds."
Nothing in Grubbs prevents the circuit court from granting
a defendant's discovery request, as is the issue here.

In State v. Cotton, 769 So. 2d 345 (Fla. 2000), cited
in the State's Petition, this Court held that it was not a
violation of the separation of powers doctrine for the
State, and not the court, to exercise discretion in whether
to apply the Prison Releasee Reoffender Punishment Act. As
in Grubbs, nothing in the fact or legal conclusions in
Cotton is applicable to Judge Angel's exercise of
discretion in granting Mr. Lightbourne discovery.

In fact, the only case cited to by the State involving
a separation of powers issue in the context of discovery
actually supports Mr. Lightbourne's position. The State's
patently false assertions notwithstanding, in F.G. v.
Agency for Persons with Disabilities, 940 So. 2d 1095 (Fla.
2006), this Court held that "the separation of powers . . .

[does] not preclude a circuit court from calling before it
a member of the executive branch for narrowly defined
informational purposes." F.G. at 1099, citing State Dep't
of Health and Rehab. Servs. v. Brooke, 573 So. 2d at 371;

(cf. Petition, p. 8.).


The Petitioners allege that the circuit court has set
forth an impossible task for the Petitioners because there
is no determination that a walk-through has been planned
for the dates of August 28-31, 2007. While the judge
indicated in his order that he was not available before
August 28, 2007, Mr. Lightbourne has made no such
restrictions and is in fact available at any date between
now and the start of the final hearing on August 28.
Petitioner complains that the Department of Corrections
should not be forced to "orchestrate a run-through simply
to allow CCRC to observe a fake execution." (Petition at
11). Mr. Lightbourne requested no such orchestration. Mr.
Lightbourne's request is based on the sworn testimony of
the warden designated to carry out executions, Warden
Timothy Cannon, that the execution team conducts a walk
through of a mock execution every other week. T 07/19/07
hearing, p. 1990) (emphasis added) . Therefore, between
August 8 and 28, 2007, certainly a walk-through should be
occurring. Is the Petitioner now stating this testimony
was untrue?

The Petitioner complains that the order does not
specify the time, parameters or attendees of the walk-
through. These are not matters which would cause


irreparable harm, but rather matters for the parties to
work out in scheduling attendance at a walk-through.

Petitioner further complains that the lower court did
not "explain how a Walk-Through can be conducted without
revealing the identities of personnel specifically exempted
from disclosure by Section 945.10 (1) (9) . (Petition, p.
12). As previously stated, Petitioners fail to cite any
authority to establish that the lower court is required to
make such an explanation. Rather, maintaining secrecy and
security are the responsibility of the Department of
Corrections. Based on the testimony during the hearings
below, it is clear that those persons protected by statute
are in fact disguised during walk-throughs just as they
would be during an execution. Robert Wheeler, Assistant
General Counsel to the Governor, testified that the
executioners were present at the walk through he attended
on July 11, 2007 (T. 07/20/07 at 2295). The executioners
wore medical-type garb, described as a bio-hazard suit

Id.. Mr. Wheeler testified that any medical personnel
present were dressed similarly (Id..). Mr. Wheeler
confirmed that he could not identify the executioners or
any members of the medical component of the execution team
(Id.). Timothy Westveer, an agent of the Florida
Department of Law Enforcement, also testified that he was


present for the walk-through on July 11, 2007. Mr.
Westveer also confirmed that the executioners were in
disguise, "covered from head to toe" (Id. at 2251) and the
medical technicians were in disguise also (Id. at 2251).
Finally, Warden Cannon testified that even his own team
members are not privy to the identities of the protected
personnel, therefore protected personnel's participation in
training exercises necessarily requires that these persons
be disguised. The protection of those persons whose
identity must be protected by statute is the only security
concern articulated by Petitioners. As these persons'
identities are routinely concealed during training
exercises, there can be no irreparable harm.

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 investigate and present
evidence regarding DOC'S ability to follow the new
protocol, counsel for Mr. Lightbourne 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.


The issue of viewing the chamber and witnessing a
walk-through is not one being raised as a dilatory tactic
to delay the proceedings in the circuit court and the
remand of this Court. Rather, Mr. Lightbourne's discovery
requests and public records requests have been an attempt
to level the playing field throughout these proceedings.
In fact, this very 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.).

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. See Motion to Leave Evidentiary Hearing Open,
Attachment C. In that motion, Mr. Lightbourne requested an
opportunity to view the execution chamber and to observe a
mock execution. This was, in part, based on the questions
and comments of the Petitioners during the evidentiary


hearings indicating that 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 "Its hot back there" (T. 07/20/07 at 2280).

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). At this time, the circuit court judge also
expressed concern over the length of the intravenous tubing
which goes from the inmate's arm to where the saline bag
hangs in the executioner's room (T. 07/22/07 at 2974).
Despite these concerns from the judge, the Petitioners
argue that there is no nexus between what the judge stated
his concerns were as to the Department of Corrections'
procedures and "what anyone expects to see at the a visit
to the death chamber and witness a walk-through" (Petition


at 8). This certainly is not an issue that's been raised
for the first time in an attempt to delay the final hearing
or resolution of the issues for which this Court
relinquished jurisdiction.

While diagrams of the execution chamber and
photographs of the chamber have been admitted in to
evidence, there has been much conflicting testimony over
the accuracy of the diagram and the photographs. 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 circuit 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.

As in the instant Petition, Petitioners have
repeatedly complained that Mr. Lightbourne's presentation
of evidence and testimony exceeds the scope of this Court's
remand. This simply is inaccurate. In his all Writs


petition, Mr. Lightbourne requested a determination
regarding whether the State of Florida's lethal injection
procedures, created behind closed doors by an agency making
policy outside the scope of its usual business, involve the
unnecessary and wanton infliction of pain contrary to
contemporary standards of decency in violation of the
Eighth Amendment to the U.S. Constitution and the
corresponding provision of the Florida Constitution. It
cannot be more clear that Mr. Lightbourne was challenging
the State of Florida's lethal injection procedures as being
violative of the Eighth Amendment. The circuit court judge
has evaluated the evidence presented thus far and
determined that Mr. Lightbourne was entitled to temporary
relief. The litigation in the circuit court is well within
the boundaries of this Court's relinquishment.

Mr. Lightbourne is only seeking discovery in an
expeditious manner based on the limited time frames set
forth by the circuit court and this Court. In complaining
that the circuit court is indulging CCRC's abuse of process

(Petition at 15)' Petitioners ignore the fact that the
circuit court has denied many of Mr. Lightbournel s motions,
quashed subpoenas for many witnesses and denied many public
records demands. Both Mr. Lightbourne and the circuit
court have worked expeditiously to meet the deadlines


imposed by this Court. Now that the circuit court has
again expedited the proceedings below to meet the demands
of the Petitioners and this Court, the Petitioners again
for no articulated reason other than dissatisfaction with
the circuit's ruling attempts to curtail that schedule even
further. There is no authority or basis for that request.

The circuit has scheduled final hearings in this
matter to be concluded on August 31, 2007. No motions or
discovery requests filed in the circuit court on behalf of
Mr. Lightbourne seek a continuance of that final hearing.
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. At every step off the way there has
been timely progress on this case.


Conclusion

Based on the foregoing arguments, Mr. Lightbourne

requests that Petitioner1 s Petition and Motion be denied in

all respects.

Respectfully submitted,

SUZANNE 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. 3rd Ave., Suite
400
Ft. Lauderdale, FL 33301

(954) 713-1284

COUNSEL FOR MR.
LIGHTBOURNE


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, 5t" Floor, Daytona Beach, FL 32118; Carolyn
Snurkowski, Assistant Attorney General, Office of the
Attorney General, The Capitol, Tallahassee, Florida, 32399-
1050; 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.

SUZANNE MYERS KEFFER

Assistant CCRC

Florida Bar No. 0150177