The Commission found that the protocols in effect were inadequate, that they were not followed anyway, that training and expertise of the execution team were inadequate, that the protocols were then revised twice, a new execution team has been selected, and that there since has been an extensive investigation into Florida`s lethal injection practice in the Lightbourne hearings (which the court declined to review).
Under these circumstances, there is every reason to seek independent professional confirmation that the Department`s assurances that all of the concerns raised in the Commission Report and by Judge Angel in Lightbourne as well as those raised by Mr. Schwab have been addressed. See also the facts in the subclaim challenging the court`s deference to the DOC.
There already exists a legal mechanism for the conduct of such an audit via Rule 3.852(I).
This was simply a request for copies of documents already in existence, or a certification that they do not exist.
It is reasonable to expect that records pertaining to DOC`s execution practice and procedure would be kept in some organized form.
Nor would the conduct of an audit have been unduly burdensome.
It is in fact a routine practice in a wide variety of governmental and commercial settings.
Nor would such an audit have been unduly time consuming.
In Darling v. State, C So.2d --- 2007 WL 2002499, 32 Fla. L. Weekly S486 (Fla. July 12, 2007), the same individual conducted a limited audit of the FDLE lab in Orlando overnight in the middle of an evidentiary hearing.
Identification information could have been redacted if required, as is routinely done in such cases.
The requests were only for documents which the auditor would then have reviewed at her location, physical inspections, tests, interviews, etc. would have to be submitted to the court.
Although in this age of computerized record keeping there is no real reason why such a procedure could not be conducted every
time a warrant is signed, doing so here would have been especially appropriate for the reasons stated above.
As it is, in contrast to the copy of Schwab`s voluminous central inmate file which was easily and freely provided, the only records which have been turned over relating to lethal injection were the protocols themselves and some checklists.
Lethal injection is a complicated procedure which requires that the members of the execution team have considerable expertise.
The protocols themselves, no matter how artfully drafted, cannot substitute for that expertise any more than a first year medical student reading from a textbook can substitute for a surgeon.
An important finding reached by the Commission and the judge in Lightbourne was that the execution team members in Diaz lacked training and proficiency.
For example, the "medically qualified" person in the Diaz execution who actually started the IV's testified (anonymously) that he or she did not detect anything indicating that they were compromised, although the autopsy and all the other evidence showed that both of them were.
Moreover, vague assurances in the protocols to the effect that the Warden will select as executioner someone who is "fully capable of performing the designated functions" (Protocol 2(a)) do not meet any objective standards of verifiability and accountability.
This is an oversimplification.
After all, lethal injection was primarily created by one Dr. Chapman. See Denno, supra.
It also evades the question.
The claim is that the Eighth Amendment requires the participation of medically qualified personnel and a degree of clinical proficiency.
If that causes problems, then those problems need to be examined.