Following the execution of Angel Diaz, it was reported in the press that the Department of Corrections expected the execution of Angel Diaz to take longer due to "liver disease." Specifically, the press reported:
He had liver disease, which required them to give him a second dose of the lethal chemicals. It was not unanticipated. The metabolism of the drugs to the liver is slowed.
The Associated Press, December 13, 2006. Governor Bush affirmed the representations of the Department of Corrections:
As announced earlier this evening by the Department, a preexisting medical condition of the inmate was the reason tonight's procedure took longer than recent procedures carried out this year.
Ron Word, Execution of Fla. inmate takes 34 38
min., The Times-Picayune, December 13, 2006. See also All Writs Petition, December 14, 2006. Based on the Department of Corrections' representation, it expected problems to arise during Mr. Diaz's execution. Yet, despite knowing that a medical issue would interfere with the lethal injection procedure, the Department obviously did not resolve the issue prior to moving forward with the execution as dictated in its protocol. Additionally, counsel for Mr. Diaz was denied access to his medical records and it was never disclosed that DOC expected any such complications.
The testimony and evidence at the evidentiary hearing revealed that the concocted "liver story" had no medical basis and was never verified before releasing the information to the public. The testimony of Warden Bryant, James McDonough and George Sapp was conflicting on this issue. Warden Bryant had no prior knowledge of Mr. Diaz having a liver problem and believed that the liver story was a directive from the Governor's Office (T. 347), but Secretary McDonough and Mr. Sapp testified that they were told of Mr. Diaz's liver problem during the execution.
Secretary James McDonough and George Sapp waited in a room located in the "Q wing" at Florida State Prison during the Diaz execution. After about the "15-16 minute mark" Secretary McDonough became concerned about the length of time the execution was taking, so he sent Sapp to find out what was happening. (T. 2062-64). Mr. Sapp stepped into the hall and spoke with Correctional Officer Andrew Smith. (T. 1707). Subsequently, someone from the chemical room who was wearing "garb" told Mr. Sapp that there was something wrong with Mr. Diaz's liver. (T. 1708 - 1711).
Secretary McDonough testified that Mr. Sapp reported back that there was a problem with Diaz's liver. (T. 2064) However, when he provided statements to the Governor's Commission, the Secretary only said that Mr. Sapp had reported that there was difficulty pressing fluid into the bloodstream. (L.I. 39
Comm. T. 80-81, 2/19/07). Following the execution, Secretary McDonough questioned the executioners and was told that it was harder to push the syringes than it had been in the past.
Following the pronouncement of Mr. Diaz's death, Secretary McDonough then went to Warden Bryant's office where he spoke with Ali Faraj from the Governor's office and he relayed what he had heard about the liver. (T. 2068, 2070). The Secretary was emphatic that he told the Department of Corrections' public relations officer Gretl Plessinger to be "honest and straightforward" and not to "shade what happened in any way." (T. 2071). McDonough also expressed that he was a "party" to the formulation of the statement but not the "emphatic 'because' he had liver disease." (T. 2071).
Despite the Secretary's denial that he was responsible for informing the press that the execution took longer "because he had liver disease," Gretl Plessinger's notes contradict the Secretary's memory. Ms. Plessinger's notes from December 13, 2007 memorialized the initial statement to press indicating:
The condemned man had liver disease. It was not unanticipated that the metabolism of drugs through the liver is slowed and it takes longer than normal. That's why we have protocol to allow a second series of drugs to be introduced. The condemned man expired as expected.
(T. 2156, Def. Exh. 16). Ms. Plessinger testified that this statement was literally "dictated" to her by the Secretary. (T. 2156). Ms. Plessinger admitted that she knew that the media would be interested in what she had to say and that she did not independently verify the factual basis for the statement even though she has worked as a journalist. (T. 2157). Ms. Plessinger reported the time of death as 6:36 p.m.
The facts at the evidentiary hearing demonstrated that the "liver story" that was disseminated to the press by the Florida Department of Corrections was completely false.