http://www.floridasupport.us/Florida/IanLightbourne/rehearingmotionMarion.htm
http://www.floridasupport.us/Florida/IanLightbourne/Filed_09-11-2007_AttachmentMotionRehearing.pdf
IN THE CIRCUIT COURT OF THE
http://www.floridasupport.us/Florida/IanLightbourne/Filed_09-11-2007_AttachmentMotionRehearing.pdf
IN THE CIRCUIT COURT OF THE
FIFTH JUDICIAL CIRCUIT,
IN AND FOR MARION COUNTY,
FLORIDA
STATE OF FLORIDA,
Plaintiff,
vs. Case No. 81-170-CF-A-01
IAN DECO LIGHTBOURNE,
Defendant.
_______________________________________/
MOTION FOR REHEARING AND/OR CLARIFICATION
Defendant, IAN DECO LIGHTBOURNE, by and through undersigned counsel,
respectfully submits this Motion for Rehearing and/or Clarification. As grounds in support of
this Motion, Mr. Lightbourne submits:
respectfully submits this Motion for Rehearing and/or Clarification. As grounds in support of
this Motion, Mr. Lightbourne submits:
1. The Florida Supreme Court remanded this cause to the circuit court for an
evidentiary hearing regarding Mr. Lightbourne’s All Writs Petition filed on December 14, 2006.
This Honorable Court entered a final order denying relief on September 10, 2007. Mr.
Lightbourne seeks rehearing and/or clarification of that Order because this Court has either
overlooked or misapprehended certain points of law or fact or, there are certain points of fact or
law that are in need of clarification.
evidentiary hearing regarding Mr. Lightbourne’s All Writs Petition filed on December 14, 2006.
This Honorable Court entered a final order denying relief on September 10, 2007. Mr.
Lightbourne seeks rehearing and/or clarification of that Order because this Court has either
overlooked or misapprehended certain points of law or fact or, there are certain points of fact or
law that are in need of clarification.
2. On July 22, 2007, the circuit court granted a temporary injunction prohibiting the
State from setting an execution date in this cause based on several concerns regarding the May 9,
2007 procedures for carrying out lethal injection. As recognized by this Court, the May 9, 2007
protocol did not remedy concerns that inmates will suffer undue pain. During the oral
pronouncement, this Court recognized that the problems inherent in the protocol were more than
State from setting an execution date in this cause based on several concerns regarding the May 9,
2007 procedures for carrying out lethal injection. As recognized by this Court, the May 9, 2007
protocol did not remedy concerns that inmates will suffer undue pain. During the oral
pronouncement, this Court recognized that the problems inherent in the protocol were more than
simply “scrivener’s errors.” Rather, this Court recognized that the procedure for carrying out an
execution must be “consistent with the evolving standards and notions of the dignity of man.”
This Court made suggestions regarding how the procedures could be modified so as to comport
with the requirements of the Eighth Amendment and gave specific examples regarding its
concerns. 1
3. Following the promulgation of the August 1, 2007 protocols by the Department of
Corrections, this Court held further evidentiary hearings. Despite Mr. Lightbourne’s arguments
that the latest protocols are merely cosmetic and do not address the Eighth Amendment concerns,
this Court did not address or discuss its previous concerns in the Order denying relief. Nor did
the Court address how its concerns were remedied by the August 1, 2007 protocols.
Corrections, this Court held further evidentiary hearings. Despite Mr. Lightbourne’s arguments
that the latest protocols are merely cosmetic and do not address the Eighth Amendment concerns,
this Court did not address or discuss its previous concerns in the Order denying relief. Nor did
the Court address how its concerns were remedied by the August 1, 2007 protocols.
4. On September 11, 2007, Mr. Lightbourne learned that this Court spoke to a
reporter from the St. Petersburg Times and provided additional information that is pertinent to
this case and the ruling. See Alex Leary and Meg Laughhlin, Times Staff Writers, Stay on Death
reporter from the St. Petersburg Times and provided additional information that is pertinent to
this case and the ruling. See Alex Leary and Meg Laughhlin, Times Staff Writers, Stay on Death
1 For example, this Court expressed that the procedures must take into account the
concerns over the inexplicable lack of minimum qualifications for the executioners and technical
team members in the May 9, 2007 protocol; the lack of any requirement for the minimum
experience of these people in doing their regular jobs; and the need to know that the Department
has the equipment and building facilities necessary to carry out an execution by lethal injection.
There was a special concern that the protocols should reflect that the person or persons
responsible for administering the lethal chemicals must retain a degree of independence. It was
also contemplated that the Department of Corrections should consider public input in the
adoption of its execution procedures. This Court was also concerned that the existing protocol
placed too large a burden on the Warden in charge of executions, in that the protocol required
him to choose the personnel who would make up the execution team, including the executioners
charged with pushing the chemicals, the technical team members charged with mixing the
chemicals, starting the IVs, monitoring the heart monitors, and consulting with the Warden
regarding consciousness of the inmate, without any guidance as to what sorts of qualifications,
training, and experience is needed to carry out these functions. This Court also contemplated an
actual certification process whereby each team member would have to formally demonstrate to
the warden that he or she was qualified to do the job.
concerns over the inexplicable lack of minimum qualifications for the executioners and technical
team members in the May 9, 2007 protocol; the lack of any requirement for the minimum
experience of these people in doing their regular jobs; and the need to know that the Department
has the equipment and building facilities necessary to carry out an execution by lethal injection.
There was a special concern that the protocols should reflect that the person or persons
responsible for administering the lethal chemicals must retain a degree of independence. It was
also contemplated that the Department of Corrections should consider public input in the
adoption of its execution procedures. This Court was also concerned that the existing protocol
placed too large a burden on the Warden in charge of executions, in that the protocol required
him to choose the personnel who would make up the execution team, including the executioners
charged with pushing the chemicals, the technical team members charged with mixing the
chemicals, starting the IVs, monitoring the heart monitors, and consulting with the Warden
regarding consciousness of the inmate, without any guidance as to what sorts of qualifications,
training, and experience is needed to carry out these functions. This Court also contemplated an
actual certification process whereby each team member would have to formally demonstrate to
the warden that he or she was qualified to do the job.
Penalty Lifted, A judge who held up a case says concerns he had about lethal injection are
resolved, The St. Petersburg Times, September 11, 2007 (Attachment A).
5. According to the article:
In that earlier order, Judge Angel expressed concerns about the
way the execution procedure is staffed, from the qualifications of
the executioner to the job descriptions for the lethal injection team.
way the execution procedure is staffed, from the qualifications of
the executioner to the job descriptions for the lethal injection team.
Reached by telephone at his Ocala home Monday night, Angel
explained why his opinion had changed: "The Department of
Corrections appeared to me to be sensitive to those concerns and
addressed them."
explained why his opinion had changed: "The Department of
Corrections appeared to me to be sensitive to those concerns and
addressed them."
Id. Mr. Lightbourne’s subpoena for Secretary James McDonough was quashed so he was unable
to question the policy maker regarding the new protocols and whether they addressed the
deficiencies in the procedures. It is unknown where in the record there is support for the
conclusion that the Department of Corrections is “sensitive” to the concerns. Without the
benefit of rehearing, or a clarification of the Order, Mr. Lightbourne cannot properly prepare his
case for appeal.
to question the policy maker regarding the new protocols and whether they addressed the
deficiencies in the procedures. It is unknown where in the record there is support for the
conclusion that the Department of Corrections is “sensitive” to the concerns. Without the
benefit of rehearing, or a clarification of the Order, Mr. Lightbourne cannot properly prepare his
case for appeal.
6. The article also provided further insight into this Court’s reasoning regarding this
case that remains pending:
case that remains pending:
Angel said Monday night that it's worth remembering that the state
Supreme Court has yet to consider these issues. Oral arguments in
the Lightbourne and Schwab cases are scheduled for Oct. 11.
Supreme Court has yet to consider these issues. Oral arguments in
the Lightbourne and Schwab cases are scheduled for Oct. 11.
"The concerns I expressed in the July order are real, legitimate
concerns and can't be ignored," said Angel, 64. "The state and
the department are going to have to be sensitive to them.
Maybe the Florida Supreme Court will say something about it
but ... I obviously don't feel I have the authority to change
things the Florida Supreme Court changes."
concerns and can't be ignored," said Angel, 64. "The state and
the department are going to have to be sensitive to them.
Maybe the Florida Supreme Court will say something about it
but ... I obviously don't feel I have the authority to change
things the Florida Supreme Court changes."
Id. (Emphasis added). Mr. Lightbourne requires clarification as to which of this Court’s
previous concerns remain and which of those real and legitimate concerns the State will have to
be sensitive to in the future. Certainly, nothing in the State’s closing argument suggests that the
State harbors any lingering concerns—it is the State’s continued position that Florida’s
procedures provide “more” protection than is required by the Constitution.
7. Mr. Lightbourne also seeks rehearing because the comments to the press indicate
that this Court may have misapprehended the scope and purpose of the remand. The Florida
Supreme Court remanded this cause to the circuit court for fact-finding along with full authority
to grant any necessary relief. While this Court—based on the Order—certainly believed that it
had the authority to deny relief, the comments to the press indicate that this Court did not
understand that it had the authority to grant the relief requested.
that this Court may have misapprehended the scope and purpose of the remand. The Florida
Supreme Court remanded this cause to the circuit court for fact-finding along with full authority
to grant any necessary relief. While this Court—based on the Order—certainly believed that it
had the authority to deny relief, the comments to the press indicate that this Court did not
understand that it had the authority to grant the relief requested.
8. Based on the Florida Supreme Court order dated August 6, 2007, jurisdiction
terminated in this Court on September 10, 2007. Therefore, Mr. Lightbourne has filed a motion
in the Florida Supreme Court seeking relinquishment of jurisdiction so this Court may consider
the instant motion.
terminated in this Court on September 10, 2007. Therefore, Mr. Lightbourne has filed a motion
in the Florida Supreme Court seeking relinquishment of jurisdiction so this Court may consider
the instant motion.
9. This Court’s concerns, as reported to the media, are not clearly set forth in its
order. As stated, the order provides no discussion as to how the Department of Corrections was
sensitive to those concerns, or how this Court feels those concerns have been remedied in any
way.
order. As stated, the order provides no discussion as to how the Department of Corrections was
sensitive to those concerns, or how this Court feels those concerns have been remedied in any
way.
WHEREFORE, Mr. Lightbourne seeks rehearing and/or clarification of the order
dated September 10, 2007.
dated September 10, 2007.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true copy of the foregoing Motion for Rehearing and/or
Clarification has been furnished by U.S. Mail, first class postage prepaid, and facsimile to all
counsel of record on September 10, 2007.
Clarification has been furnished by U.S. Mail, first class postage prepaid, and facsimile to all
counsel of record on September 10, 2007.
_________________________
SUZANNE MYERS KEFFER
Assistant CCRC
Florida Bar No. 0150177
ROSEANNE ECKERT
Assistant CCRC
Florida Bar No. 82491
ANNA-LIISA NIXON
Staff Attorney
Florida Bar No. 26283
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
444 Seabreeze Blvd, 5th Floor,
Daytona Beach, FL 32118
Fax 386-226-0457
Rock E. Hooker
Assistant State Attorney
19 NW Pine Avenue
Ocala, FL 34475
Fax 352-572-2010
The Honorable Carven D. Angel
Circuit Court Judge
Marion County Judicial Center
110 NW First Avenue
Ocala, FL 34475
Fax 352-401-6760
Maximillian J. Changus
Assistant General Counsel
Florida Department of Corrections
2601 Blair Stone Road
Tallahassee, FL 32399
Fax 850-922-4355
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