IN THE SUPREME COURT OF FLORIDA
IAN DECO LIGHTBOURNE,
Case No. SC06-2391
BILL McCOLLUM, ET AL.,
PETITIONER’S FOURTH EMERGENCY MOTION TO RELINQUISH
JURISDICTION TO GET THE FACTS REGARDING
THE STATE RECORDS REPOSITORY
THE PETITIONER, IAN DECO LIGHTBOURNE, by and through undersigned counsel, hereby requests that this Court grant his emergency request to relinquish jurisdiction to a neutral tribunal in the circuit court to get the facts and for full evidentiary development regarding public records filed with the Capital Postconviction Records Repository by the Department of Corrections. This motion is brought based on information that was learned after the circuit court entered a final order denying relief on September 10, 2007 that is both relevant and material to the ultimate issue to be decided.
Mr. Lightbourne seeks a relinquishment to the circuit court in order to discover and present the evidence that would establish facts that bring the integrity of records submitted to the State Repository in all capital cases into question. Mr. Lightbourne has reason to believe that the records contained in
his file located at the repository have been sealed without notice and without a proper court order. As grounds in support of this motion, Mr. Lightbourne alleges:
1. On August 7, 2007, counsel for the DOC handed counsel for Mr. Lightbourne a stack of some of the public records in response to the court order July 21, 2007. Within the stack were two memoranda authored by Sara Dyehouse, former assistant general counsel for the Department, that contained information favorable to Mr. Lightbourne in that it could help him prove his Eighth Amendment claim.
2. During the course of motions that were argued on August 28, 2007, counsel for Mr. Lightbourne explained that he sought to call Sara Dyehouse and former DOC attorney, Rosa McNaughton in order to elicit the information contained in the two memoranda that had been turned over to Mr. Lightbourne on August 7, 2007. (T. 3001). During the course of that argument, counsel for Mr. Lightbourne handed Assistant Attorney General Kenneth Nunnelly copies of the two memoranda. (T. 3005); See "Petitioner’s Motion to Relinquish Jurisdiction Regarding Department of Corrections Memoranda" for details regarding the memoranda and whether DOC is entitled to claim that they remain privileged.
3. Later that same day, the memoranda were again discussed and for the first time, exactly three weeks after the
documents were handed to counsel for Mr. Lightbourne in open court Assistant Attorney General Nunnelly asserted a claim of privilege on DOC’s behalf. (T. 3086). The circuit court read and reviewed the documents and ruled that the memoranda themselves were work product and were protected by the attorney-client privilege even though they appeared to be both relevant and material to the issues to be decided. (T. 3089-90).
4. After the lower court entered the final order on September 10, 2007, Mr. Lightbourne learned that someone from the Department of Corrections contacted the Repository and represented that Judge Angel had ordered that the Dyehouse memoranda be removed from the public records and sealed. Someone from the Department of Corrections showed an employee at the Repository the transcript of proceedings before Judge Angel and based on that, the Repository took the Dyehouse memoranda from Mr. Lightbourne’s file located at the State Archives and placed them in a sealed envelope as an exempt record. This was done without the benefit of a court order and without notice to Mr. Lightbourne.
5. The transcripts do not reflect that the circuit court ever ordered that the Repository should seal any documents. After hearing argument, the circuit court agreed to accept the defense proffer of the memoranda under seal as Defense Exhibit 28. (R. 3090, 3095). The subject of the State Repository was
brought up and Mr. Changus represented that the documents had been submitted to the Repository. The AG then responded:
Mr. Nunnelley: Well, Judge, again my position would be it is an inadvertent disclosure. The Court has sustained the objection, and now I have got to try to do damage control and get the cat back in the bag. And I would ask, again, that the copies sitting on Ms. Keffer’s . . . desk and the other copies they have got in the files be ordered turned back over to the State immediately.
Ms. Keffer: Your Honor –
Mr. Nunnelly: We will deal with the repository.
The Court: I don’t know about putting the cat back in the bag. Almost all of it is public information, so we haven’t revealed a whole lot that’s not already known. These folks in the Department also know it. They also know what everybody else knows.
(R. 3095). After counsel for DOC informed the lower court that it would be "his preference" that the Dyehouse memoranda not be in the "record here," the lower court asked about the repository and what the parties thought should happen. The AG asserted that "[t]hose can be retrieved from the repository."1 (R. 3097). In response, Mr. Lightbourne pointed out that the documents had already been disseminated and that it would be difficult to retrieve all electronic copies or to control further dissemination. The lower court acknowledged "I don't know if we
1 Mr. Lightbourne never would imagine that this could be accomplished without notice and a court order.
need to do all that or not. I mean, I sustained the objection being admitted into evidence in the case." (R. 3097).
6. The State complained that the memoranda had already been filed in another case and asked that counsel for Lightbourne:
"be directed to give back what they have; and further, that they be directed not to . . . disseminate it any further. And we will deal with the rest of it on the Department of Corrections side." (R. 3099).
The court responded by asking counsel for Lightbourne to make the "best effort to give them back whatever you have and then not disseminate it any further." Id. The lower court agreed that counsel for Mr. Lightbourne did not have to be a "patrol officer." (3099-00).
7. Under Fla. R. Crim. P. 3.852(b)(3), the records repository is the location designated by the secretary of state provided for the archiving of public records in capital cases. The actions of the DOC calls into question the integrity of the public records process and the integrity of Mr. Lightbourne’s files contained at the Repository.
WHEREFORE, Mr. Lightbourne respectfully requests that jurisdiction be relinquished to the lower court for the purpose of getting the facts regarding the DOC’s actions with regard to Mr. Lightbourne’s files at the Repository so that Mr. Lightbourne may reserve his rights with respect to the public
record and the integrity of the public records process. Mr. Lightbourne further requests that the time for filing the initial brief be tolled until this has been properly litigated in the circuit court.
SUZANNE MYERS KEFFER
Florida Bar No. 0150177
Florida Bar No. 082491
Florida Bar No. 0026283
OFFICE OF THE CAPITAL
COLLATERAL REGIONAL COUNSEL
101 N.E. 3rd Ave., Suite 400
Ft. Lauderdale, FL 33301
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, 5th Floor, Daytona Beach, FL 32118, Rock E. Hooker, Assistant State Attorney, 19 NW Pine Avenue, Ocala, FL 34475, Maximillian 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 17th day of September, 2007.
SUZANNE MYERS KEFFER
Florida Bar No. 0150177