PETITIONER’S SECOND EMERGENCY MOTION TO RELINQUISH JURISDICTION - Lightbourne

http://www.oranous.com/florida/IanLightbourne/2relinquish.htm

http://www.oranous.com/florida/IanLightbourne/Filed_09-17-2007_FSC-2ndEmergencyRelinquish.pdf

IN THE SUPREME COURT OF FLORIDA

IAN DECO LIGHTBOURNE,

Petitioner,

Case No. SC06-2391

v.

BILL McCOLLUM, ET AL.,

Respondents.

____________________________/

PETITIONER’S SECOND EMERGENCY MOTION TO RELINQUISH JURISDICTION IN ORDER TO GET THE FACTS REGARDING

JUDGE ANGEL’S COMMENTS TO THE PRESS

THE PETITIONER, IAN DECO LIGHTBOURNE, by and through undersigned counsel, hereby requests that this Court grant his emergency request to relinquish jurisdiction to the lower court based on the following:

1. This Court remanded this cause to the circuit court for an evidentiary hearing regarding Mr. Lightbourne’s All Writs Petition filed on December 14, 2006. The circuit court took testimony over a period of eleven days regarding the execution of Angel Diaz and the Department of Corrections May 9, 2007 procedures for carrying out lethal injection. The hearing dates were May 18 and 21, 2007, June 18 and 19, 2007 and July 17-22, 2007.

2. The circuit court issued a temporary injunction prohibiting the State from setting an execution date in this

cause based on deficiencies regarding the May 9, 2007 procedures for carrying out lethal injection as announced in open court on July 22, 2007. The lower court further stated that once any changes were submitted to the court, additional hearings would be necessary. (07/22/07 T. 2942). A written order was signed on July 31, 2007.

3. When Judge Angel made his oral pronouncement on July 22, 2007, he ordered that the final hearing in this case would begin no sooner than five weeks from the date that the Department of Corrections released the anticipated new lethal injection protocol. This was to allow for sufficient time for pre-trial discovery. It was clear that Judge Angel was concerned with ensuring that the parties would have an adequate time to prepare for the final phase of the litigation:

That will give us time to address things like controversies over who – what kind of evidence we’re going to need, and depositions, and things like that, evidentiary procedure issues, like taking the testimony of certain witnesses. So hopefully five weeks will give counsel enough to complete pre-trial discovery and get ready for final hearing. And we would schedule a final hearing no sooner than five weeks after the Department come out with their protocol.

(07/22/07 T. 2965)(emphasis added).

4. Following the Department of Corrections’ promulgation of new procedures on August 1, 2007, and pursuant to the State’s

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"Request for Final Hearing," this Court issued a scheduling order on August 6, 2007. This Court ordered that "On or before September 10, 2007, all evidentiary proceedings in the trial court shall be concluded, with a final order entered and trial court jurisdiction terminated." Id.

5. Based on the State’s request to schedule a final hearing, the circuit court initially scheduled the final hearing in this case to begin on September 5, 2007, and noted that the court had set aside a total of eight days to complete the hearing. However, at the status conference held on August 7, 2007, it was clear that Judge Angel was concerned with this Court’s order that the proceedings should conclude by September 10, 2007. Judge Angel opened that hearing by commenting that "It looks like we might be trumped by the Supreme Court. I think they want us to wind up whatever it is we are doing here." (8/7/07 T. 3). Further, the circuit court stated, in reference to this Court’s August 6, 2007 Order, "Well, I have got big, bold letters here: No continuances will be granted except by showing of extreme hardship. So that means August 28th to me…. They want it concluded." (8/7/07 T. 7). As a direct result, the lower court moved the date of the hearing to August 28, 2007 and limited the defense presentation of witnesses regarding the new protocols to only two days at the State’s insistence.

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6. The circuit court further limited the defense presentation of witnesses by granting the State’s motions to quash subpoenas directed at various individuals and/or struck several witnesses upon State motion. The circuit court held the final hearing in this proceeding on August 28-30, 2007. Written closing arguments were submitted by both parties on September 5, 2007.

7. On September 10, 2007, undersigned counsel received a faxed copy of the circuit court order denying relief. In that order, the circuit court did not address or discuss any of its previous concerns as announced in open court on July 22, 2007. In fact, the changes made to the May 9, 2007 protocols pursuant to the lower court’s July 31, 2007 order are barely even mentioned in the final order.

8. The next day, on September 11, 2007, the St. Petersburg Times published an article regarding the circuit court’s order. See Alex Leary and Meg Laughhlin, Times Staff Writers, Stay on Death 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. 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.

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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."

Id. The article also provided further insight into the lower court’s reasoning regarding this 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.

‘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.’

Id. (Emphasis added).

9. Judge Angel’s comments to the press violate the Code of Judicial Conduct, Cannon 3(B)(9). Cannon 3(B)(9) states:

A judge shall not, while a proceeding is pending or impending in any court, make any public comment that might reasonably be expected to affect its outcome or impair its fairness or make any nonpublic comment that might substantially interfere with a fair trial or hearing. The judge shall require similar abstention on the part of court personnel subject to the judge's direction and control. This Section does not prohibit judges from making public statements in the course of their official duties or from explaining for public information the procedures of the court. This Section does

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not apply to proceedings in which the judge is a litigant in a personal capacity.

(emphasis added). Judge Angel’s comments also indicate that the proceedings below may have lacked fairness and impartiality. It is clear from the proceedings in this matter that the circuit court was concerned with meeting the time constraints forced upon it by this Court, and it is also clear from Judge Angel’s comments to the newspaper that his concerns regarding the Department’s lethal injection procedures are legitimate and still exist. Further, Judge Angel’s improper comments to the newspaper indicate that Mr. Lightbourne may not have received a full and fair hearing due to Judge Angel’s belief that he did not have the authority to make the necessary constitutional changes. On their face, Judge Angel’s comments appear to reflect a belief that he could only deny Mr. Lightbourne relief and any constitutional changes could only be made by this Court.

10. Based on Judge Angel’s comments to the press, Mr. Lightbourne has reason to believe that there may be sufficient basis to move to disqualify Judge Angel. In order to determine whether there is sufficient reason to move to disqualify Judge Angel, however, Mr. Lightbourne requests that this Honorable Court relinquish jurisdiction to the circuit court so that Mr. Lightbourne may be afforded an opportunity to get the facts regarding the basis of Judge Angel’s comments.

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WHEREFORE, Mr. Lightbourne respectfully requests that this Honorable Court grant his emergency motion and relinquish jurisdiction to the circuit court for the reasons stated.

Respectfully submitted,

_____________________________

SUZANNE MYERS KEFFER

Assistant CCRC

Florida Bar No. 0150177

ROSEANNE ECKERT

Assistant CCRC

Florida Bar No. 082491

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

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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 ___ day of September, 2007.

_____________________________

SUZANNE MYERS KEFFER

Assistant CCRC

Florida Bar No. 0150177