Tuesday, 18 September 2007





Case No. SC06-2391







THE PETITIONER, IAN DECO LIGHTBOURNE, by and through undersigned counsel, hereby requests that this Court grant this emergency request to relinquish jurisdiction to a neutral tribunal in the circuit court to get the facts and for full evidentiary development regarding Department of Corrections’ memoranda. 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.

On September 14, 2007, the St. Petersburg Times ran an online story indicating that the "Department of Corrections rejected advice by its own legal staff to use a machine that would determine if an inmate was fully unconscious during his execution." See ATTACHMENT, Corrections bosses ignore new monitor in executions; The device reports on a prisoner’s level

of consciousness, ST. PETERSBURG TIMES, by Meg Laughlin, Times Staff Writer, September 14, 2007. The subject matter of the article potentially impacts a claim of privilege made below by the State of Florida as well as an unconstitutional gag order currently in place against Mr. Lightbourne’s attorneys. Mr. Lightbourne seeks a relinquishment to the circuit court in order to discover and present the evidence that would establish that any claim of privilege that the State may have had is now waived so that he may present the evidence that would establish his entitlement to relief. As grounds in support of this motion, Mr. Lightbourne alleges:

1. After repeatedly being denied the majority of his requests for discovery and public records, the circuit court judge entered an Order granting Mr. Lightbourne’s public records demands made to the Department of Corrections (DOC) on July 20, 2007, after seven days of evidentiary development had already been completed.

2. During a status conference held on August 7, 2007, assistant general counsel for the DOC, Maximillian Changus, handed counsel for Mr. Lightbourne a stack of some of the public records in response to the court order.1 The two memoranda

1 Included in the small stack of public records were a copy of the August 1, 2007 Lethal Injection Procedures; three e-mail communications; a draft of changes to former lethal injection


Based on the favorable information contained in the two memoranda, one of which was directed to Rosa McNaughton (formerly Rosa Carson, General Counsel for the Department) and one of which was directed to Rosa McNaughton and Secretary James McDonough, Mr. Lightbourne listed Sara Dyehouse and Rosa McNaughton on his Amended Additional Witness List. authored by Sara Dyehouse, former assistant general counsel for the Department, contained information favorable to Mr. Lightbourne in that it could help him prove his Eighth Amendment claim. This was the exact nature of information that Mr. Lightbourne has been seeking all along.2

procedures; approximately thirty-one (31) articles regarding lethal injection; and two inter-office memoranda.

2 Mr. Lightbourne filed a Motion for Disclosure of Favorable Evidence and Information on February 14, 2007 seeking Brady material. (R. 55-66).

3. On August 21, 2007, the Office of the Attorney General (AG) filed a Motion to Strike the Defendant’s Amended Additional Witness List on the grounds that the addition of Ms. Dyehouse and Ms. McNaughton was untimely and without good cause. On August 23, 2007, the AG, on behalf of the Department of Corrections, filed a Motion for a Protective Order Pursuant to Section 90.502(3)(a) to prevent Mr. Lightbourne from calling Rosa McNaughton or Sara Dyehouse at the final evidentiary hearing or otherwise contacting them with respect to this case.


3 The State objected to the proffer stating only that "this is not the time for it. This is motions. She can deal with that at the appropriate course of business during the hearing." (T. 3007).

The basis of the motion was the "Department’s" assertion of the attorney-client privilege with respect to both individuals, as they both formerly served as attorneys to the Secretary of the Department of Corrections.

4. The State’s Motion to Strike Defendant’s Amended Additional Witness List and the Motion for Protective Order were argued on the morning of August 28, 2007, the same day that the final evidentiary hearing was scheduled to begin. (T. 2999 - 3000). In the course of arguing why the Amended List should not be struck, counsel for Mr. Lightbourne explained that the receipt of the Dyehouse memos resulted in a decision to list the witnesses. (T. 3001-3002). During the course of responding to the State’s claim that any information that Dyehouse and McNaughton might testify to would be privileged, counsel for Mr. Lightbourne handed the AG copies of the two memoranda. (T. 3004-06). Neither the AG or counsel for DOC raised any claim of privilege with respect to the documents. After the circuit court granted the Motion to Strike the Amended Additional Witness List and the Motion for Protective Order, Mr. Lightbourne requested to proffer the memoranda.3 The lower court indicated that the proffer could be dealt with at a later time. (T. 3007).


4 At some point Assistant Attorney General Kenneth Nunnelley asked his "client" to step out of the courtroom during this discussion in case he would become a witness. (T. 3091).

5. Counsel for Mr. Lightbourne referenced the two memoranda again during an argument on Defendant’s Motion to Compel Production of Records from the Department of Correction Pursuant to Court Order. (T. 3033). Counsel for Mr. Lightbourne argued that while some records were turned over on August 7, 2007, there were still records that the circuit court had ordered the Mr. Lightbourne was entitled to that had not been turned over. (Id.). Specifically, counsel for Mr. Lightbourne pointed out that the Department did not claim any exemptions such as attorney-client privilege or work product, and did not turn over any records under seal pursuant to Fla. R. Crim. P. 3.852. (Id.). Neither the AG nor counsel for the Department of Corrections raised any issue regarding the memoranda.

6. Later that same day, counsel for Mr. Lightbourne returned to the issue of the two memoranda and sought the opportunity to move them into evidence through Maximillian Changus, who had been present in the courtroom that day, on the grounds that every other witness who could be used to move the memoranda into evidence had been struck.4 For the first time, exactly three weeks after the documents were handed to counsel for Mr. Lightbourne in open court, Assistant Attorney General


Kenneth Nunnelley asserted a claim of privilege ostensibly on behalf of the "client," the Department of Corrections:

They are attorney-client privileged. Any release of those documents would have been inadvertent. I am not entirely clear on the circumstances of how those documents came to get released. However, they clearly are attorney work product. They are attorney-client privileged documents. And if they were released, that it was an inadvertent release that does not amount to a waiver of the privilege. And the documents are not properly admitted into evidence.

(T. 3086). Mr. Nunnelley admits in one breath that he did not know how the documents were released and in the next, literally guesses that "it was an inadvertent release." It appears that the Attorney General’s Office was more upset that Mr. Lightbourne had the documents than the "client." Certainly it was Mr. Nunnelley who was worried about trying to "do damage control and get the cat back in the bag." (R. 3095). It was Mr. Nunnelley who wanted copies of the memoranda turned "back over to the State immediately." Id.

7. There was absolutely no testimony or evidence actually produced to establish that the two memoranda were turned over to Mr. Lightbourne inadvertently. Certainly the attorney who had been representing the Department of Corrections for most of the proceedings below and who actually turned over the memoranda never said that they were released inadvertently. The two memoranda at issue were responsive to Mr. Lightbourne’s public


5 Mr. Lightbourne later learned that the case in which the Dyehouse memorandum was attached to a pleading was Florida v. David Joseph Pittman, Case No. CF90-2242A1-XX (Tenth Judicial Circuit, Polk County, Florida).

records demand, were the only memoranda included in the stack of public records that were produced in open court, and were located at the top of the stack of records with relevant parts circled and underlined. Furthermore, the AG admitted that at least one other capital postconviction defendant had already attached the two memoranda to a successive Rule 3.851 motion, (T. 3098), but failed to offer any explanation as to why there had not been any effort to retrieve the memoranda until after counsel for Mr. Lightbourne sought to use them in the instant case.5

8. Mr. Lightbourne’s request to question Mr. Changus on the witness stand regarding the circumstances under which the documents were turned over was denied. (R. 3087-88). Instead, the circuit court merely asked Mr. Changus, in his capacity as an attorney representing the Department:

THE COURT: But, anyway, is DOC concerned about disclosing these memos or do you have any objection to letting them just be in the record here?

MR. CHANGUS: Well, I mean, it would be my preference that they not be in the record here, Your Honor.

(T. 3096)(emphasis added). The circuit court read and reviewed the documents and ruled that the memoranda themselves were work


6 This may have been true, but the subpoenas for any witnesses who might have been able to provide that information had been struck.

product and were protected by the attorney-client privilege. (T. 3089). The circuit court did, however, find that the documents "certainly appear to be relevant, material," but opined that the information contained in the memoranda would likely be available from other sources and witnesses. (T. 3090)(emphasis added).6 Contrary to the circuit court’s assumption that defense counsel was previously aware of the information contained in the memoranda, (T. 3090), defense counsel was absolutely not aware of the information contained therein, and in fact sought at every turn to obtain exactly this sort of favorable information.

9. The circuit court erred in ruling that the memoranda are work product and protected by the attorney-client privilege and that error will be an issue on appeal in this case. The State’s attempt to keep the documents secret is contrary to Florida’s broad government-in-the-sunshine laws. Section 119.011(11), Florida Statutes; Neu v. Miami Herald Pub. Co., 462 So. 2d 821 (Fla. 1985). Although Section 119.07(1), Florida Statutes, provides an exemption from disclosure for documents that were prepared exclusively for litigation, or prepared in anticipation of imminent litigation, no such claim was made here. Even if the documents could be construed to be "work


7 Undersigned counsel is unaware of how the newspaper obtained this information and in fact refused to comment based on the circuit court’s order, when contacted by the reporter.

product," the State has been under an ongoing obligation to turn over information such as this that is favorable to Mr. Lightbourne under the principles of Brady v. Maryland, 373 U.S. 83 (1963). See also Johnson v. Butterworth, 713 So. 2d 985, 986 (Fla. 1998); Swidler & Berlin v. U.S., 524 U.S. 399, 408 n.3 ("Petitioner, while opposing wholesale abrogation of the privilege in criminal cases, concedes that exceptional circumstances implicating a criminal defendant's constitutional rights might warrant breaching the privilege. We do not, however, need to reach this issue, since such exceptional circumstances clearly are not presented here.")(emphasis added).

10. The lower court agreed with the State that counsel for Mr. Lightbourne may not disseminate or cause to be disseminated either the motion or its contents. This was despite counsel’s argument that the memoranda had already been disseminated and was in the public domain.

11. The September 14, 2007 article in the ST. PETERSBURG TIMES revealed the information that counsel was requested not to disseminate.7 See ATTACHMENT, Corrections bosses ignore new monitor in executions; The device reports on a prisoner’s level of consciousness, ST. PETERSBURG TIMES, by Meg Laughlin, Times Staff Writer, September 14, 2007. It is obvious from the



Apparently, the Attorney General’s Office filed a written response in the Pittman case on the merits on August 24, 2007 and never raised the privilege. After Circuit Court Judge Carven Angel held that the memoranda were privileged and agreed to seal the documents in Mr. Lightbourne’s case, the Attorney General’s Office filed a motion for protective order seeking to have the memoranda sealed in Mr. Pittman’s case on September 4, 2007. On September 10, 2007, the Honorable Harvey A. Kornstein, Circuit Court Judge, entered an order denying the State’s motion for protective order sealing DOC memo of August 15, 2006 as privileged attorney work product. The order states, "The Court does not find that it has sufficient information before it to justify entering a protective order sealing the August 15, 2006 Memo prepared by Sara Dyehouse." Florida v. David Joseph Pittman, Case No. CF90-2242A1-XX (Tenth Judicial Circuit, Polk County, Florida)(Order dated September 10, 2007).

Additionally, on August 21, 2007, in the case of Florida v. Derrick Tyrone Smith, Case No. CR83-2653CFANO (Sixth Judicial

contents of the article that a DOC spokeswoman discussed the Dyehouse memos with the reporter. The article also discussed the fact that Polk County Circuit Judge Harvey Kornstein entered an order on Monday, September 10, 2007, refusing to find that the memoranda are privileged and refusing to grant the State’s motion for a protective order in another case. Judge Kornstein’s order is in direct conflict to Judge Angel’s order.

12. The State admitted in court that the memoranda had been filed in at least one other case. What the State failed to tell the circuit court and Mr. Lightbourne was that the State had filed a written response regarding the memoranda on the merits on August, 2007.8 Mr. Lightbourne was left to find out on his own.


Circuit, Pinellas County, Florida), the AG received copies of the Dyehouse memoranda dated June 16, 2006 and August 15, 2006 in open court during a case management conference, yet failed to raise any claim of privilege at that time. It was not until September 4, 2007 that the AG filed a written objection to what the AG characterized as an "unauthorized submission" of the memos.

13. Any privilege that may have existed is waived. The State’s failure to register a timely objection in its written response in the Pittman case waives any claim to privilege. Jenney v. Wiman, Inc., 846 So. 2d 664 (Fla. 2nd DCA 2003). In the response, the State chose to summarize the contents of the memo:

Next, defendant Pittman also claims an entitlement to an evidentiary hearing because a DOC attorney sent a memo to her boss, on August 15, 2006, which (1) summarized recent defense challenges to lethal injection procedures, (2) noted additional requirement imposed by the courts in two states, Missouri and California, for monitoring the inmate’s level of consciousness, (3) addressed the use of a "BIS" monitor in one state, North Caroline, and (4) recommended securing an expert opinion from Dr. Mark Dershwitz [footnote omitted] regarding the use of a "BIS" machine.

Florida v. David Joseph Pittman, Case No. CF90-2242A1-XX (Tenth Judicial Circuit, Polk County, Florida)(State’s August 24, 2007 Response, p. 10). Furthermore, when the Department of Corrections voluntarily chose to discuss the subject matter of the memoranda with the press any privilege that might have been previously asserted has been waived. Delap v. State, 440 So. 2d 1242, 1247 (Fla. 1983) cert. denied 467 U.S. 1264 (1984)("[W]hen


a party himself ceases to treat the matter as confidential, it loses its confidential character.").

14. The fact that another circuit court judge has determined that the memoranda are not privileged, has resulted in the absurd situation whereby some attorneys can talk about the memos — which are clearly in the public domain - and file them on behalf of their clients, while others may not. At some point, every lawyer in Florida could be allowed to disseminate and litigate the contents of these memoranda except the lawyers representing the one client who has been granted a hearing on lethal injection.

15. The information contained in the memoranda demonstrates that the Department of Corrections was on notice as early as August 15, 2006, that the lethal injection procedures should contain a provision for monitoring the consciousness of the inmate after the administration of sodium thiopental. Had the Department chosen to incorporate a provision for assessing and monitoring the inmate’s level of consciousness in the August 16, 2006 protocol under which Angel Diaz was executed, the problems that occurred in that execution might have been avoided.

16. The lower court’s error in finding that the memoranda are work product and protected by the attorney-client privilege and failure to consider the significant evidence is a subject of


appeal in this case. However, at this juncture, there is new evidence that the lower court could not consider in making the ruling, i.e., the DOC has waived any privilege that may have existed. The lower court should have the benefit of considering the AG’s failure to assert the privilege in other cases as well as the DOC’s decision to talk to the press before this Court considers the matter.

WHEREFORE, Mr. Lightbourne respectfully requests that he be permitted to go back to the circuit court, before a neutral tribunal, to litigate the new facts regarding any claimed waiver by DOC, and to allow for the lower court to consider the memoranda. Mr. Lightbourne further requests that this Court enter an Order tolling the time for filing the briefs until this issue has been properly litigated in the lower court.

Respectfully submitted,



Assistant CCRC

Florida Bar No. 0150177


Assistant CCRC

Florida Bar No. 082491


Staff Attorney

Florida Bar No. 0026283



101 N.E. 3rd Ave., Suite 400

Ft. Lauderdale, FL 33301

13 14

(954) 713-1284



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.



Assistant CCRC

Florida Bar No. 0150177

No comments: