Reply to State on relinquisment - Lightbourne

http://www.oranous.com/florida/IanLightbourne/replyemergency.htm

http://www.oranous.com/florida/IanLightbourne/Filed_09-19-2007_Lightbourne_Reply.pdf

IN THE SUPREME COURT OF FLORIDA

IAN DECO LIGHTBOURNE,

Petitioner,

Case No. SC06-2391

v.

BILL McCOLLUM, ET AL.,

Respondents.

____________________________/

PETITIONER’S REPLY TO STATE’S RESPONSE TO

PETITIONER’S SECOND, THIRD, AND FOURTH EMERGENCY

MOTIONS TO RELINQUISH JURISDICTION

THE PETITIONER, IAN DECO LIGHTBOURNE, by and through undersigned counsel, hereby files his reply to the State’s consolidated response to his Second, Third, and Fourth Emergency Motions to Relinquish Jurisdiction.

Second Emergency Motion: Judge Angel’s Comments to Press

The State, in its response to Mr. Lightbourne’s Second Emergency Motion, argues that none of the allegations contained therein are different from the allegations in his first Motion to Relinquish Jurisdiction. Mr. Lightbourne’s Second Emergency Motion is distinguishable from his First Emergency Motion, however, in that Mr. Lightbourne is arguing that the circuit court judge’s comments to the press may be evidence that the judge was not impartial and there may be grounds to disqualify him. Under Fla. R. Jud. Admin. 2.330(e), a motion to disqualify

a judge must be filed within 10 days after discovery of the facts constituting grounds for the motion. Mr. Lightbourne filed his Second Emergency Motion in order to seek the opportunity to get the facts regarding Judge Angel’s comments to determine whether there is sufficient basis to move to disqualify Judge Angel. Mr. Lightbourne is well within the time limit for doing so.

Third Emergency Motion: The DOC Memoranda

The State, in its response to Mr. Lightbourne’s Third Emergency Motion misses the point that there are new facts that any privilege with regard to the memoranda has been waived, which the circuit court could not have considered because they came to light after the circuit court entered its final order on September 10, 2007.

As Mr. Lightbourne pointed out in his Third Emergency Motion, the lower court could not have considered the fact that the DOC has discussed the memoranda in question with the press, as evidenced by the September 14, 2007 St. Petersburg Times article. After the DOC voluntarily discussed the memoranda with the press, any privilege that may have been previously asserted has been waived. Although the State points out in its response that "the Department of Corrections… is the only entity which could waive the privilege" (footnote 3, page 6) with regards to

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the memoranda, the State fails entirely to address Mr. Lightbourne’s argument that the DOC has waived the privilege.

In regards to Mr. Lightbourne’s argument that the lower court could not have considered the fact that the length of time the State took to seek protective orders in other cases where the memoranda have been filed amounted to a waiver of any privilege that may have existed, the State again misses the point. Mr. Lightbourne argued that the State, in Pittman, addressed the contents of the memorandum on the merits--without asserting any privilege--on August 24, 2007. The State did not file a motion for protective order seeking to have the memoranda sealed in that case until September 4, 2007, only after the State, on behalf of the DOC, first asserted the privilege in Mr. Lightbourne’s case on August 28, 2007. The State’s only response to Mr. Lightbourne’s argument is that any filing by the Office of the Attorney General does not waive any privilege, since the privilege belongs to the DOC. The State, however, ignores the fact that it was the State, acting on behalf of the DOC, that asserted the privilege in the lower court for the first time on August 28, 2007, three weeks after the DOC turned over the memoranda to Mr. Lightbourne. (8/28/07 T. 3086). The DOC, as an agency, has never asserted any privilege regarding the memoranda. Therefore, if it is the Office of the Attorney

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General acting on behalf of DOC in this matter, then DOC is bound by the Attorney General’s timely failure to object.

Mr. Lightbourne must be afforded the opportunity to present the newly discovered facts of the DOC’s waiver of its privilege with respect to the memoranda to the circuit court. Thereafter, the circuit court can make an informed determination whether the privilege has been waived. Because the circuit court already found the memoranda relevant and material to Mr. Lightbourne’s case, any determination that the privilege has been waived would require consideration of the memoranda with respect to Mr. Lightbourne’s claim that Mr. Diaz’s execution was cruel and unusual punishment, due to the deliberate indifference of the DOC to the risk that Mr. Diaz was suffering the unnecessary and wanton infliction of pain.

Fourth Emergency Motion: The Records Repository

In response to Mr. Lightbourne’s Fourth Emergency Motion regarding the integrity of records submitted to the Records Repository, the State cites Fla. R. Crim. P. 3.852, which allows agencies to initially submit exempt or confidential public records under seal to the Repository. Mr. Lightbourne’s argument is distinguishable from the Rule 3.852 provision for the submission of records under seal; rather, his argument goes to the integrity of records after they have been submitted to the Repository and the ability of an agency to alter the status

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of public records at the Repository without a court order. Here, the DOC sent public records to the Repository, and then went to the Repository on their own accord and changed the status of those records without a court order and without notice to Mr. Lightbourne. There is nothing in the transcripts of the circuit court proceedings which can be construed as an order from the circuit court to the Repository to seal any records.

Contrary to the State’s assertions, Mr. Lightbourne’s motions are made in good faith and not for the purpose of delay. While the State seems to take issue with the labeling of Mr. Lightbourne’s motions as "emergency," Mr. Lightbourne designated the motions as such given the expedited schedule in this cause.

WHEREFORE, Mr. Lightbourne respectfully requests that jurisdiction be relinquished to the lower court to get the facts on the circuit court judge’s comments to the press, the DOC’s waiver of any asserted privilege and the integrity of the repository and status of records filed at the Repository in Mr. Lightbourne’s case. Mr. Lightbourne further requests that the briefing schedule be tolled until this has been properly litigated in the circuit court, and Mr. Lightbourne be afforded an opportunity to amend his initial brief thereafter.

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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. 3^{rd Ave., Suite 400}

^{Ft. Lauderdale, FL 33301}

^{(954) 713-1284}

^{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}

^{Assistant CCRC}

^{Florida Bar No. 0150177}

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