The transcript from Florida Supreme Court in Mark Schwab

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Mark Dean Schwab v. State of Florida

SC07-1603

THE NEXT CASE IS SCHWAB v.
STATE OF FLORIDA.
>> MAY IT PLEASE THE COURT.
I'M MARK GRUBER REPRESENTING
MARK SCHWAB.
IN THIS CASE THERE IS A
DATE.
AND BEFORE OUR COURT APPEAL
FROM SUMMARY DENIAL OF OUR
3850 MOTION WHICH HAS A
LETHAL INJECTION CLAIM AND
THERE'S ALSO BEFORE THE
COURT A, A MOTION FOR STAY
OF EXECUTION, AND TO HOLD
PROCEEDINGS IN ABEYANCE THAT
WAS FILED IN THE WAKE OF THE
GRAND CERT IN BAZE V. REES.
WITH REGARD TO THE MOTION
FOR A STAY OF EXECUTION,
THERE ARE SOME FEATURES
ABOUT THIS CIRCUMSTANCE THAT,
THAT MUST BE UNIQUE.
ONE CERTAINLY IS THE IMPACT
OF ARTICLE 1 SECTION 17
WHICH CONTAINS A CONFORMITY
CLAUSE THAT REQUIRES THIS
COURT'S DECISIONS TO WITH
REGARD TO CRUEL AND UNUSUAL
PUNISHMENT CONFORM TO THE
DECISIONS OF THE UNITED
STATES SUPREME COURT.
THE OTHER ONE IS THE FACT
THAT THIS WAS A SUMMARY
DENIAL, AND AS WE'VE ARGUED
AT SOME LENGTH, THE DECISION
OF THE COURT IS REALLY
PREMISES ON WHAT WE BELIEVE
IS AN OVERHAUL ERROR IN
DECIDING WHAT THE STANDARD
FOR EVALUATING AN 8th
AMENDMENT METHOD OF
EXECUTION CLAIM SHOULD BE.
>> WHAT, WHAT DO YOU ALLEGE
OR WHAT HAVE YOU ALLEGED YOU
WOULD PRESENT, AND I
EVIDENTIARY HEARING ON THE
LETHAL INJECTION CLAIM THAT
IS DIFFERENT OR WOULD ADD TO
WHAT WAS CAME OUT IN THE
LIGHTBOURNE EVIDENTIARY
HEARING ON THIS, WHICH
COVERED, YOU KNOW, EIGHT OR
TEN DAYS.
>> THERE ARE A FEW, THERE
ARE A FEW WITNESSES THAT WE
WOULD CALL, ONE THAT COMES
TO MIND IS DR. HEATH WHO WAS
NOT AVAILABLE FOR TESTIMONY
DURING THE LIGHTBOURNE
PROCEEDINGS.
>> BUT HE DID EXTENSIVE AFT.
>> HE DID.
HE DID.
>> ONE THAT'S REALLY
DEVELOPED IN THE FILE RIGHT
NOW IS OUR JEANINE PROPOSED
QUALITY ASSURANCE EXPERT,
AND THAT TIES INTO OUR
REQUEST FOR PUBLIC RECORDS,
WHICH WAS THE SUBJECT OF
SOME LITIGATION BELOW.
WE WANTED TO DO AN AUDIT.
IT WOULD INVOLVE A QUALITY
ASSURANCE ASSESSMENT AND
ALSO A RISK ASSESSMENT.
AND THE WAY WE WOULD DO THIS
WOULD BE SIMPLY TO OBTAIN
THE RECORDS FROM THE
DEPARTMENT OF CORRECTIONS
THAT WOULD BE RELEVANT TO
THEIR PROPOSED METHOD OF
CARRYING OUT THE EXECUTION.
JUST GET THE PAPERWORK AND
HAVE OUR AUDITOR LOOK AT IT,
AND AS WE HAVE DONE IN THE
PAST, THAT CAN BE DONE
VIRTUALLY OVER NIGHT.
SO WHAT WE HAVE PROPOSED IS
NOT PARTICULARLY INVASIVE OR
TIME CONSUMING PROCEDURE.
IT'D BE A FAIRLY
STRAIGHTFORWARD ONE AND IN
FACT I SUGGESTED IT IS
SOMETHING THAT COULD BE DONE
IN EVERY WARRANT IN THE
FUTURE.
>> I'M NOT SURE WHAT THIS
AUDITOR THAT YOU TALK ABOUT
WOULD BE LOOKING FOR BEYOND
THE INFORMATION THAT WAS
OBTAINED DURING THE
LIGHTBOURNE HEARING.
>> I, I DON'T THINK I CAN
GIVE A REAL CLEAR ANSWER IN
THAT.
SHE, SHE WAS VERY, VERY
DETAILED IN HER AFFIDAVIT,
OUR MOTION AGAIN WAS VERY
DETAILED BECAUSE IT WAS
BASED ON INPUT FROM HER.
AND IT CONCERNS THINGS LIKE
WHERE THE DRUGS COME FROM.
WHAT TYPE OF LABELING THEY
HAVE, WHAT TYPE OF TRAINING
RECORDS THERE.
>> SO, WE WOULD GET ALL THIS
INFORMATION ASSUMING YOU GOT
IT, AND WE WOULD MICRO-- WE
WOULD BE MICROMANAGING THE
EXECUTIVE TELLING THEM THAT
THIS DRUG MIGHT BE BETTER OR,
OR THOSE KINDS OF THINGS, I
MEAN, I, I'M NOT SURE
EXACTLY WHERE IT IS YOU
WOULD GO WITH THAT SCIPD OF
INFORMATION.
>> -- KIND OF INFORMATION.
>> AS FAR AS WHAT I'VE JUST
SAID, THERE WOULD BE NO
MANAGEMENT AT L. IT WOULD BE
A MATTER OF REVIEWING THE
RECORDS VOURIN' OUR PERSON
VIEW THEM IN A SEPARATE
LOCATION AND THEN IF WE WISH
TO GO FURTHER I WOULD
PRESUME IN FUTURE WARRANTS
LITIGATION IF SOMEONE WISHED
TO GO FORWARD THEY WOULD GO
BEFORE THE COURT AND SAY WE
THINK WE HAVE SOMETHING
HERE.
THAT'S THE EXTENT OF IT.
>> LET JUST LET ME MAKE SURE
I UNDERSTAND WHAT YOU ARE
SAYING.
IF SOMEBODY IS A QUALITY
ASSURANCE EXPERT, THEY ARE
NOT GOING TO SUGGEST THAT
THE DRUGRESS DIFFERENT.
THEY'D BE SAYING WELL, ARE
THESE DRUGS OUT OF DATE, YOU
KNOW, LOOKING AT THE, DID
THEY PURCHASE -- WHERE DID
THEY PURCHASE THEM?
IS THAT THE KIND OF THING
YOU ARE TALKING ABOUT.
>> YES, I MEAN THIS IS NOT
THE HEART OF THE APPEAL BY
ANY STRETCH OF THE
IMAGINATION.
>> MAYBE WE SHOULD GO TO THE
HEART WHICH I GUESS IS YOU
CAN AT THIS POINT RELY ON
LIGHTBOURNE, AREN'T YOU
REALLY BOUND BY WHAT WE
DECIDE -- I MEAN, IN A WAY,
LIGHTBOURNE'S THE LEAD CASE
AND I THINK THE QUESTION WAS
WHAT OTHER TESTIMONY THAT
WOULD BE REALLY SIGNIFICANT
TO THE BIG ISSUE WOULD YOU
SAY NEEDED TO BE PRESENTED
AND THE ONLY -- AND WHAT I'D
LIKE YOU TO FOCUS ON IS IT
SEEMS THAT YOU HAVE MORE OF
A FOCUS THAT USING ANYTHING
OTHER THAN THE FIRST DRUG IS
REALLY UNNECESSARY.
SORT OF THE IDEA, AND I
THINK IT'S RAISED IN THE
TENNESSEE CASE OF THE WHY
AREN'T WE GOING JUST TO THE
ONE-DRUG PROTOCOL SINCE
SODIUM THIOPENTAL IN A LARGE
DOSESAGE IS LEGAL?
-- LETHAL IS THAT THRUST
DIFFERENT FROM LIGHTBOURNE?
WELL, IT CERTAINLY DEIS
DIFFERENT AND WE RAISE THE
ISSUE OF USE OF PARALYTIC SO
I WILL GO TO THE THREE-DRUG
PROTOCOL USED IN FLORIDA.
IT'S ALSO USED AS I
UNDERSTAND IT IN EVERY STATE
THAT EMPLOYEDs LETHAL
INJECTION.
>> YOU ASKED THE TRIAL JUDGE
TO TAKE JUDICIAL NOTICE OF
THE RECORDS IN LIGHTBORNE.
>> YES, SIR AND HE DECLINED.
>> HE REFUSED THAT?
>> YES, SIR.
>> SO WE DON'T HAVE ANY REAL,
OTHER THAN THE POTENTIAL LAW
OF THE CASE, I DON'T REALLY
HAVE ANY EVIDENTIARY SETTING
FOR YOUR CLAIM, IS THAT
CORRECT.
>> WELL, THE ONLY
EVIDENTIARY SETTING OF
COURSE IS THAT THE FACTUAL
ALLEGATIONS WE MADE IN THE
3850 AND I WOULD SAY THE
ATTACHMENTS AND SO FORTH ARE
TO BE CEPTED AS TRUE UNLESS
REFUTED BY THE RECORD.
I WILL ADD, AS I'VE SAID IN
THE BRIEF IT WAS SORT OF
RECULIAR WHAT THE JUDGE DID
BECAUSE BOTH SIDES
STIPULATED TO THE
INTRODUCTION OF LIGHTBOURNE
HEARINGS, AND IT WAS REALLY
IN SORT OF HOUSEKEEPING
DISCUSSION AT THE CONCLUSION
OF THE CASE MANAGEMENT
CONFERENCE THAT THERE WAS A
DISCUSSION ABOUT
LOGISTICALLY HOW TO GO ABOUT
DOING THAT.
AND THAT'S WHEN THE JUDGE
BROUGHT UP THE ISSUE AND WAS
LATER THAT EVE WHNG THE JUSH
O-- EVENING WHEN THE JUDGE
ORDTHERED ISSUE RELIEF
DECLINING TO READ THE
LIGHTBOURNE TRANSCRIPTS.
>> WHAT WAS STIPULATED TO
WAS THERE IN THE, IN THE
RECORD.
OF, OF THE LIGHTBOURNE
PROCEEDING, WAS IT ON A DISK,
RIGHT.
>> YES, SIR.
>> OKAY.
THE, THE SITUATION HERE, IF
YOU'D SPEAK TO IT, THE TRIAL
JUDGE IN RESPECT TO THE DRUG
PROTOCOL FOUND THAT HE WAS
BOUND BY WHAT THIS COURT HAD
DETERMINED IN, IN SIMS, AND
FOLLOWED IN JUNE OF 2006 IN
RUTHERFORD.
WASN'T THAT CORRECT?
I MEAN, HE WAS BOUND BY
THOSE DECISIONS IN THIS
COURT?
SPECIFICALLY IN RESPECT TO
THE DRUG MIXTURE.
WHICH THIS COURT DELINEATED
IN DETAIL IN THOSE CASES.
>> OKAY.
WELL, THE, THE JUDGE%%--  THAT HE
WAS BOUND BY SIMS IN PROJDY,
THAT THE COURT WAS A CIRCUIT
COURT AND UNTIL THIS COURTS
RECEDED FROM ITS PRIOR
DECISIONS, THAT THE COURT
FELT BOUND, THAT MUCH IS
TRUE.
AND AS FAR AS THE COURT
MAKING A SPECIFIC FINDING
ABOUT THE PARTICULAR
THREE-DRUG REGIMENT, I DON'T
BELIEVE I AGREE WITH THAT.
IT WAS SPECIFIEDANE FOOTNOTE
IN SIMSS AT SOME LENGTH.
-- SIMS AT SOME LENGTH.
THE PROCEDURE OF THEM BEING
USED WAS SPECIFIED, AND THEN
THE COURT CONCLUDED IN
ACCORDANCE WITH THE STATUTE
THAT THAT'S A MATTER LEFT TO
THE DEPARTMENT OF
CORRECTIONS AND THE COURT AT
THAT TIME FOUND THAT THE
DEPARTMENT OF CORRECTIONS
WAS BEST QUALIFIED TO DECIDE
WHAT DRUGS WERE USED AND
THAT THE PERSONNEL WERE
READY AND ABLE TO CARRY OUT
THE, THE ADMINISTRATION OF
THE LETHAL INJECTION.
>> IS IT YOUR -- IS IT YOUR
POSITION THAT THIS COURT
HAVING DIRECTED OUR
AUTHORIZED AN EVIDENTIARY
PROCEEDING IN LIGHTBOURNE
THAT YOUR CLIENT IS ENTITLED
TO THE SAME EVIDENTIARY
PROCEEDING HERE?
>> WELL, I DON'T -- WE CLAIM
THAT WE'RE ENTITLED TO AN
EVIDENTIARY HEARING BECAUSE
WE DID OFFER EVIDENCE IN
ADDITION TO LIGHTBOURNE IN
THE FORM.
AND THERE'S SPECIFIC FACTUAL
ALLEGATION THAT WE WOULD
PROVE OUT, WHICH I THINK IS
RELEVANT TO SOME OF THE
MATTERS THAT THE COURT'S
ALREADY HEARD TODAY, WHICH
IS THAT THERE IS A 30% ERROR
RATE IN SECURING INTRAVENOUS
ACCESS IN A CLINIC SETTING.
>> PART OF WHAT THIS COURT,
AND LETTING LIGHTBOURNE
PROCEED FOR INSTANCE IS SO
THAT THERE WOULD BE AN
EVIDENTIARY PROCEEDING AND
IT WOULD GIVE THIS COURT AN
OPPORTUNITY TO NOT ONLY
EVALUATE WHAT HAD HAPPENED
IN THE EARLIER CASE WHERE
THERE WAS SOME DIFFICULTY,
OBYBSLY,, -- OBVIOUSLY, WITH
THE EXECUTION BUT ON THE
OTHER HAND, NOT TO DUPLICATE
THROUGHOUT THE STATE OF
FLORIDA, I'M NOT SURE HOW
MANY PERSONS ARE ON DEATH
ROW RIGHT NOW, BUT IT MUST
BE CLOSE TO 400, AND, AND
NOT TO HAVE 400, YOU KNOW,
SEPARATE HEARINGS.
AND SO HOW DO YOU THINK WE
SHOULD APPROACH THAT?
SHOULD WE JUST TAKE
LIGHTBOURNE AND DECIDE THAT
FIRST?
AND THEN APPLY WHATEVER WE
DECIDE IN LIGHTBOURNE TO
YOUR CLIENT?
>> WELL, MY, MY PROPOSAL,
AND I THOUGHT, I THOUGHT
THIS WAS COMING OUT DURING
THE CASE MANAGEMENT
CONFERENCER, BUT I'LL SAY IT
NOW, I, YOU WOULDN'T EXPECT
A COURT TO GO BACK AND CALL
THE SAME WITNESSES IN
LIGHTBOURNE OVER AND OVER
AND OVER AGAIN.
THAT, THAT IS A WASTE OF
TIME FOR EVERYBODY.
BUT HERE WE, THAT WAS PART
OF THE REASON, I THINK, THE
VERY FIRST SCHEDULING
HEARING THAT WE HAD, THAT I
INDICATED THAT I WOULD BE
ASKING THE COURT TO TAKE
JUDICIAL NOTICE OF
LIGHTBOURNE, SO THAT
EVIDENCE WOULD BE THERE.
BUT IF THERE ADDITIONAL
ALLEGATIONS THAT REQUIRE
SOME FURTHER EVIDENTIARY
DEVELOPMENT, THEN THE COURT
WOULD CERTAINLY HAVE
DISCRETION TO SAY THAT IT'S
NOT GOING TO ENTERTAIN
REPETITIOUS TESTIMONY, BUT
IF THERE ARE ADDITIONAL
ALLEGATIONS, THEN THOSE
SHOULD BE HEARD BY WAY OF AN
EVIDENTIARY HEARING.
>> AND YOU'RE CLAIMING THAT
YOU DO HAVE ADDITIONAL
ALLEGATIONS?
>> ONLY ONE THAT'S REALLY
DEVELOPICIDE THIS ONE
INVOLVING --
>> NOW WHAT -- I WANT TO GO
BACK TO WHAT I STILL SEE ASS
PERHAPS MORE SIGNIFICANT
BECAUSE IT IS AN ISSUE IN
BAZE.
AND I MAYBE YOU'VE ANSWERED
IT BY SAYING, YOU KNOW, YOU
JUST HAVE THIS QUALITY
ASSURANCE EXPERT.
I THOUGHT, AS I READ YOUR
BRIEF, THAT YOUR CHALLENGE
IS THE USE OF THE THREE
DRUGS.
ARE YOU OR ARE YOU NOT?
>> I --, TO MAKE IT CLEAR,
IT THE ISSUE IS THE RECORDS,
AND I'M GOING INTO MY TIME
HERE, I THINK, IS A
RELATIVELY MINOR ISSUE.
THIS IS BY FAR THE MOST
IMPORTANT ISSUE, THE ACTUAL
PROTOCOL, THE KEY ISSUE, OF
COURSE IS THE, STANDARD BY
WHICH THESE TYPES OF CLAIMS
SHOULD BE EVALUATED.
>> WELL, BUT, BUT IT'S,
MR. NUNNELLEY SAID WE CAN
USE WHATEVER STANDARD THE
MOST OFFENSE-FRIENDLY
STANDARD, AND FLORIDA'S
PROCEDURES PASS THAT.
>> YEAH, AND I JUST SAID
WHERE HE'S WRONG IS THAT YOU
MAY AS WELL ACCEPT NOW THAT
THERE ARE ALWAYS GOING TO BE
PROBLEMS WITH INTRAVENOUS
ACCESS.
IF YOU LOOK AT ISSUES LIKE
BENNY DEMPSON v. FLORIDA,
EXECUTIONS, LETHAL INJECTION
EXCUSHES WHERE THERE HAVE
BEEN PROBLEMS AROUND THE
COUNTRY THERE HAVE BEEN A
WHOLE HISTORY OF LETHAL
INJECTION WITH VENUS ACCESS.
>> THE VENUS ACCESS SEEMS TO
BE WHERE THERE, MOST OF THE
PROBABLY OF ERROR IS, IS
THAT CORRECT?
IS THAT CORRECT?
>> YES.
SO YOU ALSO THEN, WOULD HAVE
TO AGREE THAT IF THAT
PROCESS IS DONE COMPETENTLY,
AND THERE'S ALWAYS, EVEN IN
THE HOSPITAL SETTING,
THERE'S A RISK OF ERROR.
WE CANNOT ELIMINATE ALL RISK
OF ERROR ALL WE CAN DO IS
MAKE SURE THE EXECUTIVE
BRANCH HAS TAKEN REASONABLE
STEPS TO MINIMIZE THE RISK
OF ERROR GIVEN A, AN
PRESUMING A GOOD FAITH ON
THEIR PART.
>> THAT'S, WHAT I WAS SAYING
IS THAT THERE WILL BE
ERRORS.
IT'S INEVITABLE.
NOT THAT THERE'S A MERE RISK
IN ANY GIVEN CASE THERE
MIGHT BE -- ANY GIVEN
EXECUTION THERE MIGHT BE A
RISK BUT THERE WILL BE --
>> BUT IT'S NOT AN -- IT
CAN'T BE ELIMINATED.
IN OTHER WORDS, IF IT'S
HAPPENING, EVEN WITH
COMPETENT PERSONNEL, THAT
JUST MEANS THAT THAT THAT IS,
THAT ALTHOUGH WE MIGHT THINK
THAT PUTTING AN IV IN, AND
ALL OF US THAT HAVE HAD
SURGERY KNOWS WHAT THAT'S
LIKE, THAT SOMETIMES PEOPLE
WILL NOT, YOU KNOW, WILL,
WILL HAVE AN ERROR IN IT AND
THAT'S WHY IN FLORIDA NOW,
THE CRITICAL STEP IS THE
ASSESSMENT OF THE
CONSCIOUSNESS.
>> RIGHT.
AND --
>> IS THAT CORRECT?
>> YES, AND THE, AND THIS
GETS TO THE THREE-DRUG REG M
-- REGIMEN.
THE REAL STRIKING THING IS A
USE OF THE PARALYTIC.
THE PERSON WHO MAKES THE
CONSCIOUSNESS ASSESSMENT,
THE WARDEN, THE TEAM WARDEN
NOW AND IN THE FUTURE UNDER
THE PROTOCOLS IS A LAYPERSON
WHO HAS A AT BEST A LAW
ENFORCEMENT OFFICER'S
ABILITY TO TRAINING TO
RESPOND TO AN ONGOING
MEDICAL AN ONGOING INJURY OR
TRAUMA --
>> BUT DO YOU HAVE -- WE ARE
TRYING TO ASCERTAIN WHETHER
THIS CASE SHOULD BE SENT
BACK FOR FURTHER EVIDENTIARY
DEVELOPMENT.
YOU'VE MENTIONED YOUR
QUALITY ASSURANCE EXPERT.
BUT OTHER THAN REDOING WHAT
IS IN LIGHTBOURNE, DO YOU
HAVE AN EXPERT THAT WOULD
SAY HAVING THE OTHER TWO
DRUGS NOT ONLY IS
UNNECESSARY, BUT IT'S
UNREASONABLE, IT CREATES A,
A, A DANGER IN AT LEAST 30%
OF THE CASES, THAT SOMEBODY
IS GOING TO BE PARALYZED
WHEN THEY ARE NOT FULLY
UNCONSCIOUS SOMETHING THAT
YOU WOULD LIKE TO LITIGATE
OR SOMETHING THAT YOU
PRESENTED TO THE TRIAL
JUDGE?
SEE, WHERE I'M GETTING AT,
THAT TO ME IS THE ONLY
REASON THAT ANOTHER CASE
NEEDS TO BE DEVELOPED IF
SOMEBODY IS REALLY TO HEAD
ON RECHALLENGE THE, THE, THE
THREE-JUDGE, THREE-DRUG
PROTOCOL WHICH WE'VE
APPROVED IN SIMS AND SO
AGAIN THEN YOU WOULD ALSO
HAVE THAT BARRIER, WHAT'S
CHANGED SINCE SIMS TO
REQUIRE THAT TO BE
ADDRESSED?
>> WE DO HAVE AN EXPERT IN
DR. SPRINGER.
IT'S, WRARS TO THE USE OF
PARALYTIC WE HAVE CHALLENGED
THAT REPEATEDLY.
THAT HAS BEEN THE SOURCE OF
THE PROBLEMS AROUND THE
COUNTRY THAT HAVE, THAT HAVE
PUT A STOP TO AN EXECUTION
FOR ONE REASON OR ANOTHER
AND WHAT SEEMS TO BE THE
PATTERN MORALES COMES TO
MIND THE COURT SAYS USE THE
ANESTHETIC OR THE ANESTHETIC
ALONE OR GET SOMEONE WITH
MEDICAL QUALIFICATIONS TO BE
BY THE BEDSIDE AND MAKE A
DECISION --
>> BUT THERE'S NO SCIENTIFIC
ISSUE WITH THE FACT THAT THE
AMOUNT OF SODIUM THIOPENTAL
THAT IS REQUIRED BY THE
PROTOCOL IN FLORIDA IS
SUFFICIENT TO RENDER SOMEONE
AT LEAST UNCONSCIOUS?
CORRECT?
I MEAN, THERE IS NO DOUBT
ABOUT THAT.
>> YES, IT'S PROBABLY
ADMINISTERED, OF COURSE,
THEN IT WILL, FIVE-GRAM DOSE
RIGHT NOW WILL RENDER
UNCONSCIOUSNESS AND DEATH
EVENTUALLY.
>> AND SO THE REAL ISSUE IS
THE ADMINISTRATION OF THE
SODIUM THIOPENTAL IN, IN
WHETHER IT IS ADMINISTERED
IN SUCH A WAY THAT IT IS
GOING TO BRING THE PERSON
DOWN TO UNCONSCIOUSNESS
PRIOR TO THE USE OF THE
PARALYTIC, THE PANCURONIUM
BROMIDE TO BRING THEM DOWN
AND KEEP THEM THERE BECAUSE
THAT BECOMES AN ISSUE
ESPECIALLY WHEN THE
EXECUTION DRAG ONS FOR A
HALF HOUR AND IT'S DESCRIBED
AS A FAST ACTING
BARBBITURATE AND WHETHER IT
ALSO WOULD WEAR OFF IN A
PERIOD OF TIME IS CERTAINLY
AN ISSUE.
BUT ALL THE EXPERTS.
>> BUT DIDN'T YOU JUST SAY,
THIS AMOUNT, FIVE GRAMS OF
SODIUM THIOPENTAL WILL NOT
ONLY RENDTHER PERSON
UNCONSCIOUS BUT YOU ALSO
SAID WOULD KILL THEM SO DO
WE REALLY HAVE ANY EVIDENCE
IN THIS RECORD THAT A PERSON
WOULD COME OUT OF THIS IN
THE PERIOD OF TIME THAT IT
TAKES TO TO ASSESS
CONSCIOUSNESS AND TO
ADMINISTER THE OTHER TWO
DRUGS?
>> THAT'S ASSUMING IT'S
APPROPRIATELY ADMINISTERED.
>> WE'RE STARTING WITH THE
PREMISE THAT IT'S
APPROPRIATELY ADMINISTERED.
DO WE HAVE ANY EVIDENCE THAT
IN THE TIME THAT IT TAKES TO
ASSESS CONSCIOUSNESS,
ADMINISTER THE OTHER TWO
DRUGS, THAT THIS PERSON
WOULD COME BACK TO
CONSCIOUSNESS?
WITH FIVE GRAMS, BECAUSE
THAT'S BASICALLY WHAT YOU
ARE SAYING.
>> IF IT'S APPROPRIATE
ADMINISTERED, NO THERE'S NO
EVIDENCE IN THE RECORD TO
THAT.
I PERSONALLY DON'T KNOW THE
ANSWER TO THAT.
BUT THERE IS NO EVIDENCE IN
THE RECORD TO THAT FACT.
>> YOU'RE RAPIDLY USING UP
YOUR REBUTTAL TIME SO I --
>> ALL RIGHT.,,
>> JUST QUINCE, TO ANSWER
YOUR QUESTION, FIVE GRAMS OF
SODIUM THIOPENTAL WILL KEEP
SOMEBODY UNCONSH FRS TRISTE
14 HOURS.
>> HOW DO WE KNOW THAT IN
THIS CASE IF THE JUDGE EVEN
REFUSED TO TAKE JUDICIAL
NOTICE OF THE LIGHTBOURNE
RECORD?
>> WELL, LET ME START OUT BY
SAY DAG SNESH FACTS, AND
JUST AS WE DID IN
LIGHTBOURNE, BUT WE DON'T
HAVE ANY EVIDENCE OR RECORD
HERE, DO WE HERE?
>> THIS JUDGE DID WHAT HE
WAS SUPPOSED TO DO AND
FOLLOWED THE LAW, WHICH IS
SIMS IN THE CASES FOLLOWING
SIMS AND DENIED RELIEF
WITHOUT AN EVIDENTIARY
HEARING BECAUSE THE FILES
AND RECORDS DO NOT SUPPORT A
BASIS FOR GRANTING RELIEF.
>> WE AUTHORIZED AN
EVIDENTIARY HEARING IN
LIGHTBOURNE, AND OF COURSE
AN EXTENSIVE EVIDENTIARY
HEARING HAS BEEN HELD.
BUT WHY SHOULDN'T SEPARATE
LITIGANT THAT MIGHT APPROACH
THE CASE DIFFERENTLY ALSO BE
ENTITLED TO AN EVIDENTIARY
HEARING?
>>> WELL, JUDGE, LET ME
ANSWER THAT A COUPLE OF
WAYS.
I'M NOT -- AGAIN, I'M NOT
TRYING TO TWIST YOUR
QUESTION AROUND.
>> START WITH THE JUDICIAL
NOTICE BECAUSE I'M --,IUM I
MUST SAY THAT I, I AM
UNPLUSED AS TO, IF, IF
LIGHTBOURNE IS GOING TO BE
CONTROLLING IN SOME WAY, WHY
THE TRIAL JUDGE DIDN'T AT
LEAST SAY WELL, I DON'T WANT
TO GO OVER ALL THE SAME
THINGS AND, AND THAT THEY
DID IN LIGHTBOURNE.
I'LL JUST TAKE JILSH
JUDICIAL NOTES AND YOU'LL
HAVE A RECORD THEN, YOU KNOW,
TO BASE THIS OIN.
-- ON.
WHY WOULD WE ORDER AN
EVIDENTIARY HEARING IN
LIGHTBOURNE AND THEN NOT
HAVE AN AN EVIDENTIARY
HEARING IN THIS CASE.
IF ANYTHING, THIS CASE HAS
MORE -- HOW DO YOU
DISTINGUISH THE TWO CASES?
>> LIGHTBOURNE GOT THERE
FIRST.
LIGHTBOURNE'S BEEN GOING ON
FOR TEN MONTHS, JUSTICE
ANSTEAD.
LIGHTBOURNE.
>> LIGHTBOURNE GOT THERE
BECAUSE OF THIS COURT'S
ORDER.
AND JUSTICE ANSTEAD, WHEN
WE'VE CONFRONTED THIS ISSUE
IN THE PAST, IT HAS BEEN
HANDLED IN THE CONTEXT OF A
LEAD CASE DECISION, WHICH IS
WHAT WE HAVE GOING ON HERE.
AT THE TIME JUDGE HOLCOME
WAS CALLED UPON TO RULE ON
THIS ISSUE, HE HAD AND STILL
HAS BECAUSE IT'S STILL THE
LAW THE LAW FROM THIS COURT
TO FOLLOW.
HE DID EXACTLY WHAT HE WAS
SUPPOSED TO DO.
NOW, OF COURSE, THIS CASE IS
TIED UP WITH LIGHTBOURNE.
BUT THIS DEFENDANT IS NOT
ENTITLED TO HAVE A BREVARD
COUNTY CIRCUIT JUDGE LOOK
BACK AT THE SAME EVIDENCE
THAT HAS ALREADY BEEN PUT ON
IN PERSON BEFORE A MARION
COUNTY JUDGE AND PUT HIS OWN
--
>> WELL, THAT'S WHY I'VE
ASKED THE QUESTION OF HOW
COULD IT POSSIBLY NOT BE
ERROR FOR THE JUDGE TO HAVE
DENIED THE REQUEST TO TAKE
JUDICIAL NOTICE OF THE
LIGHTBOURNE PROCEEDINGS?
>> BECAUSE HE HAS NO
ENTITLEMENT TO PRESENT
LIGHTBOURNE IN THIS CASE.
LIGHTBOURNE IS ITS OWN CASE.
AGREED THE CASES ARE TIED
TOGETHER OF COURSE BUT
LIGHTBOURNE IS A SEPARATE
CASE IN A SEPARATE POSTURE
THAT'S ONGOING AND WENT FOR
13 DAYS AND 40 PLUS
WITNESSES.
>> WHY ISN'T THIS A SEPARATE
CASE?
THAT IS, I'M HAVING
DIFFICULTY, THIS COURT
OBVIOUSLY WAS IMPACTED BY
THE ALLEGATIONS OF THE,
QUOTE, BOTCHED EXECUTION.
AND, AND THE EXECUTIVE
BRANCH'S RESPONSE TO THAT,
YOU KNOW, BY HAVING A
FACT-FINDING COMMISSION
STUDY IT, THAT OBVIOUSLY IS
WHAT LED THIS COURT TO SAY,
WELL, ALTHOUGH WE'VE DENIED
EVIDENTIARY HEARINGS BEFORE,
BECAUSE THERE WASN'T
ANYTHING LAID OUT TO SHOW
THAT ANYTHING WAS GOING
WRONG, BUT NOW YOU HAVE
APPARENTLY AT LEAST SOME
COLORABLE CLAIM THAT MAYBE
SOMETHING'S GOING WRONG.
AND SO WE ALLOWED THE
EVIDENTIARY HEARING IN
LIGHTBOURNE.
>> RIGHT.
>> SO WHY ISN'T, AREN'T THEY
ENTITLED TO AN EVIDENTIARY
HEARING IN THIS CASE?
>> HE WOULD HAVE TO COME
FORWARD WITH SOME DIFFERENT
NEW ADMISSIBLE EVIDENCE TO
PUT ON, AND HE HASN'T DONE
THAT.
AND THAT'S AFTER YOU GET
OVER THE HURDLE --
>> WELL, IF WE FIND THAT THE
COURT SHOULD HAVE TAKEN
JUDICIAL NOTICE, THE REMEDY
FOR THAT IS FOR US TO TAKE
JUDICIAL NOTICE.
WOULDN'T THAT BE A REMEDY.
>> YES, YOUR HONOR, IT WOULD
A.
WE DON'T SEND CASES --
>> IS THERE ANOTHER ISSUE
THAT WAS RAISED IN THIS CASE
THAT WASN'T RAISED IN
LIGHTBOURNE, THAT IS THAT
THE COMBINATION OF THE
CHEMICALS, IS ITSELF
VIOLATION OF THE 8th
AMENDMENT THAT THE STATE
SHOULD USE ONLY THE SODIUM
PENTATHOL.
>> I'M NOT CONVINCED THAT
THAT ISSUE WAS SQUARELY
RAISED ALTHOUGH IT'S
CERTAINLY BEEN ARGUED AND I
AM CERTAINLY ABLE TO RESPOND
TO THAT.
THE TESTIMONY FROM
LIGHTBOURNE, AND AGAIN, YOU
KNOW --
>> WELL, BEFORE, YOU RESPOND,
MY, I REALLY HAD A FOLLOW-UP
QUESTION, IF THEY DID RAISE
THAT ISSUE IN THIS CASE,
WHICH WAS NOT RAISED IN
LIGHTBOURNE, IS THAT NOT ONE
OF THE ISSUES RAISED IN THE
PETITION FOR SRBS IN BAIZE,
SPECIFICALLY IN THREE, DOES
THE USE OF SODIUM, BROMIDE,
AND POTASSIUM CHLORIDE
INDIVIDUALLY OR TOGETHER
VIOLATE THE CRUEL AND
UNUSUAL PUNISHMENT CLAUSE OF
THE 8th AMENDMENT.
>> I DON'T BELIEVE THE ISSUE
WAS RAISED IN THAT FORM,
JUSTICE CANTERO.
>> IN THIS CASE.
>> IN THIS CASE.
>> BUT MY CONCERN IS THIS,
IF WE, SCHWAB HAS AN
EXECUTION COMING UP.
UNLESS WE EXPEDIVIDE A --
EXPEDITE A RULING IN
LIGHTBOURNE.
LET'S SAY WE AGREE WITH
LIGHTBOURNE AND THINK IT'S
CRUEL AND UNUSUAL PUNISHMENT,
SCHWAB THEN, THERE'S TWO
REASONS I'M CONCERNED WITH
GRANTING THIS STAY IS ONE
THAT LIGHTBOURNE HAS TO BE
DECIDED FIRST.
WOULD YOU AGREE WITH THAT?
I MEAN, IT WOULD LOOK PRETTY,
IT WOULD LOOK PRETTY BAD FOR
THE ADMINISTRATION OF
JUSTICE IF SCHWAB WAS
EXECUTED AND THEN TWO WEEKS
LATER WE DECIDE THAT LETHAL
INJECTION IS AS ADMINISTERED
IN FLORIDA IS CRUEL AND
UNUSUAL.
>> I DON'T THINK WE WANT TO
BE IN THAT POSITION.
>> OKAY.
THE OTHER THING I'M
CONCERNED IS BECAUSE, AS HAS
BEEN MENTIONED WE ARE NOW
EXPRESSLY MANDATED TO FOLLOW
AND CONFORM OUR HOLDINGS
WITH THE U.S. SUPREME COURT.
EVEN IF IT WASN'T EXPRESSLY
RAISED IN LIGHTBOURNE, I
THINK THAT THERE THERE'S
ENOUGH BEEN RAISED IN THIS
CASE THAT THE IMPACT THAT IF
THE SUPREME COURT DECIDES
THAT THIRD ISSUE, WHICH TO
ME IS MUCH, MUCH MORE,
SOMETHING YOU CAN GET YOUR
ARMS AROUND WHICH IS WHY NOT
JUST USE THE ONE-DRUG
PROTOCOL.
NOW, THERE MAY BE A REASON
ALL 37 STATES HAVEN'T DONE
IT, BUT SINCE WE KNOW THE
U.S. SUPREME COURT HAS, YOU
KNOW, ARE SURPRISE FOUND
MENTAL RETARDATION TO BE
CRUEL AND UNUSUAL, TO FIND,
TO FIND EXECUTING
17-YEAR-OLDS CRUEL AND
UNUSUAL.
IT'S A LIVE ISSUE IN BAZE
AND WOULDN'T THE BETTER PART
OF VALOR BE TO WAIT AND STAY
THE EXECUTION IN SCHWAB
UNTIL BAZE IS DECIDED, NOT
ON THE ISSUE OF THE STANDARD,
BECAUSE YOU'VE CONCEDED THE,
THE THAT WE COULD USE THE
MOST OFFENSE-FRIENDLY
STANDARD BUT IF THEY DECIDE
NUMBER, THE THIRD ISSUE,
WHICH IS ON THE, THE
THREE-DRUG PROTOCOL AND SAYS
THAT IT'S UNCONSTITUTIONAL
TO USE ANYTHING OTHER THAN
SODIUM PENTOTHAL.
>> I BELIEVE THAT ISSUE
WOULD BE PROCEDURALLY BARRED
IN THE CONTEXT OF THIS CASE,
JUSTICE PARIENTE.
>> YOU DON'T THINK IF IT'S
PROCEDURALLY BARRED AND THE
STATE OF FLORIDA AND THE
SUPREME COURT GETS A MANDATE
FROM THE UNITED STATES
SUPREME COURT SAYING IT'S
UNCONSH TUGAL TO EXECUTE
SOMEBODY USING THREE DRUGS
THAT WE ARE NOT GOING TO
FOLLOW WHAT THE U.S. SUPREME
COURT SAYS IN THE FUTURE?
I MEAN YOU DON'T WANT TO
REALLY, REALLY BE IN THAT
POSITION, AND I DON'T REALLY
SEE THAT THE EXECUTIVE
BRANCH, WHO HAS TRIED SO
MIGHTILY, I THINK, IN GOOD
FAITH, TO FOLLOW UP AND DIAZ
WOULD WANT TO BE IN THAT
POSITION.
>> LET ME RESPOND A LITTLE
BIT FOR FACTUAL, FOR FACTUAL
PURPOSES ABOUT THE USE OF
THE THREE DRUGS.
OKAY?
I MEAN, I KNOW I'M A LITTLE
BIT OUTSIDE MY RECORD IN
THIS CASE, BUT THIS, THESE
ARE SOME THINGS THE COURT I
THINK NEEDS TO KNOW ABOUT.
YES, THE FIRST DRUG THAT'S
USED SODIUM THIOPENTAL IN
THE DOSE USED WOULD BE
LETHAL.
THE PROBLEM IS IT WOULD TAKE
A WHILE AND I'D BE UP UP
HERE STANDING IN FRONT OF
YOU TRYING TO EXPLAIN WHY IT
TOOK 30 MINUTES FOR THE
INMATE TO EXPIRE AND I WOULD
BE RESPONDING TO A CLAIM
THAT THE USE OF THE SINGLE
DRUG PRODUCED A LINGERING
DEATH THAT WAS
UNCONSTITUTIONAL IT.
>> YOU DON'T HAVE TO BE HERE
SINCE WE ARE CITIZENS HAVE
MADE CLEAR THAT WE JUST
FOLLOW WHATEVER THE U.S.
SUPREME COURT SAYS.
>> BUT JUSTICE PARIENTE,
THAT HASN'T SLOWED THEM DOWN
IN THE PAST FROM RAISING
THESE CLAIMS AND THE SECOND
THING, AND AGAIN I NEED TO
GO BACK TO THIS, IN BAZE,
ONE OF THE ISSUES IN BAZE
THAT HE, OR THE CLAIMS THAT-
NEW AND BETTER DRUGS THAT
COULD BE USED TO CARRY OUT
THESE EXECUTIONS.
THE DRUG OR THE ANESTHETIC
THAT HE WANTS TO USE IS THE
CURRENTLY EMPLOYED
INTRAVENOUS ANESTHETIC.
WE KNOW FROM LIGHTBOURNE
THAT PROBE FALL WHEN
INJECTED CAN BE VERY
FAITHFUL PAINFUL T. BURNS.
WE KNOW FROM THE TESTIMONY
IN LIGHTBOURNE --
>> ARE YOU ASKING US TO TAKE
JUDICIAL NOTICE THEN OF THE
RECORD IN LIGHT BROERN?
>> -- LIGHTBOURNE?
>> I'M GETTING AWFULLY CLOSE
TO IT.
>> IS THAT WHAT YOU'RE
ASKING US TO DO?
>> I HAVE NO OBJECTION TO
THE JUDICIALING NOTICING
LIGHT BOAR.
--
>> WOULD YOU HAVE AN
OBJECTION IN THE TRIAL COURT?
>> I HAD NO OBJECTION AND
TOOK NO POSITION.
I BROUGHT A CD OF THE
TRANSCRIPT WITH ME IN CASE
HE NEEDED, IN CASE HE WISHED
TO DO TAND THE REASON I DID
THAT IS BECAUSE THE THING'S
7,000 PAGES LONG AND I
DIDN'T WANT TO CARRY THAT
MUCH PAPER.
>> HOW COULD WE TAKE
JUDICIAL NOTICE IF THE TRIAL
COURT TOOK JUDICIAL NOTICE.
>> I THINK Y'ALL CAN DO WHAT
YOU WANT TO DO ON IT.
>> HOW CAN YOU TALK ABOUT
THE FACTS IN LIGHTBOURNE
WHEN WE HAVE GOT A RECORD
HERE WHERE THE JUDGE'S
REFUSED TO TAKE JUDICIAL
NOTICE OF LIGHTBOURNE.
LIGHTBOURNE ISN'T BEFORE US.
THIS IS A DIFFERENT CASE.
THIS IS A SUMMARY DENIAL.
>> THAT IS TRUE.
>> ALL WE ARE TALKING ABOUT
IS ALLEGATIONS.
>> THAT'S CORRECT AND THIS
SUMMARY DENIAL IS
APPROPRIATE.
IN THIS PARTICULAR CONTEXT.
>> LET'S GET BACK ON TO THE
ANSWER OF THE QUESTION.
THERE WAS A QUESTION PENDING
AND YOU WERE GOING TO
DISCUSS THE ISSUE WITH
REGARD TO WHETHER THE
SUPREME COURT PENDING CASE
DOES IMPACT THIS CASE IN
SOME WAY.
AND LET'S GET BACK TO THAT
QUESTION WHAT'S BEFORE US.,,
THE THREE DRUG COMBINATION
AT ISSUE IS USED IN 36 OF
THE 37 CAPITAL PUNISHMENT
JURISDICTIONS.
THAT CERTAINLY SPEAKS TO THE
GENERAL ACCEPTANCE OF THAT
PROCEDURE.
MY UNDERSTANDING IS THAT THE,
WELL, ACTUALLY, I SAID 36
OUT OF 37, THERE ARE A
COUPLE OF VARIATIONS TO
THAT.
I THINK OKLAHOMA USE AS
DIFFERENT PARALYTIC DRUG,
BUT FOR ALL INTENTS AND
PURPOSES, EVERYBODY|OKAY, SO BUT
THAT IS NOT THE ISSUE,
BECAUSE IT IS NOT LIKE WHEN
THEY GET TO THE DEATH
PENALTY ON 17 YEAR OLDS THEY
KIND OF TAKE A POLL IT IS AN
ISSUE AS TO WHETHER WHAT IS
USED HAS EITHER UNNECESSARY
RISK OF INFLICTING PAIN,
THAT IS WHAT AGAIN, THAT IS
WHAT THE -- U.S. SUPREME
COURT SO WE WOULD BE READING
TEA LEAVES IN THIS CASE, IT
SEEMS TO ME, TO SAY WE ARE
SURE THEY ARE NOT GOING
DECIDE THIS ISSUE BECAUSE 37
OUT OF THE 38, USE THE SAME,
DRUG COCKTAIL THAT IS WHERE
I'M -- I'M CONCERNED, ABOUT
THAT, AND, WHY -- THEREFORE,
IN SCHWAB RATHER THAN
LIGHTBOURNE!!$$!!!!!!!!!!!!!!!!!!!!
LIGHTBOURNE, THE EXECUTION
SHOULDN'T BE STAYED.
SO IF JUSTICE PARIENTE THAT
THERE OR TWO THINGS TO THAT
FIRST OF ALL, WE HAVE THE --
PAUSE THAT IS BUILT IN THAT
WE KNOW THERE IS, TO ENSURE,
THAT NO -- PAINFUL OR
POTENTIALLY PAINFUL DRUGS
WILL BE INJECTED INTO THE
DEFENDANT UNLESS AND UNTIL
HE IS ABSOLUTELY UNCONSCIOUS!!$$!!!!!!!!!!!!!!!!!!!!
UNCONSCIOUS, WE KNOW THAT.
>> DO YOU AGREE THAT
SURGICAL PLAIN -- SEIZURE IS
DIFFERENT THAN UNCONSCIOUS!!$$!!!!!!!!!!!!!!!!!!!!
UNCONSCIOUSNESS!!$$!!!!!!!!!!!!!!!!!!!!!!!!!!!!
UNCONSCIOUSNESS?
>> WHAT I CAN TELL YOU,
ABOUT THAT IS THAT AN INMATE
EXECUTE!!$$!!!!!!!!!!!!
EXEXECUTED UNDER FLORIDA
PROCEDURES IS FAR BELOW A
SURGICAL PLAIN OF
UNCONSCIOUSNESS HE IS MORE-!!$$!!!!!!!!
MORE-COUNTYIS SHOULD THAN A
SURGICAL PLAIN WOULD BE IN
SURGERY THE OBJECT IS FOR
THE PATIENT LIVE TO.
>> LET ME SEE IF I CAN --
STATE WHAT I UNDERSTAND, THE
STATE'S POSITION TO BE AND
THAT IS THAT THIS COURT
SHOULD GO AHEAD, AND ISSUE
ITS OPINION, IN THIS MATTER
IF THIS COURT REVERSES, THE
TRIAL COURT, THEN THE MATTER
GOES BACK, IF THIS COURT
AFFIRMS!!$$!!!!!!!!!!!!
AFFIRMS, THE TRIAL COURT,
THEN THE U.S. SUPREME COURTS
HAS THE OPTION OF STEPPING
IN, AND STAYING THE
EXECUTION!!$$!!!!!!!!!!!!!!!!
EXECUTION.
OR NOT STAYING THE EXECUTION!!$$!!!!!!!!!!!!!!!!
EXECUTION.
>> THAT IS CORRECT.
>> THAT QUESTION WOULD BE,
UP TO THE UNITED STATES
SUPREME COURT, ON THE BASIS
OF WHAT THEY HAVE DONE IN
THEIR CASE IN BAZE.
>> BECAUSE NO ONE NOSE
EXACTLY WHAT IS GOING TO
HAPPEN IN BAZE NO ONE KNOWS
EXACTLY WHAT ISSUE CAN YOU
GO TO CAUGHT THEIR ATTENTION
NO ONE KNOWS HOW THEY WILL
DECIDE THE CASE AND THIS
COURT AGAIN I'M GOING BACK
TO THE FOUR CARBON!!$$!!!!!!!!!!ARE CORNERS OF
SCHWAB NOT PULLING
LIGHTBOURNE INTO IT.
THIS CASE WAS DECIDED BASED
ON FLORIDA LAW, WHICH, IN
TURN, IS BASED ON GREG AND
RESWERER, IF THE UNITED
STATES!!$$!!!!!!!!!!
STATES, ARE SUPREME COURT
WANTS TO OVERRULE GREG, AND
WES WUBER THEY ARE THE ONES
SHOULD DO IT THIS COURT AND
THE TRIAL COURT, IN ITS
TURN, HAVE ALREADY FOLLOWED
UNITED STATES SUPREME COURT
PRECEDENT, AND TO DENY THE
MOTION FOR STAY IN THIS
CASE, WOULD BE TO FOLLOW
UNITED STATES SUPREME COURT
PRECEDENT.
AND LEAVE TO THAT COURT THE
PROCESSINGIVE OF OVER --
PROGRESSIVE OVER RULING ITS
OWN DECISIONS.
>> HOW DO YOU SAY THE ISSUE
OF THE THREE -- PROCEDURALLY
BARRED --
>> MY MEMORY JUSTICE
PARIENTE I WILL CONFESS
THESE CASES HAVE RUN
TOGETHER FOR ME TO LARGE
DEGREE, WE HAD AS YOU KNOW,
A LENGTHY HEARING IN
LIGHTBOURNE THE RECORD IN
THAT CASE IS TREMENDOUS.
DO I NOT BELIEVE I MAY BE
WRONG IN THE RECORD
CERTAINLY SPEAKS FOR ITSELF
I'M NOT TRYING TO MISLEAD
THE COURT BUILT I DON'T
BELIEVE HE RAISED THAT ISSUE!!$$!!!!!!!!
ISSUE --
>> IN THIS CASE, IN THIS
CASE I KNOW DEPARTMENT IT
WAS NOT RAISED IN
LIGHTBOURNE!!$$!!!!!!!!!!!!!!!!!!!!
LIGHTBOURNE, BUT DO I NOT
BELIEVE IT WAS CLEANLY
RAISED IN THIS CASE.
>> I THOUGHT THAT WAS FOCUS,
AGAIN AGAIN I READ ALL THE
BRIEFS A FEW TIMES I THOUGHT
THAT WAS THE FOCUS OF THEIR
8TH AMENDMENT ANALYSIS THAT
IS WHY I ASKED THOSE
QUESTIONS ABOUT THE QUALITY
ASSURE$$!!!!ANCE YOU GET TO -- THIS
ISSUE OF AS TO WHEN THE
DRUGS USE THE MIGHT VIOLATE
THE 8TH AMENDMENT, IF
PROPERLY DEVELOPED IN AN
EVIDENTIARY HEARING, DIDN'T
HEAR HIM SAY HAPPY BIRTHDAY
AN EXPERT GOING TO TALK
ABOUT THAT.
>> JUSTICE PARIENTE THE ONLY
EXPERT THEY TALKED THAT WE
MENTIONED WAS DR. -- WE HAD
COUPLE OF OF THEM DR. HEATH,
AND DR. SPRINGER I'M
ASSUMING THAT IS PETE
SPRINGER WHO IS AN EMT
EMERGENCY MEDICAL SERVICES
DOCTOR IN VOLUSIA COUNTY ON
THE $$GOVERNOR'S COMMISSION OF
THE ADMINISTRATION OF LETHAL
INJECTION I DON'T KNOW WHAT
IN MANY QUOTATION MARKS HE
MIGHT HAVE TO OFFER FROM DR.
SPRINGER, I HAVE CERTAINLY
NO IDEA WHAT THAT IS THIS IS
THE FIRST I HAVE HEARD OF
IT.
I'M ASSUMING, THAT IT WAS
SOMETHING TAKEN OUT OF
CONTEXT I JUST DON'T KNOW.
NOW.
>> BUT SEEMS TO ME, THAT --
THAT IT WOULDN'T BE IN THE
INTEREST OF ANYBODY FOR THIS
COURT TO REACH THIS POINT IN
SCHWAB OR IN LIGHTBOURNE,
AND START RULING OWN
PROCEDURAL BARS, WHERE WE
HAVE AN OPPORTUNITY, TO PUT
OUT SOMETHING THAT WILL BE
EVALUATED!!$$!!!!!!!!!!!!!!!!
EVALUATED, BY THE U.S.
SUPREME COURT, AT THE TIME
THAT IT IS EVALUATING THIS
WHOLE AREA.
WHY WOULD WE WANT TO DO IT
ON A PROCEDURAL BARRING?
>> THIS CASE, FOLLOWS
LIGHTBOURNE, THIS CASE RISES
OR FALLS ON WHAT THIS COURT
DOES IN LIGHTBOURNE, VERY
SIMPLY THAT IS -- THAT IS
THE WAY I PERSONALLY SEE
THIS, THAT LIGHTBOURNE IS
DISPOSITIVE OF THIS CASE
THIS CASE IS -- SHORT
DECISION LIGHTBOURNE IS THE
LONG ONE FROM THIS COURT.
AND A -- WE HAVE A RECORD IN
LIGHTBOURNE WE HAVE NO
INDICATION THAT THERE IS
GOING TO BE A DIFFERENT
RECORD IN THIS CASE.
>> BUT SO THE PRACTICE
PROBLEM IS -- PRACTICAL
PROBLEM UNLESS WE EXPEDITE
AN OPINION IN LIGHTBOURNE
WOULD IT HAVE TO STAY
SCHWAB.
--
>> DON'T BELIEVE WOULD YOU
HAVE TO STAY SCHWAB.
WITH THAT --
>> YOU SAID -- RISES OR
FOULSU FALLS ON LIGHTS
BOURN.
>> WELL IT DOES BUILT THAT
DOESN'T MAINTAIN IT HAS TO
THIS -- THIS CASE, CAN BE
DECIDED ON ITS OWN ON THE
SUMMARY DENIAL, AND, THE
FACT OF THE MATTER IS
SUMMARY DENIAL IS THE ISSUE
THAT IS BEFORE THIS COURT IS
THAT NARROW ISSUE WHETHER OR
NOT THAT VICTIM DENIAL WAS
APPROPRIATE AND THAT IS REAL
WHAT THIS CASE SHOULD SAY.
ON THE OTHER HAND IF THIS
COURT REVERSES IN
LIGHTBOURNE!!$$!!!!!!!!!!!!!!!!!!!!
LIGHTBOURNE, THEN OF COURSE
THIS CASE GETS REVERSED TOO,
NO QUESTION ABOUT THAT.
BUT I DON'T -- I MIGHT FIND
A WAY TO ARGUE TO THE
CONTRARY, BUT, LIGHTBOURNE
IS THE CASE THAT DOES THE
HARD SCIENCE THE HARD LEGAL
ANALYSIS!!$$!!!!!!!!!!!!!!
ANALYSIS.
THIS CASE IS UP HERE PURELY,
SIMPLY ABSOLUTELY ON A
SUMMARY DENIAL.
THAT IS THE ISSUE IN THIS
CASE.
THE SECONDARY ISSUE IS
MENTAL -- STATE ISSUE THAT
IS PROCEDURALLY BARRED WE
DON'T EVEN NEED TO TALK
ABOUT THAT, BUT FIRST OF ALL
THIS CASE RISES AND --
REALLY IS A PROCEDURAL BAR,
OR RATHER SUMMARY DENIAL
CASE IS SUMMARY DENL
APPROPRIATELY OR NOT.
LIGHTBOURNE IS THE CASE,
WHERE -- WE DECIDE OR YOU
ALL DECIDE THE ISSUE OF THE
LETHAL INJECTION PROCEDURES.
WOULD I ASK THE COURT TO
FAIRM IN THE SUMMARY DENIAL
AND -- DEN THE MOTION FOR
SAFE EXECUTION.
>> WE WILL GIVE YOU A COUPLE
OF MINUTES -- THANK YOU.
>> THE USE OF PANCURONIUM
BROMIDE OR SIMILAR PARALYTIC
MINIMAL STATE INTERESTS
GREATLY INCREASES THE RISK
OF UNNECESSARY AND EXTREME
PAIN AS SUCH USE VIOLATES
8TH AMENDMENT ON PAGE EIGHT
OF THE 3850 AND I BELIEVE --
IN THE INITIAL.
>> THAT IS WHY I WAS ASKING
YOU, FIRST TIME AROUND, IS
THAT WHAT YOU WOULD BE
PREPARED AT AN EVIDENTIARY
HEARING TO PRESENT EVIDENCE
ON.
>> YES, AND THAT WOULD BE
THROUGH DR. HEATH, WHO I
MENTIONED, AND, BEYOND THAT
I CAN ALSO CITE AND HAVE
DONE, THE RESULTS OF
FINDINGS THROUGH CASES
THROUGHOUT THE COUNTRY, ALL
SORTS OF SECONDARY SOURCES,
THEY HAVE IS A INDICATED, IN
THE CASES THAT HAVE BECOME
IN THE COURTS THAT HAVE
BECOME VERY ENGAGED WITH
THIS ISSUE, HAVE FOCUSED ON
THE PANCURONIUM BROMIDE OR
THE PARALYTIC AND --
>> AS FAR AS DR. HEATH IS
CONCERNED ALTHOUGH WE DON'T
HAVE THE LIGHTBOURNE RECORD,
IN THIS CASE, BUT IN
LIGHTBOURNE!!$$!!!!!!!!!!!!!!!!!!!!
LIGHTBOURNE, DIDN'T DR.
HEATH MAKE THAT SAME
ASSERTION DON'T WE HAVE THAT
IN HIS AFFIDAVIT AND HIS
TESTIMONY THE FIRST TIME
AROUND?
>> -- YES --.
>> IF THE U.S. SUPREME COURT
DECIDES IN BAZE THAT THE USE
OF THE THREE DRUG PROTOCOL
IS CONSTITUTIONALLY
CONSTITUTIONAL!!$$!!!!!!!!!!!!!!!!!!!!!!!!!!
CONSTITUTIONAL, THAT MOOTS
YOUR ISSUE -- THAT --
BASICALLY DECIDES YOUR
CLAIM.
>> WELL, I -- THE -- THE KEY
CLAIM HERE, AND THE PREMISE
OF THE $$JUDGE'S ORDER
CONCERNS THE STANDARD BY
WHICH LEETHA IN-- LETHAL
INJECTION METHOD OF SKOOUGS
IS TO BE EVALUATED THAT IS
THE QUESTION ABOUT THE RISK
HOWEVER IT IS DESCRIBED,
APPARENTLY, VERSUS SOME SORT
OF STANDARD THAT DOESN'T
CONCERN ITSELF WITH RISK IN
FACT AMOUNTS TO WHETHER
THERE IS DELIBERATE TORTURE
INVOLVED THAT IS THE
OVERARCHING ISSUE.
THE QUESTION THEN BECOMES
WHAT ROLE DOES A PARALYTIC
HAVE IN THE PROCESS, GIVEN
WHAT PROBLEMS MIGHT ARISE,
GIVEN WHAT I'M URGING IS A
VIRTUAL CERTAINTY THERE ARE
GOING TO BE PROBLEMS ARISING
IN INJECTION OF THESE DRUGS.
>> THAT FIRST ISSUE, GOING
TO BE DECIDED IN LIGHTBOURNE!!$$!!!!!!!!!!!!!!!!!!!!
LIGHTBOURNE.
>> THE -- THE FIRST ONE
BEING THE METHOD
EFVALUATION?
>> YES.
>> I WAS THERE DISCUSSING
THE LAST 40 MINUTES BEFORE
YOU GOT UP.
>> WELL, THERE'S -- OKAY --
>> -- IF WE DECIDE THAT THE
STANDARDS THAT THE STATE ARE
ADEQUATE IN LIGHTBOURNE,
THEN WON'T THAT AND BY THE
DISPOSITION OF THIS CASE ON
THAT ISSUE?
>> IF THE COURT FINDS THAT
THE STANDARD EFEVALUATING A
LETHAL INJECTION CLAIM IS --
IS WHATEVER IT MIGHT BE.
>> CONSTITUTIONAL --
>> I ASSUME THAT WOULD BE
THE STANDARD THAT APPLY TO
EVERY LETHAL INJECTION CLAIM
NOW TWHOOR COME UNDER IT
YES.
>> SO THAT MARSH WOULD BE
CONTROLLED BY THE
DISPOSITION IN LIGHTBOURNE.
>> CONTROLLED BY DISPOSITION
OF THE UNITED STATES SUPREME
COURT!!$$!!!!!!!!
COURT.
>> I'M NOT SURE HOW DETAILED
YOU KNOW, THE -- ISSUES ARE
THAT ARE BEING ARGUED IN THE
U.S. SUPREME COMPARED TO THE
QUITE THOROUGH APPARENTLY
QUITE THOROUGH TREATMENT ALL
THESE ISSUES IN LIGHTBOURNE.
>> WELL, OBVIOUSLY, YOU --
LISTEN TO DO THE ARGUMENT IN
LIGHTBOURNE!!$$!!!!!!!!!!!!!!!!!!!!
LIGHTBOURNE, AND THE STATE
HAS PRESENTED STEP-BY-STEP.
YOU KNOW WHAT ITS STANDARDS
ARE, SO -- ANYWAY, I
UNDERSTAND WHAT YOU ARE
SAYING, THANK YOU.
>> ALL RIGHT.
>> WITH THAT --
>> YOU UTILIZE IF YOU HAD
WANT TO MAKE A LAST COMMENT.
>> YES DID.
THERE IS ANOTHER ISSUE WHAT
-- THAT I DESCRIBED AS A
SORT OF STUSHG ERROR STUCK
RALLY ERAR THE WAY COURT
APPROACHED ALSO WHAT STATE
IS ARGUE$$!!!!ING I THINK SOMETHING
EXPRESSED IN QUESTIONS BY
JUSTICE TIGS WELLNESS, THERE
THIS IS A STRAW MAN SETTING
UP THIS CONFLICT, BETWEEN
STANDARDS!!$$!!!!!!!!!!!!!!!!
STANDARDS, USING GREG AND
KEMBLER SAYING THE STARND BY
WHICH ARE EVALUATED IS
WANTON AND INFLICKION OF
PAIN OR LINGERING DEATH SO
FORTH, AND THE NOTION, THAT
-- SUBSTANTIAL OR WHATEVER
RISK, THAT THAT WILL OCCUR,
ARE IN ABSOLUTE CONFLICT,
THAT WAS THE -- ARGUMENT
THAT WAS RAISED IN THE
TAYLOR V. CRAWFORD OPINION,
AGAIN CITED VEER BY THE
NUMBER THE BRIEF THE FIRST
PART OF THAT OPINION, AND
THE 8TH CIRCUIT REJECTED THE
NOTION THE TWO ARE IN ANY
KIND OF CONFLICT, AND IF YOU
GO THROUGH, THAT THE COURT
TALKS ABOUT HERE THE
STANDARDS BASED ON A
LANGUAGE FROM THE U.S.
SUPREME COURT ABOUT WANTON
INFLICKION OF PAIN, AND SO
FORTH, AND HERE IS A CONCERN
ABOUT THE RISK, THAT THAT
WILL OCCUR, AND SOCIALLY THE
SAME THING ESSENTIALLY THE
SAME THING I WANTED TO --
>> THANK YOU VERY MUCH WE
THINK FOR THE ARGUMENTS IN
BOTH CASES THIS MORNING THE
COURT WILL TAKE IT UNDER
ADVISEMENT AND STAND IN
RECESS!!$$!!!!!!!!!!
RECESS.
>> ALL RISE.,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,