Monday 5 November 2007

Rehearing motion filed to Florida Supreme Court - Ian Lightbourne

IAN DECO LIGHTBOURNE,
Appellant,
Case No. SC06-2391
v.
BILL McCOLLUM, ET AL.,
Appellee.
____________________________/
MOTION FOR REHEARING
COMES NOW, Appellant, IAN DECO LIGHTBOURNE, by and through
his undersigned counsel, and herein moves for rehearing from the Court’s decision
affirming the circuit court’s denial of relief pursuant to this Court’s relinquishment
of Mr. Lightbourne’s All Writs Petition. In support thereof, Mr. Lightbourne,
through counsel, would show:
1. On November 1, 2007, this Court issued its decision affirming the
circuit court’s denial of relief. The opinion is clear that it is “Not final until time
expires to file rehearing motion, and if filed, determined.” Lightbourne v.
McCollum, __ So. 2d __ slip opinion at 57 (Fla. Nov. 1, 2007). This motion for
rehearing is timely filed pursuant to this Court’s Order, dated November 1, 2007,
that any motion for rehearing filed pursuant to Florida Rule of Appellate Procedure
9.330 “shall be filed by 4:00 p.m. Monday, November 5, 2007.”


2. This motion does not raise all such points relating to all of the
arguments that Mr. Lightbourne addressed in this appeal. Mr. Lightbourne in no
way abandons and/or waives any claims or arguments previously presented which
are not expressly addressed in this motion for rehearing.
3. This Court misapprehended and overlooked important points of law
and fact in deciding Mr. Lightbourne’s claims and ultimately reached the wrong
conclusion regarding his Eighth Amendment challenge to Florida’s lethal injection
procedures. This Court essentially denied Mr. Lightbourne’s challenge on the
grounds that 1) the DOC is still entitled to the presumption that it will properly
perform its duties, and 2) the addition of a pause to assess the inmate’s
consciousness after the administration of the first drug is adequate to ensure that
the inmate will not feel the pain of the second and third drugs. This Court’s
ultimate conclusions are wrong, however, for the reasons spelled out below,
including: the failure to choose a standard by which to review Mr. Lightbourne’s
claims; the failure to recognize that the DOC is not entitled to the presumption that
it will follow its own procedures; the failure to recognize that Mr. Lightbourne did
not receive a full and fair hearing below and that this Court was not afforded the
complete picture of the issues; the failure to recognize and address the problems
with the assessment of the inmate’s unconsciousness; the failure to recognize that
the three-drug cocktail is part and parcel of the procedures; and the


misunderstanding of the significance of the Dyehouse memoranda.
STANDARD BY WHICH TO EVALUATE AN
EIGHTH AMENDMENT METHOD OF
EXECUTION CHALLENGE

4. This Court expended considerable effort listing the United States
Supreme Court precedent regarding the “measuring stick” by which to evaluate
Eighth Amendment challenges to a method of execution, outlining Florida’s
jurisprudence on methods of execution, summarizing the history of lethal injection
in Florida, and explicitly recognized that the United States Supreme Court recently
granted certiorari in Baze v. Rees.1 The Court acknowledged that it is unknown
what exact standard the Supreme Court will employ, but then denied Mr.
Lightbourne’s Eighth Amendment challenge to Florida’s lethal injection
procedures without even choosing a standard by which to analyze Mr.
Lightbourne’s challenge. Rather, this Court listed various standards used by state
and federal courts throughout the country, but did not give any meaningful
discussion of what the standards mean or how they must be met. Although this
Court also cited the standard enunciated in Jones v. State, 701 So. 2d 76 (Fla.
1997) and relied upon the circuit court, it discussed and denied Mr. Lightbourne’s
claim without using that or any other decipherable standard.
5. As the Petitioners in Baze pointed out, aside from the fact that

1 76 U.S.L.W. 3154 (U.S. Sept. 25, 2007) (No. 07-5439).

different courts throughout the country are citing to different standards by which to
review method of execution challenges, the courts are also failing to give any
guidance on how the standards apply, and what an inmate must prove in order to
show that he has met the standard.2 Likewise, this Court, by failing to choose a
standard to apply to Mr. Lightbourne’s challenge, left Mr. Lightbourne—and the

2 Is a method of execution cruel and unusual punishment in violation
of the Eighth Amendment only if it causes “torture or a lingering
death?” Or, is it cruel and unusual if the pain is “purposeless and
needless,” even if it is known to not cause “torture or a lingering
death?” Does this mean that chemicals or procedures used in lethal
injection are purposeless and needless in violation of the cruel and
unusual punishment when other chemicals that are less painful could
be used? Perhaps, all that needs to be shown is that the chemicals and
procedures inflict “unnecessary” pain? But, does this mean that
whenever a state does not replace the lethal injection chemicals with
readily available less painful chemicals, the Eighth Amendment is
violated? Or is “unnecessary and wanton infliction of pain”
considered to be one thing, whereby it must be shown that it is both
“unnecessary” and “wanton” for an Eighth Amendment violation to
be found? Or, is establishing an “objectively intolerable risk of harm”
all that is needed? Is a risk of pain automatically objectively
intolerable where alternative chemicals could be used, or does the risk
need to be shown to be “substantial?” Do these different articulations
of the cruel and unusual punishment standard work together so that
the Eighth Amendment is violated where a risk of pain and suffering
becomes “unnecessary” because other chemicals could be used that
pose less of a risk?
Petitioner’s Petition for Writ of Certiorari at 14, Baze v. Rees, No. 07-5439 (U.S.
Sept. 25, 2007). In addition to the lengthy discussion regarding the appropriate
standard for a method of execution challenge, Baze urges the Supreme Court to
articulate precisely what proof and evidence need be presented to meet the
standard, in other words, to define the standard once determined. Petition at 15,
22.

rest of the inmates awaiting execution on Florida’s death row—without any
guidance as to how to prove that Florida’s method of execution violates the Eighth
Amendment.
6. The bottom line is that this Court did not and could not analyze Mr.
Lightbourne’s challenge under any standard because, as this Court recognized, it is
unknown what standard the United States Supreme Court will decide to employ.
To deny Mr. Lightbourne’s challenge without applying any decipherable standard,
or providing any definition or explanation of how the standard is being applied
violates Mr. Lightbourne’s due process rights and his opportunity to be heard.
7. This Court concluded that Mr. Lightbourne’s claim would fail even
under the “foreseeable risk” and “unnecessary risk” standards, because “it is
undisputed that there is no risk of pain if the inmate is unconscious before the
second and third drugs are administered.” Slip opinion at 55-56. This Court’s
reasoning here evinces a grave misapprehension of points of facts and law. The
risk that has been the focus of Mr. Lightbourne’s challenge is the risk that the
inmate will not receive inadequate anesthesia and therefore, the inmate will
not be unconscious before the administration of the second and third drugs,
and the DOC personnel will not know and/ or correct it. Assuming arguendo,
that the standard is that most favorable to Mr. Lightbourne, to say that the
inadequate delivery of the anesthesia is not foreseeable ignores entirely the Diaz


execution and the evidence adduced below.
8. The inadequate delivery of anesthesia is foreseeable under Florida’s
current lethal injection procedures because it has happened at least once during the
execution of Angel Diaz, if not more times during the execution of other inmates.
The testimony at the evidentiary hearing indicated that in fact the execution of
another inmate took just as long as the Diaz execution (R. 1169). Further, at the
February 9, 2007 meeting of the Governor’s Commission on Administration of
Lethal Injection, the primary executioner for the Diaz execution testified that
“There were a few other times in other executions that I changed from Line A
to Line B,” which indicates that there had been problems with injecting the drugs
into inmates during other executions. (Def. Exh. 20 at 83)(emphasis added). The
“Dyehouse memos” further seem to indicate that DOC may have knowledge that
other inmates were not rendered unconscious and thereby suggest the need for such
an assessment.
9. Contrary to this Court’s conclusion that the problem has been
remedied by a pause after the administration of the sodium thiopental to have non-
medical personnel check to see if the inmate is unconscious, the addition of this
pause does not adequately remedy the risk. This conclusion further ignores crucial
facts and evidence.


3 This Court attributes Dr. Sperry with opining that the sodium thiopental would
have been absorbed first when injected subcutaneously, however, Dr. Sperry
admitted that he was not aware of the sequence in which the chemicals were
injected into Diaz, his opinion was based solely on his assumption that the
sodium thiopental was injected first. (R. 4365-66). His lack of knowledge and
expertise regarding the three drugs used for lethal injection was highlighted by
both Dr. Dershwitz and Dr. Heath who were unaware of anyone ever having
studied the subcutaneous kinetics of sodium thiopental or pancuronium bromide.
Dr. Sperry simply does not have the expertise of an anesthesiologist.
ASSESSMENT AND MONITORING OF UNCONSCIOUSNESS
10. This Court asserted that “it is undisputed that there is no risk of pain if
the inmate is unconscious before the second and third drugs are administered.”
Again, this is entirely the wrong focus for evaluating Mr. Lightbourne’s claims and
ignores the problems and complications that follow inadequate delivery of sodium
thiopental, including the complications and difficulty in assessing whether an
inmate is rendered sufficiently anesthetized.
11. In rejecting the testimony of Dr. Heath, this Court accepted the
contrary opinion of Dr. Sperry that the DOC’s method of assessing consciousness
is acceptable. Yet, Dr. Sperry is a medical examiner with no clinical experience in
over 25 years (R. 4403). Dr. Heath is a board certified anesthesiologist. If this
Court is finding that Dr. Sperry is more credible, it is in no position to do so.3 The
lower court made no credibility findings in this regard and Mr. Lightbourne was
denied the opportunity to present the in-court testimony of Dr. Heath regarding the
newest procedures, thereby preventing the lower court from being in a position to


4 Despite the obvious signs that Mr. Diaz was not rendered unconscious by the
sodium thiopental, the “medically qualified” personnel approved of the delivery of
the pancuronium bromide and potassium chloride.
make those findings.
12. The Court’s reasoning ignores the very real risk that an inmate may
not receive the entire dose of sodium thiopental. In Diaz, the fact that he did not
receive adequate anesthesia was obvious because he was still speaking (R. 955-
956, 1409, 2192), asked “what’s happening” at one point, and turned his head to
look at the clock behind him. (R. 1131, 1182, 178, 200, 1826, 2054). Clearly, he
was not unconscious after the administration of sodium thiopental.4 However,
there are varying levels of anesthesia in which the lack of anesthesia would not be
so obvious. As Dr. Heath explained:
There are different levels or depth of anesthesia ranging
from a person who is just sedated but or groggy but who
could still respond to stimulation down progressively to a
person who's had so much anesthetic drug that there's no
electrical activity in their brain whatever so far and their
bodies have no response to any kind of stimulation.

(R. 4478). Specifically:
Are the[y] lightly anesthetized so that a stimulation might
wake them up? Are they very deeply anesthetized so you
can do anything to their body and it would cause no
response whatsoever.
(R. 4483). Therefore, while an inmate may not feel someone shaking him or
brushing his eyelashes, he may be insufficiently anesthetized so that he would feel

5 Of course in the contest of a judicial execution under Florida’s lethal injection
procedures, the pancuronium bromide would mask any signs of pain or movement.
the effects of a noxious stimuli, such as the potassium chloride. Dr. Heath testified
that a surgical patient may not respond to shaking shoulders and calling of his
name, but when you begin operating, hurting the patient, then the patient would
“jump off the table” (R. 3935).5 While it may be appropriate to conduct a basic
neurological assessment by shaking a person and calling their name before
conducting CPR, it is not appropriate in this context. The Court misunderstands
this crucial medical testimony.
13. The Court is satisfied with Warden Cannon’s lack of medical
qualifications because the procedures require “consultation.” Although the
procedures do not specify with whom the Warden will consult, Warden Cannon
testified that the technical team member who inserted the IVs would be responsible
for confirming his assessment of consciousness. Notwithstanding the fact that this
technical team member does so from another room by viewing the inmate’s face
through a monitor, there is no information known regarding any of the technical
team members’ qualifications and/or clinical experience in the assessment of
anesthetic depth. Certainly, there is no information that a phlebotomist would be
trained and experienced in monitoring anesthetic depth.
14. Causes of an inmate receiving insufficient anesthesia include not only
subcutaneous injection as occurred in Diaz, but also where the catheter is in the


vein, but the vein has a hole in it and is leaking, which happens where there has
been multiple attempts at inserting an IV (R. 4452). Additionally, insufficient
anesthesia may result from improper mixing of the drugs or leaks in the IV tubing
(R. 4479). In these instances, an inmate may receive some but not all of the
anesthesia. Where the inmate has received insufficient anesthesia, even if the
warden correctly determines that the inmate is unconscious, the inmate could wake
up after the administration of pancuronium bromide. Since the warden and even
the DOC’s medical personnel are not qualified to assess depth of anesthesia in a
paralyzed person, the inmate would be conscious and suffer agonizing pain and no
one would be able to detect or correct it.
15. This Court ignored Dr. Heath’s testimony in this regard. Dr. Heath
explained the problems associated with monitoring consciousness where
pancuronium bromide is used:

If you don't have pancuronium there and the prisoner is in pain then
they will presumably or very likely vocalize, they'll scream or
whatever they'll wriggle around, and everybody will know that
something isn't right, the prisoner needs more anesthesia.
Once you give somebody pancuronium, you have no idea if they're
wide awake or not from looking across the room. You can't
possibly tell if a person's wide awake or deeply asleep, they'll look
exactly the same. So, it totally thwarts the ability in this context to
assess level of consciousness.
(R. 4507)(emphasis added). As Dr. Heath stated, the Florida DOC “does not seem

to understand that a patient or prisoner who has been paralyzed by pancuronium
would not and can not evince any voluntary or reflexive movement whatsoever,
regardless of whether they were wide awake and experiencing suffocation and the
pain of potassium injection.” (R. 6271).
16. Additionally, newly discovered evidence supports Mr. Lightbourne’s
claims. Dr. David Varlotta, an anesthesiologist who was appointed to the
Governor’s Commission, recently indicated his agreement with the inadequacy of
the procedures stating: "I cannot agree that individuals without advanced medical
training would have the ability to adequately assess the level of anesthetic depth."
Meg Laughlin and Jacob H. Fries, Lethal method okay in Florida, St. Petersburg
Times (Nov. 2, 2007). This Court was impressed by the DOC’s response to the
Diaz execution and its claimed adoption of the Governor’s Commission. Yet, this
Court failed to acknowledge that the most knowledgeable participants regarding
medicine and medical procedure refrained from providing their medical expertise
or consent to the recommendations. Dr. David Varlotta was one of the medical
experts who refrained from rendering his advice to the Governor’s Commission.
17. This Court misses the significance that DOC must be assessing an
inmate for depth of anesthesia. Dr. Heath emphasized that when you are using the
three drugs set forth in Florida’s lethal injection procedures, depth of anesthesia is
“extremely important” because the potassium chloride causes extreme pain and the


pancuronium bromide would cause the agony of suffocation (R. 2487). Because of
the degree of pain and agony associated with these drugs a surgical plane of
anesthesia is required. The DOC continues to ignore this requirement by failing to
provide an adequate assessment of anesthetic depth by qualified and trained
personnel.

LIGHTBOURNE’S CHALLENGE TO FLORIDA’S THREE-DRUG
COMBINATION AND THE LANCET ARTICLE
18. This Court stated that “Lightbourne does not explicitly challenge the
use of the three-drug combination, although he does question the necessity for the
use of pancuronium bromide, given that the dosage of sodium thiopental is
sufficient to cause death.” Slip opinion at 50-51. Further, this Court stated that
“Lightbourne does not assert that the amount of sodium thiopental is inadequate,
thereby disavowing any agreement with the Lancet article, which had been the
subject of prior challenges to lethal injection.” Id. at 50. This Court overlooked or
misapprehended both Mr. Lightbourne’s challenge to Florida’s lethal injection
procedures and the meaning of the Lancet article.
19. Contrary to this Court’s assertion, Mr. Lightbourne did challenge the
use of the three-drug combination in Florida’s lethal injection procedures in his All
Writs Petition:

Petitioners, through undersigned counsel, petition this Court to invoke
its All Writs jurisdiction and address whether the State of Florida’s
current lethal injection procedures… involve the unnecessary and

6 Additionally, in February 2006, Mr. Lightbourne filed a successive Rule 3.851
motion in which he explicitly challenged the three-drug combination used in
Florida’s lethal injection procedures. On April 16, 2007, this Court affirmed the
circuit court’s denial of postconviction relief, and stated:
[A]s a result of Angel Diaz’s execution by lethal injection, a series of
events occurred that the trial court could not have considered in
denying Lightbourne’s motion. The impact of those events on the
constitutionality of Florida’s lethal injection procedures is currently
being litigated in Lightbourne v. McCollum, SC06-2391.
Accordingly, we conclude that the better course is to allow that case
to proceed, in which Lightbourne has reasserted his public records
request and in which an evidentiary hearing will be held in May 2007.
Lightbourne v. State, No. SC06-1241 (Fla. Apr. 16, 2007)(unpublished order).
wanton infliction of pain contrary to contemporary standards of
decency in violation of the Eighth Amendment to the U.S.
Constitution and the corresponding provision of the Florida
Constitution.
(All Writs Petition at 9). Mr. Lightbourne’s challenge throughout these
proceedings has been to the procedures that the DOC uses to carry out executions
by lethal injection. There can be no question that part of the procedures is the
actual three-drug combination designed to kill the condemned inmate.6 As this
Court recognized, Mr. Lightbourne’s challenge to Florida’s lethal injection
procedures necessarily involves a challenge to the drugs used: “It is important to
review these claims in conjunction with each other since the chemicals used, the
training and certification, and the assessment of consciousness all affect each
other.” Slip opinion at 51.
20. Despite the recognition that review of Mr. Lightbourne’s claims


involves the chemicals used, this Court’s assertion that because “Lightbourne does
not assert that the amount of sodium thiopental is inadequate” he “disavow[s] any
agreement with the Lancet article” demonstrates a misapprehension of the Lancet
article and/or the facts adduced below. Id. at 50. The authors of the Lancet article
studied postmortem blood samples of inmates who had been executed by lethal
injection in Arizona, Georgia, North Carolina, and South Carolina and found that
“[a]lthough the protocols of all four states are similar to those of Texas and
Virginia, and specify that 2 g thiopental is used, concentrations of the drug in the
blood ranged from only trace amounts to 370 mg/L.” Leonidas G. Koniaris et al.,
Inadequate anaesthesia in lethal injection for execution, 365 The Lancet 1412,
1413 (2005). Based on their findings relating to postmortem concentrations of
sodium thiopental, along with the fact that “[b]y contrast with its medical
applications, however, anesthesia in execution has not been subjected to clinical
trials, governmental regulation, extensive training of practitioners, standardization,
or the supervision or peer-review and medicolegal liability,” the authors postulated
that anesthesia methods in executions are inadequate, and that “[f]ailures in
protocol design, implementation, monitoring and review might have led to the
unnecessary suffering of at least some of those executed.” Id. at 1414 (emphasis
added). In other words, the point that the authors of the Lancet article made was
not that the amount of sodium thiopental specified in the lethal injection protocols


studied is inadequate; rather, they claimed that “[t]he assumption that 2 g
thiopental assures anaesthesia is overly simplistic” for various reasons, including
the fact that “technical difficulties or procedural errors by poorly trained
executioners might hinder administration of the total dose.” Id. at 1412.
(emphasis added).
21. While Mr. Lightbourne’s challenge to Florida’s lethal injection
procedures necessarily involves a challenge to the three-drug combination used,
the focus of Mr. Lightbourne’s challenge has been the problems associated with
carrying out the procedures, including the problems which the Lancet article
authors pointed to as reasons why inmates may have received inadequate
anesthesia. To reason that because Mr. Lightbourne does not assert that the
amount of sodium thiopental is inadequate, he thereby disavows any agreement
with the Lancet article is simply wrong and evinces a misapprehension of the
Lancet article and/or Mr. Lightbourne’s claim and the facts of this case.
22. As Mr. Lightbourne has argued throughout these proceedings, the use
of this combination of drugs creates a risk that the inmate will experience
excruciating pain if the dose of sodium thiopental is not sufficient to produce
anesthesia or is not properly administered to induce anesthesia prior to the
injection of the pancuronium bromide and the potassium chloride. Mr.
Lightbourne has emphasized that since the protocol does not provide for adequate


means for assessing and monitoring the inmate’s consciousness after the
administration of the sodium thiopental, there is no means of determining whether
the inmate is in fact awake and feeling the painful effects of the pancuronium
bromide and potassium chloride.
FULL AND FAIR HEARING

23. This Court rejected Mr. Lightbourne’s claim that he was denied a full
and fair hearing in the proceedings below in violation of his constitutional right to
due process on the basis that none of the issues about which Mr. Lightbourne
complained amounted to the denial of a full and fair hearing or “prevented this
Court from obtaining a complete picture of the issues raised by Lightbourne
regarding his lethal injection claim and any alleged deficiencies.” Slip opinion at
9. Contrary to this Court’s opinion, the Court did not obtain a complete picture of
the issues. The Court’s ultimate conclusion that Florida’s lethal injection
procedures are not unconstitutional was reached without the testimony of the most
critical people involved in the lethal injection process—the executioners and the
so-called medically qualified personnel.
24. The refusal to allow Mr. Lightbourne the opportunity to question the
people who will carry out executions has led to the blind presumption of deference
to the executive branch in fulfilling its obligations. Mr. Lightbourne tried at every
turn in the proceedings below to learn information from and present the testimony


7 Taylor v. Crawford, 2006 U.S. Dist. LEXIS 42949 (W.D. Mo. June 26, 2006).
of the executioners and so-called medically qualified personnel who participated in
the Diaz execution and who will participate in future executions (and to this day
does not know whether the individuals are the same). It is a denial of due process
to deny Mr. Lightbourne the opportunity to learn or present information necessary
to overcome the presumption that the DOC will properly perform its duties. In
other states where defendants have been afforded the opportunity to question
individuals serving as executioners or medical personnel, defendants have learned
facts which certainly overcome the presumption here that the DOC will properly
perform its duties. For example, a defendant in Missouri discovered that a doctor
responsible for mixing the chemicals used in executions was dyslexic and
sometimes mixed smaller doses of the drugs than were called for in Missouri’s
execution protocol.7
25. Warden Cannon testified below that he was the one who chose the
executioners who will participate in future executions, and testified that he did not
ask whether they had participated in previous executions. Warden Cannon’s
failure to ask such a basic question calls into question the DOC’s ability to
discover pertinent information necessary to ascertain whether these individuals are
appropriately trained, qualified, and experienced to participate in executions. The
information discovered in other states underscores the need for Mr. Lightbourne to


8 Federal courts around the country are allowing depositions of these individuals in
section 1983 actions. Mr. Lightbourne filed the transcript of Dr. John Doe #1 who
was the dyslexic surgeon who was deposed in court before the judge while sitting
behind a screen. A copy of the redacted transcript was later made available to the
public in Taylor v. Crawford, U.S. District Court in Missouri, as attachment “A” to
the motion. (R. 2625-2737). Attachment “B” was the transcript of a court
proceeding where a live audio feed went into another courtroom that was closed in
Evans v. Saar, U.S. District Court of Maryland. (R. 2738-2832).
be afforded the opportunity to question the executioners and so-called medically
qualified personnel. It is not sufficient for this Court to refuse to “second-guess the
DOC’s personnel decisions, so long as the lethal injection protocol reasonably
states… relevant qualifications for those individuals who are chosen.” Id. at 52.
That is exactly what this Court must do, and exactly what courts around the
country are doing in addressing similar challenges brought by other inmates.8 The
judiciary may not abandon its role in protecting individual rights by hiding behind
the separation of powers.
26. This Court has placed great weight on the DOC’s addition of a pause
to check for unconsciousness after the administration of the sodium thiopental, but
overlooked the fact that without knowing the training, qualifications, experience
and character of the so-called medically qualified personnel who will be assisting
Warden Cannon (who has no medical training beyond basic CPR) in assessing the
inmate’s unconsciousness before the administration of two very painful chemicals,
the promise that the DOC will ensure that the inmate is unconscious prior to these


injections is a hollow one. This Court has not had the benefit of knowing anything
about the training, qualifications, and experience of these individuals beyond the
fact that the DOC promises that they have certain letters after their names and have
undergone Warden Cannon’s training. Nor has this Court addressed the very real
possibility that the so-called medically qualified individual consulting with Warden
Cannon is a phlebotomist with absolutely no training in assessing anesthesia. Mr.
Lightbourne respectfully submits that this Court misapprehended or overlooked
points of law and fact in rejecting his claim that he was denied a full and fair
hearing below, and therefore this motion for rehearing should be granted.
THE DYEHOUSE MEMORANDA

27. This Court held that “Although we conclude that the trial court erred
in excluding [the Dyehouse memoranda], we also conclude that its exclusion is not
a basis to return this case to the trial court” because given that Mr. Lightbourne’s
petition was filed as an original writ petition, this Court was able to consider the
Dyehouse memoranda in reviewing the Eighth Amendment claim, “specifically
Lightbourne’s claim of the inadequacy of the procedures in assessing
consciousness.” Slip opinion at 14. In its consideration of Mr. Lightbourne’s
Eighth Amendment claim, however, this Court overlooked and/or misapprehended
the significance of the memoranda and only considered that the memoranda were
probative evidence that the DOC should incorporate the use of a BIS monitor to


assess and monitor the inmate’s consciousness.
28. This Court overlooked and/or misapprehended the fact that the
memoranda are significant and compelling evidence that we cannot rely on the
DOC to carry out executions by lethal injection in a manner that comports with the
Eighth Amendment. Therefore, the DOC is no longer entitled to the presumption
that it “will properly perform [its] duties.” Buenoano v. State, 565 So. 2d 309, 311
(Fla. 1990). Although this Court concluded that Mr. Lightbourne “has failed to
overcome the presumption of deference we give to the executive branch in
fulfilling its obligations,” this conclusion is based on this Court’s overlooking or
misapprehension of the significance of the Dyehouse memoranda. Slip opinion at
55.
29. The Dyehouse memoranda constitute compelling evidence that the
DOC was aware of the risk that Angel Diaz would not be unconscious after the
administration of sodium thiopental and would suffer the pain of the injection of
the pancuronium bromide and potassium chloride—which all the experts agreed
would be agonizing—and, contrary to the advice of its assistant general counsel,
did not take any steps to mitigate that risk in the development of the August 16,
2006 Lethal Injection Procedures. While this Court acknowledged that the Diaz
execution “raised legitimate concerns about the adequacy of Florida’s lethal
injection procedures and the ability of the DOC to implement them,” id. at 38, it


9 (R. 1169; Def. Exh. 20, T. 83).
overlooked the significance of the Dyehouse memoranda in evaluating these
concerns. Aside from being evidence that the DOC was aware of and ignored the
risk attendant to not requiring a medical determination of unconsciousness and
ignoring that risk when carrying out the Diaz execution, the Dyehouse memoranda
are compelling evidence that despite the promulgation of two revised lethal
injection protocols since the Diaz execution, the DOC has continued to ignore
the need for a medical determination of unconsciousness.
30. Furthermore, it is not enough that this Court had the ability to
consider the memoranda in reviewing Mr. Lightbourne’s claim. Aside from
presenting the memoranda as evidence that the DOC has ignored the need for a
medical assessment of consciousness, Mr. Lightbourne needed and requested the
opportunity in the proceedings below to be able to question witnesses regarding the
memoranda. For example, Mr. Lightbourne wanted to question Sara Dyehouse,
the author of the memoranda, regarding her reason for writing the memoranda.
There is evidence in the record that at least one other execution took as long as the
Diaz execution and evidence that the executioner had to switch to a second rack of
chemicals in a previous executions, as well.9 In fact, after receiving the
memoranda on August 7, 2007, Mr. Lightbourne attempted to speak with Ms.
Dyehouse and the recipient of the memos, Rosa (Carson) McNaughten. Both Ms.


Dyehouse and Ms. McNaughten refused to speak to counsel for Mr. Lightbourne
upon advice from the State. Subsequently, counsel for Mr. Lightbourne was
instructed by the State to cease any attempts to speak to Ms. Dyehouse and Ms.
NcNaughten. If the subject matter of the memos is not privileged as this Court
held, Mr. Lightbourne should be afforded the opportunity to question these
witnesses regarding the memoranda.
31. Mr. Lightbourne was denied the opportunity to question Ms.
Dyehouse as to whether “irregularities” like those that arose in the Diaz execution
had happened before, and whether that prompted her advice regarding the
necessity for assessing consciousness. Further, Mr. Lightbourne should be able to
question Ms. Dyehouse regarding whether other similar public records exist. Mr.
Lightbourne was prevented from calling Ms. Dyehouse, Rosa McNaughten,
Secretary McDonough and Mr. Changus with respect to these memoranda. The
record reflects that the Dyehouse memos were proffered only after all attempts at
questioning live witnesses were thwarted.
32. The inability to question witnesses regarding these public records
prevented Mr. Lightbourne from investigating and discovering information
necessary to prove his Eighth Amendment challenge. This Court’s treatment of the
memoranda ignores the fact that similar memoranda likely exist. If the DOC’s
disclosure of these memoranda was inadvertent as it alleged, what other


memoranda have not been disclosed? Additionally, what other risks does the DOC
have knowledge of that have not been disclosed? Any additional memoranda
which exist are subject to being disclosed pursuant to Mr. Lightbourne’s public
records demands, yet, the DOC has failed to do so pursuant to the circuit court’s
July 20, 2007 order. The evidence that Mr. Lightbourne has not been able to
explore is directly relevant to the appropriateness of any continued presumption of
deference to the DOC.
33. The information contained in the memoranda demonstrates that the
DOC was on notice as early as August 15, 2006, that the lethal injection
procedures should require a medical determination of consciousness and should
contain a provision for monitoring the consciousness of the inmate after the
administration of sodium thiopental. The August 1, 2007 procedures still do not
require a medical determination of consciousness or appropriate monitoring
following the administration of sodium thiopental. This Court has overlooked the
significance of the memos.

CONCLUSION
34. Again, this Court essentially denied Mr. Lightbourne’s challenge on
the grounds that 1) the DOC is still entitled to the presumption that it will properly
perform its duties, and 2) the addition of a pause to assess the inmate’s
consciousness after the administration of the first drug is adequate to ensure that


the inmate will not feel the pain of the second and third drugs. This court decided
to afford DOC the presumption that it will properly perform its duties despite
repeated failures to do just that in the past; it is only with the benefit of the
presumption that this Court could conclude that the addition of a “pause” resolves
the Eighth Amendment violation.
35. This Court’s misapprehension of the facts and the basis for Mr.
Lightbourne’s claims serve to demonstrate that Mr. Lightbourne did not obtain the
benefit of a full and fair hearing. This Court concluded that the procedures pass
constitutional muster while relegating the very factors that Mr. Lightbourne used to
demonstrate the constitutional deficiencies to merely a footnote. Slip Op. at 50.
This showed a fundamental misunderstanding of the claims. The “specific
allegations” referred to in footnote number 22 of the opinion is actually a listing of
the numerous examples in which DOC fails to understand the complexity of the act
which it has attempted to undertake in carrying out an execution by lethal
injection. The failure to consider these examples in the context of the big picture
has resulted in a wrong decision by this Court.
36. Additionally, this Court asserted that Mr. Lightbourne relied
“primarily on the opinion of Dr. Heath in proving his claim. Slip Op. at 43. But in
reality, Mr. Lightbourne’s claim depends not only on the expert opinion of Dr.
Heath and now, Dr. Varlotta, but also on the words and actions of DOC personnel.


While this Court relied on the procedures that require that the execution team to be
trained, the evidence established that the executioners and medical personnel rarely
attend the actual training sessions. The best evidence that DOC is not entitled to
the presumption was the steadfast refusal to turn over public records, the failure to
recognize that similar problems have occurred in the past without any effort to
remedy them, and the failure of those responsible for implementing the new
procedures to recognize that there was actually a problem with the Diaz execution.
There remains a constitutionally unacceptable risk that DOC will botch an
execution again.

WHEREFORE, based upon the foregoing points of fact and law which Mr.
Lightbourne respectfully submits this Court has overlooked or misapprehended,
Mr. Lightbourne respectfully moves for rehearing in the above captioned matter.
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. 26283

OFFICE OF THE CAPITAL
COLLATERAL REGIONAL
COUNSEL
101 N.E. 3rd Ave., Suite 400
Ft. Lauderdale, FL 33301
(954) 713-1284
COUNSEL FOR APPELLANT
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been
furnished by U.S. Mail and e-mail to Kenneth S. Nunnelley, Assistant Attorney
General, 444 Seabreeze Blvd, 5th Floor, Daytona Beach, FL 32118, and Rock E.
Hooker, Assistant State Attorney, 19 NW Pine Avenue, Ocala, FL 34475 on this
5th day of November, 2007.
_____________________________
SUZANNE MYERS KEFFER
Assistant CCRC
Florida Bar No. 0150177

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