PETITIONER’S THIRD EMERGENCY MOTION TO RELINQUISH

http://www.oranous.com/florida/IanLightbourne/3relinquish.htm

http://www.oranous.com/florida/IanLightbourne/Filed_09-17-2007_FSC-3rdEmergencyRelinquishDOCmemos.pdf

IN THE SUPREME COURT OF FLORIDA

IAN DECO LIGHTBOURNE,

Petitioner,

Case No. SC06-2391

v.

BILL McCOLLUM, ET AL.,

Respondents.

____________________________/

PETITIONER’S THIRD EMERGENCY MOTION TO RELINQUISH

JURISDICTION TO GET THE FACTS REGARDING DOC MEMORANDA

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

2

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.

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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).

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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

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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

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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

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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

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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

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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.

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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

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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

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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,

_____________________________

SUZANNE MYERS KEFFER

Assistant CCRC

Florida Bar No. 0150177

ROSEANNE ECKERT

Assistant CCRC

Florida Bar No. 082491

ANNA-LIISA NIXON

Staff Attorney

Florida Bar No. 0026283

OFFICE OF THE CAPITAL

COLLATERAL REGIONAL COUNSEL

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

Ft. Lauderdale, FL 33301

13 14

(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

Corrections bosses ignore new monitor in executions

The device reports on a prisoner's level of consciousness.

By MEG LAUGHLIN, Times Staff Writer
Published September 14, 2007

http://www.sptimes.com:80/2007/09/14/State/Corrections_bosses_ig.shtml

---

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.

On Aug. 15, 2006, assistant general counsel Sara Dyehouse wrote her boss about legal challenges that were delaying executions around the country. Death row inmates were alleging that the administration of the fatal chemicals "may cause 'unnecessary and wanton infliction of pain' if the sodium pentothal anesthesia has failed to produce a sufficient level of unconsciousness."

Dyehouse said some courts were requiring an anesthesiologist at the execution to monitor the level of consciousness. However, because anesthesiologists have refused on ethical grounds to participate, the executions could not proceed.

To avoid a "similar situation," Dyehouse suggested that executioners use a "bispectral index monitor," which monitors brain waves to detect consciousness.

The next day, the department approved a protocol for lethal injection that did not incorporate Dyehouse's advice.

Four months later, then-Gov. Jeb Bush stopped executions in Florida after questions arose about whether inmate Angel Diaz was conscious during minutes it took to kill him.

"Had the bispectral monitor been used, the state could have avoided all the problems with the Diaz execution," said South Florida lawyer Martin McClain, who handles capital cases.

The Dyehouse memo first came to the attention of attorneys handling capital cases when it appeared in the case of death row inmate Ian Deco Lightbourne, who challenged the constitutionality of lethal injection after the Diaz execution.

Attorneys for the state called the memo's appearance in the Lightbourne case "an accident" on their part, and asked that all copies be returned to them and the memo be sealed.

Ocala Judge Carven Angel granted the state's wish and refused to consider the memo in the Lightbourne case, but said at a hearing that it "certainly appeared to be relevant."

Before Angel recalled the memo, McClain had seen it and submitted it in two other death row appeals in Polk County and Pinellas County.

Monday, Polk County Circuit Court Judge Harvey Kornstein refused to seal the memo, but he also refused to grant a new evidentiary hearing.

"The fact that the Department of Corrections did not incorporate the use of the BIS monitor does not render the lethal injection procedures used by the Department of Corrections constitutionally infirm," he wrote.

Pinellas Circuit Court Judge Mark Shames will consider the protocol next in the appeal of death row inmate Derrick Smith, convicted of shooting a St. Petersburg cabdriver in 1983.

Corrections Department spokeswoman Gretl Plessinger said the "department did exhaustive research" and believes the lethal injection protocol it put into effect July 31 is a more acceptable method than the monitor.

This new protocol requires a warden from another prison to attend the execution and check the consciousness of the inmate. "The warden will call out the name of the inmate, shake him and touch his eyelids, looking for reflexes," she said.

Meg Laughlin can be reached at mlaughlin@sptimes.com or (727)893-8068.

[Last modified September 13, 2007, 23:37:14]

PETITIONER’S FOURTH EMERGENCY MOTION TO RELINQUISH

http://www.oranous.com/florida/IanLightbourne/4relinquish.htm

http://www.oranous.com/florida/IanLightbourne/Filed_09-17-2007_FSC-4thEmergencyRelinquishRecordsRepository.pdf

IN THE SUPREME COURT OF FLORIDA

IAN DECO LIGHTBOURNE,

Petitioner,

Case No. SC06-2391

v.

BILL McCOLLUM, ET AL.,

Respondents.

____________________________/

PETITIONER’S FOURTH EMERGENCY MOTION TO RELINQUISH

JURISDICTION TO GET THE FACTS REGARDING

THE STATE RECORDS REPOSITORY

THE PETITIONER, IAN DECO LIGHTBOURNE, by and through undersigned counsel, hereby requests that this Court grant his emergency request to relinquish jurisdiction to a neutral tribunal in the circuit court to get the facts and for full evidentiary development regarding public records filed with the Capital Postconviction Records Repository by the Department of Corrections. 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.

Mr. Lightbourne seeks a relinquishment to the circuit court in order to discover and present the evidence that would establish facts that bring the integrity of records submitted to the State Repository in all capital cases into question. Mr. Lightbourne has reason to believe that the records contained in

his file located at the repository have been sealed without notice and without a proper court order. As grounds in support of this motion, Mr. Lightbourne alleges:

1. On August 7, 2007, counsel for the DOC handed counsel for Mr. Lightbourne a stack of some of the public records in response to the court order July 21, 2007. Within the stack were two memoranda authored by Sara Dyehouse, former assistant general counsel for the Department, that contained information favorable to Mr. Lightbourne in that it could help him prove his Eighth Amendment claim.

2. During the course of motions that were argued on August 28, 2007, counsel for Mr. Lightbourne explained that he sought to call Sara Dyehouse and former DOC attorney, Rosa McNaughton in order to elicit the information contained in the two memoranda that had been turned over to Mr. Lightbourne on August 7, 2007. (T. 3001). During the course of that argument, counsel for Mr. Lightbourne handed Assistant Attorney General Kenneth Nunnelly copies of the two memoranda. (T. 3005); See "Petitioner’s Motion to Relinquish Jurisdiction Regarding Department of Corrections Memoranda" for details regarding the memoranda and whether DOC is entitled to claim that they remain privileged.

3. Later that same day, the memoranda were again discussed and for the first time, exactly three weeks after the

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documents were handed to counsel for Mr. Lightbourne in open court Assistant Attorney General Nunnelly asserted a claim of privilege on DOC’s behalf. (T. 3086). The circuit court read and reviewed the documents and ruled that the memoranda themselves were work product and were protected by the attorney-client privilege even though they appeared to be both relevant and material to the issues to be decided. (T. 3089-90).

4. After the lower court entered the final order on September 10, 2007, Mr. Lightbourne learned that someone from the Department of Corrections contacted the Repository and represented that Judge Angel had ordered that the Dyehouse memoranda be removed from the public records and sealed. Someone from the Department of Corrections showed an employee at the Repository the transcript of proceedings before Judge Angel and based on that, the Repository took the Dyehouse memoranda from Mr. Lightbourne’s file located at the State Archives and placed them in a sealed envelope as an exempt record. This was done without the benefit of a court order and without notice to Mr. Lightbourne.

5. The transcripts do not reflect that the circuit court ever ordered that the Repository should seal any documents. After hearing argument, the circuit court agreed to accept the defense proffer of the memoranda under seal as Defense Exhibit 28. (R. 3090, 3095). The subject of the State Repository was

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brought up and Mr. Changus represented that the documents had been submitted to the Repository. The AG then responded:

Mr. Nunnelley: Well, Judge, again my position would be it is an inadvertent disclosure. The Court has sustained the objection, and now I have got to try to do damage control and get the cat back in the bag. And I would ask, again, that the copies sitting on Ms. Keffer’s . . . []desk and the other copies they have got in the files be ordered turned back over to the State immediately.

Ms. Keffer: Your Honor –

Mr. Nunnelly: We will deal with the repository.

The Court: I don’t know about putting the cat back in the bag. Almost all of it is public information, so we haven’t revealed a whole lot that’s not already known. These folks in the Department also know it. They also know what everybody else knows.

(R. 3095). After counsel for DOC informed the lower court that it would be "his preference" that the Dyehouse memoranda not be in the "record here," the lower court asked about the repository and what the parties thought should happen. The AG asserted that "[t]hose can be retrieved from the repository."1 (R. 3097). In response, Mr. Lightbourne pointed out that the documents had already been disseminated and that it would be difficult to retrieve all electronic copies or to control further dissemination. The lower court acknowledged "I don't know if we

1 Mr. Lightbourne never would imagine that this could be accomplished without notice and a court order.

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need to do all that or not. I mean, I sustained the objection being admitted into evidence in the case." (R. 3097).

6. The State complained that the memoranda had already been filed in another case and asked that counsel for Lightbourne:

"be directed to give back what they have; and further, that they be directed not to . . .[] disseminate it any further. And we will deal with the rest of it on the Department of Corrections side." (R. 3099).

The court responded by asking counsel for Lightbourne to make the "best effort to give them back whatever you have and then not disseminate it any further." Id. The lower court agreed that counsel for Mr. Lightbourne did not have to be a "patrol officer." (3099-00).

7. Under Fla. R. Crim. P. 3.852(b)(3), the records repository is the location designated by the secretary of state provided for the archiving of public records in capital cases. The actions of the DOC calls into question the integrity of the public records process and the integrity of Mr. Lightbourne’s files contained at the Repository.

WHEREFORE, Mr. Lightbourne respectfully requests that jurisdiction be relinquished to the lower court for the purpose of getting the facts regarding the DOC’s actions with regard to Mr. Lightbourne’s files at the Repository so that Mr. Lightbourne may reserve his rights with respect to the public

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record and the integrity of the public records process. Mr. Lightbourne further requests that the time for filing the initial brief be tolled until this has been properly litigated in the circuit court.

Respectfully submitted,

_____________________________

SUZANNE MYERS KEFFER

Assistant CCRC

Florida Bar No. 0150177

ROSEANNE ECKERT

Assistant CCRC

Florida Bar No. 082491

ANNA-LIISA NIXON

Staff Attorney

Florida Bar No. 0026283

OFFICE OF THE CAPITAL

COLLATERAL REGIONAL COUNSEL

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

Ft. Lauderdale, FL 33301

(954) 713-1284

COUNSEL FOR MR. LIGHTBOURNE

6 7

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

Florida and executions - Former Secretary Singletary’s statement, “We know for sure this is going to happen again”,

THE EXISTING PROCEDURE THAT THE STATE OF FLORIDA UTILIZES FOR
LETHAL INJECTION VIOLATES THE EIGHTH AMENDMENT TO THE UNITED
STATES CONSTITUTION AS IT CONSTITUTES CRUEL AND UNUSUAL
PUNISHMENT.

Well after the imposition of Mr. Tompkins’s sentence of
death, Florida adopted lethal injection as its method of
execution. In Sims v. State, 754 So. 2d 657 (Fla. 2000), this
Court first addressed an Eighth Amendment challenge to the then
newly adopted method of execution, i.e. lethal injection. The
chemical process utilized in executions in Florida that was at
issue in Sims provided as explained by this Court:

In all, a total of eight syringes will be used, each of
which will be injected in a consecutive order into the
IV tube attached to the inmate. The first two syringes
will contain "no less than" two grams of sodium
pentothal, an ultra-short-acting barbiturate which
renders the inmate unconscious. The third syringe will
contain a saline solution to act as a flushing agent.
The fourth and fifth syringes will contain no less than
fifty milligrams of pancuronium bromide, which
paralyzes the muscles. The sixth syringe will contain
saline, again as a flushing agent. Finally, the seventh
and eighth syringes will contain no less than one-
hundred-fifty milliequivalents of potassium chloride,
which stops the heart from beating.

Sims, 754 So. 2d at 666 (footnote added). This Court rejected the

claim that Florida’s lethal injection procedure violated the
Eighth Amendment because it constituted cruel and unusual
punishment, explaining:

Sims’ reliance on Professor Radelet and Dr. Lipman's
testimony concerning the list of horribles that could
happen if a mishap occurs during the execution does not
sufficiently demonstrate that the procedures currently
in place are not adequate to accomplish the intended
result in a painless manner. Other than demonstrating a
failure to reduce every aspect of the procedure to
writing, Sims has not shown that the DOC procedures
will subject him to pain or degradation if carried out
as planned. Sims’ argument centers solely on what may
happen if something goes wrong. From our review of the
record, we find that the DOC has established procedures
to be followed in administering the lethal injection
and we rely on the accuracy of the testimony by the DOC
personnel who explained such procedures at the hearing
below. Thus, we conclude that the procedures for
administering the lethal injection as attested do not
violate the Eighth Amendment’s prohibition against
cruel and unusual punishment.

Id. at 668 (note omitted).

The basis for this Court’s conclusion that “Sims has not
shown that the DOC procedures will subject him to pain or
degradation if carried out as planned” is now outdated. Evidence
does now exist to show that the DOC procedures will not prevent
the infliction of unnecessary pain or degradation. Moreover, this
Court’s reliance upon “the accuracy of the testimony by the DOC
personnel who explained such procedures at the hearing below” has
now been demonstrated to have been misplaced.

In December of 2006, Angel Diaz was executed by the State of
Florida. Diaz’s execution was carried out under a revised lethal
injection protocol adopted in secret on August 16, 2006. This new

protocol was not made public until counsel for a condemned inmate
learned on October 17, 2006, of the protocol on the eve of that
inmate’s execution. On December 15, 2006, the medical examiner
who performed an autopsy of the body announced his preliminary
findings - the IV’s were not inserted properly:

The doctor who performed Diaz's autopsy refused to say
if he thought Diaz was in pain. Alachua County Medical
Examiner William F. Hamilton said the needles in both
arms punctured straight through his veins, dissipating
the lethal chemicals.

“The main problem with the conduct of this execution
procedure was that the fluids to be injected were not
going into a vein, but were going into small tissues in
the arm,” Hamilton said. His examination found
“evidence of chemical damage” at the injection wound
for six inches above and below the right elbow, and
nearly the same pattern around the left elbow.

Gary Fineout and Marc Caputo, “Governor Bush Orders Hold on
Executions,” Miami Herald, December 16, 2006 (emphasis added). As
a result of the medical examiner’s findings, the Governor
suspended all executions in Florida:

Gov. Jeb Bush has once again suspended all executions
in Florida after an autopsy showed needles tore through
an inmate's veins Wednesday night, causing chemicals to
severely burn his flesh.

Angel Diaz took 34 minutes to die, an unusually long
time, because the drugs weren't circulating in his
blood.

Corrections officials initially attributed Diaz’s slow
death to liver disease, but the preliminary autopsy
results showed no outward signs of damage to the organ.

The problems prompted Bush to form a four-person team
to investigate the execution. On Friday, Bush ordered
the assembly of a second team to study whether the
lethal injection protocols used in Florida should be
revised.

13The DOC execution team had difficulty inserting the IV’s
into Mr. Diaz’s arms. The IV’s in both of Mr. Diaz’s arms
penetrated clear through the vein. Thus, the drugs administered
through the IV’s did not enter the blood stream. Because of noted
difficulty push the drugs through the IV in Diaz’s left arm, the
execution team then switched to an IV line in Diaz’s right arm.
The execution team then decided to simultaneously use the first
line for a second round of drugs. Dr. David Varlotta, a member of
the Commission, has “said he couldn’t explain the medical staff’s
decision: ‘It’s not likely it would fix itself,’ he said.” Nathan
Crabbe, “Expert says IV mistakes were made in execution,”
Gainesville Sun, February 6, 2007. Dr. Denis Clark, an Orlando
specialist in vein therapy, has advised that from her review of
the DOC internal investigation, “the medical staff should have
recognized that problems injecting the drugs meant the first IV
line was likely dislodged. ‘If it’s in the proper place, it
shouldn’t require a lot of force,’ she said.” Nathan Crabbe,
“Expert says IV mistakes were made in execution,” Gainesville
Sun, February 6, 2007.

Chris Tisch, “Governor Bush Halts Executions,” St. Petersburg
Times, December 16, 2006 (emphasis added).

In the wake of the botched Diaz execution, the Department of
Corrections conducted an internal investigation which showed that
the protocol was not followed as had been promised in Sims. Mr.
Diaz was neither rendered unconscious nor paralyzed. In the Diaz
execution, it was apparent that Mr. Diaz was not rendered
unconscious by the administration of sodium pentothal. Yet in
disregard of this obvious fact, the execution proceeded with the
administration of a drug that was known would cause pain.13
According to the lead executioner in the Diaz execution,
“the team had to empty 14 syringes of chemicals and saline
solution into Angel Diaz. The executioner [has indicated] that
they pumped the cocktail into both of Diaz’s arms. He surprised

some observers by saying he had gone to the second arm in other
executions as well.” Chris Tisch, “Executioner’s words disturb
panel,” St. Petersburg Times, February 10, 2007. The execution
also reported that he “lacks medical qualifications and last
received training to administer lethal chemicals seven years
ago.” Nathan Crabbe, “Executioner admits lack of training,”
Gainesville Sun, February 10, 2007. However, according to the
executioner’s opinion, “when the execution begins the executioner
is in charge.” The nurse who inserted the IV’s has reported that
she had difficulty inserting one of the IV lines. “The nurse got
the needle into the vein on a second attempt, but officials
didn’t tell the warden of the problem.” Chris Tisch,
“Executioner’s words disturb panel,” St. Petersburg Times,
February 10, 2007. Having reviewed the Diaz execution and what
went awry, the former Secretary of the Department of Corrections,
Harry K. Singletary, who was a member of the Commission said, “We
know for sure that this is going to happen again.” Nathan Crabbe,
“Lethal injection changes proposed,” Gainesville Sun, February
25, 2007.

In May of 2007, a new protocol was adopted for carrying out
executions in Florida. At the conclusion of an evidentiary
hearing in July of 2007, a circuit court judge in State v.
Lightbourne concluded that the revised protocol failed to satisfy
the Eighth Amendment. Unlike Mr. Lightbourne, Mr. Tompkins was
not permitted to litigate his Eighth Amendment challenge to

14Interestingly, the judge in the Lightbourne proceedings
did not allow Mr. Lightbourne’s counsel to present evidence
regarding DOC’s awareness in August of 2006 of the need for a
medical determination of unconsciousness. Accordingly, relevant
and material evidence that Mr. Tompkins would present in support
of his lethal injection challenge was not heard at the
Lightbourne evidentiary hearing. As a result, the conclusion
reached by the presiding judge there did not address the evidence
that Mr. Tompkins relies upon in his Eighth Amendment challenge
to Florida’s lethal injection procedures.

evidentiary
hearing and asked that he be provided the same opportunity given
to Mr. Lightbourne, the right to be heard, he was denied the
opportunity to make his case.
Florida’s lethal injection protocol. Even though he filed a Rule
3.851 motion before the conclusion of the Lightbourne14

The circuit court judge in Lightbourne found that revisions
adopted in early August of 2007 satisfied the Eighth Amendment.
On appeal, this Court concluded that the circuit court judge’s
factual conclusions were supported by substantial and competent
evidence and affirmed. Lightbourne v. McCollum, 969 So. 2d 326
(Fla. 2007).

Subsequently, the United States Supreme Court announced the
Eighth Amendment standard by which a method of execution
challenge must be measured. Baze v. Rees, 2008 U.S. LEXIS 3476
(2008). It is clear from Baze that the question of whether a
Eighth Amendment violation exists is a factual one. Under Baze,
the factual question is whether a condemned prisoner establishes
that the State’s lethal injection protocol creates a demonstrated
risk of severe pain. Mr. Tompkins alleges that the Diaz execution

and the factual allegations set forth here demonstrate a clear
risk of severe pain. Certainly, an examination of the DOC
internal memorandum dated August 15, 2006, as well as the
memorandum dated June 16, 2006, supports this claim. The claim is
further substantiated with comments made by DOC personnel to the
media. For example, these memoranda have been discussed by the
Secretary McDonough in his interview with a Gainesville Sun
reporter, an interview that is discussed in the “watchdog blog”
that appeared on the Gainesville Sun website. September 20, 2007,
posting by Nate Crabbe. As Secretary McDonough told the
Gainesville Sun reporter, the bispectral index monitor discussed
in the August 15th memorandum was rejected because the
manufacturer did not want it used in executions. Even though DOC
was aware of the need for a medical determination of
unconsciousness following the administration of sodium pentothal,
and before the execution procedure continued to the next step,
and the administration of the two remaining drugs in the three
drug cocktail, DOC did not provide for such a determination.

In August of 2006, it was recognized that a provision should
be made for either an anesthesiologist or a bispectral index
monitor to monitor the inmate’s level of consciousness.
Obviously, had DOC followed through on the memorandum which
identified the problem and the proposed solutions, the
difficulties which occurred during the Diaz execution would
likely have been caught and possibly remedied. Nevertheless,

15In Schwab v. State, 32 Fla. L. Weekly S 697 (Fla. November 1,
2007), this Court addressed an Eighth Amendment challenge to
Florida’s lethal injection procedures. The Court clearly stated
that “when an inmate presents an Eighth Amendment claim which is
based primarily upon facts that occurred during a recent
execution, the claim is not procedurally barred.” Schwab, 2007
Fla. LEXIS 2011, *3-4. Thus, it is clear that its decisions
predating the execution of Angel Diaz, in no way preclude a
capital defendant from raising an Eighth Amendment challenge
based upon the facts and circumstances surrounding the recent
botched execution, nor determine the outcome. The Florida Supreme
Court indicated that Mr. Schwab, who had presented his lethal
injection claim in a Rule 3.851 motion, had been entitled to have
the circuit court either 1) take judicial notice of the evidence

despite the identification of both the problem and two possible
solutions in August of 2006, DOC has refused to adopt either of
these suggested solutions in any of the revisions of the protocol
that have followed the Diaz execution.

Though the circuit court in Lightbourne did not find the
revised protocol to violate the Eighth Amendment, that ruling
cannot be binding on Mr. Tompkins since 1) he was not a party to
those proceedings; and 2) he sought an evidentiary hearing on his
claim long before the hearing in Lightbourne was concluded and
long before Lightbourne was final. Despite having filed a
challenge to Florida’s method of execution, Mr. Tompkins has not
been given the opportunity extended to Mr. Lightbourne - the due
process right of notice and opportunity to be heard. The State
was aware that Mr. Tompkins had filed a lethal injection
challenge, but never noticed Mr. Tompkins of his right to
participate in the Lightbourne proceedings, nor that he would be
bound by factual findings made in his absence.15

presented in the Lightbourne proceedings, or 2) conduct an
evidentiary hearing on the claim:

Under the unique circumstances of this case and based
on the court's other ruling summarily denying relief,
we hold that the postconviction court erred in failing
to take judicial notice of the record in Lightbourne.
Since Schwab's allegations were sufficiently pled, the
postconviction court should have either granted Schwab
an evidentiary hearing, or if Schwab was relying upon
the evidence already presented in Lightbourne, the
court should have taken judicial notice of that
evidence.

Schwab, 2007 Fla. LEXIS 2011, *7-8 (emphasis added). In Schwab,
Mr. Schwab asked for the circuit court to take judicial notice of
the evidence presented in Lightbourne. The circuit court’s
refusal to take judicial notice of that evidence or to
alternatively grant Mr. Schwab his own evidentiary hearing was
found to be harmless error “because Schwab has not presented any
argument as to specific evidence he wanted to present in this
case that had not been presented in the Lightbourne proceeding.”
Schwab, 2007 Fla. LEXIS 2001, *8, n. 2.

Unlike Mr. Schwab, Mr. Tompkins invokes his due process
right to notice and reasonable opportunity to be heard. Unlike
Mr. Schwab, Mr. Tompkins asks for his own evidentiary hearing at
which he can present evidence, confront evidence presented by the
State, and make his own challenge to Florida’s lethal injection
procedures. Unlike Mr. Schwab, Mr. Tompkins seeks the opportunity
to present evidence not presented at the Lightbourne evidentiary
hearing.

This Court’s decision in Lightbourne was premised upon
findings of fact. This Court made that clear when it indicated
that substantial and competent evidence supported the circuit
court’s decision. As this Court explained in its opinion in that
case, the decision in Lightbourne was not a legal ruling that was
reviewed de novo. Since the decision was a factual one, and since
Mr. Tompkins was given no notice and opportunity to be heard and
present evidence in support of his claim, the Lightbourne

16Mr. Tompkins proffers that he would call Sara Dyehouse as a
witness to discuss the memoranda that she wrote in June through
August of 2006 concerning the revisions to the lethal injection
protocol. Mr. Tompkins proffers that he expects Ms. Dyehouse to
testify that she had through her interviews of the execution team
and examination of events at prior executions determined that an
unconsciousness determination was necessary following the
administration of sodium pentothal and that the procedures that
had been followed in Florida did not provide for such a
determination. Mr. Tompkins proffers that Ms. Dyehouse would
testify that she advised the Department of Corrections that such
a determination was necessary to eliminate the risk of
unnecessary pain that would result from the administration of
painful drugs to a conscious condemned inmate during an

decision cannot be applied to deny Mr. Tompkins the same rights
and opportunities that were extended to Mr. Lightbourne. The
touchstone of due process is notice and reasonable opportunity to
be heard. The right to due process entails “‘notice and
opportunity for hearing appropriate to the nature of the case.’”
Cleveland Bd. of Ed. v. Loudermill, 470 U.S. 532, 542 (1985),
quoting Mullane v. Central Hanover Bank & Trust Co., 339 U.S.
306, 313 (1950). “[F]undamental fairness is the hallmark of the
procedural protections afforded by the Due Process Clause.” Ford
v. Wainwright, 477 U.S. 399, 424 (1986)(Powell, J., concurring in
part and concurring in the judgment). Mr. Tompkins was not a
party to at the proceedings in Lightbourne on August 28, 2007; he
was not given the opportunity to present evidence in support of
his claim or to make argument as to why his claim was
meritorious. Under principles of due process, the decision there
cannot be binding as to him where he was seeking his own right to
be heard on his claim.16

execution. Ms. Dyehouse would testify that DOC knew that the
protocol in place could lead to a painful execution. Ms. Dyehouse
would testify that despite her identification of this specific
defect in the lethal injection procedures, the Department of
Corrections decided to ignore her warnings and did not adopt a
procedure for making any kind of unconsciousness determination.

Mr. Tompkins also proffers that he expects to call Secretary
McDonough to testify regarding Ms. Dyehouse’s memoranda. Though
Secretary McDonough did testify during the Lightbourne
proceedings, he did not testify about Ms. Dyehouse or the
memoranda that she prepared. In fact, Secretary McDonough when
asked who on his legal staff worked on preparing the revised
protocols in the summer of 2006, did not recall Ms. Dyehouse’s
involvement and thus gave no testimony in the Lightbourne
proceedings regarding Ms. Dyehouse or her memoranda or the
content and recommendations contained therein. Mr. Tompkins
proffers that the Secretary will testify in conformity with his
statements to newspaper reporters following the conclusion of the
Lightbourne evidentiary hearing that the decision to ignore Ms.
Dyehouse’s recommendation was premised upon matters totally
unrelated to whether the risk of unnecessary pain had been
eliminated or ameliorated in some fashion.

Similarly, Mr. Tompkins would call Gretl Plessinger to
testify. Though she testified during the Lightbourne proceedings,
she did not testify about the Dyehouse memoranda or the
recommendations contained therein. Subsequent to the Lightbourne
hearing she too has made statements to the media regarding the
decision not to provide for an unconsciousness determination.
According to Plessinger’s statements the decision to reject the
recommendation was made for the Department’s convenience and not
because there had been a determination that no risk of
unnecessary pain existed.

Mr. Tompkins seeks the opportunity he requested long before
Lightbourne was final, the opportunity to present evidence on
questions of fact. There are drugs that are not painful that can
be administered in a lethal dosage and thus eliminate any risk of
unnecessary pain. The question of the constitutionality of the
three drug protocol employed by the Florida Department of
Corrections is different that the question presented in Baze

17Dr. Varlotta has provided Mr. Tompkins’s counsel with the
following statement:

I understand and appreciate the fact that the DOC has
adopted procedures that limit physician involvement in
capital punishment by lethal injection. It would be a
violation of ethical principles for a physician to
participate. Maintaining high ethical standards are
extremely important in the medical profession.

However, as a practicing anesthesiologist I cannot
agree that individuals without advanced medical
training would have the ability to adequately assess
the level of anesthetic depth.

At a minimum physicians who are considered competent to
assess anesthetic depth have completed the following:
premedical course work and have received an
undergraduate degree (4yrs), graduated medical school
(4yrs), completed an internship (1yr), completed a
residency in anesthesiology (3yrs), and is licensed to
practice medicine.

It is important to point out that even with this level
of training scientific studies have been published in

where there was no history of botched executions. This is
certainly true in former Secretary Singletary’s statement, “We
know for sure this is going to happen again”, that Florida’s
method of carrying out executions violates the Eighth Amendment
and constitutes cruel and unusual punishment. Likewise, it
violates the Florida Constitution’s prohibition on cruel or
unusual punishment.

Mr. Tompkins would also call Dr. David Varlotta, an
anesthesiologist, who was on the Lethal Injection Commission that
was put together after the Diaz execution to investigate what
happened and make recommendations as to what changes were
warranted.17 Following the decision in Lightbourne finding that

peer reviewed medical journals that cite the incidence
of unintended awareness to be as high as one in five
hundred to one in one thousand anesthetics. If the
incidence of awareness is that high when anesthesia is
administered by fully trained and qualified
individuals, one would have to be concerned that the
incidence would be significantly higher in lesser
trained hands.

proceedings.
there was sufficient evidence in the record to support the
circuit court’s conclusion that employees of the Department of
Corrections with no medical training could make an
unconsciousness determination, Dr. Varlotta advised the St.
Petersburg Times: “I cannot agree that individuals without
advanced medical training would have the ability to adequately
assess the level of anesthetic depth.” Dr. Varlotta was not
called as a witness during the Lightbourne

Mr. Tompkins seeks an evidentiary hearing on his Eighth
Amendment challenge to Florida’s lethal injection procedure. He
seeks to be heard in conformity with due process and to present
the evidence that supports his claim.

Rehearing motion filed to Florida Supreme Court - Ian Lightbourne

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

http://www.oranous.com/florida/IanLightbourne/Filed_11-05-2007_Motion_Rehearing.pdf

IN THE SUPREME COURT OF FLORIDA

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