Saturday, 22 November 2008

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


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
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

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.
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
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
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.
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.

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