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Ian Deco Lightbourne v. State of Florida
SC06-2391

ALL RISE.
O YEA, O YEA, OYEA.
THE SUPREME COURT OF FLORIDA
IS NOW IN SESSION.
ALLTHOSIS HAVING BUSINESS
BEFORE THIS COURT DRAW NIGH,
GIVE ATTENTION, AND YOU
SHALL BE HEARD.
GOD SAVE THE UNITED STATES,
THE GREAT STATE OF FLORIDA,
AND THIS HONORABLE COURT.
>> GOOD MORNING.
LADIES AND GENTLEMEN, THE
FLORIDA SUPREME COURT.
PLEASE BE SEATED.
GOOD MORNING FRIENDS,
WELCOME TO THE ORAL ARGUMENT
CALENDAR FOR THURSDAY,
OCTOBER 11.
THE FIRST CASE ON THE
CALENDAR IS LIGHTBOURNE.
COUNSEL READY TO PROCEED?
>> GOOD MORNING.
MAY IT PLEASE THE COURT.
SUZANN KEFFER ON BEHALF OF
THE APPELLANT IAN DPEK DECO
LIGHTBOURNE WE ARE HERE
AFTER THE DENIAL OF THE
MR. LIGHTBOURNE'S CLAIM
UNDER THE 8th AMENDMENT
CHALLENGING THE METHOD OF
EXECUTION IN FLORIDA, LETHAL
INJECTION PURSUANT TO THIS
COURT'S REMAND FOLLOW
MR. LIGHTBOURNE'S ALL WRITS
PETITION.
THE ISSUE AS IT WAS PHRASED
TO THE CIRCUIT COURT AND AS
IT WAS PHRASED TO THIS COURT
ON APPEAL WAS WHETHER THE
CURRENT LETHAL INJECTION
PROCEDURE, WHICH WAS
PROMULGATED FOR EXECUTIONS
AFTER AUGUST 1st, 2007,DRIESED
-- ADDRESSED THE FAILURES
AFTER ANGEL DIAZ SEPTEMBER
13th, 2006.
>> COULD YOU, FOR US SO THAT
WE CAN SET THE FRAMEWORK FOR
THIS GIVE US YOUR
UNDERSTANDING OF WHAT THE
PROTOCOL IS FOR THE STATE OF
FLORIDA AND THEN I THINK
THAT'LL FORM A BASIS FOR YOU
TO THEN ARGUE TO US WHAT YOU
THINK ARE THE FLAWS IN THAT
THAT WOULD CONSTITUTE THIS
HEAVY RISK OF CRUEL AND
UNUSUAL PUNISHMENT OR
WHATEVER THAT YOU'RE ARGUING,
BUT COULD YOU GIVE US AN
OUTLINE OF YOUR
UNDERSTANDING OF WHAT THE,
WHAT THE CURRENT PROTOCOL IS
AND THEN POINT OUT THAT THE
FLAWS THAT YOU BELIEVE EXIST
THERE.
>> AS TO THE CURRENT
PROTOCOL, IT IS A DOCUMENT
SEVERAL PAGES LONG, BUT TO
COVER THE --
>> WELL, I DON'T KNOW ABOUT
THE DOCUMENT AND ALL THAT --
TELL US WHAT IT, IT PROVIDES
FOR THREE SEPARATELY DRUGS,
FOR INSTANCE, AND YOU KNOW,
SO, LET'S GET RIGHT TO T..
>> OKAY.
>> WE REALLY DON'T HAVE A
GREAT DEAL OF TIME.
>> OF COURSE.
>> AND SO LET'S GET RIGHT TO,
YOU KNOW, WHAT --
>> CERTAINLY.
AS YOU MENTIONED THERE ARE
THREE DRUGS THAT ARE USED IN
FLORIDA.
IT'S SODIUM THEOPENTAL,
WHICH IS THE ANESTHETIC DRUG
WHICH CAUSES THE INMATE TO
BECOME UNCONSCIOUS SO HE
WON'T FEEL THE SECOND TWO
DRUGS.
THE POINT OF THE SODIUM
THEOPENTAL IS BECAUSE THE
POTASSIUM CHLORIDE IS QUITE
PAINFUL, AND THE BELOW,
DR. HEATH DEQUATED IT TO THE
PAIN YOU WOULD EXPERIENCE
DURING SURGERY.
THE SECOND DRUG IS THE
PANCURONIUM BROMIDE, THE
PURPOSE FOR LETHAL
INJECTIONS OF PROCURONIUM
BROMIDE IS THE PARALYTIC.
IT RENDERS ALL THE MUSCLES
PARALYZED.
POTASSIUM CHLORIDE STOPS THE
INMATE'S HEART.
THAT IS THE FINAL DRUG WHICH
WOULD CAUSE DEATH.
>> MAY I JUST, AS YOU GO
THROUGH THIS, ASK YOU JUST
ABOUT THE DRUGS, AS I READ
YOUR BRIEF, AS I READ THE
TESTIMONY IN THE EXTENSIVE
HEARING THAT JUDGE ANGEL
HELD, I DIDN'T SEE A REAL
ATTACK ON THE THREE -- THE
THREE-DRUG PROTOCOL, THAT IT
SEEMED THAT EVERYONE AGREES
THAT IF THE SODIUM
THEOPENTAL DID ITS JOB THAT
THE PERSON WOULD BE
ANESTHETIZED AND THAT ANY
OTHER DRUG WOULD NOT CAUSE
RISK OF PAIN.
IS THAT -- AND SCHWAB HAS A
SLIGHTLY DIFFERENT TAKE ON
THE PARALYTIC ANGEANT BUT DO
YOU AGREE THE THRUST OF WHAT
YOU ARGUED AND WHAT YOU
PRESENTED BEFORE JUDGE ANGEL
AND WHAT WE HAVE TODAY IS
NOT AN ATTACK ON THE AMOUNT
OF THE DRUGS ADMINISTERED OR
THE FACT OF THERE BEING
THREE DRUGS?
>> I THINK PART -- THE
ATTACK WAS ON THE PROCEDURES
THEMSELVES AND HOW THE
DEPARTMENT OF
CORRECTIONICIZE CARRYING OUT
THE LETHAL INJECTION
EXECUTIONS.
AS PART OF THAT, THE THREE
DRUGS ARE, I MEAN, YOU CAN'T
GET AROUND IT, THE THREE
DRUGS ARE PART OF THE
PROCEDURES.
>> I GUESS WHAT I AM ASKING
BECAUSE THERE WAS REFERENCE
IN EARLIER LITIGATION TO THE
LANSET ARTICLE THAT THE FIVE
GRAMS, YOU KNOW, WHETHER
THAT WAS REALLY ENOUGH, AND
IT, IT APPEARED TO ME BOTH
IN THE TESTIMONY AS WELL AS
IN THE, IN YOUR BRIEF THAT
THAT'S ABANDONED, THAT
THAT'S NO QUESTION BUT THAT
THE FIVE GRAMS, IF POPULAR
PROPERLY ADMINISTERED WILL
RENDER SOMEBODY, EITHER IF
YOU CALL INTO A SURGICAL
PLAN OF AN STESHA,
UNCONSCIOUS, UNABLE TO FEEL
ANY PAIN WHATSOEVER.
>> I THINK THAT THAT'S TRUE
THAT THE EXPERT SAID IF FIVE
GRAMS OF SODIUM THEOPENTERAL
PROPERLY DELIVERED.
THAT'S THE KEY PHRASE F.
THEY ARE PROBABLYY DELIVERED
THEY WOULD RENDER SOMEBODY
UNCONSCIOUS HOWEVER THE
PROBLEM HERE, AND AS WE SAW
IN DIAZ, IT CAN ARISE THAT
THEY ARE NOT PROPERLY
DELIVERED BECAUSE OF --
>> I UNDERSTAND THAT.
WE'RE JUST TRYING TO GET TO,
BECAUSE THERE'S LITIGATION
ALL OVER THE COUNTRY AND YOU
KNOW THE SUPREME COURT'S
ACCEPTED CERT.
I'M JUST TRYING TO MAKE SURE
THAT IN THIS STATE, THAT
THERE ISN'T A QUESTION THAT
THERE IS ENOUGH IN THE
PROTOCOL, ENOUGH SODIUM
PENTLE THAT IF IT'S PROPERLY
DELIVERED AND IF
CONSCIOUSNESS OR UNCONSCIOUS
IS PROPERLY ASSESSED THE
INMATE WILL FEEL NO PAIN
WHATSOEVER.
>> I THINK THE AMOUNT
CERTAINLY, EVEN IF
MR. LIGHTBOURNE'S CHALLENGE
PRIOR TO THE ALL WRITS
PETITION, THE AMOUNT WAS NOT
NECESSARY IN QUESTION.
IT'S WHETHER THERE'S
ADEQUATE DELIVERY, AND THEN
YOU ARE GIVE AGPARALYTIC
AGENT.
AND IF THERE'S NOT PARALYTIC
--
>> I THINK THE ANSWER'S YES.
I THINK WE ARE BOTH ON THE
SAME PAGE.
>> AS FAR AS ADEQUATE
DELIVER, THE PROTOCOLS CALL
FOR AN INTERVENUS INJECTION.
>> THAT'S CORRECT.
>> SO I THINK YOUR CLAIM IS
NOT SO MUCH WHAT THE
PROCOCALL ITSELF BUT WITH
THE DANGER THAT THE PROTOCOL
WOULD NOT BE FOLLOWED IN
PARTICULAR CASES.
>> WELL, I THINK CERTAINLY
WHAT WE HAVE NOW IS THAT DOC,
AND THIS COURT HAS HELD
PREVIOUSLY THAT DOC IS
ENTITLED TO A PRESUMPTION
THAT THEY ARE GOING TO
FOLLOW THEIR PROCEDURES AND
THEY ARE GOING TO DO WHAT
THEY SAY THAT THEY DO.
I THINK WE ARE IN A POSITION
NOW THAT WE CAN NO LONGER
RELY ON DOC TO DO WHAT THEY
SAY THEY ARE GOING TO DO.
THE THE DIAZ EXECUTION IS
THE BEST EVIDENCE OF THAT
WHAT HAS UNRAVELED SINCE
THEN IS THAT DOC WAS NOT
FOLLOWING THEIR PROCEDURES.
THERE WERE SIGNIFICANTLY
DEVIATIONS FROM THEIR
PROCEDURES, SPECIFICALLY IN
THE WAY THAT THEY WERE
ADMINISTERING THE DRUGS THE
WAY THAT EXECUTIONERS WENT
AHEAD AND ADMINISTERED THE
DRUGS.
>> WHAT'S THE REMEDY FOR
THAT.
>> I'M SORRY.
>> BUT NOW THAT THEY HAVE
CHANGED THAT PROTOCOL, AND
THEY, AS I UNDERSTAND IT ARE
DOING TRAINING AND THOSE
KINDS OF THINGS, WHY DON'T
WE NOW STILL GIVE THEM THE
PRESUMPTION THAT THEY ARE
GOING TO DO THEIR JOB
CORRECTLY?
>> WELL, I THINK THAT --
>> I MEAN --
>> ONE OF THE IMPORTANT
THINGS BELOW IS THAT THE
TESTIMONY OF ALL THE DOC
PERSONNEL WAS SO
INCONSISTENT AS TO WHO WILL
BE PARTICIPATING IN FUTURE
EXECUTIONS, WHETHER THE
PRIMARY EXECUTIONER FROM
DIAZ WILL BE PARTICIPATING
IN FUTURE EXECUTIONS OR NOT.
THE SECRETARY OF THE
DEPARTMENT SAID HE WOULD.
>> BUT IS IT REQUIRED THAT
THE SAME PEOPLE DO THIS OR
AS LONG ASING THE PEOPLE WHO
DO IT ARE QUALIFIED, HAVE
WHATEVER, HAVE GONE THROUGH
WHATEVER TRAINING IS
NECESSARILY, HAVE WHATEVER
CERTIFICATES, ET CETERA,
THAT ARE NECESSARY T.
DOESN'T HAVE TO BE THE SAME
PEOPLE.
>> I'M CERTAINLY NOT ARGUING
IT HAS TO BE THE SAME
PEOPLING, AND I WOULD CALL
INTO QUESTION IF IT WAS THE
SAME PEOPLE THAT DID THE
DIAZ EXECUTION BECAUSE I
BELIEVE THE TESTIMONY BELOW
ESTABLISHED THAT THEY DIDN'T
FOLLOW PROCEDURE AND WERE
INCOMPETENT IN WHAT THEY
DID.
HOWEVER, I DON'T THINK THE
QUESTION ENDS THAT THEY'RE
DOING -- THAT THE PEOPLE ARE
QUALIFIED AND TRAINED.
I THINK THAT BELOW WE WERE
DENIED THE OPPORTUNITY TO
QUESTION AND EXAMINE THE
SO-CALLED MEDICAL PERSONNEL
THAT ARE INVOLVED.
ALL WE HAVE IS THE
REPRESENTATION OF DOC THAT
THEIR MEDICAL PERSONNEL AND
THEIR -- THEY'RE MEDICAL
PERSONNEL AND THEY'RE
QUALIFIED.
WE KNOW NOTHING ABOUT THE
EXECUTIONERS, THE FACT IS
AND AS JUSTICE PARIENTE
POINTED OUT, THIS CASE HAS
BEEN GRANTED CERT -- NOT
THIS CASE, BUT A LETHAL
INJECTION CASE HAS BEEN
GIVEN CERT BECAUSE OF
CHALLENGES ACROSS THE
COUNTRY.
IN THOSE OTHER CHALLENGES
ACROSS THE COUNTRY,
ATTORNEYS AND DEFENDANTS
HAVE BEEN ABLE TO QUESTION
THOSE PERSONNEL WHO ARE
DIRECTLY RESPONSIBLE FOR
ADMINISTERING THE DRUGS, THE
EXECUTIONERS, AND THEY'VE
BEEN ABLE TO QUESTION THE
MEDICAL PERSONNEL INVOLVED.
WE DON'T HAVE THAT IN
FLORIDA.
SO I DON'T THINK WE CAN SAY
THAT BECAUSE DOC SAYS
THEY'RE QUALIFIED, THAT
MEANS THEY ARE.
I THINK THAT THEY NEED TO BE
PUT TO QUESTIONING IN AN
ADVERSARIAL SEDDING, AND
CERTAINLY THAT HAS BEEN DONE
IN OTHER STATES.
>> SO YOU ARE ASKING THAT
EVERYONE WHO HAS -- MAY OR
PARTICIPATE IN ANY EXECUTION
THAT YOU HAVE A OPPORTUNITY
TO QUESTION THEM, GO THROUGH
THEIR BACKGROUNDS,
ET CETERA?
IS THAT WHAT YOU'RE, YOUR
YOUR ARGUMENT REALLY BOILS
DOWN TO?
>> I DON'T THINK IT'S ANY
PERSON.
IT'S THE EXECUTIONERS, AND
WHAT DOC IS CALLING MEDICAL
PERSONNEL.
IN TERMS OF AS IT STANDS NOW,
THERE ARE, THERE'S A PRIMARY
EXECUTIONER AND A SECONDARY
EXECUTIONER, AND THERE ARE
WHAT WE'VE BEEN TOLD SIX
MEDICAL PERSONNEL THAT ARE
INVOLVED IN THESE
PROCEEDINGS.
NOW, THAT NUMBER HAS CHANGED
THROUGHOUT THE COURSE OF THE
PROCEEDINGS BELOW.
>> BUT HASN'T DOC SET OUT
CERTAIN STANDARDS FOR
TRAINING, THAT IS THAT THEY
HAVE TO BE TRAINED IN
ADMINISTERING INTRAVENOUS
INJECTIONS AND, AND -- I'M
HAVING A LITTLE DIFFICULTY
WITH SORT OF THE MOVING
TARGET CONCEPT HERE.
THAT IS, WHAT YOU SEEM TO BE
ARGUING HERE IS THAT YOU'RE
NOT ATTACKING THE THREE-DRUG
PROCEDURE.
YOU ACCEPT IF THE FIRST DRUG
IS ADMINISTERED IN THE
PROPER DOSAGE THAT IT WILL
RENDTHER INMATE UNCONSCIOUS,
SO NOW YOU'RE FOCUSING ON
WHETHER OR NOT DOC HAS SET
PROPER STANDARDS FOR
TRAINING THE PERSONS THAT
ADMINISTER THE DRUGS.
IS THAT RIGHT?
>> WELL, I THINK THAT YOU'RE
CALLING IT A MOVING TARGET,
HOWEVER, THERE ARE SEVERAL
FACETS OF THIS PROCEDURE
THAT ARE STILL INADEQUATE.
AND WE'VE POINTED THAT OUT
THROUGHOUT THE PROCEEDINGS
BELOW AND IN OUR BRIEF TO
THIS COURT, THOSE AREAS AND
I CAN SPECIFICALLY LIST THEM
IS THAT THE IF THE SODIUM
THIOPENT SL NOT ADMINISTERED
THROUGH A WORKING IV, THEN
THERE IS A POSSIBILITY THAT
THE INMATE WILL WAKE UP AND
FEEL THE PAIN OR WILL NEVER
GO UNCONSCIOUS AND FEEL THE
PAIN.
THE SECOND PART IS THAT THE
PEOPLE THAT ARE
PARTICIPATING, THE MOST,
DOING THE MOST CRITICAL
ASPECTS OF THE LETHAL
INJECTION, I DON'T KNOW WHAT
THEIR TRAINING IS.
I DON'T KNOW THAT THEY'RE
ADEQUATELY TRAINED.
WE THOUGHT THEY WERE
ADEQUATELY TRAINED BEFORE
DIAZ, AND WE FOUND OUT THAT
NOT ONLY ONCE BUT TWICE, AND
ACTUALLY THREE TIMES BECAUSE
A THIRD ATTEMPT WAS MADE THE
PERSON THAT PUT IN THE IVs
WENT CLEAR THROUGH THE
VEINS.
WE FOUND OUT THAT --
>> ARE YOU ARGUING THAT DOC
DOESN'T HAVE PROPER TRAINING
STANDARDS FOR THOSE
PERSONNEL?
THAT IS THAT THEY, DON'T
REQUIRE ENOUGH HOURS OF
TRAINING TO DO THESE THINGS
OR ARE YOU JUST SAYING WELL,
WE DON'T KNOW WHAT'S GOING
TO HAPPEN, WHICH IS, IT
SEEMS TO ME NOT REALLY A
VALID ATTACK ON WHAT DOC IS,
IS DOING.
SO LET'S COME BACK AND LET'S
TRY TO BE AS SPECIFIC AS
POSSIBLE SO THAT WE
UNDERSTAND WHAT, WHAT THE
FLAW IS BETWEEN POINTING OUT
TO OR FLAWS.
IS THAT THAT DOC DOESN'T
MANDATE SUFFICIENT TRAINING.
IS THAT IT.
>> YES, WE ARE CALLING IT
TRAINING BUT I WANT TO BE
CLEAR.
I AM TALKING ABOUT NOT
ENOUGH TRAINING FOR THE
EXECUTIONERS AND WE HAVE NO
IDEA AT THIS POINT WHAT
THEIR BACKGROUND IS.
WHAT THEIR
QUALIFICATIONERIZE SO IT GO
BUSINESS YOBD TRAINING.
IT'S A LITTLE BIT MORE THAN
TRAINING AND THERE HASN'T
BEEN SUFFICIENT TRAINING FOR
THESE SPECIFIC.
HE DOESN'T KNOW IF THEY HAVE
EVER DONE EXECUTIONS BEFORE.
>> YOU ARE NOT ARGUING ABOUT
THE STANDARD.
YOU ARE JUST ARGUING THAT
YOU DON'T KNOW WHETHER OR
NOT PARTICULAR PEOPLE THAT
PARTICIPATE HAVE THE
TRAINING?
OR WHAT?
I MEAN, AGAIN, I'M HAVING
DIFFICULTY WITH WHETHER OR
NOT YOU'RE DISPUTING THE
STANDARDS THAT ARE SET OR
ARE YOU DISPUTING WHETHER OR
NOT SOMEBODY THAT COMPLETES
THE COURSE, FOR INSTANCE, IS,
IS GOING TO BE COMPETENT TO
DO TTHAT THERE MIGHT BE, YOU
KNOW, THERE STILL MIGHT BE
NEGLIGENTOLOGGANT AND OR
MIGHT NOT GET IT RIGHT.
>> I THINK THAT --
>> IS IT THE STANDARDS?
>> IT'S ABSOLUTELY THE
STANDARDS, SPECIFICALLY IN
TERMS OF THE EXECUTIONERS,'S
NO STANDARDS SET FORTH IN
THE PROCEDURES EXCEPT FOR
THAT THEY BE AN ADULT AND
HAVE GOOD MORAL CHARACTER
AND HAVE BEEN TRAINED.
THE WARDEN TESTIFIED THEY'VE
BEEN TRAINED UNDER HIS
TRAINING.
THAT'S T. I DON'T KNOW
ANYTHING ELSE ABOUT THEM
BECAUSE MR. LIGHT BROERN WAS
DENIED THE OPPORTUNITY TO
QUESTION THE EXECUTIONERS
BELOW.
>> WELL, IN REVIEWING ALL
THESE ALLEGATIONS THAT
YOU'RE MAKING, WHAT STANDARD
ARE WE SUPPOSED TO USE IN
DETERMINING WHETHER THE, THE
DEPARTMENT OF COLLECTIONS
METHODS VIOLATE THE 8th
AMENDMENT, AND THAT'S REALLY
WHAT WE NEED TO DETERMINE.
NOT WHETHER THEY'RE
PERFURCATE BUT WHETHER THEY
CONSTITUTE CRUEL AND UNUSUAL
PUNISHMENT.
>> CERTAINLY.
>> WHAT STANDARD DO WE USE
IN REVIEWING THESE BOTHUDS?
>> WHAT I HAD -- METHODS.
>> WHAT I HAD SET FORTH IN
MY BRIEF IS WHETHER THERE IS
A FORESEEABLE RISK OF THE
INFLICTION OF UNNECESSARY
PAIN.
>> WHERE DO YOU GET THAT
FROM.
>> WELL, I DREW THAT FROM
THE 8th CIRCUIT RELYING ON
THE UNITED STATES SUPREME
COURT IN HILL, AND I LOOKED
TO THE HILL LITIGATION IN
THE UNITED STATES SUPREME
COURT.
I'D ARGUE AT THIS POINT AND
THE FACT THAT UNITED STATES
SUPREME COURT IN BAZE V.
REES TO TAKE UP ISSUE WITH
THIS TO SPECIFICALLY WHAT
THE STANDARD IS, THAT'S GONE
OUT THE WINDOW.
>> BUT YOU KNOW IN BAZE THAT
ARGUE FOR A DIFFERENT -- I
MEAN, I DON'T KNOW IF IT'S A
DIFFERENCE -- DISTINCTION
WITHOUT A DIFFERENCE, BUT
THEY ARGUE FOR THAT CARRYING
OUT A METHOD NOT CREATED IN
UNNECESSARY RISK OF PAIN AND
SUFFERING.
DO YOU EQUATE THOSE TWO
FORESEEABLE RISK AND
UNNECESSARY RISK.
>> I CERTAINLY THINK THEY'RE
EQUATABLE.
I DON'T KNOW IF IN TERMS OF,
YOU KNOW, I'VE ASKED THIS
COURT TO HOLD THE
PROCEEDINGS IN ABEYANCE TO
SEE WHAT THE UNITED STATES
SUPREME COURT IS GOING TO
DO.
I DON'T KNOW THAT THAT
DIFFERENCE IS SIGNIFICANT IN
THIS COURT'S DETERMINATION
OF IF THEY WILL WAIT.
WHAT IS IMPORTANT ABOUT BAZE
V. REES AND IF YOU READ THE
PETITION IN ITS ENTIRETY THE
PETITION MAKES CLEAR THAT
THERE ARE NUMEROUS STANDARDS
ACROSS THE COUNTRY BEING
UTILIZED RIGHT NOW, AND THAT
IT WAS IMPERATIVE FOR THE
U.S. SUPREME COURT TO SET A
UNIFORM STANDARD.
AND IN FACT, WITHIN THE
BRIEF --
>> WE ALSO KNOW THAT THIS
COURT IN JOANS HAS SET OUT A
STANDARD.
THAT IS THE STANDARD THROUGH
THIS DATE IN FLORIDA,
CORRECT?
>> THAT'S CORRECT.
THE COURT DID --
>> AND THAT'S BASE UPON TWO
UNITED STATES SUPREME COURT
DECISIONS.
CORRECT?
>> THAT'S CORRECT.
>> AND THAT'S WHAT THE
CONSTITUTION OF FLORIDA
REQUIRES.
IS THAT WE SET -- HAVE A
STANDARD WHICH CONFORMS TO
THE UNITED STATES SUPREME
COURT.
STANDARD.
CORRECT?
>> I AGREE THAT THIS COURT
HAS SET FORTH A STANDARD,
AND IN DOING SO, RELIED ON
TWO UNITED STATES SUPREME
COURT CASES.
AS THE BAZE PETITION POINTED
OUT WHEN THEY ARGUED IT THAT
THOSE TWO CASE SAID, GREG
AND RESWEBBER THEY WERE NOT
8th AMENDMENT CHALLENGES TO
METHODS OF EXECUTION.
THE UNITED STATES SUPREME
COURT HAS NOT DECIDED WHAT
THE STANDARD IS IN OVER 100
YEARS.
>> I'M MORE CONCERNED, AND I
THINK JUSTICE CANTERO ASKED
YOU EARLIER WHAT -- ABOUT
WHAT THE REMEDY IS AND
JUSTICE ANSTEAD SAYING IT'S
A MOVING TARGET.
I DON'T THINK IT'S A
CRITICISM PER SE OF WHAT
YOU'VE ATTEMPTED TO DO, AND
I KNOW YOU'VE BEEN VERY
INVOLVED IN THIS, BUT THE
PROBLEM IS IS THAT WE
STARTED OUT, AGAIN, BEFORE
DIAZ AND THERE WAS A LOT OF
ATTACKS ON THE, THE ADEQUACY
OF SODIUM PENTAL.
WE HAVE GOT TWO CHANGES IN
PROTOCOLS, INCLUDING WHAT I
CONSIDER TO BE VERY
SIGNIFICANT, AND I KNOW YOU
CRITICIZE IT, BUT THAT NOW
THERE IS A MANDATORY STOP
AFTER SODIUM PENTAL IS
ADMINISTERED TO MAKE SURE
THAT THE PERSON IS
UNCONSCIOUS.
SO IF, EVEN IF THE
EXECUTIONER OR WHOEVER'S
PUTTING IN THE -- IF YOU
CALL THAT PERSON THAT'S
PUTTING THE IV LINE IN HAS
MADE A MISTAKE, NOW THERE'S
A CHANCE TO STOP OR THERE'S
A MANDATE TO STOP.
I -- MY QUESTION REALLY IS
HOW MUCH CAN THIS BRANCH
INTERFERE WITH THE TRAINING
THAT GOES ON.
ARE WE SUPPOSED TO -- LIKE
SAY TODAY YOU, YOU DEPOSE
THE, THE EXECUTIONER IN DIAZ
AND THE DAY BEFORE THE
EXECUTION, SECRETARY
McDONOUGH AND THE WARDEN
REALIZE THEY HAVE TO PUT
SOMEONE ELSE IN.
DO WE STOP THE EXECUTION AND
MAKE SURE THAT THAT PERSON'S
ADEQUATELY TRAINED?
SO THAT'S, IN TERMS OF THE
REMEDY OR HOW FAR YOU GO IN
QUESTIONING WHAT THE EXECUTE
BRANCH IS DOING, THAT IS MY
PROBLEM IS THE, IF THE
PROTOCOLS ARE BETTER THAN
THEY WERE, AND THEY, YOU'RE
NOT ATTACKING THE THREE DRUG
PROTOCOL, WHAT ELSE WOULD
YOU ASK US TO, TO DO?
>> I WANT TO MAKE IT VERY
CLEAR, BECAUSE I THINK PART
-- THERE WERE MANY ASPECTS
OF THE PROCEDURE THAT I AM
CHALLENGING BECAUSE THERE
ARE MANY FAILURES TO IT, AND
WHILE FIVE GRAMS MAY BE
SUFFICIENT, THAT DOESN'T
MEAN THAT OVERALL THERE
THREE DRUGS ARE ADEQUATE.
THERE IS A VERY SERIOUS
PROBLEM WITH ADMINISTERING
THE PANCURONIUM BROMIDE
BECAUSE IT WOULD MASK IF
THERE WAS -- BUT THERE
CERTAINLY WAS TESTIMONY
BELOW THAT THE PANCURONIUM
BROMIDE IS PROBLEMATIC IN
THIS, IN THE THREE DRUG
COCKTAIL, AND I --
>> YOU'RE DODGING THE
QUESTION I THINK THAT SHES
ARE -- SHE'S ASKING IF THE
SODIUM THIOPENTAL THEY STOP
AND THEY CHECK THE
CONSCIOUSNESS AS THEY'VE
IDENTIFIED IN THE NEW
PROTOCOL.
WHERE'S YOUR PROBLEM WITH
THAT?
YOU KEEP ON GOING BACK TO
THE SECOND DRUG BUT I WANT
YOU TO ANSWER THAT QUESTION.
>> ABSOLUTELY.
WHAT I'VE SET FORTH AND WHAT
WE'VE ARGUICIDE THAT IT'S AN
INADEQUATE MEANS OF
ASSESSESIN' CONSCIOUSNESS.
IT IS NOT SIMPLY WHETHER THE
INMATE IS CONSCIOUS OR
UNCONSCIOUS.
THERE NEEDS TO BE A DEPTH OF
AN STESHA HERE AND DOCTOR
HEATH'S TESTIMONY BELOW WAS
VERY CLEAR THAT SHAKING AN
INMATE, BRUSHING THEIR EYE
LASHES CALLING THEIR NAME IS
INSUFFICIENT TO DETERMINE
DEPTH OF ANTHESIA.
>> PHYSICIAN FROM GEORGIA?
>> I BELIEVE BOTH DR. SPERRY
AND DR. DERSHWITZ SAID THIS
IS WHAT IS USED IN BASIC
LIFE SUPPORT AND THAT'S HOW
YOU WOULD DETERMINE WHETHER
THEY ARE UNCONSCIOUS BUT IT
IS THE FACT YOU ARE
ADMINISTERING AN ANTHESIA.
AND SO, NEITHER OF THOSE
WITNESSES GOT INTO THAT
ASPECT OF IT IN TERMS OF
SAYING THAT THIS WAS
SUFFICIENT.
>> SO ARE YOU REALLY SAYING
THAT IN THIS PROCEDURE, YOU
REALLY NEED MEDICAL PEOPLE
TO DO -- DO THIS?
ISN'T THIS WHAT YOU ARE
REALLY ARGUING, THAT WE NEED
MEDICAL PEOPLE TO ADMINISTER
ALL OF THESE DRUG SNSS.
>> THERE NEEDS TO BE A
MEDICAL DETERMINATION OF
CONSCIOUSNESS OR
UNCONSCIOUSNESS AFTER THE
ADMINISTRATION OF THE SODIUM
THIOPENTAL TO ENSURE THAT
THE INMATE IS PROPERLYLY
ANESTHUICIZED.
THERE NEEDS TO BE MEDICAL
PERSONNEL INVOLVED IN THIS
PROCEDURE AT VARIOUS STEPS
THROUGH THE WAY.
THE IVs ARE IN THE WAY.
>> WHAT ARE MEDICAL
PERSONNEL?
IN OTHER WORDS, THIS IS
WHERE THE MOVING TARGET
COMES IN BECAUSE IF YOU'RE
TALKING ABOUT MEDICAL
PERSONNEL IN TERMS OF
PHYSICIANS THAT HAVE TAKEN
AN OATH NOT TO PARTICIPATE
IN THE APPLICATION OF THE
DEATH PENALTY, THEN YOU ARE
TALKING IN CIRCLES, YOU WILL
NEVER HAVE -- IS THAT WHAT
YOU ARE TALKING ABOUT?
THAT THEY HAVE TO BE.
>> I THINK MEDICAL PERSONNEL
--
>> WHAT ARE MEDICAL
PERSONNEL?
>> WELL, I THINK THERE NEEDS
TO BE PEOPLE PEOPLE TRAINED
IN THE ADMINISTRATION OF AN
STESIOLOGIST.
THE FACT OF THE MATTER IS
DR. HEATH SAID IT IS
POSSIBLE FOR MEDICAL
PERSONNEL TO PARTICIPATE.
HE REFERENCED STUDIES WHICH
INDICATED THERE ARE DOCTORS
THERE ARE PEOPLE, AN
THESHIOLOGIST WILLING TO
PARTICIPATE.
BECAUSE IT IS DIFFICULT TO
FIND I DON'T THINK THAT'S A
POSSIBLE.
>> WITH OUR ASSISTANCE YOU
HAVE EXHAUSTLOAD YOUR TIME.
>> THANK YOU.
>> MAY IT PLEASE THE COURT
I'M KEN NUNNELLEY.
THE ISSUE IS NOT THE DRUGS.
WE'VE GOT THAT ESTABLISHED.
THE TESTIMONY AT THE
EVIDENTIARY HEARING FROM ALL
OF THE DOCTORS WAS THAT IF
SODIUM, AND POTASSIUM
CHLORIDE ARE PROPERLY
ADMINISTERED IN THAT ORDER
TO THE INMATE THROUGH A
WORKING INTRAVENOUS LINE,
THE RESULT WILL BE LETHAL.
>> MR. NUNNELLEY.
>> SHE AGREED WITH THAT SO
SHE WENT TO THE NEXT STEP
AND SHE WAS ADDRESSING THE
QUESTION ON QUALIFICATIONS,
TRAINING, FOR THOSE STEPS.
SO I THINK THAT REALLY IS
WHERE HER ARGUMENT WAS
HEADED.
>> LET ME TRY, JUSTICE LEWIS,
TO PARSE OUT THE ROLES OF
THE PERSONNEL INVOLVED IN
THIS PROCESS.
THEY REALLY FALL INTO, INTO
I GUESS FOUR CATEGORIES.
YOU HAVE AN FDLE OBSERVER OR
ACTUALLY TWO OF THEM.
WE ARE NOT TALKING ABOUT
THEM SO WE CAN SET THAT ONE
OFF TO THE SIDE.
WE ARE NOT TALKING ABOUT
THEM.
YOU HAVE SECURITY PERSONNEL,
DEPARTMENT OF CORRECTIONS
OFFICERS THE FACT OF THE
MATTER IS THAT ALL OF THESE
DOC PERSONNEL ARE EXTREMELY
SENIOR PEOPLE, THE LOWEST
RANKING ONE IS A COLONEL, AT
LEAST FIVE OF THEM ARE
WARDENS OF INSTITUTIONS
THROUGHOUT THE STATE.
THE OTHER CATEGORY OF PEOPLE
AND THIS IS WHAT, THE NEXT
CATEGORY, THE EXECUTIONER,
THE EXECUTIONER DOES ONE
THING AND ONE THING ONLY,
AND THAT IS TO PUSH THE
SYRINGE CONTAINING THE
VARIOUS DRUGS.
HE DOES NOT START THE IVs.
HE IS NOT RESPONSIBLE FOR
ANY SORT OF CONSCIOUSNESS
ASSESSMENT OF THE INMATE OR
ANYTHING ELSE.
WHETHER HE DOES IS PUSH THE
DRUGS.
ANY SUGGESTION TO THE
CONTRARY IS ABSOLUTELY
INCORRECT.
THE FOURTH CATEGORY OF
PEOPLE IS WHAT WE'RE REALLY
TALKING ABOUT, AND THIS DOES
SEEM TO BE A MOVING TARGET.
THE FOURTH CATEGORY OF
PERSONNEL IN THE PROCESS IS
WHAT HAS BEEN VARIOUSLY
DESCRIBED AS TECHNICAL
PERSONNEL OR MEDICALLY
QUALIFIED PERSONNEL.
THOSE TWO TERMS HAVE BEEN
USED INTERCHANGEABLY
THROUGHOUT THIS LITIGATION.
THE RESPONSIBILITY OF THE
MEDICALLY QUALIFIED
PERSONNEL IS TO START, WELL,
FIRST OF ALL, WE HAVE TO
HAVE THE DRUGS, MEDICALLY
QUALIFIED PEOPLE MEETING THE
CRITERIA SET OUT IN FLORIDA
STATUTES TO MIX DRUGS ARE
REQUIRED TO PERFORM THAT
PROCEDURES.
IT IS WRITTEN DOWN WHAT
TRAINING, LICENSURE AND
CERTIFICATION.
>> DO YOU UNDERSTAND AN
ACTUAL PHARMACIST MIXES THE
DRUGS?
>> YES, MR. ANSTEAD.
THE DRUGS ARE MIXED BY A
LICENSED PHARMACIST.
>> MR. NUNNELLEY, BEFORE I
UNDERSTAND WHAT IS
HAPPENING, I NEED TO
UNDERSTAND WHAT STANDARD WE
USE TO REVIEW WHAT'S
HAPPENING AND WHAT DOES THE
STATE SAY IS THE STANDARD WE
SHOULD USE IN DETERMINING
WHETHER THE, WHATEVER THE
STATE IS DOING VIOLATES THE
8th AMENDMENT.
>> LET ME GIVE YOU A
TWO-PART ANSWER TO THAT.
FIRST OF ALL, THE STANDARD
THAT IS THE LAW IN THIS
STATE IS JONES, WHICH IS
WANTON INFLICTION OF PAIN.
THAT IS THE LAW.
IT WAS THE LAW IN JONES.
IT WAS REAFFIRMED AS THE LAW
WHEN THIS COURT ISSUED SIMS,
AND LET ME BE VERY
CLEAR: SIMS IS THE LAW.
NOTHING HAS CHANGED WITH
REGARD TO WHETHER OR NOT
SIMS IS GOOD LAW IN THIS
STATE.
IT IS.
IT HAS NEVER, EVER BEEN
OVERRULED.
WITH THAT SAID, AND I
BELIEVE THAT THAT IS IN FACT
THE PROPER STANDARD.
IF WE ASSUME FOR THE SAKE OF
ARGUMENT ONLY, AND I AM NOT
CONCEDING THAT THIS IS THE
APPROPRIATE STANDARD BUT THE
DEFENDANT HAS ARGUED FOR A
STANDARD OF FORESEEABLE RISK.
COME SOUNDS AN AWFUL LOT
LIKE TORT LAW TO ME, BUT NOT
BEING A TORT LAWYER, I AM A
LITTLE BIT UNCOMFORTABLE TO
ME BUT LET ME GIVE YOU AN
EXAMPLE OF WHAT FORESEEABLE
RISK.
>> BUT ANY HUMAN IN THE
UTILIZATION OF TOXIC
CHEMICALS THAT YOU HAVE
FORESEEABLE RISK.
>> WELL, JUSTICE LEWIS --
>> IS THAT NOT WHERE THAT
WOULD LEAD SNUS.
>> I THINK LIFE IS A
FORESEEABLE RISK.
WHEN I PICK UP A RENTAL CAR,
I MAY HAVE A FLAT TIRE UP
HERE.
I CAN'T PREVENT THAT.
I CAN LOOK AND SEE THERE'S A
SPARE TIRE IN THE CAR AND A
JACK IN HERE --
>> THERE'S A AMOUNT OF RISK
YOU HAVE TO FOCUS ON.
CREATE A VERY HIGH RISK,
THAT'S ONE THING.
IF YOU CREATE JUST AN
ORDINARY RISK THAT GOES LONG
WITH THE TOXIC DRUGS THAT
ARE BEING ADMINISTERED, THAT
MIGHT BE A DIFFERENT THING,
SO HOW,,,,
BELOW WAS.
ONCE THE IV IS STARTED --
>> LET ME UNDERSTAND THAT.
IF I GO TO THE DOCTOR'S
OFFICE OR THE LAB OR THE,
WHEREVER, AND I'M ASSUMING
THAT SOMEBODY TRAINED UNDER
THE FLORIDA STANDARDS EITHER
THE STATUTES OR THE
ADMINISTRATIVE REGULATIONS,
THE SAME STANDARDS ARE
IMPOSED ON THE PEOPLE FOR
DOC.
THAT'S SET OUT OF THE IN THE
PROTOCOL.
>> YES.
THAT IS SET OUT ON THE
PROTOCOL.
>> LET ME JUST ASK, ON THAT
ONE, ON -- AT THE TIME OF
THE DIAZ EXECUTION, WAS THE
PERSON THAT WAS RESPONSIBLE
FOR STARTING THE IV THE SAME
TYPE OF PERSON THAT IS
SOMEONE THAT DID IT EVERY
DAY?
>> YES, MA'AM.
>> ALL RIGHT, SO NOTHING HAS
CHANGED -- I THOUGHT THAT,
AGAIN, TRYING TO, YOU SAID
NOTHING'S CHANGED SINCE SIMS,
BUT, OF COURSE, THE DIAZ
EXECUTION OCCURRED.
AND THINGS DID GO WRONG.
NOW WHETHER THAT CONSTITUTES
CRUEL AND UNUSUAL PUNISHMENT
IN ITSELF IS REALLY, WE'VE
GONE BEYOND THAT.
SO I GUESS I'M CONCERNED AS
YOU SAY THIS IS WHAT HAS THE
DOC DONE AND WHAT DO WE
KNOWINATE RECORD THEY HAVE
DONE SINCE DECEMBER OF 2006
TO LESSTHEN POSSIBILITY THAT
THE IV WILL NOT GO THROUGH
SOMEONE'S VEINS INTO THE
SOFT TISSUE?
>> OKAY, LET ME ANSWER THAT
THIS WAY.
I'M NOT -- I PROMISE I'M NOT
TRYING TO EVADE THE QUESTION
BUT I HAVE GOT TO ANSWER IT
A LITTLE BIT DIFFERENTLY
FROM THE WAY YOU'VE PUT T.
WE ARE ENSURING TRAINED
PERSONNEL OF DOING THIS.
WE ARE ENSURING THAT
PERSONNEL WHO DO THESE
THINGS ARE THE ONES STARTING
THE IVs, AND WHAT WE ARE
DOING --
>> IS THAT NEW?
NO AMENDMENT.
THAT'S THE SAME -- NO MA'AM,
THAT'S THE SAME THING WE
HAVE BEEN DOING.
WHAT HAS BEEN ENHANCED SINCE
DIAZ IS THE TRAINING OF THE
NONMEDICAL PERSONNEL TO WHAT
PUBLIC SAFETY PERSONNEL
WOULD CALL AN AWARENESS
LEVEL OF WHAT THESE DRUG
DOOMPTS WE HAVE ADDED THE
PAUSE THAT YOU TALKED ABOUT
AFTER THE INJECTION AT THE
PENTHOL AND BEFORE WE GO
INTO THE SECOND DRUGS.
THE WARDEN'S ASSESSMENT --
THE WARDSON THE ONE THAT
WALKS UP TO THE INMATE,
BRUSHES HIS EYE LASHES A
BASIC NEUROLOGICAL
ASSESSMENT ACCORDING TO THE
TESTIMONY --
>> YOU'RE -- I STILL WANT TO
STOP ON THE PERSON THAT'S
ACTUALLY PUTTING THE IV IN
BECAUSE WHAT YOU SAID THAT
THE EXECUTIONER PUTS THE,
NOT MERELY BECAUSE IT'S
SIGNIFICANT, BUT PUTS THE
LETHAL DRUGS IN.
IT'S SORT OF SOMETHING YOU
WOULD SAY ALMOST ANYONE CAN
DO SO IT'S ALREADY SET UP SO
THE PROBLEM IN DIAZ WAS THE
PERSON THAT WAS RESPONSIBLE
FOR ACTUALLY PULL PUTTING
THE IV LINE INTO THE VEINS?
>> YES.
>> PUT IT ALL THE WAY
THROUGH.
AND IS THAT PERSON NOT NEAR
-- IS THAT -- THAT WAS THE
OTHER THING I JUST WANTED TO
UNDERSTAND WAS, IS THE
PERSON NOT RIGHT BY THE
INMATE WHEN HE OR SHE IS
PUTTING THE IV LINE IN?
OR ARE THEY RIGHT THERE?
>> THE INMATE -- THE PERSON
STARTING THE IV IS STANDING
RIGHT BESIDE THE INMATE
TOUCHING HIM.
THE TESTIMONY WAS, IVs ARE
PROBLEMATIC.
EVERY DOCTOR WHO TESTIFIED
HAS SAID, YES, I'VE STARTED
-- HAD IVs GO BAD.
THE WAY YOU PREVENT THAT AND
THE WAY YOU DEAL WITH IT IS
TO MONITOR THE IV WHILE IT'S
BEING USED, AND THAT IS WHAT
IS BEING DONE.
>> AND HOW IS IT BEING
MONITORED NOW?
>> THE PERSON WHO STARTED
THE IV, OKAY, THE PERSON
THAT DID THE STICK, IF YOU
WILL, IS STANDING BESIDE THE
ASSISTANT TEAM WARDENIC WHO
ND IS STANDING BESIDE THE
EXECUTIONER, IN OTHER WORDS,
IF WE -- THE WAY THE COUNSEL
IS SEATED HERE, IF I'M THE
PERSON WHO STARTED THE IV,
TO MY LEFT IS THE ASSISTANT
TEAM WARDEN TO HIS LEFT IS
THE EXECUTIONER.
THE PERSON WHO STARTED THE
IV IS WATCHING THREE CLOSED
CIRCUIT TV MONITORS, TWO OF
WHICH ARE FOCUSED ON THE
INMATE'S ARMS ON THE IV
SITES AND THE THIRD OF WHICH
IS ON THE INMATE'S FACE.
>> IS THAT SOMETHING NEW.
THAT IS AN ENHANCEMENT.
>> OKAY SO, THEY'RE NOT
RIGHT THERE BY THE INMATE,
BUT THEY ARE RIGHT WATCHING
WHAT IS GOING ON.
>> YES, MA'AM.
THEY ARE ABOUT THREE FEET
AWAY.
THREE TO FIVE FEET.
>> AM I CORRECT THAT THE,
THAT THE AUGUST PROTOCOL
ALSO INCLUDES FOR THE
STICKERS, NOW I TAKE IT THE
STICKERS ARE THE PEOPLE THAT
PUT THE IV IN.
>> YES, YOUR HONOR,.
>> AND THEY, THE NEW
PROTOCOL SETS UP THAT THEY
MUST EITHER BY AN ASCP, AN
NCA, A OR AN AMT?
>> YES, YOUR HONOR.
>> OKAY OKAY.
NOW THAT WAS NOT IN THE
AUGUST.
THAT WAS NOT IN THE DIAZ
PROTOCOL.
>> NO.
>> IT WAS NOT EXPLICITLY SET
OUT IN THE DIAZ PROTOCOLS.
>> BUTS YOU ARE SAYING THEY
WERE -- THOSE WERE IN
ACTUALITY WHAT THE
QUALIFICATIONS WERE AT THE
TIME.
>> YES, MA'AM.
YES, MA'AM.
>> SO WHAT GOING TO WHAT'S
BETTER, NOW, WHAT'S BEEN
IMPROVED I WANT TO FOCUS ON
TO ME WHAT THE CRITICAL PART
IS IS THE ASSESSMENT OF
CONSCIOUSNESS.
AND MY ONLY CONCERN, AND I
DON'T KNOW IF IT RISES TO A
CONSTITUTIONAL CONCERN, IS
THAT THE PAUSES THERE, AND
THAT'S IMPORTANT.
BUT IT'S, IT SPECIFIES IN
THE PROTOCOL THAT THE WARDEN
SHALL BE THE ONE TO ASSESS
CONSCIOUSNESS.
THE WARDEN HAS TESTIFIED, AT
LEAST THE WARDEN CAN EBHIS
AND HAS TESTIFIED WHAT HE'LL
DO TO ASSESS CONSCIOUSNESS,
BUT THAT'S THE PROCESS OF
ASSESSISHIN' CONSCIOUSNESS
HAS NOT BEEN FORMALIZED IN
ANY DOCUMENT.
SO -- ASSESSING
CONSCIOUSNESS HAS NOT BEEN
FORMALIZED IN ANY DOCUMENT
SO IF ANYONE WHO HAS NO
EXPERIENCE DOING IT HOW DO
WE ENSURE THAT THAT PROCESS
IS GOING TO BE COMPETENTLY
PERFORMED OR, OR DOES THIS
COURT NOT EVEN HAVE THAT
OBLIGATION TO BE CONCERNED
AS TO WHETHER IT'S
COMPETENTLY PERFORMED.
>> DO YOU SEE -- SO WHO'S
GOING -- IT'S NOT IN THE
PROTOCOL ABOUT HOW TO ASSESS
CONSCIOUSNESS.
WE -- THE WARDSON NOT
MEDICALLY TRAINED.
WE KNOW THAT.
AND SO WE DON'T HAVE ANY
ASSURANCE OF THAT.
AND THEN THE LAST PART OF
THAT IS EVEN IF WE DON'T, IS
THAT SOMETHING THAT THIS --
THE JUDICIAL BRANCH SHOULD
BE CONCERNED WITH?
>> THE WARDEN IS NOT A
MEDICAL DOCTOR, HE'S NOT A
PARAMEDIC.
HE IS A FIRST RESPONDER, AS
ARE ALL DEPARTMENT OF
CORRECTIONS PERSONNEL.
THE, THE CONSCIOUSNESS
ASSESSMENT THAT IS USED IN
THIS PROCESS, THE SHAKE AND
SHOUT PART OF IT, IS WHAT IS
TAUGHT TO EVERYBODY WHO
LEARNS TO PERFORM
CARDIOPULMONARY
RESUSCITATION.
IT IS A BASIC FUNDAMENTAL
NEUROLOGICAL ASSESSMENT THAT
ACCORDING TO THE TESTIMONY
OF DR. GURSH WITS CAN
COMPETENTLY AND ADQTSLY BE
PERFORMED BY A LAY PERSON.
BUT IT IS NOT JUST THE
WARDEN WHO MAKES THAT
DETERMINATION.
THE A, THE MEDICALLY
QUALIFIED PERSON, WHO
STARTED THE IV LINES AND IS
WATCHING AT ALL TIMES ON THE
TV MONITORS IS -- LET ME --
HE IS ALSO WATCHING THE
CONSH -- CONSCIOUSNESS
ASSESSMENT, BOTH THROUGH THE
WINDOW AND ON THE TV
MONITORS.
>> IS THERE A REASON --
>> DOES THE WARDEN ACTUALLY
COME NEXT TO THE INMATE TO
DO THE ASSESSMENT.
>> YES, MA'AM.
THE WARD CMNS UP AND TOUCHES
THE INMATE.
HE BRUSHES HIS EYELASH.
THAT'S THE FIRST THING HE
DOES.
HE APPROACHES THE INMATE
FROM BEHIND TO DO THAT WHERE
THERE IS NO, TO ELIMINATE
THE POSSIBILITY OF THE
INMATE TRYING TO FEIGN
UNCONSHSNESS.
>> I THINK PART OF THE --
UNCONSCIOUSNESS.
>> I THINK PART OF THE
QUESTION WAS IF THAT
PARTICULAR WARDEN ISN'T
AVAILABLE TO DO IT, IS THERE
A CHECK LIST WHERE WE KNOW
THAT THEY GO THROUGH, THEY
STICK A PIN IN OR THEY BRUSH
THE, THE, THE EYELASHES OR,
AND THEN THEY DO, YOU KNOW,
ANOTHER THING OR SHOUT OR
SHAKE 'EM BY THE SHOULDERS.
IS THERE A CHECK LIST OF A
STANDARDIZED WAY TO VALIDLY
CHECK CONSCIOUSNESS?
>> THERE IS A --
>> AS I UNDERSTOOD IT, FOR
INSTANCE, THE PHYSICIAN FROM
GEORGIA, DID TESTIFY ABOUT
MANY OF THESE THINGS.
BUT HAS IT BEEN REDUCED TO A
STANDARD OR A CHECK LIST
TYPE THING SO THAT WE KNOW
THAT THAT EXERCISE INCLUDES
THOSE THINGS?
>> THE CHECK LIST THAT IS
MAINTAINED BY ANOTHER WARDEN
STANDING BY THE -- WHO IS
STANDING KIND OF BEHIND THE
EXECUTIONER --
>> THERE IS A RECHECK LIST?
>> YES, AND IT'S -- THE
BOTTOM LINE, IT'S ON THE
CHECK LIST, AND THE
FUNDAMENTAL BOTTOM LINE
ISSUE FOR THIS COURT IS THAT
UNDER THE PROCEDURES, WHICH
CANNOT BE DEVIATED FROM,
WITHOUT THE EXPRESS CONSENT
OF THE LEAD WARDEN, ARE
ABSOLUTELY CLEAR THAT UNTIL
THAT INMATE IS UNCONSCIOUS,
THEY ARE NOT GOING TO INJECT
THE SECOND DRUG.
THE EXECUTIONER CAN DO
NOTHING WITHOUT THE EXPRESS
COMMAND OF THE TEAM LEADER,
THE TEAM WARDEN.
>> COULD YOU SPECIFY -- THE
CHECK LIST.
I JUST WANT TO MAKE SURE.
IF WE SOOTHE CHECK LIST IN
EVIDENCE, IT'S GOING TO TO
SAY ASSESS CONSCIOUSNESS?
>> I BELIEVE IT DOES,
JUSTICE PARIENTE.
>> BUT IT'S NOT GOING TO SAY
HOW TO ASSESS CONSCIOUSNESS.
>> I DO NOT BELIEVE IT SAYS
HOW YOU DO IT.
>> SO IF WARDEN CANNON ISN'T
AVAILABLE OR IF IT'S NEXT
YEAR AND THERE'S NEW PEOPLE,
WHAT ASSURANCE OR SHOULD
THIS JUDICIAL BRANCH BE
CONCERNED THAT IF SOMEBODY
ELSE COMES IN, DOESN'T --
ISN'T TOLD BY WARDEN CANNON
WHAT HE WAS DOING, THAT IT
WON'T BE FOLLOWED THROUGH IN
A THOROUGH, THE OURO WAY
THAT YOU ARE NOW DESCRIBING
IT.
>> BECAUSE, JUSTICE
PARIENTE, THE TEAM PERSONNEL
ARE CROSS-TRAINED.
WARDEN CANNON HAS A STEP UP
TEAM WARDEN WHO IS THE
ASSISTANT TEAMMATE LEADER
WHO IS ALSO BY THE WAY A
WARDEN IN HIS OWN RIGHT.
THE ASSISTANT TEAM WARD
THANT I REFERRED TO THAT'S
STANDING BY THE EXECUTIONER,
HE IS CROSS-TRAINED IN
WARDEN CANNON'S DUTIES.
HE IS CROSS-TRAINED IN ALL
ASPECK OF WHAT WARDEN CANNON
DOES SO TO ANSWER YOUR
QUESTION, ABSOLUTELY, IF
TIMMY CANNEN IS NOT THERE,
DAVID HARRIS WILL BE AND
DAVID HARRIS KNOWS TO DO
EXACTLY WHAT MR. CANNON IS
DOING.
>> LET ME ASK MR. NUNNELLEY
YOUR OPPONENT BROUGHT UP THE
FACT THAT IS, THAT WE ALL
KNOW THAT THE U.S. SUPREME
COURT HAS GRANTED CERT IN
THE BIAS CASE OUT OF
KENTUCKY.
AND SET FORTH THREE ISSUES
THAT IT'S GOING TO DECIDE.
WHAT IS THE STATE'S POSITION
AS TO WHETHER THIS COURT
SHOULD HOLD AN ABEYANCE,
THIS, THIS CASE, OR SHOULD
COME FORWARD ISSUE AN
OPINION WITHOUT THE, THE
U.S. SUPREME COURT HAVING
ENTERED AN OPINION?
>> THERE IS NO BASIS FOR A
STAY, AND THERE'S SEVERAL
REASONS FOR THAT.
FIRST OF ALL, THERE ARE
THREE QUESTIONS AT ISSUE IN
BAZE.
THE FOURTH QUESTION, THE
CRASH CARD ISSUE WAS
STRICKEN BY THE U.S. SUPREME
COURT.
THE SECOND AND 30 QUESTIONS
EXPLICITLY DEAL ONLY WITH
THE DRUGS.
THOSE ISSUES ARE NOT BEFORE
THIS COURT.
ANY ATTEMPT TO TRY TO RAISE
THEM LATER BY
MR. LIGHTBOURNE WOULD BE
PROCEDURALLY BARRED UNDER
FLORIDA LAW.
THAT'S NOT IN PLAY.
THE FIRST ISSUE, ALSO IS,
AGAIN, ALL ABOUT THE DRUGS.
AND THIS CASE IS --
>> I THOUGHT ONE OF THE
ISSUES WAS WHAT IS THE
STANDARD THAT COURTS SHOULD
USE IN METHOD OF EXECUTION
CASES TO DETERMINE WHETHER
IT'S CRUEL AND UNUSUAL
PUNISHMENT?
>> THEY HAVE FRAMED THAT,
HOWEVER, JUSTICE CANTERO IN
THE USE OF THE DRUGS WHEN
THEY CLAIM THERE ARE NEW OR
BETTER DESIGNER DRUGS TO BE
USED.
BUT TO ANSWER -- TO CUT PAST
-OF THIS --
>> LET'S -- JUST TO ANSWER
JUSTICE CANTERO'S QUESTION,
DOES THE 8th AMENDMENT
PROHIBIT MEANS FOR CARRYING
OUT A METHOD OF EXECUTION
THAT CREATE AN UNNECESSARY
RISK OF PUFRING.
THAT'S THE FIRST QUESTION.
>> AGAIN WE ARE AT THE CERT
STAGE.
WE ARE NOT AT THE MERIT
STAGE, I DON'T KNOW WHAT
THEIR ULTIMATE ARGUMENT IS
GOING TO BE --
>> BUT YOU HAVE URGED US TO
USE THE SIMILAR STANDARD.
>> FLORIDA'S PROCEDURES WILL
MEET ANY STANDARD THEY MAY
POSSIBLY CHOOSE TO APPLY.
IF IT'S FORESEEABLE RISK,
WHICH I WOULD SUGGEST IS THE
MOST DEFENSE-FRIENDLY
STANDARD WE CAN THINK OF, WE
MEET THAT.
IT'S VERY CLEAR THAT WE DO.
IF IT'S UNNECESSARY RIDGE,
AND I'M NOT SURE THAT'S
REALLY MUCH DIFFERENT FROM
FORESEEABLE RISK BUT
ASSUMING IT IS, IT'S A
LITTLE HIGHER PROBABLY.
>> WHY IN THE WORLD WOULD WE
MOVE FORWARD AND APPROVE AN
EXECUTION WHEN THERE IS SOME
POSSIBILITY AT LEAST THAT
THE U.S. SUPREME COURT WILL
GIVE SPECIFIC GUIDANCE ON
THIS VERY ISSUE IN TERMS OF
LETHAL INJECTION?
WHY, WHY, WHAT IS THE
URGENCY IN HAVING AN
EXECUTION GO FORWARD WHILE
WE'RE AWAITING WHAT WILL BE
THE ABSOLUTELY CONTROLLING
LAW IN THIS AREA?
WHAT, WHAT IS THE URGENCY OF
HAVING AN EXECUTION WHEN WE
KNOW U.S. SUPREME COURT IS
GOING TO SHED LIGHT ON THIS
AND THERE IS AT LEAST SOME
POSSIBILITY THAT WE MAY BE
OUT OF KILTER WITH WHAT THEY,
THEY DO?
ARE WE SO ABSOLUTELY CERTAIN
OF THE OUTCOME HERE THAT
THERE IS NO RISK THAT THE
U.S. SUPREME COURT MAY DO
SOMETHING AND, AND WHAT'S
THE URGENCY, I GUESS, IS MY
--
>> JUSTICE ANSTEAD, THE
DEPARTMENT OF CORRECTIONS,
HAS BEEN IN THE FRONT ON THE
DEVELOPMENT OF THESE
PROCEDURES.
THIS COURT'S BEEN INVOLVED
IN THE LIGHTBOURNE
LITIGATION AS WELL.
WE'RE NOT FOLLOWING IT ALONG
BEHIND THE OTHER STATES.
WE'RE IN FRONT OF THE OTHER
STATES IN ALL OF THIS.
AND THE U.S. SUPREME COURT
QUITE HONESTLY IS GOING TO
DO WHAT THEY ARE GOING TO DO,
BUT THIS COURT SHOULD FOLLOW
SETTLED LAW UNDER -- AS
ANNOUNCED IN SIMS, WHICH HAS
BEEN UPHELD.
>> BUT WEIR IN FRONT OF THE
OTHER STATES APPARENTLY,
AFTER, WHAT HAS BEEN TERM
ADBOTCHED EXECUTION.
AND THE, THE, THE EXECUTE
BRANCH TAKING THAT VERY
SERIOUSLY, I.E., THE
GOVERNOR'S APPOINTMENT OF A
COMMISSION THAT LOOKED AT
THIS VERY THOROUGHLY AND OF
COURSE THE EVIDENCE OF THEIR
FINDINGS IN A WENT INTO THE
HEARING HERE, AND OF COURSE,
THIS COURT THEN ALLOWING
THAT ISSUE TO BE FURTHER
LITIGATED, YOU KNOW, BECAUSE
OF THAT.
AND GRANTED, THAT IT APPEARS
THAT DOC HAS RESPONDED AND,
AND VIRTUALLY EVERY WAY
POSSIBLE.
WHICH IS ONE OF THE CONCERNS
BY SOME OF THE OTHER COURTS
AROUND THE COUNTRY.
BUT I'M HAVING DIFFICULTY
SEEING WHAT THE URGENCY IS
IN GOING FORWARD WITH AN
EXECUTION WHEN WE'RE ABOUT
TO GET THE LAW FROM THE
HORSE'S MOUTH.
YOU KNOW, CONTROLLING THIS
ISSUE.
>> WE MAY GET THE LAW FROM
THEM OR IT MAY TURN OUT LIKE
NELSON WHERE THEY DON'T
ANSWER THE QUESTION WE HAVE
BEFORE US BUT THE BOTTOM
LINE IS THAT COURT AS I HAVE
SAID IN MY PLEADINGS CAN
PROTECT ITS OWN JURISDICTION
AND SHOULD DO IT.
THIS COURT SHOULD FOLLOW
FLORIDA LAW, WHICH IS BASED
ON GREGG AND RESSWEBBER
WHICH REMAINS THE LAW UNLESS
SOMEBODY CHANGES IT, AND
PERHAPS MAKE AN ALTERNATIVE
FINDING THAT UNDER THE MOST
POSSIBLE DEFENSE-FRIENDLY
STANDARD, LIGHTBOURNE CANNOT
CARRY HIS BURDEN OF PROOF.
>> IT'S NOT THE ISSUE OF
WHETHER WE CONTINUE TO
FOLLOW OUR LAW.
WHICH I CAN ASSURE YOU WE
WILL.
THE ISSUE IS WHETHER OR NOT
THERE IS SOME RISK THAT THE
U.S. SUPREME COURT WILL, AS
I SAY.
YOU KNOW, WILL GIVE US THE,
THE, THE EXPLICIT LAW ON
THIS VERY ISSUE.
AND IN FACE OF THERE, I
CAN'T SEE ANY URGENCY TO
GOING AHEAD AND HAVING AN
EXECUTION, WHICH IS
IRREPAIRABLE, OBVIOUSLY
SHOULD THE SUPREME COURT SAY
WE GOT IT WRONG.
>> BUT JUSTICE ANSTEAD, AND
WE ARE ROLLING OVER INTOTIA
WAB REALLY.
IF YOU DECIDE THERE IS NO
FORESEEABLE RISK, THAT
FORESEEABLE RISK IS THE
STANDARD AND APPLY
FORESEEABLE RISK AND UPHOLD
THE PROCESS, AND THE U.S.
SUPREME COURT COMES OUT AND
SAYS, OKAY, IT'S FORESEEABLE
RISK.
WE WERE RIGHT.
IF WE APPLY FORESEEABLE RISK
AND THEY COME OUT AND SAY
IT'S WILLFUL AND WANTON AND
THERE FLICTION OF PAIN.
>> YOU ARE TALKING ABOUT TWO
SEPARATE ISSUES.
>> WE'RE NOT GETTING TO --
HE'S REALLY ASKING -- IF YOU
CAN ANSWER TFINE, BUT WE'RE
GOING AHEAD.
HE IS ASK FIGURE THERE'S
SOME REASON YOU CAN RESPOND
IF THERE'S SPECIFIC REASON
OR NEED TO PROCEED AHEAD.
NOT WHETHER THE LAW CAN
PERMIT IT BUT WHETHER
THERE'S SOME SPECIFIC
EXPRESS REASON TO PROCEED.
>> THE ANSWER, THE ANSWER
REALLY FALLS IN THE SCHWAB
CASE, WHICH IS TO SOME
DEGREE DEPENDENT UPON THIS
CASE.
>> THERE IS NO WARRANT IN
THIS CASE.
>> THAT'S REALLY SCHWAB OR
I'LL IT NOW OR IN 25
MINUTES.
>> I'LL ANSWER IT SOONER OR
LATER TODAY.
>> THERE, THERE IS, JUSTICE
LEWIS, MAY I HAVE PERMISSION
TO ASK ONE QUESTION?
ONE THING THAT WON'T BE IN
SCHWAB THAT I WANT TO ASK
ABOUT IS THE ISSUE
CONCERNING WHAT'S REFERRED
TO AS HAD DIEHOUSE MEMO.
IF WE ASSUME THAT IT COMES
IN, IT REFERS TO ANOTHER WAY
OF ASSESSING CONSCIOUSNESS,
THIS BISPECTRAL INDEX
MONITOR, MY QUESTION ON THAT
IS THAT AS TO THE SECOND
QUESTION FROM THE U.S.
SUPREME COURT, WHICH IS THAT
DO THE MEANS CARRYING OUT AN
EXECUTION CAUSE AN
UNNECESSARY RISK OF PAIN IF
THERE IS A SHOWING THAT
READILY AVAILABLE
ALTERNATIVES THAT POSE LESS
OF A RISK COULD BE USED?
IF THE SUPREME COURT
ANSWERED THAT QUESTION YES,
CAN YOU TELL ME WHY THE USE
OF THIS MONITORING DEVICE IS
NOT A MORE RELIABLE UNIFORM
WAY OF ASSESSING
CONSCIOUSNESS?
>> THE BIS MONITOR, AND I'M
AFRAID THIS IS GOING TO BE A
LONG ANSWER, THE BIS
MONITOR, THE BISPECTRAL
MONITOR HAS BEEN USED ONCE
IN NORTH CAROLINA.
THAT THE ONLY PLACE IT HAS
BEEN USE.
NO OTHER STAY HAS IT IN
THEIR PROCEDURES TO USE A
BIS MONITOR T. REQUIRES AN
ADDITIONAL PERSON.
I'M -- I'M ALL IN THE REALM
OF, YOU KNOW, HYPOTHESIS TO
SOME DEGREE HERE, JUSTICE
PARIENTE, BUT I PRESUME IT
WOULD REQUIRE AN ADDITIONAL
PERSON TO MONITOR.
I'M SURE -- I KNOW THAT
PERSON WOULD HAVE TO BE
TRAINED TO INTERPRET WHAT IS
BEING SHOWN ON THE BIS
MONITOR, AND THE FACT OF THE
MATTER IS, THE BIS MONITOR
IS DESIGNED AND INTENDED FOR
USE IN SURGERY IN SPECIFIC
PATIENT CIRCUMSTANCES.
SPECIFICALLY IN THE CASE OF
A PATIENT WHO HAS
EXPERIENCED INTEROPTATIVE
EXPERIENCE OF --
>> IS THAT IN THE RECORD OF
THIS CASE.
>> I'M NOT SURE IF IT IS OR
NOT.
I KNOW IT'S IN THE RESEARCH
BUT I'M NOT SURE IF THAT'S
IN THE RECORD BECAUSE THE
BIS MONITOR WASN'T AT ISSUE
HERE.
I'VE GIVEN YOU SEVERAL
REASONS IN MY BRIEF FOR WHY
THE DIEHOUSE MEMO DID NOT --
SHOULD NOT -- MEMOS SHOULD
NOT PROPERLY HAVE BEEN --
WERE PROPERLY NOT ALLOW
UNDER TO EVIDENCE.
THEY'RE NOT ATTORNEY -- THEY
ARE ATTORNEY-CLIENT
PRIVILEGED.
THE HILL LITIGATION, THE
RUTHERFORD LUTTIGATION WAS
GOING FULL BOARD WHEN THOSE
MEMOS WERE DRAFTED IF THAT'S
NOT IN ANTICIPATION OF
LITIGATION.
I DON'T KNOW WHAT IT IS.
BECAUSE THOSE MEMOS WERE
WRITTEN AFTER HILL HAD COME
BACK FROM THE U.S. SUPREME
COURT TO THE 11th CIRCUIT
AND THEN SENT BACK TO THE
FEDERAL DISTRICT COURT FOR
FEDERAL PROCEEDINGS.
I DON'T KNOW WHAT THAT IS IF
NOT LITIGATION.
THE ATTORNEY'S CLIENT
PRIVILEGE HAS NOT BEEN
RAISED.
>> WE ARE GOING FAR ASTRAY
OF THE QUESTION.
IF YOU CAN BRING YOUR ANSWER
TO A CONCLUSION TO THE USE
OF THE MONITOR AND THAT IF
THERE IS A DETERMINATION
LATER.
THAT'S WHERE THE QUESTION IS
GOING.
IF THERE WAS A DETERMINATION
LATER THAT THERE IS
EQUIPMENT AVAILABLE AND
WOULD THAT NOT IMPACT OUR
CASE I THINK IS WHERE THAT
QUESTION IS, NOT ITS
ADMISSIBILITY BUT IF YOU CAN
ANSWER THAT, THEN THAT'S
FINE ALSO.
>> WELL, THE BIS MONITOR, IS
NOT NECESSARY, AND BAZE, AS
I I READ THE PETITION IS
FOCUSED ON THE DRUG THAN ON
THE USE OF TECHNOLOGY AND
THE DRUGS OF COURSE ARE NOT
AT ISSUE HERE AND I DO NOT
BELIEVE THE BIS MONITOR IS
IN THE BAZE CERT PETITION.
I DON'T REMEMBER SEEING T.
THAT PETITION IS VERY
SPECIFIC ABOUT WHAT THEY ARE
TALKING ABOUT AND WHAT THEY
ARE ASKING FOR.
I WILL ASK THE COURT TO
AFFIRM THE LOWER COURT.
THANK YOU.
>> THANK YOU.
ALTHOUGH YOU HAVE USED YOUR
TIME THE STATE HAS USED
ADDITIONAL TIME SO I AM
GOING TO GIVE YOU TIME TO
RESPOND.
>> JUST BRIEFLY ON THE BAZE
ISSUE, I THINK THAT
PARTICULARLY IN LIGHTBOURNE,
THERE IS NO EX-EXECUTION
DATE SET.
THERE IS NOT ANY URGENT
REASON WHY THIS COURT NEEDS
TO DECIDE AND MAKE A
DECISION BECAUSE THE FACT OF
THE MATTER IS IF THIS COURT
GETS IT WRONG,
MR. LIGHTBOURNE WILL BE BACK
TO ARGUE THE STANDARD.
>> THERE'S NO --
>> NO, THERE'S NOT.
THERE'S NOT.
>> WOULD YOU GO BACK TO THE
STATE SAYS THAT THE, THE
SAME TRAINING REQUIREMENTS
AND STANDARDS, IF I GO AND
HAVE BLOOD DRAWN OR WHATEVER
AT THE HOSPITAL OR THE
DOCTOR THAT THOSE SAME
STANDARDS ARE APPLICABLE TO
THE PEOPLE THAT PLACE THE
INTRAVENOUS FLUIDS HERE.
I'M RR HAVING IS HE RIGHT?
IS.
>> THERE IS A LIST IN THE
PROCEDURES THAT LIST OUT THE
MINIMAL POSSIBLE
QUALIFICATIONS UP OF WHO
COULD PUT AN IV IN.
THAT IS, IS FLU BOUGHTMIST
THEY SAY CAN DO IT.
HOWEVER THEY HAVE THAT FLU
BOUGHTMIST MONITORING THE
CONSCIOUSNESS OF THE INMATE
AND I WOULD ARGUE, AND AS
DR. HEATH POINTED OUT THAT
THE PHLEBBOTOMIST.
I WANT TO BE CLEAR THAT THIS
GOES BEYOND WHAT STATUTORY
TRAINING IS AND SAYS.
THIS GOES TO THE FACT THAT
WE DON'T KNOW THESE PEOPLE'S
PERSONNEL RECORDS AND THEIR
EMPLOYMENT.
WE DON'T KNOW IF THEY ARE,
YOU KNOW, MAKING MISTAKES IN
THEIR EMENT EMPLOYMENT F.
THEY'VE BEEN CITED FOR
PROBLEMS IN THEIR WORK FILE.
WE DON'T KNOW WHAT ANY OF
THEIR BACKGROUND IS.
IF THEY'VE EVER HAD ANY
COMPLAINTS FILED AGAINST
THEM.
WHEN THIS --
>> YOU SEEM TO BE SUGGESTING
THAT EVERY TIME DOC HIRES A
NEW PERSON THAT MAY BE IN,
IN INVOLVED IN THIS, THAT
YOU HAVE THE RIGHT BEFORE
THEY HAVE AN EXECUTION TO GO
AND DEPOSE THAT PERSON OR
GET THEIR RECORDS AND GO
THROUGH AND I'M HAVING A LOT
OF DIFFICULTY THERE.
AS TO WHETHER WE COULD
IMPOSE THAT KIND OF
SUPERVISION.
OVER THE EXECUTIVE BRANCH.
EVERY TIME THEY HIRE
SOMEBODY NEW, THAT, THERE'S
GOING TO BE A FULL
INVESTIGATION NOW BY THE
JUDICIAL BRANCH.
THERE'S A PROBLEM OF THAT.
IS THERE NOT?
>> I'M ARGUING WHAT'S
RELEVANT TO LIGHTBOURNE AND
WHAT WE KNOW IN LIGHTBOURNE,
WHO WILL BE PARTICIPATING.
I HAVE BEEN TOLD THAT THOSE
PEOPLE ARE CHOSE SNOON IT'S
NOT JUST THE LIGHTBOURNE
CASE.
WE ARE TALKING ABOUT AT WHAT
POINT DOES THIS PROCESS
BECOME A VIOLATION OF A
CONSTITUTION?
ISN'T THAT WHAT WE ARE
REALLY TALKING ABOUT?
BECAUSE IT, IT'S NOT A, A
CASE-BY-CASE IN THIS DOCTOR.
MAY HAVE, MAY HAVE A DEGREE
FROM THE FINEST INSTITUTION.
WE'VE GOT ANOTHER ONE THAT
DOES NOT.
WE HAVE ONE DOCTOR THAT HAS
COMPLAINTS FILED AGAINST HIM
AND OTHERS THAT DO NOT.
SO WE'RE REALLY NOT TALKING
ABOUT A JUDICIAL BRANCH
MANAGING AND BECOMING
INVOLVED UNDER A SEPERATION
OF POWERS ANALYSIS IN WHAT'S
THE RESPONSIBILITY OF THE
EXECUTIVE BRANCH ARE, WE?
>> I DON'T THINK I AM ASKING
THE JUDICIAL BRANCH, BUT AT
SOME POINT THERE HAS TO BE
SOME QUESTIONING OF THE
PEOPLE INVOLVED IN THIS.
JUSTICE ANSTEAD YOU HAD
WRITTEN AND CONCURRED IN AN
EVENT THAT KNOW THE
CREDENTIALS AND BACKGROUND
OF THESE INDIVIDUALS WOULD
BE IMPORTANT TO THE
ASSESSMENT OF WHETHER THERE
IS AN 8th AMENDMENT
VIOLATION.
THAT'S EXACTLY WHERE WE ARE
HERE.
THEY SAID THAT THEY WERE
TRAINED BEFORE IN DIAZ, NOT
ONLY, THE ONLY PROBLEM IN
DIAZ WAS NOT TAT IT
PUNCTURED THE VEINS AND THAT
THEY MADE A MISTAKE WHEN
THEY PUT THE NEEDLES IN BUT
THAT THEY NEVER FOLLOWED UP.
THEY WALKED AWAY.
THEY DIDN'T DO THE PROPER
MONITORING.
--
>> BUT THEIR -- THAT'S WHERE
I BELIEVE THAT THERE HAS
BEEN IMPROVEMENT IN, BY THE
RECOGNITION THAT THERE --
AFTER YOU PUT WHAT IS REALLY
A LETHAL DOSE OF THE SODIUM
THIOPENTAL THAT THERE WILL
BE AN ASSESSMENT AND THE
EXECUTIVE BRANCH HAS
RECOGNIZED THAT IT'S GOAL IS
TO ENSURE A PAINLESS
EXECUTION.
I MEAN, THAT IS WHAT --
THEY'RE NOT TRYING TO CAUSE
PAIN.
THEY UNDERSTAND THAT.
SO I DON'T -- YOU KNOW, I
THINK THAT THE QUESTION OF
HOW FAR WE WOULD GO IN IN
THE CONTINUOUS CBPTION OF
THE TRAINING OF PERSONNEL
CAUSES ME CONCERN.
>> I THINK THOUGH, I WANT TO
POINT OUT THAT WHY
MR. NUNNELLEY SAYS WE ARE IN
THE FRONT OF OTHER STATES, I
DON'T THINK WE ARE.
THE FACT OF THE MATTER IS
THAT OTHER STATES HAVE FAR
MORE INFORMATION ON THEIR
EXECUTION PROCESS THAN
FLORIDA HAS EVEN AFTER THESE
PROCEEDINGS.
THE FACT OOT MATTER IS THAT
THESE PEOPLE ARE BEING
QUESTIONED IN OTHER STATES
TO DETERMINE AND COURTS ARE
RELYING ON THAT INFORMATION
IN DETERMINING WHETHER OR
NOT THERE'S AN 8th AMENDMENT
VIOLATION.
THE ASSESSMENT OF
CONSCIOUSNESS THAT'S IN
PROCEDURES IS INSUFFICIENT
GIVEN THAT WE KNOW THAT THE
ANESTHESIA CAN BE INADEQUATE
SPECIFICALLY IF THERE'S
INFILTRATION, AND THEY CAN
DETECT THAT.
HERE MR. DIAZ WAS CONSCIOUS,
HE WAS AWAKE AND THEY
PROCEEDED WITH THE SECOND
DRUG.
THERE, THERE IS NO MEDICAL
DETERMINATION STILL OF
WHETHER INMATE IS FULLY
UNDER A DEPTH OF ANESTHESIA,
ANESTHESIA WHICH WOULD BE
EQUIVALENT TO WHAT'S NEEDED
FOR SURGERY WHEN YOU ARE
INJECTING POTASSIUM
CHLORIDE.
I WANT TO QUICKLY POINT OUT
--
>> I'M STILL AT THE POINT
WHERE YOU SEEM TO BE
SUGGESTING NOT JUST A
MEDICAL PERSON, WHICH, YOU
KNOW, THERE ARE ALL KINDS OF
PEOPLE THAT ARE PART OF THE
MEDICAL PERSONNEL BUT YOUR
ARGUMENT REALLY SEEMS TO BE
THAT YOU NEED SOMEONE WHO IS
MORE AKIN TO A MEDICAL
DOCTOR THERE TO MAKE SURE
THAT THIS PERSON IS
CONSCIOUS OR UNCONSCIOUS AND
THAT THAT FIRST STEP HAS
GONE PROPERLY.
AND SO WHERE, WHERE DO YOU
GET THAT SORT OF BROAD, THIS
IS WHAT WE NEED THERE WHO
HAS SAID THAT YOU NEED THAT
KIND OF PERSON THERE?
>> WELL, I THINK THAT
DR. HEATH'S TESTIMONY, NOT
SIMPLY A MEDICAL DOCTOR BUT
SOMEONE THAT NEEDS TO BE
TRAINING IN ASSESSING DEPTH
OF ANESTHESIA.
THAT CAN BE, THERE ARE
NURSES TRAINED TO DO THAT.
SO IT'S NOT SIMPLY A MEDICAL
DOCTOR.
>> WELL, WE HAVE ANOTHER
MEDICAL DOCTOR WHO SAYS THAT
OTHER PEOPLE CAN IN FACT DO
IT.
AND SO HOW DO WE TREAT THIS
TESTIMONY WHEN WE HAVE
PEOPLE WHO ARE SAYING
DIFFERING THINGS ABOUT THIS?
>> WELL, I THINK CERTAINLY
THAT THERE ARE OTHER STATES
WHICH DO HAVE DOCTORS IN
PLACE THAT ARE DOING A
MEDICAL DETERMINATION OF
CONSCIOUSNESS.
IF YOU LOOK AT MISSOURI,
THEY ARE, THEY HAVE, AND YOU
LOOK AT THAT OPINION OF
TAYLOR v. CRAWFORD, THEY
HAVE, I DON'T KNOW IF IT'S A
MEDICAL DOCTOR OR A NURSE,
BUT THEY HAVE MEDICAL
PERSONNEL.
>> THE QUESTION IS NOT
QLORNT OTHER STATES HAVE
OTHER PERSONNEL.
THE QUESTION WAS WASN'T
THERE EVIDENCE OFFERED
DURING THE, THE HEARINGS
THAT WERE CONDUCTED IN THIS
CASE, AND MY RECOLLECTION
BETION THAT IT WAS THE
PHYSICIAN FROM GEORGIA, THAT
DR. TESTIFIED THAT THE
METHODS USED BY DOC WERE
PERNICATELY REASONABLE IN
DETERMINING THE LEVEL OF
CONSCIOUSNESS.
>> I WOULD POINT OUT THAT --
>> SO IF THERE'S THAT
EVIDENTIARY BASIS FOR THE
TRIAL JUDGE HERE THEN TO
FIND DOC'S STANDARDS ADD QT.
>> I WOULD POINT OUT THAT IT
WAS DOCTOR SPERRY FROM
GEORGIA.
HE IS A FU-- FORENSIC
PATHOLOGY AND HAS PRACTICED
PATHOLOGY FOR YEARS.
>> NOW YOU ARE GOING TO HIS
CREDIBILITY AND THAT'S
SOMETHING -- DO YOU AGREE
THOUGH THAT HE DID TESTIFY
THAT THESE WERE ADEQUATE
WAYS TO DETERMINE
CONSCIOUSNESS.
>> JUSTICE ANSTEAD, MY
RECOLLECTION IS THAT THOSE
QUESTIONS WERE TO DR. SPERRY
AND DR. GURSH WITS.
-- GERSH WITS.
I THINK THAT WITH DERSHWITZ
WHEN IT WAS ASKED OF HIM
WHEN SHAKING AN INMATE AND
BRUSHING THEIR EYE LASHES HE
DISTINGUISHED BETWEEN DEPTH
OF ANESTHESIA THAT THAT
WOULD NOT BE SUFFICIENTFRONT
THAT AND HE SAID THAT IT
WOULD BE SUFFICIENT FOR
CONSCIOUSNESS VERSUS
UNCONSCIOUSNESS.
I DON'T BELIEVE IT WAS EVER
POSED TO HIM WHETHER OR NOT
IN THIS CONTEXT YOU WOULD
NEED A DETERMINATION OF
DEPTH OF ANESTHESIA VERSUS
CONSCIOUSNESS AND I DID
SPECIFICALLY LOOK AT THAT
RECORD.
>> AND WITH THAT, YOU HAVE
DOUBLED YOUR TIME.
>> OKAY.
THANK YOU.
I WOULD JUST URGE THE COURT,
AGAIN, TO HOLD IT IN
ABEYANCE PENDING THE SUPREME
COURT'S UNITED STATES
DECISION.
>> WE THANK COUNSEL ON BOTH
SIDES.
FOR AN ENLIGHTENING
ARGUMENT.