Sunday, July 31, 2011

Convicted killer Crosley Green in search of redemption

Maintains innocence.
Crosley Green, seen in 2003 at the Moore Justice Center in Viera, is serving his 21st year in prison. / 2003 FLORIDA TODAY file

Crosley Green timeline

1989
March 16: Crosley Green is released from Madison Correctional Institution.
April 4: Charles "Chip" Flynn Jr., 22, is shot in the chest in a Mims orange grove.
June 8:
Green, 31, is arrested and accused of killing Flynn.

August to September: A jury finds Green guilty of murder. The next year, Judge John Antoon sentences him to die.

1992
April 1: Sheila Green signs an affidavit from prison recanting her testimony against her brother, Crosley Green. Sheila Green says she "was pressured to commit perjury against my brother."

1993
April: Defense attorney Rob Parker files a motion for a new trial. He points out that Kim Hallock was only "pretty sure" Crosley Green was the suspect. The court takes no action on the motion.

1999
Early summer: Chicago investigator Paul Ciolino agrees to look into the case after being contacted by Nan Webb, a Viera housewife.

July 31:
Ciolino and three other investigators from across the U.S. arrive in Brevard to review the case and interview witnesses, jurors and others connected to the case.

August:
Brevard County Sheriff Phil Williams and Assistant State Attorney Chris White meet with Ciolino and agree to review any new information about the Green case.

2000
Florida Department of Law Enforcement says that a DNA test on two hairs does not rule out Green as the perpetrator and the hair could come from the maternal side of Green's family.

2002
Green's attorney continues appealing his case, trying to win a new trial.

2003
A hearing takes place in front of Judge Bruce Jacobus.

2007
June: Lawyers from both sides square off before the Florida Supreme Court. The state challenges an appellate ruling from 2005, which threw out Green's death sentence.

October: Florida Supreme Court upholds Green's conviction but says that he should be resentenced.

2008 The state attorney's office says it no longer will pursue the death sentence for Green.

2009 Green is resentenced to life.

2010 Green's attorneys petition for a new trial.

2011
May: The first part of a two-part hearing for Green takes place in front of Judge David Dugan. Defense attorneys produce two new alibi witnesses for Green.
1:15 p.m. Aug. 8: Second part of scheduled hearing.





































































In the early morning hours of April 4, 1989, a distraught young woman called emergency responders and said her male companion had been shot in an orange grove in Mims after they were kidnapped by a black man.
When police arrived at 1:42 a.m., they found Chip Flynn face down on the ground, his hands tied behind his back with a shoelace.
"Get me out of here," he told sheriff's deputies. Flynn never disclosed the events leading to the shooting and died soon after.
Rumors swirled in the small community of Mims. Flynn's ex-girlfriend Kim Hallock, then 19, picked a man out of a photo lineup. It would be two months before Crosley Green would be arrested and charged with first-degree premeditated murder, kidnapping and robbery in Flynn's slaying.
The next year, a jury convicted Green of murder and recommended the death penalty by a vote of 8-4. Judge John Antoon upheld the recommendation.
Green is no longer on death row, the result of a Florida Supreme Court decision 18 years later in 2008 to overturn the penalty because the jury mistakenly heard about his juvenile criminal record during the trial.
Crowell and Moring, the Washington, D.C., law firm that now represents Green, is asking for a retrial, citing myriad issues, including recantations by key witnesses. The last part of a two-part hearing in front of Circuit Judge David Dugan is set for Aug. 8.
The state remains convinced Green is guilty of murder.
But Keith Harrison, who represents Green for Crowell and Moring,
believes there was a rush to judgment in the Green case and his client is innocent.
Green remains incarcerated; 2011 is the 21st year he has spent in prison.

Reviewing facts

Harrison, who works in Washington, D.C., got involved in the Green case through the American Bar Association.
For 25 years, the Bar has had a program called Death Penalty Representation Project to connect defendants with competent lawyers in death penalty cases during trial, post-conviction and in federal courts.
"I was asked to find volunteer counsel for Crosley Green because there were no local defenders available to represent him," said Robin Maher, director of the project.She recruited Crowell & Moring, a firm that employs 500 attorneys nationwide and in London and Brussels, to work on the case for free.
"I started looking at this case, and looked at it from a prosecutor's perspective," said Harrison, who specializes in white collar crime. "I kept looking for more evidence and there was nothing there."
In his experience, the weakest cases are "one-witness ID" cases like Green's.
"I used to hate those as a prosecutor," said Harrison, who worked as an assistant district attorney in New York City early in his career.
He said Hallock's depiction of the kidnapping and the shooting did not make sense.
The problems, according to Harrison:



  • No fingerprints tie Green to the crime even though Hallock testified that "the black guy" climbed in and out of Flynn's truck more than once.




  • No shell casings or bullets were found despite her saying that Green fired a gun multiple times.



  •  No DNA from Green was found on the shoelaces that tied Flynn's hands.

    In addition, Harrison said, Hallock made several inconsistent statements, including changing her version of who tied Flynn's hands. She told a deputy at the scene that Green made her do it, while at the trial she said that Green tied the shoelace.

  • He then points out the photo line-up from which Hallock identified Green.
    "It is a target with a bulls eye on Crosley. His picture is smaller and darker. Your eyes are naturally drawn to it," Harrison said. "It was the exact opposite of how it should be done."
    Three main witnesses -- Sheila Green, Lonni Hillery and Jerome Murray -- have recanted, saying they lied about Green confessing to them. Sheila Green, who is Crosley's sister, later said that she made up the confession under pressure because she was facing sentencing on federal drug charges and hoped to get a favorable deal.
    Another witness, Layman Layne, who testified in 2004 that Green confessed to shooting someone, said five years later that Green did not tell him anything.



  • Harrison said his legal team also has collected eight sworn affidavits from alibis who either saw Green or were with him away from the scene around the time of the shooting.

    Repealing death

    Green's trial took place in the Melbourne courthouse on Nieman Avenue in early fall of 1990.
    Rob Parker, Green's attorney at the time -- who now works as a prosecutor for the Brevard State Attorney's OfFice -- remembers the atmosphere in the courtroom being intense.
    At one point, the state put a plea offer on the table.
    "Listen, we can resolve this, if you will plea to a second-degree murder . . . we can avoid death," Parker remembers telling Green.
    But Green, who was 32 at the time, refused.
    "I'm not going to do it. I didn't do it," Green told his attorney.
    Parker was dumbfounded.
    "My sense was pretty much I was begging him," Parker said.
    If he had accepted that deal, he would have been a free man by now.
    The next year, Green was on Florida's death row. But the appeals that follow every death penalty were just beginning.
    In 1999, the Green case got national attention when Paul Ciolino, a brash tough-talking investigator, arrived in Brevard County to pursue the case.
    Ciolino, a Chicago native, had built a reputation for helping overturn death penalty cases in other parts of the country.
    He and three other investigators started questioning some of the witnesses in Green's original trial. A CBS News crew traveled with them as they shot footage for an episode of the TV newsmagazine "48 Hours."
    Investigators, who offered a $25,000 reward for information, outlined 132 problems with the Green case at a press conference in Cocoa Beach.
    "He was not the greatest man. But they manufactured a murder case against this guy," Ciolino said recently.
    That same year, in 1999, Brevard-Seminole State Attorney Norman Wolfinger asked the Florida Department of Law Enforcement to revisit the case.
    But the 11-month investigation concluded that the hairs found in Flynn's truck tested for mitochondrial DNA did not exclude Green as a possible suspect.But the inmate kept up the challenge.
    In 2007, the Florida Supreme Court upheld his conviction but ordered a re-sentencing.
    Two years later, in August 2009, he was sentenced to life. The Florida Department of Corrections likely will begin an investigation in 2013 as to when he can be paroled.

    High court rule

    Assistant State Attorney Chris White and Phil Williams, an assistant state attorney who later became sheriff, were the prosecutors during Green's original trial.
    White is scheduled to retire in September. Wayne Holmes, the chief of staff for the Brevard State Attorney's Office, will now handle the Green case locally.
    Holmes points to the state's high court listing a "plethora" of evidence of Green's guilt: trial testimony from Hallock, testimony from witnesses who saw Green at Holder Park and original testimony from the recanting witnesses.
    He cites a ruling from the Florida Supreme Court in 2008 that the recantations by the three witnesses were unreliable and dubious and said he "respectfully disagrees" with the trial court having another hearing.
    "They keep repeating that the witnesses recanted, but that issue was specifically dealt with in 2008 by Judge (Bruce) Jacobus and the Florida Supreme Court," Holmes said.
    Lost in all this, he said, was the nightmare that the Flynn family had to go through.
    "In their minds, they did not see justice in their lifetime," he said. "It is something that has gone on and on. There has never been a finality to it."

    Seeking the truth

    Harrison believes the Flynn family needs to know the truth about their loss.
    His firm could have walked away after Green was taken off death row.
    But they did not.
    At a hearing in May, where Harrison presented two alibi witnesses, Green appeared thin and frail, almost overwhelmed at the sight of so many attorneys rallying for him.
    Appeals are possible if Circuit Judge David Dugan denies a retrial. Harrison said his team will pursue the case in federal court if unsuccessful in Florida.
    "We are not walking away," he said.

    Contact Basu at 321-242-3724 or kbasu@floridatoday.com.

    Is this killing necessary?

    CAPITAL PUNISHMENT

    Is this killing necessary?

    www.miamiarch.org

    Gov. Rick Scott has signed his first death warrant. While originally scheduled for Aug. 2nd, a stay granted by the Florida Supreme Court to review the lethal injection protocol will postpone the execution of Manuel Valle until September 1st. Thanks to the Supreme Court’s intervention, Gov. Scott has the opportunity to reconsider his decision — and, I along with the other bishops of Florida, urge him to do so.

    Manuel Valle was found guilty of shedding innocent blood — that of a police officer, Luis Peña. He also attempted to shoot another officer, Gary Spell. These crimes are heinous — but, they were committed more than 30 years ago. After 30 years, is it necessary for the State of Florida to kill this man? Does society really make a coherent statement against killing by killing?

    The argument has been made that the application of the death penalty represents the legitimate self defense of society from an unjust aggressor, i.e. the murderer. And, historically, the church has conceded the point that the government can rightly apply capital punishment when absolutely necessary, i.e. when otherwise impossible to defend society. There is, in church teaching, no moral equivalence between the execution of the guilty after due process of law and the willful destruction of innocent life that happens with abortion or euthanasia.

    However, as Pope John Paul II has pointed out in Evangelium Vitae (no. 56): given the organization of today’s penal system and the option of imposing life imprisonment without the possibility of parole, such an “absolute necessity” is “practically nonexistent”.

    Also, it is difficult to defend the “necessity” of executing someone when often his accomplice, in exchange for information or testimony, is given through plea bargaining a lesser sentence. And while some loved ones seek “closure,” it is hard to see how capital punishment as “social retribution” or “institutional vengeance” really serves the purpose of punishment, which should be designed to redress the disorder caused by the offense. The death penalty cannot bring the victims back to life.

    Even from a purely pragmatic or utilitarian point of view, the death penalty cannot be defended. It is not an effective deterrent to crime. Texas has executed more criminals than any other state; yet, it still has one of the highest murder rates in the nation. And the death penalty is not cost effective. It costs the state less to imprison someone for the remainder of his natural life than to execute him. Given that it is irreversible, society has rightly provided that it be applied only after lengthy and expensive legal appeals. And, in spite of this, there are dozens of documented cases of wrongly convicted innocent people executed in the last century.

    Willful murder is a heinous crime; it cries to God for justice. Yet, God did not require Cain’s life for having spilt Abel’s blood. While God certainly punished history’s first murderer, he nevertheless put a mark on him to protect Cain from those wishing to kill him to avenge Abel’s murder (Gn 4:15). Like Cain, the condemned prisoner on death row — for all the evil of his crimes — remains a person. Human dignity — that of the convicted as well as our own — is best served by not resorting to this extreme and unnecessary punishment. Modern society has the means to protect itself without the death penalty.

    The commutation to life imprisonment would serve the common good of all by helping break our society’s spiral of violence. The “eye for an eye” mentality will just end up making us all blind.

    The Most Rev. Thomas Wenski is archbishop of Miami.

    Read more: http://www.miamiherald.com/2011/07/31/2337432/is-this-killing-necessary.html#ixzz1ThkXn82o

    Lundbeck overhauls pentobarbital distribution program to restrict misuse



    H. Lundbeck A/S Ottiliavej 9 
    Tlf +45 36 30 13 11 
    DK-2500 Valby, Denmark 
    Fax +45 36 43 82 62 
    Press release
    Valby, 1 July 2011
    Lundbeck overhauls pentobarbital distribution program to restrict misuse 

    New specialty pharmacy drop ship program will deny distribution of pentobarbital to prisons in U.S. states currently carrying out the death penalty by lethal injection. 

    Lundbeck today announced that the company has moved to alter the distribution of its medicine Nembutal® (pentobarbital sodium injection, USP) in order to restrict its application as part of lethal injection in the U.S. Going forward, Nembutal will be supplied exclusively through a specialty pharmacy drop ship program that will deny distribution of the product to prisons in U.S. states currently active in carrying out the death penalty by lethal injection. The company notified its distributors of the plan in late June.
    The new distribution program ensures that hospitals and treatment centers will continue to have access to Nembutal for therapeutic purposes. Under the program, Lundbeck will review all Nembutal orders before providing clearance for shipping the product and deny orders from prisons located in states currently active in carrying out death penalty sentences.
    Prior to receiving Nembutal, the purchaser must sign a form stating that the purchase of Nembutal is for its own use and that it will not redistribute any purchased product without express written authorization from Lundbeck. By signing the form, the purchaser agrees that the product will not be made available for use in capital punishment.
    "Lundbeck adamantly opposes the distressing misuse of our product in capital punishment. Since learning about the misuse we have vetted a broad range of remedies – many suggested during ongoing dialogue with external experts, government officials, and human rights advocates. After much consideration, we have determined that a restricted distribution system is the most meaningful means through which we can restrict the misuse of Nembutal," says Ulf Wiinberg, Chief Executive Officer of H. Lundbeck A/S and continues: "While the company has never sold the product directly to prisons and therefore can’t make guarantees, we are confident that our new distribution program will play a substantial role in restricting prisons’ access to Nembutal for misuse as part of lethal injection."
    Lundbeck has initiated a thorough investigation of the distribution of Nembutal to assess ways of restricting prisons’ access to the medicine. Based on the initial findings, the company believes its new distribution program is the best way to achieve this. The investigation will be completed, and any possible further options that may be discovered will be evaluated.
    Prior to the implementation of the drop ship program, Nembutal was sold through a more standard process utilizing several distributors to fulfill orders based on whether customers held the appropriate federal and state licenses for ordering controlled substances. 

    1 July 2011 Press release

    Saturday, July 30, 2011

    Death drugs

    Jury recommends death for Gregory

    Death drugs
    Currently, 394 inmates are sitting on Florida's death row.
    The state is rewriting its lethal injection procedure after Illinois-based Hospira Inc. outsourced production of Pentothal to Italy, according to news accounts. Italy then objected to the drug being exported for executions.
    The state is considering using Pentobarbital, Gretl Plessinger, a spokeswoman for the Department of Corrections, wrote in an e-mail last week.
    "There are no execution dates set at this time, but we will be prepared to carry out a humane and competent execution when Governor Scott signs a death warrant," Plessinger wrote.
    Pentobarbital is more typically used for euthanizing animals, according to news accounts. Oklahoma uses the drug for its executions and Ohio recently announced it would begin using Pentobarbital to replace Pentothal.
    Death row inmates in Florida have had a choice since 2000 on the execution method: lethal injection or the electric chair.
    "No inmates have chosen the electric chair since lethal injection began," Plessinger wrote.

    More: Department of Corrections

    No hay justificación para la pena de muerte






    El máximo tribunal aplazó la ejecución de Manuel Valle hasta el 1 de septiembre.




    Por Arzobispo Thomas Wenski, Arzobispo de Miami

    El gobernador Scott ha firmado su primera sentencia de muerte. Aunque prevista inicialmente para el 2 de agosto, un aplazamiento concedido por la Corte Suprema de la Florida para revisar el protocolo de inyección letal aplazará la ejecución de Manuel Valle hasta el 1ro. de septiembre. Gracias a la intervención de la Corte Suprema, el gobernador Scott tiene la oportunidad de reconsiderar su decisión —y yo, y conmigo los otros obispos de la Florida, le instamos a hacerlo.

    Manuel Valle fue declarado culpable de derramar sangre inocente --la de un agente de la policía, Luis Peña. También intentó dispararle a otro agente, Gary Spell. Estos crímenes son atroces-- pero se cometieron hace más de 30 años. Después de 30 años, ¿es necesario que el Estado de la Florida mate a este hombre? ¿Responde la sociedad de manera coherente en contra de matar, matando?

    El argumento ha sido que la aplicación de la pena de muerte representa la legítima defensa de la sociedad contra un agresor injusto, es decir, el asesino. Históricamente, la Iglesia ha concedido que el Estado puede aplicar la pena capital cuando sea absolutamente necesaria, es decir, cuando no le sea posible defenderse de otro modo. No hay, en las Enseñanzas de la Iglesia, una equivalencia moral entre la ejecución de los culpables tras el debido proceso legal, y la destrucción deliberada de la vida inocente que se practica con el aborto o la eutanasia. Sin embargo, el Papa Juan Pablo II ha señalado en la Evangelium Vitae (no. 56): teniendo en cuenta la organización del sistema penal actual y la posibilidad de imponer la cadena perpetua sin opción de libertad condicional, que tal “necesidad absoluta” es “prácticamente inexistente”.

    Además, es difícil defender la “necesidad” de ejecutar a alguien, cuando a su cómplice, a cambio de información o de prestar testimonio, se le da con frecuencia, mediante la negociación de los cargos, una sentencia menor. Y, aunque algunos seres queridos de las víctimas la piden”, es difícil ver cómo la pena de muerte como algo que repararía el daño. Un castigo debe ser mas que una “retribución social” o “venganza institucional”. El propósito de imponer un castigo a uno debe estar concebido para compensar el desorden introducido por el delito. La pena de muerte no puede devolverles la vida a las víctimas.

    Incluso desde una perspectiva puramente pragmática o utilitaria, la pena de muerte no ...

    Por Arzobispo Thomas Wenski, Arzobispo de Miami


    puede ser defendida. No es un medio eficaz de disuasión frente a la delincuencia. Texas ha ejecutado a más delincuentes que cualquier otro estado; sin embargo, todavía tiene una de las tasas de homicidios más altas del país. Y la pena de muerte no es rentable. Al estado le cuesta menos encarcelar a alguien por el resto de su vida natural, que ejecutarlo. Dado el hecho de que es irreversible, la sociedad ha establecido, con razón, que la pena de muerte sólo se aplique después de apelaciones judiciales prolongadas y costosas. Y, a pesar de esto, hay docenas de casos documentados de personas inocentes que han sido injustamente condenadas y ejecutadas en el pasado siglo.

    El homicidio intencional es un crimen atroz, que clama a Dios por justicia. Sin embargo, Dios no exigió la vida de Caín por haber derramado la sangre de Abel. Dios, efectivamente, castigó al primer asesino de la historia, pero le impuso una marca a Caín para protegerlo de aquellos que quisieran matarlo para vengar el asesinato de Abel (cf. Gn 4:15). Como Caín, el prisionero condenado en el corredor de la muerte —con toda la maldad de sus crímenes— sigue siendo una persona. Se sirve mejor a la dignidad humana —la de los condenados, así como la nuestra— al no recurrir a este castigo extremo e innecesario. La sociedad moderna tiene los medios para protegerse sin la pena de muerte.

    La conmutación a cadena perpetua serviría al bien común de todos, rompiendo la espiral de violencia d

    The U.S. Supreme Court has refused to lift a stay of execution ordered by the Florida Supreme Court.

    7/30 FLORIDA BRIEFS: Justices uphold stay of execution


    TALLAHASSEE -- The U.S. Supreme Court has refused to lift a stay of execution ordered by the Florida Supreme Court.

    The federal justices Friday rejected a request by Florida Attorney General Pam Bondi to vacate the stay for Manuel Valle.

    The 61-year-old convict had been scheduled for execution by lethal injection next Tuesday for fatally shooting a Coral Gables police officer 33 years ago.

    The Florida justices, though, stayed the execution and ordered a Miami judge to hold a fact-finding hearing on a change in the state’s lethal injection procedure.

    That hearing begin Thursday and will continue next week.

    Read more: http://www.bradenton.com/2011/07/30/3385407/justices-uphold-states-stay-of.html#ixzz1TdET6Ex4

    They sent letters to state departments of corrections condemning the use of their product in executions by lethal injection

    Both Hospira, Inc., the manufacturer of sodium thiopental, and Lundbeck,
    Inc., the manufacturer of pentobarbital, have publicly stated that they sent letters to state departments of corrections condemning the use of their product in executions
    by lethal injection. In Lundbeck?s case, the company?s concern was based on serious concerns regarding the efficacy of the drug for such use. Certainly, concerns over the efficacy of a drug, which is intended to be the most crucial aspect of the three drug sequence is an indication of a flaw in the procedures.

    The Office of the Attorney General was required to disclose

    The Office of the Attorney General was
    required to disclose correspondence regarding the constitutionality of the new
    protocol and similar correspondence from the Governor?s Office to the extent it
    would approve or review changes to the lethal injection procedures.

    Has FDLE followed up the execution protocol, as required?

    The FDLE was only required to turn over training logs, manuals, or protocol
    having to do with their involvement in the execution process and logs or record
    books regarding the maintenance, storage, use and disposal of pentobarbital. The
    FDLE only disclosed training logs for 3 dates in 2010, yet certified to the lower
    court that it provided all the records responsive to the court?s order. Again, this
    was not the extent of the information requested from FDLE. Importantly, FDLE is
    an integral part of the lethal injection process because the agents are supposed to
    serve as independent observers. Further, FDLE is required to confirm that all
    lethal chemicals are correct and current, including compliance with state and federal law

    The only explanation is that these records don?t exist.

    The DOC and FDLE were required to disclose correspondence from January
    1st, 2010, to the present with any federal agency within drug enforcement, FDA,
    BOP or DOJ, with regard to the constitutionality and/or efficacy of the chemical
    combination in the new protocol from June 8th, 2011. Neither agency provided
    these records and each certified they turned over everything they had with respect
    to the court?s order. Therefore, the only explanation is that these records don?t
    exist.

    Two drafts dated December 29, 2010 of the lethal injection procedures reflecting a change from sodium thiopental to pentobarbital,

    Nevertheless, the extent of the records disclosed from DOC included a two
    page invoice, the April 21, 2008 lethal injection procedures with a memo
    requesting the then Secretary?s signature, the June 8, 2011 lethal injection
    procedures, two drafts dated December 29, 2010 of the lethal injection procedures
    reflecting a change from sodium thiopental to pentobarbital, a legal memorandum
    on the state of lethal injection litigation across the country, and blank copies of all
    execution checklists and other materials used by the execution team, during training sessions and during an execution. This was by no means the entirety of
    Mr. Valle?s request.

    Records DOC denied to disclose

    The Department of Corrections was required to produce 57 pages of records
    which it had previously agreed to provide to a private attorney pursuant to Fla.
    Stat. §119, but which the DOC repeatedly objected to providing to death sentenced
    inmates represented by CCRC-South.

    Friday, July 29, 2011

    Paul Flemming: Drug debate puts execution on hold

    Paul Flemming
    Paul Flemming
    Harvard medical school professors, Danish pharmaceutical companies, four members of the Florida Supreme Court and attorneys for condemned cop killer Manuel Valle are poking their collective noses into the state of Florida's business, namely its — and our — business of death.
    As a result, Valle won't be executed Tuesday as scheduled by the death warrant Gov. Rick Scott signed in June.
    The Florida Supreme Court on Monday stayed Valle's death sentence and ordered an evidentiary hearing about the efficacy of pentobarbital to knock him unconscious so he doesn't feel the effects of the next two drugs his executioners would administer to paralyze him and stop his heart.
    Justices Barbara Pariente, Peggy Quince, Jorge Labarga and James Perry voted to stay Valle's execution, writing that a report from Dr. David Waisel, a pediatric anesthesiologist and associate professor of anesthesia at Harvard Medical School included in Valle's lawyer's arguments, merited a further look at pentobarbital, a new drug in Florida's execution process.
    Dissenting were Chief Justice Charles Canady and Justices Fred Lewis and Ricky Polston. "Based on speculation and conjecture, Valle claims the right to judicial micromanagement of the execution process," Canady wrote in the dissenting opinion.
    An evidentiary hearing began in Miami on Thursday. The question will end up back before the state's high court.
    Florida's use of pentobarbital is new. Previously, Florida used sodium thiopental as the first drug. But the maker of sodium thiopental stopped doing so. Department of Corrections Secretary Ed Buss approved new protocols for lethal injection, including pentobarbital, on June 8.
    Staffan Schüberg, president of Lundbeck Inc., the manufacturer of pentobarbital with the brand name Nembutal, wrote to Scott on May 16 and June 8 and also sent a June 8 letter to Buss.
    "We are adamantly opposed to the use of Nembutal to execute prisoners because it contradicts everything we are in business to do — provide therapies that improve people's lives," Schuberg wrote in his May 16 letter to Scott.
    Schüberg admits there's nothing he can do to stop the state of Florida.
    Of the 30 states that use lethal injection for executions, a number have already switched to pentobarbital after supplies of sodium thiopental went away. Oklahoma, Texas and Georgia have executed prisoners this year using pentobarbital as part of lethal injections.
    The three drugs — to anesthetize, paralyze and kill — have been sanctioned by the U.S. Supreme Court as constitutional. The combination is used by so many states because to vary the procedure would invite further court review. The magical mix was developed essentially by chance in 1977 by Oklahoma's chief medical examiner, Jay Chapman, according to years of litigation about the procedures.
    The states, including Florida, argue the procedure is designed to provide a humane and pain-free death for the condemned. Death sentences are carried out with the antiseptic regimentation of a government bureaucracy that also make for a less messy and disturbing experience for executioners and witnesses.
    Lethal injection became the first option for Florida executions in 2000, following a series of grisly fires and unseemly writhing by the condemned who died in the still-optional electric chair.
    State-sponsored executions are going away. This is not a subjective hope, it is an objective fact, as fewer and fewer death sentences are carried out in the United States, itself an outlier in the community of nations. Not this year, not this decade even, probably, but it's slipping toward its inevitable end. The more we take ourselves away from the reality of state-sponsored death with debates about the efficacy of anesthesia, the more self-evidently ludicrous the arguments become and unsupportable its practice.
    This societal evolution is evident.
    Did the power company ever object to the state's using its electricity for unintended purposes?
    — Paul Flemming is the state editor for the Tallahassee Democrat and floridacapitalnews.com. Contact him at pflemming@tallahassee.com or 850-671-6550.

    Examine lethal-injection procedures, legislator says

    Examine lethal-injection procedures, legislator says

    Friday, July 29, 2011  03:05 AM

    The Columbus Dispatch


    Rep. W. Carlton Weddington, a Columbus Democrat, asked Gov. John Kasich on Monday to take a close look at execution procedures in line with a recent court decision and resulting delays.
    "I am concerned that now, after the second delayed execution, Gov. Kasich and Director (Gary) Mohr have not done more to address this very sensitive issue," Weddington said in a statement. "The citizens of Ohio need justice that is fair and balanced but also humane and cost-effective. Today, I raise the question of, is lethal injection the right form of justice, and how do we administer it in the best possible way?"
    Weddington is a member of the House Criminal Justice Committee and the Correctional Institution Inspection Committee.
    Two scheduled executions have been postponed because of a federal judge's decision calling Ohio's adherence to its execution procedures "haphazard."

    US justices let Florida stay of execution stand


    Posted: 10:11 a.m. Friday, July 29, 2011

    — The U.S. Supreme Court has refused to lift a stay of execution ordered by the Florida Supreme Court.
    The federal justices Friday rejected a request by Florida Attorney General Pam Bondi to vacate the stay for Manuel Valle.
    The 61-year-old convict had been scheduled for execution by lethal injection next Tuesday for fatally shooting a Coral Gables police officer 33 years ago.
    The Florida justices, though, stayed the execution and ordered a Miami judge to hold a fact-finding hearing on a change in the state's lethal injection procedure.
    That hearing begin Thursday and will continue next week.
    It focuses on the safety and effectiveness of a new chemical that Florida plans to use as part of its three-drug lethal injection cocktail.
    The new drug replaces one that's no longer made.
    ___
    July 29, 2011 10:11 AM EDT

    Capital punishment has drug problem, will eventually die

    Capital punishment has drug problem, will eventually die

    — Paul Flemming is the state editor for the Tallahassee Democrat and floridacapitalnews.com. You can reach him at pflemming@tallahassee.
    com or 850-671-6550.



    Harvard Medical School professors, Danish pharmaceutical companies, four members of the Florida Supreme Court and attorneys for condemned cop killer Manuel Valle are poking their collective noses into the state of Florida’s business, namely its — and our — business of death.
    As a result, Valle won't be executed Tuesday as scheduled by the death warrant Gov. Rick Scott signed in June.
    The Florida Supreme Court stayed Valle’s death sentence last Monday and ordered an evidentiary hearing about the efficacy of pentobarbital to knock him unconscious so he doesn’t feel the effects of the next two drugs his executioners would administer to paralyze him and stop his heart.
    Justices Barbara Pariente, Peggy Quince, Jorge Labarga and James Perry voted to stay Valle’s execution, writing that a report from Dr. David Waisel, a pediatric anesthesiologist and associate professor of anesthesia at Harvard Medical School included in Valle’s lawyer’s arguments, merited a further look at pentobarbital, a new drug in Florida’s execution process.
    Dissenting were Chief Justice Charles Canady and Justices Fred Lewis and Ricky Polston. “Based on speculation and conjecture, Valle claims the right to judicial micromanagement of the execution process,” Canady wrote in the dissenting opinion.
    An evidentiary hearing was held in Miami on Thursday. The question will end up back before the state’s high court.
    Florida’s use of pentobarbital is new. Previously, Florida used sodium thiopental as the first drug. But the state’s supplier of sodium thiopental stopped manufacturing it. Corrections Secretary Ed Buss approved new protocols for lethal injection, including pentobarbital, June 8.
    Staffan Schuberg, president of Lundbeck Inc., the manufacturer of pentobarbital with the brand name Nembutal, wrote to Scott on May 16 and June 8 and also sent a June 8 letter to Buss.
    “We are adamantly opposed to the use of Nembutal to execute prisoners because it contradicts everything we are in business to do — provide therapies that improve people’s lives,” Schuberg wrote in his May 16 letter to Scott.
    Schuberg admits there’s nothing he can do to stop the state of Florida.
    Of the 30 states that use lethal injection for executions, a number have already switched to pentobarbital after supplies of sodium thiopental went away. Oklahoma, Texas and Georgia have executed prisoners this year using pentobarbital as part of lethal injections.
    Those three drugs — to anesthetize, paralyze and kill — have been sanctioned by the U.S. Supreme Court as constitutional. It’s used by so many states because to vary the procedure would invite further court review. The magical mix was developed essentially by chance by Oklahoma’s chief medical examiner in 1977, Jay Chapman, according to years of litigation about the procedures.
    Though states, including Florida, argue the procedure is designed to provide a humane and pain-free death for the condemned. Death sentences are carried out with the antiseptic regimentation of a government bureaucracy that also makes for a less messy and disturbing experience for executioners and witnesses.
    Lethal injection became the first option for Florida executions in 2000, following a series of electric-chair-caused fires and unseemly writhing by the condemned.
    State-sponsored executions are going away. This is not a hope, it is an objective fact as fewer and fewer death sentences are carried out in the United States, itself an outlier in the community of nations. Not this year, not this decade even, probably, but it’s slipping toward its inevitable end. The more we take ourselves away from the reality of state-sponsored death with debates about the efficacy of anesthesia, the more self-evidently ludicrous the arguments become and unsupportable its practice
    This societal evolution is evident.
    Did the power company ever object to the state using its electricity for unintended purposes?

     

    Lethal injection drug hearing to continue next week

    CAPITAL PUNISHMENT

    Lethal injection drug hearing to continue next week

     

    A Miami judge began hearing testimony on the safety of pentobarbital, an anesthetic intended to be used in the scheduled execution of man who shot and killed a Coral Gables cop in 1978.

    pmazzei@MiamiHerald.com

    A hearing that began Thursday morning on the new use of an anesthetic drug in Florida’s legal injections will continue next week, after a Miami judge decided that scientists for both sides should testify in person and via video conference on Tuesday.
    The hearing stems from the case of Manuel Valle, sentenced to death for shooting and killing Coral Gables Police Officer Louis Pena in 1978. Valle’s execution, initially set for Aug. 2, was temporarily stayed by the Florida Supreme Court on Monday until Sept. 1, pending a hearing on the safety and efficacy of the drug in question, pentobarbital.
    The defense’s expert witness on the drug was unable to be in Miami before Tuesday, when the judge was scheduled to be on vacation. The prosecution’s expert could have testified by phone Thursday, but Circuit Court Judge Jacqueline Hogan Scola — apparently postponing her vacation — said she would be more comfortable seeing the witness’s face by video to establish his credibility. That expert will testify Tuesday, too.
    A quiet but alert Valle, 61, appeared in court Thursday, handcuffed, carrying a bulky file and wearing orange-and-blue prison garb and thick glasses that slid down his nose.
    He turned occasionally to look at family members seated in the courtroom and spoke only halfway through the proceedings, when his lawyer told the judge Valle preferred to go back to Florida State Prison in Starke than to sit through the remainder of the hearing through Tuesday.
    Do you want to go now, or wait until the end of the day?, the judge asked him.
    “It doesn’t matter,” Valle said, turning to the gaggle of corrections officers sitting behind him. “If you guys want to go…”
    That prompted laughter from the judge, lawyers and observers in the courtroom, and a smile from Valle, who was allowed to go.
    “Thank you, your honor,” he said.
    His family and the victim’s family, many of whom had driven over from Fort Myers Thursday morning, remained. A contingent of Coral Gables police officers left.
    The judge listened to testimony — by phone and in person — from people who have witnessed lethal-injection executions using pentobarbital in other states.
    Valle would be the first Florida inmate to be executed with the drug. His defense has raised questions as to whether the drug in the amount prescribed by the state could cause him pain and constitute cruel and unusual punishment.
    Testifying for the defense, a federal public defender, described the June 16 execution in Alabama of Eddie Duval Powell. The witness, Matt Schulz, said by phone that Powell jerked up, clenched his jaw and looked confused for about a minute before passing out and later dying.
    On the other side, John Harper, an employee of the Georgia Department of Corrections, described the June 23 execution in that state of Roy Blankenship — expected to come up when the defense’s expert takes the stand next week — as relatively non-eventful.
    The Florida Department of Corrections signed off last month on using pentobarbital, a barbiturate, to sedate inmates before a second drug paralyzes them and a third stops their heart.
    The state had to switch sedatives after the Illinois pharmaceutical company that sold it the previous drug, sodium thiopental, discontinued the production of it because it did not want the drug used in executions.
    The defense on Thursday admitted into evidence four letters sent to the state by Lundbeck, the Danish company that manufactures the pentobarbital, urging Florida not to use the drug for capital punishment.
    “The use of pentobarbital outside the approved labeling has not been established,” Staffan Schüberg, Lundbeck’s president, wrote Gov. Rick Scott. “As such, Lundbeck cannot assure the associated safety and efficacy profiles in such instances. For this reason, we are concerned about its use in prison executions.”
    Herald/Times staff writer Michael C. Bender contributed to this report.

    Read more: http://www.miamiherald.com/2011/07/28/2333679/judge-to-hold-hearing-on-new-use.html#ixzz1TUtNx0fC

    Lundbeck said it would review orders before providing clearance for shipping the drug and deny orders from prisons

    Lundbeck said it would review orders before providing clearance for shipping the drug and deny orders from prisons located in states currently carrying out executions.

    Purchasers must give written agreement that they will not redistribute the drug. Previously, distributors were required only to ensure that a buyer had the necessary licenses for ordering controlled substances.

    Danish Company Blocks Sale of Drug for U.S. Executions

    http://www.nytimes.com/2011/07/02/world/europe/02execute.html?_r=2

    Danish Company Blocks Sale of Drug for U.S. Executions


    PARIS — A Danish pharmaceutical company said Friday that it would stop shipping a powerful drug to American prisons that carry out the death penalty by lethal injection because some states began using it as a substitute for another compound that was taken off the market.
    The company, Lundbeck, said in a statement that it “adamantly opposes the distressing misuse of our product in capital punishment.” Lundbeck informed its distributors that from now on its sodium pentobarbital injection, a barbiturate sold under the brand name Nembutal, would be available in states that conduct lethal-injection executions on only a restricted basis.
    “After much consideration, we have determined that a restricted distribution system is the most meaningful means through which we can restrict the misuse of Nembutal,” Ulf Wiinberg, Lundbeck’s chief executive, said in the statement. “While the company has never sold the product directly to prisons and therefore can’t make guarantees, we are confident that our new distribution program will play a substantial role in restricting prisons’ access to Nembutal for misuse as part of lethal injection.”
    The death penalty is prohibited throughout the 27-member European Union, and human rights groups have brought pressure on drugmakers not to supply lethal drugs for American executions.
    In execution by lethal drugs, a prisoner is injected with one or more drugs, which can include anesthetics, barbiturates and muscle relaxants.
    Lundbeck’s decision applies to prisons in 14 states, said Mads Kronborg, a company spokesman. It follows moves by states including Mississippi, Ohio, Oklahoma and Texas, to use the drug for executions. States began using pentobarbital as a substitute for the anesthetic sodium thiopental when that drug’s only American producer, Hospira Inc. of Lake Forest, Ill., announced in January that it would stop selling the drug.
    Reprieve, a human rights group in London that has led in the movement to stop European companies from selling lethal injection drugs to the United States, said pentobarbital had been used to execute 18 prisoners.
    “We also need to see action from the European Commission to block the export of execution drugs from the E.U. to the U.S.,” a Reprieve spokeswoman, Maya Foa, said in a statement. “Several European firms have already become involved in this grim business on their watch — this must not be allowed to happen again.”
    While pentobarbital is an old drug, vulnerable to competition from generics, Nembutal is currently the only version available in the United States that can be injected, Mr. Kronborg said.
    “We would have withdrawn it from the market,” he said. “Strategically, financially it’s completely insignificant to us.
    “But experts said it was important to have it available for therapeutic use,” including as an emergency treatment of severe epilepsy and as a strong sedative, he added.
    Lundbeck said it would review orders before providing clearance for shipping the drug and deny orders from prisons located in states currently carrying out executions. Purchasers must give written agreement that they will not redistribute the drug. Previously, distributors were required only to ensure that a buyer had the necessary licenses for ordering controlled substances.
    “We were completely shocked and outraged” to learn that the drug was being used for executions, Mr. Kronborg said. “States and prisons never asked. We only found about it from the media. If they had asked, we would have said no.”

    Lundbeck has issued statements discouraging the use of pentobarbital in executions.

    Lundbeck has issued statements discouraging the use of pentobarbital in executions.

    “Lundbeck adamantly opposes the distressing misuse of our product in capital punishment,” company CEO Ulf Wiinberg said in a prepared statement Friday. “After much consideration, we have determined that a restricted distribution system is the most meaningful means through which we can restrict the misuse of Nembutal.”
    The new distribution proc-ess will deny sales to corrections departments in states that impose death sentences and carry out executions.

    Danish firm cuts off execution drug

    Danish firm cuts off execution drug



    PHOENIX — Execution by lethal injection has hit another roadblock after the Danish pharmaceutical firm that makes a barbiturate recently incorporated into most states’ execution protocols announced that it would change the drug’s distribution to keep prisons from obtaining it for executions.
    H. Lundbeck A/S is the manufacturer of pentobarbital, which it markets under the brand name Nembutal.
    In the last few months, pentobarbital has been used in executions because the preferred drug, sodium thiopental, became unavailable when the sole U.S. manufacturer, Lake Forest-based Hospira Inc., ceased production.
    Pentobarbital is used as the first of three drugs in lethal injection. It renders the condemned inmate unconscious so he or she cannot feel the second two drugs, a paralytic and a drug that stops the heart.
    Lundbeck has issued statements discouraging the use of pentobarbital in executions.
    “Lundbeck adamantly opposes the distressing misuse of our product in capital punishment,” company CEO Ulf Wiinberg said in a prepared statement Friday. “After much consideration, we have determined that a restricted distribution system is the most meaningful means through which we can restrict the misuse of Nembutal.”
    The new distribution proc-ess will deny sales to corrections departments in states that impose death sentences and carry out executions.
    Gannett News Services

    Thursday, July 28, 2011

    The use of pentobarbital outside the approved labeling has not been established

    "The use of pentobarbital outside the approved labeling has not been established," Schüberg wrote. "As such, Lundbeck cannot assure the associated safety and efficacy profiles in such instances. For this reason, we are concerned about its use in prison executions."

    Maker of Drug Used in Florida Lethal Injections Asked Rick Scott Not to Kill People With It

    Maker of Drug Used in Florida Lethal Injections Asked Rick Scott Not to Kill People With It

    manuel-valle.jpg
    Florida Department of Corrections
    Manuel Valle, the subject of the current lethal-injection controversy in Florida.
    Florida hasn't tested out the new lethal-injection drug it has planned to start using, but letters to Gov. Rick Scott from the drugmaker's president -- sent before Scott signed off on the first lethal juicing of his governorship -- show that the company's president practically begged the governor not to use the new drug to kill the state's prisoners.

    Staffan Schüberg, president of the Danish drug manufacturer Lundbeck, wrote to Scott twice asking him not to misuse his company's drug, Nembutal -- which Scott approved to execute South Florida cop-killer Manuel Valle.

    One concern Schüberg relays to Scott about the use of Nembutal in Florida's executions is that his company didn't exactly test the drug by trying to kill people, so it has no idea of its effectiveness or safety in executions.

    On May 16, Schüberg wrote his first letter to the governor, asking him to stop abusing his company's drug.

    "We are adamantly opposed to the use of Nembutal to execute prisoners because it contradicts everything we are in business to do -- provide therapies that improve people's lives," he wrote. "Given our strong opposition to this misuse of our product, we previously sent a letter to the Florida Department of Corrections urging it to refrain from using Nembutal for the purpose of capital punishment."

    Two weeks later, Scott signed Valle's death warrant.

    Valle's execution was just delayed yesterday, from August 2 to September 1, in a Florida Supreme Court decision that stated a judge will have to hear evidence on whether the new lethal injection drug the state plans to use in Valle's execution is acceptable.

    Nembutal -- which has been the replacement since the lone manufacturer of sodium thiopental stopped making that drug -- has been used without any reported incidents in a handful of other states.

    Still, Schüberg wrote again to the governor after he signed off on Valle's juicing, asking one more time that Florida not use his company's sedative.

    "The use of pentobarbital outside the approved labeling has not been established," he said. "As such, Lundbeck cannot assure the associated safety and efficacy profiles in such instances. For this reason, we are concerned about its use in prison executions."

    The hearing on the new drug ordered by the Florida Supreme Court is scheduled for tomorrow.

    Florida stays execution of Manuel Valle due to cruelty concerns with new drug

    26 July 2011

    Florida stays execution of Manuel Valle due to cruelty concerns with new drug


    Manuel Valle Florida has stayed the execution of Manuel Valle to allow a hearing on whether the use of a new execution drug will cause him unnecessary pain, in violation of the constitutional ban on cruel and unusual punishment.
    Mr Valle, a Cuban citizen with ties to Spain who has been on death row for more than three decades and is now being assisted by Reprieve’s EC Project, had been due to be executed a week today (August 2nd). However, in the wake of botched executions in other states using pentobarbital – which in Florida and much of the US has replaced the previously widely-used anaesthetic sodium thiopental – Florida’s Supreme Court decided on Monday to grant a stay.
    Florida’s recent history has seen a number of botched executions, notably that of Angel Diaz in 2006 which resulted in then-Governor Jeb Bush suspending all executions and establishing a commission to look into the issue, leading to a two-year hiatus.
    The recent execution of Roy Willard Blankenship in Georgia using pentobarbital was reminiscent of that of Mr Diaz – both men grimaced, struggled and appeared to be inadequately anaesthetised. Harvard anaesthesiologist Dr David Waisel has said that, judging by eyewitness accounts, Mr Blankenship was “inadequately anesthetized” and “suffered greatly”. He has warned that “Mr. Blankenship’s reaction to the pentobarbital injection may be indicative of other inmates’ reactions.”
    As Mr Valle’s is set to be in Florida, Mr Blankenship’s execution was the first to be carried out in Georgia using pentobarbital. Concerns over excessive suffering as a result of the new drug have also seen legal challenges, stays, and even the videotaping of an execution in other states.
    Reprieve’s EC Project, which is helping Mr Valle, identifies and assists prisoners with European connections who are facing the death penalty in the USA.
    Reprieve investigator Katherine Bekesi said: “Manuel Valle has already faced serious injustices. He has been denied proper clemency proceedings, and has been left to languish on death row for an astonishing 33 years.  Now he faces execution using the same drug which has resulted in terrible suffering for other prisoners. This stay of execution is welcome – it has to be hoped that Mr Valle will not now face the final injustice of an excruciating death.”
    Notes to editors
    1. For more information please contact Donald Campbell or Katherine O'Shea at Reprieve’s Press Office: donald.campbell@reprieve.org.uk / +44 (0) 20 7427 1082 / (0) 7791 755 415 / katherine.oshea@reprieve.org.uk / +44 (0) 20 7427 1099 / (0) 7931 592 674.
    2. Manuel Valle is a Cuban national with Spanish links, who has now been on death row for 33 years. He has been denied proper clemency proceedings, and (similarly to the recent case of Humberto Leal in Texas) did not receive the consular assistance to which he was entitled.
    3. An eyewitness from the Associated Press has described the “thrashing, jerking death of Roy Willard Blankenship” during which “his eyes never closed”. The full text of Dr David Waisel’s affidavit on Roy Blankenship’s inadequate anaesthesia can be found on Reprieve's website
    Sign up to join our press mailing list.

    Pentobarbital Manufacturer Says Drug is Not Safe for Lethal Injections

    http://www.beckersasc.com/anesthesia/pentobarbital-manufacturer-says-drug-is-not-safe-for-lethal-injections.html

    Anesthesia-News and Analysis
    Sponsored by Somnia Anesthesia Services | solutions@somniainc.com | (877) 476-6642, x3538

    Pentobarbital Manufacturer Says Drug is Not Safe for Lethal Injections


    A split Florida supreme court has ordered a hearing on a new drug to be used as part of the lethal injection cocktail for convicted killer Manuel Valle, according to a Palm Beach Post report.

    Department of Corrections officials in June replaced the anesthetic sodium thiopental, the first of three drugs used in lethal injections, with pentobarbital sodium. The manufacturer of sodium thiopental stopped making the drug early this year, part of a nationwide drug shortage that is affecting hospitals as well as correctional facilities.

    Lundbeck, the Danish manufacturer that produces pentobarbital, announced the drug is untested and unsafe for use in lethal injections. The company has since stopped selling the drug to those who intend to resell it for lethal injections. The drug is not FDA-approved as an anesthetic, thought it has been used in at least 15 executions in other states.

    Read the Palm Beach Post report on lethal injections.

    Related Articles on Anesthesia:
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    Experimental execution drug set to be used for first time in three US states

    28 July 2011

    Experimental execution drug set to be used for first time in three US states


    Death row - table  
    Three more death penalty states are preparing to adopt a new lethal injection drug this summer, despite evidence that it has caused botched executions and intense suffering to prisoners across the USA.
    Delaware plans to use the untested barbiturate pentobarbital – in place of the anaesthetic sodium thiopental, which has been hit by domestic shortages – for the first time this Friday [July 29] in the execution of Robert Jackson. Virginia will use the same drug in the execution of Jerry Jackson on August 18.
    Florida had planned to execute Manuel Valle, a Cuban with close ties to Spain, using pentobarbital on August 2, but the State Supreme Court issued a stay until September due to concerns over whether use of the drug could lead to unnecessary pain and suffering.
    The concerns stem from reports of a number of botched executions using pentobarbital, notably that of Roy Willard Blankenship in Georgia earlier this year, who suffered a "thrashing, jerking death," during which his eyes never closed. Harvard anaesthesiologist Dr David Waisel testified in a sworn affidavit that Mr Blankenship must have "suffered greatly" during the process.
    As a result, a recent execution in Georgia using pentobarbital has been videotaped on the orders of a judge, to assess whether it violates the Constitutional ban on "cruel and unusual punishment". This lends the process to an even greater appearance of human experimentation.
    Reprieve investigator Kat Bekesi said: "It seems incredible that the 'thrashing' deaths of prisoners and the opinion of medical experts are not enough to persuade states that they should not be trying out experimental drugs in their execution chambers. The stay of execution in Florida is a small step in the right direction, but in the longer term, state authorities will need to think hard about whether they want yet another badly botched execution on their conscience."
    ENDS
    Notes to editors
    1. For more information please contact Donald Campbell or Katherine O'Shea at Reprieve's Press Office: donald.campbell@reprieve.org.uk / +44 (0) 20 7427 1082 / (0) 7791 755 415 / katherine.oshea@reprieve.org.uk / +44 (0) 20 7427 1099 / (0) 7931 592 674.
    2. Reprieve-assisted prisoner Manuel Valle is a Cuban national with Spanish links, who has now been on death row for 33 years. He has been denied proper clemency proceedings, and (similarly to the recent case of Humberto Leal in Texas) did not receive the consular assistance to which he was entitled. His execution has been stayed until September 1st to allow a full hearing on the matter to take place. Reprieve is assisting Mr Valle as part of our EC project.
    3. An eyewitness from the Associated Press has described the "thrashing, jerking death of Roy Willard Blankenship" during which "his eyes never closed". The full text of Dr David Waisel's affidavit on Roy Blankenship's inadequate anaesthesia can be found on Reprieve's website
    Sign up to join our press mailing list.

    Judge to hold hearing on new use of drug in state’s lethal injection

    Judge to hold hearing on new use of drug in state’s lethal injection

     

    A Miami judge will hear testimony on the safety of pentobarbital, an anesthetic intended to be used in the scheduled execution of man who killed a Coral Gables cop 33 years ago.

    pmazzei@MiamiHerald.com

    A Miami judge will hear arguments Thursday morning for and against the new use of an anesthetic drug in Florida’s lethal injections.
    The hearing stems from the case of Manuel Valle, sentenced to death for shooting and killing a Coral Gables police officer in 1978. Valle’s execution, initially scheduled for Aug. 2, was temporarily stayed on Monday until Sept. 1, pending a hearing on the safety and efficacy of the drug, pentobarbital.
    The hearing will be held at 10 a.m. before Circuit Court Judge Jacqueline Hogan Scola. Valle’s lawyers had tried to get a different judge, arguing that Hogan Scola has already found some of Valle’s likely witnesses not to be credible, but the Florida Supreme Court rejected the attempt to disqualify the judge.
    The Florida Department of Corrections signed off last month on using pentobarbital, a barbiturate, as part of the state’s cocktail of three lethal drugs. The pentobarbital is intended to knock condemned inmates unconscious before a second drug paralyzes them and a third stops their heart.
    The state previously used sodium thiopental, a different barbiturate, to sedate the inmates. The corrections department had to change its protocol after the Illinois pharmaceutical company that sold it the sodium thiopental discontinued its production of the drug earlier this year. The company did not want the drug to be used in executions.
    Other states have since made the switch to pentobarbital, which is used to euthanize animals. But Valle would be the first Florida inmate to be executed under the new rules, and he raised questions about whether the drug in the amount prescribed by the state could cause him to suffer pain.
    A divided Supreme Court ruled 4-3 to grant him a hearing — and ordered the corrections department to provide documents from the drug’s manufacturer, Lundbeck, on the safety and efficacy of pentobarbital.
    The head of Lundbeck, a Danish company, has twice written Gov. Rick Scott urging him not to use the drug for capital punishment. Staffan Schüberg, president of Lundbeck, wrote to Scott in May and again in June after he said his letters to the corrections department went unanswered. It is unclear if Scott’s office has responded, either.
    “The use of pentobarbital outside the approved labeling has not been established,” Schüberg wrote. “As such, Lundbeck cannot assure the associated safety and efficacy profiles in such instances. For this reason, we are concerned about its use in prison executions.”
    Amid appeals, reversals and re-hearings, Valle, 61, has been sentenced to death three times for killing Gables Officer Louis Pena after the officer pulled him over for running a red light.
    Herald/Times staff writer Michael C. Bender contributed to this report.

    Read more: http://www.miamiherald.com/2011/07/28/2333679/judge-to-hold-hearing-on-new-use.html#ixzz1TOvGCyJ8

    Wednesday, July 27, 2011

    APPENDIX TO EMERGENCY PETITION FOR A WRIT OF PROHIBITION

    http://www.floridasupremecourt.org/pub_info/summaries/briefs/11/11-1326/Filed_07-06-2011_Writ_of_Prohibition_Appendix.pdf#xml=http://199.242.69.43/texis/search/pdfhi.txt?query=SC10-1967&pr=Florida+Supreme+Court&prox=page&rorder=500&rprox=500&rdfreq=500&rwfreq=500&rlead=500&rdepth=0&sufs=0&order=r&cq=&id=4e14a5735a2



    Modified: 2011-07-06 12:21:06


    Title: IN THE SUPREME COURT OF FLORIDA

    Body: IN THE SUPREME COURT OF FLORIDA

    NO. SCll -1326

    MANUEL VALLE, Petitioner, v. STATE OF FLORIDA, Respondent. APPENDIX TO

    EMERGENCY PETITION FOR A WRIT OF PROHIBITION

    NEAL A. DUPREE Capital Collateral Regional Counsel-South SUZANNE KEFFER Chief Assistant OFFICE OF THE CAPITAL COLLATERAL REGIONAL COUNSEL-SOUTH 101 N.E. 3rd Avenue, Suite 400 Ft. Lauderdale, Florida 33301 (954) 713-1284 COUNSEL FOR MR. VALLE

    INDEX TO APPENDIX DOCUMENT EXHIBIT Motion to Disqualify filed 7/5/11 .............................................. A Copy of CD of recorded proceedings held 7/1/11 and note provided by the Administrative Office of the Courts, 11 th Judicial Circuit. ................................................................... B Affidavit of Attorney Suzanne Keffer ....................................... C Affidavit of Attorney Neal A. Dupree ....................................... D 2

    EXHIBIT A

    3

    IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT

    IN AND FOR MIAMI-DADE COUNTY, FLORIDA

    STATE OF FLORIDA, Plaintiff, CASE NO. 78-5281A v. EMERGENCY CAPITAL CASE DEATH WARRANT SIGNED MANUEL VALLE, EXECUTION SCHEDULED FOR Defendant. AUGUST 2, 2011 AT 6:00 P.M. ----------------------~/ DEFENDANT'S MOTION TO DISOUALIFY JUDGE

    AND MEMORANDUM OF LAW

    The Defendant, MANUEL VALLE, by and through his undersigned counsel, hereby moves the Honorable Jacqueline Hogan Scola, to disqualify herself from presiding over Mr. Valle's postconviction proceedings, and from any other proceedings required in this action, due to the appearance of impropriety. Mr. Valle files this motion pursuant to Rule 2.330 of the Florida Rilles ofIudicial Administration in order to protect his rights granted by the due process and equal protection clauses of the Fourteenth and Eighth Amendments to the United States Constitution, and the corresponding provisions of the Florida Constitution. If Judge Jacqueline Hogan Scola disqualifies herself, Mr. Valle moves that his case be assigned to a judge by random selection. Mr. Valle states the following grounds in support of his motion: I. Mr. Valle is an indigent Florida inmate under sentence of death. On June 30, 2011 Governor Rick Scott signed a death warrant. Mr. Valle's execution is scheduled for August 2, 2011. 2. Mr. Valle learned for the first time on July 1, 2011 that Judge Jacqueline Hogan Scola was assigned to his case for purposes of litigating the death warrant in circuit court.

    3. Mr. Valle was charged by indictment dated April 13, 1978, in Dade County, Florida with one count of fIrst-degree murder, one count of attempted fIrst-degree murder, and one count of possession of a fIrearm by a convicted felon. Mr. Valle was found guilty and sentenced to death, but his convictions and sentences were reversed by the Florida Supreme Court. Valle v. State, 394 So. 2d 1004 (Fla. 1981). 4. Mr. Valle's second trial in 1981 resulted in his convictions and a sentence of death. On appeal, the Florida Supreme Court affIrmed. Valle v. State, 474 So. 2d 796 (Fla. 1985). Mr. Valle's death sentence was vacated by the United States Supreme Court. Valle v. Florida, 476 U.S. 1102 (1986). On remand from the United States Supreme Court, the Florida Supreme Court vacated Mr. Valle's sentence of death and remanded for a jury resentencing. Valle v. State, 502 So. 2d 1225 (Fla. 1987). 5. The resentencing was conducted in 1988. Mr. Valle was again sentenced to death. On appeal, the Florida Supreme Court affirmed. Valle v. State, 581 So. 2d 40 (Fla.), cert. denied, 502 U.S. 986 (1991). 6. Mr. Valle thereafter sought postconviction relief pursuant to Fla. R. Crim. P. 3.850 which was summarily denied by the trial court. The Florida Supreme Court remanded for an evidentiary hearing. Valle v. State, 705 So. 2d 1331 (Fla. 1997). On remand, the circuit court denied relief. The Florida Supreme Court affirmed that order. Valle v. State, 778 So. 2d 960 (Fla. 2001). The Florida Supreme Court subsequently denied a two petitions for state habeas corpus relief. Valle v. Moore, 837 So. 2d 905 (Fla 2002); Valle v. Crosby, 859 S02d 516 (Fla. 2003), cert. denied, 541 U.S. 962 (2004). 7. The Honorable Jacqueline Hogan Scola was employed by the Office of the State Attorney, Eleventh Judicial Circuit, from 1982 to 1995. Judge Scola's employment spanned the 2

    relevant time periods of Mr. Valle's 1988 resentencing and most of his initial state postconviction proceedings. As such, Judge Scola was employed by, and worked with, the very parties that were and are urging that the State of Florida put Mr. Valle to death. 8. On Friday, July 1, 2011, Judge Scola, with counsel for the State present, contacted the Office of the CCRC-South to inquire why counsel for Mr. Valle was not present for a previously-scheduled hearing. Because undersigned counsel was not available, 1 Capital Collateral Regional Counsel Neal A. Dupree took the Court's call. The Court indicated that CCRC-South had been contacted the previous evening and advised that a hearing would take place. Undersigned counsel and additional staff were at the CCRC-South office late into the evening on June 30, 2011, and received no notice by phone, fax or e-mail of any hearing being scheduled. 9. The Court then advised that she had been appointed to hear this case, for which a death warrant had been signed, involving a "cop killer.,,2 It is unlmown to counsel how, or to what extent, Judge Scola learned of the facts of this case in the hours prior to the July 1,2011, hearing. It is unclear to what extent Judge Scola had contact with the State on June 30 and Mr. Valle fears it may have been more than mere scheduling, particularly given the fact that undersigned received no phone call, facsimile or email regarding the "scheduled hearing." However, it appears from Judge Scola's choice of the inflammatory term "cop killer" to describe the Defendant that Judge Scola is prejudiced against him. 10. Given Judge Scola's history as a prosecutor and colleague of the attorneys who have sought his imminent execution, and the nature of the comments Judge Scola has made upon 1 Undersigned counsel's three year old daughter was having surgery on the morning of July 1,

    2011.

    2 Undersigned counsel has requested on the date of filing this motion that a transcript of the July

    1, 2011 hearing be transcribed immediately.

    3

    being appointed to hear his case, Mr. Valle has a concern that, no matter how fair-minded any judge might be, this situation results in the appearance of impropriety. Mr. Valle is in fear that he cannot receive a fair hearing before Judge Jacqueline Hogan Scola. See "Attachment A" (Affidavit of Manuel Valle). MEMORANDUM OF LAW Mr. Valle is entitled to full and fair Rule 3.851 proceedings. Holland v. State, 503 So. 2d 1354 (Fla. 1987); see also Easter v. Endell, 37 F.3d 1343 (8th Cir. 1994). This includes a fair determination of the issues by a neutral, detached judge. The circumstances of this case are of such a nature that they are sufficient to warrant an objectively reasonable fear on Mr. Valle's part that he would not receive a fair hearing. Suarez v. Dugger, 527 So. 2d 191, 192 (Fla. 1988). Because of the fact Judge Jacqueline Hogan Scola worked for and with the State Attorney's Office while it prosecuted Mr. Valle's 1988 capital sentencing phase and subsequent postconviction proceedings, coupled with the prejudicial comments made by Judge Scola on July 1,2011, "a shadow is cast upon judicial neutrality so that disqualification is required." Chastine v. Broome, 629 So. 2d 293, 295 (Fla. 4th DCA 1993). In capital cases, the trial judge "should be especially sensitive to the basis for the fear, as the defendant's life is literally at stalce, and the judge's sentencing decision is in fact a life or death matter." Livingston v. State, 441 So. 2d 1083, 1086. Once a litigant files a timely, legally sufficient motion, the judge "shall immediately enter an order granting disqualification and proceed no further in the action." Fla. R. Jud. Admin. 2.330(f). The instant motion is timely filed pursuant to Rule of Judicial Administration 2.330(e) in that Judge Jacqueline Hogan Scola was assigned to Mr. Valle's case only after the death warrant was signed on June 30, 2011. 4

    The law does not require the Defendant to show that Judge Jacqueline Hogan Scola is actually biased or would be absolutely unable to fairly judge this case. Rather, "[tJhe question 1 of disqualification focuses on those matters from which a litigant may reasonably question a 1 judge's impartiality rather than the judge's perception of his ability to act fairly and impartially." State v. Livingston, 441 So. 2d 1083, 1086 (Fla. 1983) (emphasis added). Courts must avoid the appearance of impropriety even though the requirement" 'may sometimes bar trial by judges who have no actual bias and who would do their very best to weigh the scales of justice equally between contending parties,' but due process oflaw requires no less." Taylor v. Hayes, 418 U.S. 488, 501 (1974) (citing In re Murchison, 349 U.S. 133, 136, (1955)). The United States Supreme Court recently reiterated that "[i]t is axiomatic that '[a] fair trial in a fair tribunal is a basic requirement of due process.'" Caperton v. A. T. Massey Coal Co., Inc. 129 S. Ct. 2252, 2259 (2009) (quoting In re Murchison, 349 U.S. 133, 136 (1955»). The Court has long recognized the basic constitutional precept of a neutral, detached judiciary: The Due Process Clause entitles a person to an impartial and disinterested tribunal in both civil and criminal cases. This requirement of neutrality in adjudicative proceedings safeguards the two central concerns of procedural due process, the prevention of unjustified or mistaken deprivations and the promotion of participation and dialogue by affected individuals in the decision making process. The neutrality requirement helps to guarantee that life, liberty, or property will not be taken on the basis of an erroneous or distorted conception of the facts or the law. At the same time, it preserves both the appearance and reality of fairness, 'generating the feeling, so important to a popular government, that justice has been done,' by ensuring that no person will be deprived of his interests in the absence of a proceeding in which he may present his case with assurance that the arbiter is not predisposed to find against hirn. Marshall v. Jerrico, Inc., 446 U.S. 238, 242 (1980) (internal citations omitted). Due process guarantees the right to a neutral, detached judiciary in order "to convey to the individual a 5

    feeling that the government has dealt with him fairly; as well as to minimize the risk of mistaken deprivations of protected interests." Carey v. Piphus, 425 U.S.247, 262 (1978). The appearance of impropriety violates state and federal constitutional rights to due process. A fair hearing before an impartial tribunal is a basic requirement of due process. In re Murchison, 349 U.S. 133 (1955). "Every litigant[] is entitled to nothing less than the cold neutrality of an impartial judge." State ex rei. Mickle v. Rowe, 131 So. 331, 332 (Fla. 1930). Absent a fair tribunal there is no full and fair hearing. Under the circumstances, Mr. Valle is compelled to file this motion to disqualify Judge Jacqueline Hogan Scola. REQUEST FOR RELIEF WHEREFORE, because this motion is legally sufficient, this Court should not consider the facts of the motion; it should take no action other than recusing itself and requesting random reassignment of the case. Fla. R. Jud. Admin. 2.330. Recusal at this stage is appropriate and vital .for the interests of justice. Random assignment to a ew. Judge will help ensure a fair and impartial postconviction proceeding. 6

    CERTIFICATE OF GOOD FAITH

    Undersigned counsel certifies that she is counsel of record in this cause and that the motion for disqualification is made in good faith for the oses described in the Florida Rules of Judicial Administration. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true copy of the f~,Oing has been furnished by United States Mail and/or e-mail and/or hand delivery to the £ ll~ng this --Day of July, 201 L /' . SU'-'D,.< '" ~ Chie Copies furnished to: The Honorable Jacqueline Hogan Scola Richard E. Gerstein Justice Bldg. 1351 N.W. 12th Street Miami, Florida 33125 Penny Brill, Assistant State Attorney Office of the State Attorney 1350N.W.12thAvenue Miami, Florida 33125 Sandra Jaggard, Assistant Attorney General Office of the Attorney General Rivergate Plaza, Suite 950 444 Brickell Avenue Miami, Florida 33131 7 STATE OF FLORIDA ) ) ss: COUNTY OF BRADFORD) AFFIDAVIT OF MANUEL VALLE I, MANUEL VALLE, having been duly sworn, do hereby depose and say: I have reviewed the forgoing Motion to Disqualify Judge and Memorandum of Law, in the case of State v. Manuel Valle, Case No. 78-5281A. After review of this motion and the facts presented therein I am in fear that I cannot receive a fair hearing before Judge Jacqueline Hogan Scola. As a result, I believe that Judge Jacqueline Hogan Scola must be disqualified from the proceedings. Random assignment to a new judge is appropriate. Further, I swear that the facts and matters presented in this motion are correct and true. Further affiant sayeth naught. MANUEL VALLE Sworn to or affirmed and subscribed before me this ~ day of July, 2011 by Manuel Valle,~o is personally kno~r has shown the following form of identification: ~~ .~1f.~'i~> JUAN f- ~INEDA TARY PUBLIC, S1f~TE OF FLORIDA SEAL: .;.r~"\" CommISSIO!1 #DD 913192 ~~~ Expires October 4, 2013 YCommission ExpirM ;«P.r..~~' Bonded Thn.i T/tIYFtln /neinr!Ce 8OQ.3&S.70t.

    EXHIBITB

    4

    _ . ~D5'__=_20~ -_20_1---'-9_ _ _ __

    ~----+I-- - . -.... - - - - - - - - - - -

    EXHIBITC

    5

    STATE OF FLORIDA ss: COUNTY OF BROWARD AFFIDAVIT OF SUZANNE MYERS KEFFER I, SUZANNE MYERS KEFFER, having been duly sworn or affirmed, do hereby depose and say: 1. I currently represent Manuel Valle in the matter of State of Florida v. Manuel Valle, Case No. 78-5281A; Manuel valle v. State of Florida, Case No. SCll-1326. 2. On July 5, 2011, as counsel for Mr. Valle, I attended a status conference at 11:00 am before the Honorable Jacqueline Hogan Scola. Before the commencement of the status conference, undersigned counsel filed a Motion to Disqualify Judge and Memorandum of Law in open court. 3. During the status conference, at approximately 12:00 pm, Judge Hogan Scola announced that the court would conduct a public records at 1: 30 pm the same day. As a result of the previously unscheduled public records hearing, I did not leave court until approximately 5:30 pm. 4. While in court on the afternoon of July 5 th , I requested the transcripts of the proceedings and requested these transcripts be expedited. The court reporter indicated she would get the transcripts to me as soon as possible and understood the urgency of the case. 5. On the morning of July 6, 2011, I contacted Apex Reporting, the agency for which the court reporter works. Apex

    informed me that the reporter was covering her regularly scheduled calendar and would be in court all morning, but would email the reporter regarding the July 5, 2011 transcript. Mid-morning, having not heard from the reporter or Apex, I again called Apex, who agreed to get a message to the reporter through the judge's judicial assistant for whom she was reporting. 6. At approximately 11:00 am, I heard from the court reporter, who informed she had worked on the transcripts last night but due to the volume was not able to complete them. She also informed me that due to the nature of Mr. Valle's case she requested that her agency find someone to cover her morning calendar, so she could complete the transcripts. She was unable to receive coverage. 7. The court reporter indicated that she would return home and immediately begin working on the transcript. I requested that she complete the morning portion of the proceedings first as this involved the Motion to Disqualify and scheduling. The court reporter agreed to email the transcripts to me as soon as they were available. 8. The transcripts of July 5, 2011 will be forwarded to this Court and all parties immediately upon receipt. 9. Furthermore, I was able to obtain a copy of an audio recording of the July 1, 2011 status conference. The audio recording was done by the Administrative Offices of the Courts for the Eleventh Judicial Circuit . The audio has not been 2

    transcribed, nor can the audio be downloaded in order to forward to the Court electronically. Additionally, it appears that the disc does not represent a full recording of the proceedings, as it abruptly cuts off. I am attempting to hire a court reporting service to transcribe the audio recording as soon as possible. Further affiant sayeth naught. / / of is Sworn to or affirmed and ____~~~~~·~!={~1<7(/~---------, personally kn9Wn to me. NOTARY PUBLIC, STATE OF FLORIDA My Commission Expires: ,""~'Ipf!' PAUL KALIL /~ ... if~Z\ Commission # EE 021767 ~. !t§ Expires December 29, 2014 ~'.r! o'"W\ Shaquivia Alvin 'ItWR j Commission # DD757106 .......,;:,/ Expires: MAR. 19, 2012

    DO:NIlED 'J'HRU ATLANTIC BONDINGCQ., INC,

    CERTIFICATES OF SERVICES

    I HEREBY CERTIFY that a true copy of the foregoing has been furnished by United States Mail and/or e-mail and/or hand delivery to the following this D;/?day ofJuly, 2011. '7 / / / Copies furnished to: The Honorable Jacqueline Hogan Scola Richard E. Gerstein Justice Bldg. 1351 N.W.12thStreet Miami, Florida 33125 Penny Brill, Assistant State Attorney Office of the State Attorney 1350 N.W. 12th Avenue Miami, Florida 33125 Sandra Jaggard, Assistant Attorney General Office of the Attorney General Rivergate Plaza, Suite 950 444 Brickell Avenue Miami, Florida 33131 6