Florida Issues

Florida Issues: DNA no match to inmate

2011-12-19T16:04:00.000-08:00

Florida Issues: DNA no match to inmate

Florida Issues: Paul Hildwin 2001

2011-12-19T16:03:00.000-08:00

Florida Issues: Paul Hildwin 2001

Florida Issues: Judge denies death row inmate Paul Hildwin's claim of ineffective counsel

2011-12-19T16:02:00.000-08:00

Florida Issues: Judge denies death row inmate Paul Hildwin's claim of ineffective counsel

Florida Issues: Paul Hildwin at trial

2011-12-19T14:57:00.000-08:00

Florida Issues: Paul Hildwin at trial

Paul Hildwin at trial

2011-12-19T14:38:00.000-08:00

DNA no match to inmate

Paul Christopher Hildwin, left, hangs his head down as jurors give a guilty verdict against him for the first-degree murder of Vronzettie Cox. Seated besdie Hildwin is his defense attorney Dan Lewan. The jury took only two hours to reach their verdict.

The wait has been excruciating for cancer patient Paul Hildwin and his attorney, Martin McClain.

Paul Hildwin 2001

2011-12-18T10:34:00.000-08:00

DeLand killer's appeal: IQ too low to execute

2011-12-18T09:56:00.000-08:00

Cherry

DAYTONA BEACH -- For the fifth time, Roger Lee Cherry will be back in a Volusia County courtroom this week to appeal his death sentence for a DeLand killing more than 25 years ago.
On Tuesday, Cherry, 60, will argue for the second time that his IQ is too low to be executed under Florida law.
The hearing comes at a busy time for local death penalty appeals. Troy Victorino, who was sentenced to die for killing six people in Deltona in 2004, was in court last week in his post-conviction appeal.
With the IQ argument, Cherry is raising an issue that was already argued and denied.
Back in 2005, a similar motion to overturn Cherry's conviction and sentence was denied by Circuit Judge Julianne Piggotte, who found there was "substantial probability" that Cherry's IQ was higher than the level of 70 required.
An average IQ is 100.
What's different now, according to court documents, is the way intelligence tests are given and scored.
Defense lawyers say Cherry's IQ is in the mentally retarded range.
Prosecutors, however, argue Cherry is not mentally retarded. They point to books Cherry has kept in his cell at Union Correctional Institution and prior IQ tests, which were as high as 86.
It will be up to Circuit Judge Frank Marriott to decide. Tuesday's hearing is expected to take all day.
Cherry was 35 years old when he crept into the South Osceola Avenue home of Leonard and Esther Wayne, 77, and took off with guns, a wallet and the couple's car. In the process, he beat and kicked Esther Wayne to death.
Leonard Wayne, 80, died of a heart attack when he tried to confront Cherry in their home.
The police found evidence that led them to Cherry, including the recovery of the couple's ATM card at a nearby bank.
Their car was found ditched later.
The killer gained entry by removing jalousie window panes from a rear porch. The broken pieces of glass were found in the woods, with blood that matched Cherry's.
At his trial, Cherry's girlfriend testified for the state, telling the jury that Cherry had confessed to her.
"The people was awake and saw him and the lady tried to fight him or something," Lorraine Neloms testified. "And he hit her."
After he was found guilty of the deaths, the jury recommended death for Cherry for killing Esther Wayne by a vote of 9 to 3.
The same jury also recommended Cherry get the death penalty for the killing of Leonard Wayne.
That death sentence was later vacated because Leonard Wayne died of a heart attack.
Under a 2004 Florida Supreme Court ruling, criminals must have an IQ above 70 to be executed.
Last year, Daytona Beach convicted killer Ted Herring won a victory in a similar motion, when Circuit Joseph Will vacated his death sentence.
Judge Will found Herring's IQ was too low to be executed for killing a convenience store clerk in 1982.
The victory, however, was short lived.
In October, the Florida Supreme Court ruled that Herring should remain in death row, finding his IQ is higher than the 70 threshold.
The high court disagreed with Will, finding that Herring's IQ tests had been between 70 and 75.
"This court has consistently and explicitly held that a defendant must establish an IQ of 70 or below to avoid execution," the Florida Supreme Court wrote in that ruling.

DNA no match to inmate

2011-12-18T07:52:00.000-08:00

By TONY HOLT | Hernando Today
Published: December 18, 2011

The wait has been excruciating for cancer patient Paul Hildwin and his attorney, Martin McClain.

Earlier this month, they got the break they had long been waiting for. There was no doubt it was coming, but it took longer than expected.

The DNA evidence found at a murder scene didn't come from Hildwin, according to the Florida Department of Law Enforcement. It came from William Haverty, who has been in prison since a 1998 rape conviction.

Hildwin has lived on death row for 25 years. He was convicted in the slaying of Vronzettie Cox, 42, whose body was found in the trunk of her car the morning of Sept. 13, 1985 in the area of Royal Highlands — a rural community north of Weeki Wachee.

During the course of the trial, prosecutor Tom Hogan referred more than once to the fluids found on the victim's underwear and a nearby washcloth, which was discovered in the backseat.

Tests showed the fluids were semen and saliva, according to court testimony.

The 1986 trial took place before the advent of DNA evidence, but Hogan argued the semen came from a nonsecretor — someone whose blood type can't be traced through bodily fluids. Nonsecretors make up 11 percent of the world's population, said Hogan.

Hildwin was a nonsecretor, Hogan said. Haverty, who was Cox's boyfriend at the time of her death, was not.

Hildwin's defense attorney, Daniel Lewan, tried connecting the killing to Haverty, but was unsuccessful.

Hildwin was caught cashing one of Cox's stolen checks. He also gave different stories to authorities when questioned. He also told an incredible story to jurors when the inexperienced Lewan allowed him to testify, said McClain, who has since handled most of the appellate work on behalf of Hildwin.

There were other issues glossed over by the state during the trial, according to defense motions.

The window of opportunity for the slaying was small – roughly 90 minutes. During that time, the state argued Hildwin walked to a store off U.S. 19, murdered Cox, stuffed her body into the trunk, parked the car in the woods, cashed the stolen check and then walked back to his own abandoned car along the highway.

It was the forensic evidence against Hildwin, which now has been proven false, that put the case over the top for the state, McClain said. It was presented to jurors through the testimony of an FBI lab technician.

"The FBI analyst testimony excluding Haverty as the contributor of the material was and has been the lynchpin of the state's case," said McClain.

McClain said Hogan was secretive about the presentation of the evidence. Lewan didn't know about it until the fourth day of trial. McClain, through interviews, arguments and court filings, has been a sharp critic of Hogan's prosecutorial techniques.

Hogan now runs a private practice out of Brooksville. Months ago, he told Hernando Today he was still convinced Hildwin was the killer no matter who the DNA belonged to.

McClain said the state had long "locked out" the DNA from being uploaded into the database. It did so because it was convinced it wasn't Haverty's DNA.

"It's their actions that have caused this delay," said McClain. "My client has struggled to stay alive."

In a motion filed last week, McClain called the tactics by the Florida Attorney General's Office "indefensible." He said the attitude from the state has been inappropriate.

"Mr. Hildwin has been seeking an order for more than eight years comparing this sample to Mr. Haverty over the State's objection," he stated in his motion.

No one from the Attorney General's Office has commented about the Hildwin case because the appeal remains open.

Hildwin's cancer has been in remission. McClain said his client is relying on prison staff for his medical care as he awaits additional surgeries.

McClain had three appellate motions tied to Hildwin, including the one asking the state to upload the DNA.

Following his latest victory, McClain hopes it will accelerate the other motions and eventually overturn the verdict.

McClain said when he told his client about the latest development in the case, Hildwin smiled at him.

"I told you so," McClain said, recalling Hildwin's words. "I knew it. I knew it."

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2011-11-30T12:39:00.000-08:00

Florida Supreme Court order in Manuel Valle

2011-08-21T09:25:00.000-07:00

http://www.floridasupremecourt.org/pub_info/summaries/briefs/11/11-1387/Filed_08-17-2011_Order.pdf

Supreme Court of Florida
WEDNESDAY, AUGUST 17, 2011
CASE NO.: SC11-1387
Lower Tribunal No(s).: F78-5281A
MANUEL VALLE vs. STATE OF FLORIDA
___________________________________________________________________
Appellant(s) Appellee(s)
Having considered the briefs submitted by the parties, the oral argument
tentatively scheduled for 9:00a.m., Wednesday, August 24, 2011, is cancelled.
A True Copy
Test:
th
Served:
SUZANNE MYERS KEFFER
PAUL EDWARD KALIL
MICHAEL CHANCE MEYER
SANDRA SUE JAGGARD

The supplemental replybrief in Manuel Valle

2011-08-21T09:12:00.000-07:00

http://www.floridasupremecourt.org/pub_info/summaries/briefs/11/11-1387/Filed_08-17-2011_Appellant_Supplemental_Reply_Brief.pdf

IN THE SUPREME COURT OF FLORIDA NO. SC11-1387
MANUEL VALLE, Appellant, v. STATE OF FLORIDA, Appellee.
DEATH WARRANT SIGNED ______________________________________________________ SUPPLEMENTAL REPLY BRIEF OF APPELLANT ______________________________________________________ NEAL A. DUPREE Capital Collateral Regional Counsel—South SUZANNE KEFFER Chief Assistant CCRC-South 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
i
TABLE OF CONTENTS
TABLE OF CONTENTS ........................................................................................... i
TABLE OF AUTHORITIES .................................................................................... ii
ARGUMENT IN REPLY .......................................................................................... 1
REPLY TO THE STATEMENT OF FACTS ........................................................... 1
REPLY TO ARGUMENT I ....................................................................................... 6
REPLY TO ARGUMENT II ...................................................................................11
CERTIFICATE OF SERVICE ................................................................................15
CERTIFICATE OF COMPLIANCE .......................................................................16
ii
TABLE OF AUTHORITIES
Cases Greenfield v. Westmoreland, 3D06-2081, 2007 WL 518637 (Fla. Dist. Ct. App. Feb. 21, 2007) ................ 2 Williams v. Winn-Dixie Stores, Inc., 548 So. 2d 829 (Fla. 1st DCA 1989) ..........2, 6
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ARGUMENT IN REPLY
Mr. Valle submits this Reply to the State’s supplemental answer. Given the short time provided to prepare this Reply Brief, Mr. Valle cannot and will not reply to every argument raised by the State. Mr. Valle neither abandons nor concedes any issues and/or claims not specifically addressed in this Reply Brief. Mr. Valle expressly relies on the arguments made in his Initial Brief and Supplemental Initial Brief for any claims and/or issues that are only partially addressed or not addressed in this Reply Brief.
REPLY TO THE STATEMENT OF FACTS
The question before this Court is whether the use of pentobarbital as an anesthetic is sufficient to guard against the substantial risk of harm during the execution process. Germane to that issue is whether Mr. Valle was precluded from proving his Eighth Amendment claim due to the exclusion of witnesses and evidence. The State’s rendition of the Statement of Facts includes irrelevant procedural history that has nothing to do with the issues as well as misleading assertions that serve only to undermine the credibility of Mr. Valle’s expert witness and the integrity of his counsel. As such, those statements that are “unduly argumentative” and/or “immaterial and impertinent to the controversy” should be stricken and/or ignored. Williams v. Winn-Dixie Stores, Inc., 548 So. 2d 829 (Fla.
2
1st DCA 1989); see also Greenfield v. Westmoreland, 3D06-2081, 2007 WL 518637 (Fla. Dist. Ct. App. Feb. 21, 2007). At the Tuesday morning status hearing following the relinquishment, the lower court unilaterally scheduled the evidentiary hearing for the Thursday and Friday of that week, July 28-29, 2011. (T. 07/26 7). The State recounts the fact that Mr. Valle informed the Court that his expert, Dr. David Waisel, would not be available until the next week, August 2, 2011 and that the “lower court ordered Defendant to present him by phone or videoconferencing or find a substitute witness.” Supplemental Answer at 2. The State then asserts that Mr. Valle moved for a continuance at the start of the evidentiary hearing so that he could present Dr. Waisel in person and that he presented an affidavit in support of his request with the implication that he was merely trying to delay the proceedings. Supplemental Answer at 5. Later in the recitation of the facts, the State simply asserts that the lower court decided that Mr. Valle would be permitted to present Dr. Waisel during the following week. Supplemental Answer at 7. This narration regarding Dr. Waisel's availability is not germane to any issue on appeal; the facts as portrayed by the State mischaracterize what happened at the hearing and serve only to portray Mr. Valle, his witness, and his counsel in a negative light.
Given that the State has made Dr. Waisel's availability an issue, it would be more accurate to state that Mr. Valle announced at the beginning of the evidentiary
3
hearing that he was prepared to present one witness and documentary evidence but that Dr. Waisel's schedule would not permit him to testify until the following week (T. 07/28 7-8). This was especially true given that he had just taken time off from his job as a pediatric anesthesiologist to travel to Georgia for his testimony in the DeYoung case. See Affidavit of Dr. Waisel; (T. 07/28 8, 14-15). Further, Mr. Valle had no objection to the State presenting its witnesses out-of-turn. (T. 07/28 9). The State repeatedly argued that Dr. Waisel could appear by telephone (T. 07/28 15, 16, 20, 22). In fact, the State’s intention was to present its own witness, Dr. Dershwitz by telephone (T. 07/28 71). Mr. Valle wanted to have Dr. Waisel testify in person due to the technological limitations presented by telephonic testimony, especially in light of the need for credibility findings (T. 07/28 71-72, 74). It was during this discussion that the circuit court expressed a clear preference for video-conferencing, agreeing that it is important for the court to see the witness (T. 07/28 74). The State fails to recite that its expert had other commitments that prevented him from getting to a video-conferencing facility on the days scheduled for the evidentiary hearing (T. 07/28 73). In fact, the State finally admitted that Dr. Dershwitz was not available to testify by video-conference until the following week, either. (T. 07/28 78). It was then that the lower court agreed that the witnesses would be heard on August 2, 2011 (T. 07/28 81). The foregoing facts are relevant to the extent that the State has misrepresented the record.
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Additionally, the State makes inaccurate statements about a number of material facts about the expert witnesses that are not supported by the record. These inaccuracies can only be an attempt to mislead this Court. The State mischaracterizes Dr. Waisel’s testimony in stating that he was “hired to assist the defense.” Supplemental Answer at 11. Dr. Waisel never testified he was hired, because in fact Dr. Waisel does not charge any expert or witness fees. This mischaracterization is striking given that the State leaves out that its expert, Dr. Dershwitz makes $3500.00 per day for his testimony and charges an hourly rate for preparation, review and consultation (T. 08/02 130). The misstatement is important with respect to evaluating the lower court's credibility findings. The State argues in its statement that Dr. Waisel testified that “the upper limit dose of pentobarbital was 500 mg regardless of the patient’s weight,” Supplemental Answer at 12-13, when in fact his testimony indicated that the upper limit dose of pentobarbital was 500 mg for an unspecified weight (T. 08/02 60). The difference is important because Dr. Waisel did not testify that he would disregard a patient’s weight, rather he testified that the recommended doses do not specify a weight therefore, he titrates the dose to the affect he observes (T. 08/02 65-69). Importantly, Dr. Waisel testified that there is no average intravenous dosage of pentobarbital that can be relied on to produce similar effects in different patients (T. 08/2 67).
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Additionally, the State indicates that Dr. Waisel acknowledged that pentobarbital is used for “assisted suicides and euthanasia.” Supplemental Answer at 15. The record reflects that Dr. Waisel indicated that pentobarbital is used in physician-assisted suicides and animal euthanasia (T. 08/02 95). In neither one of those circumstances would pancuronium bromide be injected into either the patient or the animal after the introduction of the pentobarbital. Here again, the fact the State finds it necessary to misrepresent these facts is perhaps more relevant than the facts themselves. The State also asserts that Dr. Dershwitz testified that the use of the dose of pentobarbital as prescribed in the lethal injection procedures “would definitely be fatal” Supplemental Answer at 16. This ignores that Dr. Dershwitz conceded that he was overstating “definitely” (T. 8/2 150-151), because this dose has never been used clinically (T. 8/2 149). The State also misrepresents the testimony of Dr. Dershwitz concerning his previous testimony regarding pentobarbital. When asked if he testified previously that thiopental is better than pentobarbital for executions, Dr. Dershwitz refused to answer: In order to answer that question, I'd have to draw a comparison that I am no longer allowed to do. However, the written record is extensive and I stand behind the answers I gave in the past, and I cannot answer that question today.
(T. 8/2 134-5). Dr. Dershwitz did not simply state “he had no reason to suggest that
6
he had not given such testimony,” Supplemental Answer at 18, but in fact indicated he stood by his previous answers and reiterated that at the time he made the statements, those statements were true (T. 08/02 144). Therefore, Dr. Dershwitz not only admitted those were his statements, but he vouched for the accuracy of his previous testimony where he questioned the use of pentobarbital in lethal injections due to a lack of research. This is perhaps the most important fact concerning the expert testimony: both experts agree that there little to no data or research concerning the use of pentobarbital as an anesthetic agent.
Finally, the State uses the recitation of the oral arguments as argument rather than a narrative of the relevant, material facts. Supplemental Answer at 18-21. The State repeatedly oversimplifies arguments made by the Defendant, interjecting conclusory statements which don’t accurately reflect the record. While a Statement of Facts should be persuasive, it is inappropriate to present it in an unduly argumentative manner. Williams v. Winn-Dixie Stores, Inc., 548 So. 2d 829 (Fla. 1st DCA 1989). The Eighth Amendment issue before the Court is too serious for Mr. Valle to ignore the State's misrepresentations.
REPLY TO ARGUMENT I
The State’s Answer Brief demonstrates a fundamental misunderstanding of the issue on several different levels. First, the State’s comparison of the use of sodium thiopental off label in the lethal injection context to the use of pentobarbital
7
off label, Supplemental Answer Brief at 39, completely misses the point of Mr. Valle’s argument; Mr. Valle presented evidence that the induction of anesthesia is an off label use of pentobarbital. In other words, pentobarbital is not FDA approved for the induction of anesthesia. That the use of sodium thiopental in lethal injections is off label is irrelevant. Sodium thiopental is FDA approved for—and prior to the halt of its production was very commonly used for—the induction of anesthesia, which was also its role in lethal injections. In contrast, the use of pentobarbital for induction of anesthesia in any context, let alone in lethal injections, is off label. While it is true that doctors may, in their educated discretion, choose to use certain drugs “off label,” in this case, it is not a doctor who is made the decision to use the pentobarbital as an anesthetic in this context.
Similarly, the State confuses the purpose of pentobarbital and the purpose of lethal injection, arguing both below and in its Answer that “the emphasis on surgical anesthesia was incorrect as the purpose of a lethal injection was to cause death; not unconsciousness.” Supplemental Answer Brief at 19 (citing PCR3-SR. 577). As Mr. Valle pointed out in his Supplemental Initial Brief, the fact that Florida has chosen to adopt a three-drug protocol—consisting of an anesthetic, a paralytic, and a drug to stop cardiac activity—renders the issues very different from the issues in states that use pentobarbital as the sole drug. Supplemental Initial Brief at 24, FN 5. While the purpose of lethal injection as a whole is to
8
cause death, the State overlooks that the specific purpose of pentobarbital is to cause unconsciousness so that the condemned inmate does not feel the certain excruciating pain of the second and third drugs. The substantial risk of serious harm stems from the risk that the pentobarbital will not sufficiently anesthetize the condemned inmate to prevent the undisputedly serious harm of the second and third drugs being injected into a conscious person. Further, the State asserts that “Dr. Dershwitz opined that a five gram does of pentobarbital administered during the time periods called for in a lethal injection protocol would produce a massive overdose.” Supplemental Answer at 16 (citing PCR3-SR 525-27). It bears noting that Dr. Dershwitz also testified that he did not review Florida’s June 8, 2011 procedures, (T. 8/2 125), that the June 8, 2011 procedures do not specify a time period for the injection of the drugs, and there has been no evidence presented regarding the time period for the administration of the drugs. Dr. Dershwitz agreed that he “nor anyone else on Earth, could draw the high resolution graphs for pentobarbital that [he] drew for thiopental, because in order to do so, we need human studies that don’t exist.” (T. 08/02 139). Dr. Dershwitz also agreed, based on his previous testimony, that it was necessary to know the respiratory and hemodynamic effects of pentobarbital, not simply how long it will keep someone unconscious. Dr. Dershwitz acknowledged there was not much human data with respect to pentobarbital in these areas (T. 08/02 139-40).
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As Mr. Valle pointed out in his Supplemental Initial Brief, there is a continuum between the state of being conscious and the state of being anesthetized. Even if the pentobarbital works as the State says it will, and even if pentobarbital in the dose called for in Florida’s procedures will eventually cause death, the ultimate question—the only question—is at what point on the continuum from consciousness to death are the excruciatingly painful second and third drugs administered. Central to the issue of the safety and efficacy of pentobarbital remains the sufficiency of the consciousness check in the procedures and the training of the personnel involved in administering and overseeing the lethal injection process. The lethal injection procedures do not delineate the method for assessing consciousness. It is unknown whether the assessment of consciousness has been changed, which is significant “particularly in light of lack of information available about how fast pentobarbital takes effect in a lethal injection scenario” (Report of Dr. Waisel at 9).
While Mr. Valle was not permitted to present evidence regarding the sufficiency of the consciousness check called for in the procedures, he maintains that it is not sufficient to mitigate against the substantial risk of serious harm. It is important to note that evidence regarding the procedures with respect to the introduction of the pentobarbital and the second and third drug would not have been beyond the scope of the remand; the procedures must be considered in the
10
context of the issue of the efficacy of the pentobarbital. In fact, the failure to understand the difference between the purpose of lethal injection as opposed to the purpose of the pentobarbital can be attributed to the consideration of the drug in a vacuum. The State oversimplifies the testimony of Dr. Waisel regarding the use of pentobarbital to induce a barbiturate coma. Dr. Waisel testified that dosages necessary to induce a barbiturate coma, in patients with injured brains are “fairly well established.” Dr. Waisel recalled articles from the 1970’s, with the caveat that “nearly every article I have ever read suggests that you titrate to affect, because people respond differently to drugs, and the goal is to achieve burst suppression, so we don’t just give a dose and walk away” (T. 08/02 93). Both Dr. Waisel and Dr. Dershwitz agreed that an EEG is used to monitor the patient (T. 08/02 86, 117). On more than one occasion, Dr. Waisel clarified that the body of knowledge regarding the use of pentobarbital to achieve a barbiturate coma is exclusively in patients with brain damage, such as a swollen brain or intractable seizures, and in most cases the patient has already been anesthetized (T. 08/02 88). Likewise, Dr. Dershwitz could not say that the state of an individual’s brain did not affect the reliability of the known doses because the range in doses is quite large (T. 08/02 114). This is an important distinction because there are no studies regarding the use of pentobarbital for induction of anesthesia in a person with a healthy brain.
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In large part, the State ignores the arguments of Mr. Valle, instead regurgitating the lower court’s order in whole. In conclusory fashion, the State merely claims that each of the witnesses testified as the lower court described in its order. Therefore, Mr. Valle relies on the remaining facts and arguments presented in his Supplemental Initial Brief as those arguments refute the findings of the lower court. Given the complete dearth of information, research, and history of pentobarbital for inducing anesthesia, the lower court’s finding that Mr. Valle has not met his burden of demonstrating a substantial risk of serious harm is not supported by substantial, competent evidence.
REPLY TO ARGUMENT II
The State complains that Mr. Valle did not preserve the issues regarding the exclusion of witnesses because he did not proffer their anticipated testimony. Supplemental Answer at 42. The State then argues that the lower court did not abuse its discretion in striking these witnesses based on what was proffered. Supplemental Answer at 43. Indeed, the court considered the proffer offered by Mr. Valle and determined that these witnesses would not be relevant. Such a finding could only be made upon a sufficient proffer. The court had a sufficient proffer of each witnesses’ anticipated testimony with which to make relevancy findings. The subject matter of the witnesses’ testimony was evident.
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To the extent that Mr. Valle could not proffer exact answers to questions he would ask of the Department of Corrections witnesses, this is due to the conduct of the Department of Corrections in failing to disclose relevant information. In any event, the import of these witnesses’ testimony seems lost on the State, as it was on the lower court. This Court remanded for an evidentiary hearing on Mr. Valle’s allegations concerning the efficacy of pentobarbital as a substitute for sodium thiopental in Florida’s lethal injection procedures. While this issue is limited, it cannot be considered in a vacuum. The efficacy of pentobarbital must be considered in the context in which the drug is to be administered. Moreover, in order to test whether pentobarbital is appropriate, it is necessary to establish what information the Department of Corrections relied on in establishing pentobarbital as the anesthetic to be used in the lethal injection procedure. Mr. Valle would have presented Warden Cannon, Secretary Buss, Rana Wallace, Russell Hosford and Jennifer Parker to establish what, if anything, DOC did in response to letters from the Lundbeck, Inc., manufacturer of pentobarbital warning that their drug not be used for this purpose. Dr. Waisel testified to the significance of these letters, and what should be done in response to them. Surely, the testimony of the people who were responsible for considering Lundbeck’s concerns about the safety and efficacy of their product for a particular purpose was relevant to the issue of the efficacy of that product for that purpose.
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Not only must the choice of pentobarbital be considered, but also the means by which it is to be administered. Whether pentobarbital is administered properly, by personnel with the necessary training and experience with the drug, is determinative of its efficacy. Similarly, the source of the drug, and whether the Department of Corrections obtained it legally, are relevant to the drug’s effectiveness. If we don’t even know where the drug comes from, it is impossible to determine its efficacy. This is especially so where several corrections agencies throughout the country have been obtaining their lethal injection drugs from questionable suppliers, through illegal measures. Mr. Valle should have been permitted to present these witnesses to establish his claims.
The State also complains, as it did in its motion in limine below, that Mr. Valle sought to use Dr. Waisel as a “conduit for hearsay.” Supplemental Answer at 44. It further argues that the “the lower court also did not abuse its discretion in precluding Defendant from attempting to use Dr. Waisel as a conduit for hearsay.” Supplemental Answer at 44. The State asserts that their motion in limine was granted. Supplemental Answer at 10. This is simply untrue. Firstly, Mr. Valle sought only to present testimony of what information Dr. Waisel relied upon in forming his opinion and why that information was important. The court did not grant the State’s motion in limine. Rather, the court simply stated that “I think it will become clear as the testimony develops.” (T. 8/2 444). The issue did not arise
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during Dr. Waisel’s testimony, and Mr. Valle made no attempt to use Dr. Waisel as a conduit for hearsay, as the State suggests.
The State appears to confuse the issue of the motion in limine regarding Dr. Waisel’s testimony, which Mr. Valle did not raise in his initial brief, with the separate issue of the admissibility of the affidavits themselves. With regard to that issue, the State argues that the trial court properly excluded the affidavits of Greg Bluestein and Eddie Ledbetter, who had written newspaper articles about the Blankenship execution, because it had clear and convincing doubt about the accuracy of the information contained in the newspaper articles. Supplemental Answer at 47. The State avers that the court found the articles were “sensationalized” and not based solely on first-hand reports, and that “a review of the articles and affidavits supports such a finding.” Supplemental Answer at 47. This is incorrect. Mr. Bluestein and Mr. Ledbetter are both professional journalists employed by established press organizations. While the court may have its suspicions that “newspapers are motivated by the need to sensationalize things” (T. 8/2 433), or that Mr. Bluestein’s reporting is “a little bit suspect” (T. 8/2 436), there is no basis for the court to determine that the facts as stated in those newspaper articles are not true where they are the product of professional journalists, working for established and reputable press organizations, who have affirmed the accuracy of their statements through affidavit. The lower court’s
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exclusion of the affidavits was an abuse of discretion.
CONCLUSION
In light of the foregoing arguments, Mr. Valle submits that this Court should find Florida’s lethal injection procedures unconstitutional under the Eighth Amendment or, in the alternative, he should be granted a full and fair evidentiary hearing. _____________________________ SUZANNE MYERS KEFFER Chief Assistant CCRC-South Florida Bar No. 0150177 Paul Kalil Assistant CCRC-South Florida Bar No. 174114 M. Chance Meyer Staff Attorney Florida Bar No. 0056362 Capital Collateral Regional Counsel - South 101 NE Third Avenue, Suite 400 Ft. Lauderdale, FL 33301 (954) 713-1284
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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true copy of the foregoing has been furnished by electronic mail and United States Mail to Sandra Jaggard, Assistant Attorney General, 444 Brickell Ave., Suite 650 Miami, Florida 33131 this 17th day of August, 2011. _____________________________ SUZANNE MYERS KEFFER
CERTIFICATE OF COMPLIANCE
I HEREBY CERTIFY that this brief is typed in Times New Roman 14 point font, in compliance with Fla. R. App. P. 9.210(a)(2). _____________________________ SUZANNE MYERS KEFFER

Appellee supplemental brief

2011-08-21T09:09:00.000-07:00

http://www.floridasupremecourt.org/pub_info/summaries/briefs/11/11-1387/Filed_08-16-2011_Appellee_Supplemental_Brief.pdf

Making a date with death

2011-08-12T14:35:00.000-07:00

Making a date with death

Witnessing an execution

By Eddie Ledbetter eledbetter@statesboroherald.net 912-489-9403

Georgia Diagnostic & Classification Prison, Jackson Ga. Thursday, June 23, 2011, 8:16 p.m. We were almost there, I thought. At 8:16 p.m., some 10 minutes after we had stopped at the open gate, the driver’s radio crackled to life. He responded with a “10-4,” and we began rolling again, this time past a basketball court and a volleyball court on our left. After we passed the courts, the driver turned left across the prison ...

The affidavit of Eddie Ledbetter be admitted as evidence

2011-08-12T14:22:00.000-07:00

Mr. Valle moved that the affidavit of Eddie Ledbetter be admitted as evidence for similar reasons. Mr. Ledbetter is the Assistant Editor for the Statesboro Herald in Statesboro, Georgia who also witnessed the Blankenship execution. Mr. Ledbetter reported that Mr. Blankenship jerked and twinged after the administration of the pentobarbital, that he jerked his arms twice, lifted his head from the gurney and, while looking at his right arm, he appeared to say ―Ow.‖ Mr. Blankenship continued to mumble after his head dropped back down to the gurney. Mr. Ledbetter‘s affidavit affirmed that he wrote an article for his newspaper based on his account of the execution, provided the link for the article on the newspaper‘s website and stated that articles are routinely posted online in the regular course of business of reporting the news. Mr. Ledbetter also attested to the truth and accuracy of the attached article. The court‘s refusal to admit these affidavits was error.

Dr. David Waisel, testified that he is an anesthesiologist at Boston Children‘s Hospital and medical ethicist

2011-08-12T14:09:00.000-07:00

Dr. David Waisel, testified that he is an anesthesiologist at Boston Children‘s Hospital and medical ethicist (T. 8/2 49). Dr. Waisel performs "perioperative care," which includes anesthetizing patients for surgery. Dr. Waisel has been an anesthesiologist for 18 years, and has attended to approximately 15,000 to 20,000 patients (T. 8/2 40). In addition to his practice, Dr. Waisel is an associate professor at Harvard Medical School, lectures trainees and is in charge of the fellowship. As a medical ethicist, Dr. Waisel performs services for patients and families, as well as consulting with institutions on matters related to development of policy and quality of care (T. 8/2 43). In addition to being board certified in anesthesiology, Dr. Waisel has written approximately 30 peer-reviewed articles and numerous other contributions to publications regarding medical ethics and anesthesiology.
Dr. Waisel has consulted with capital defendants regarding lethal injection issues and testified in three states (T. 8/2 46). Dr. Waisel was contacted by Mr. Valle‘s counsel in early July, 2011. He reviewed the Florida lethal injection 9
protocols from 2007 and June 2011. In Dr. Waisel‘s opinion, the protocol‘s change from sodium thiopental to pentobarbital is significant (T. 8/2 49). As an anesthesiologist, Dr. Waisel is familiar with both pentobarbital and sodium thiopental (T. 8/2 49). The purpose of pentobarbital is to anesthetize the inmate prior to the injection of pancuronium, which paralyzes the inmate mostly for cosmetic reasons, and potassium chloride to stop the heart, which would be excruciatingly painful if the inmate were not anesthetized (T. 8/2 50). Dr. Waisel testified that the improper administration of pentobarbital could result in the inmate not being adequately anesthetized. This would result in paralysis, which would be a ―horrible‖ and ―terrifying‖ feeling and ―probably hellish‖ experience (T. 8/2 50-51). Both sodium thiopental and pentobarbital are classified as barbiturates, however, they are used in extremely different ways and are not interchangeable (T. 8/2 52). Both were developed in the late 1920's, early 1930's. By the early 1950‘s, sodium thiopental became the standard drug for intravenous injection of anesthesia in over 95% of patients. As a result, sodium thiopental was studied extensively. On the other hand, pentobarbital was not used for induction of anesthesia and is not widely studied. Dr. Waisel testified that there are only two studies, one from 1948 and one from 1951, examining pentobarbital for induction of anesthesia in relatively healthy patients. 10
Pentobarbital became a ―niche drug,‖ used in the intensive care unit for patients who had very bad seizures that could not be stopped any other way, to stop the electrical activity of the brain to prevent the brain from being injured (T. 8/2 54) Pentobarbital was also used for patients with swollen brains to decrease the electrical activity and the need of the brain for energy to help decrease damage to the brain. Pentobarbital might also be used for sedation in children receiving radiographic scans, but it has been replaced by better drugs for that use (T. 8/2 54). Besides these ―niche‖ uses, pentobarbital was used ―extraordinarily infrequently‖ in the operating room to provide brain protection when an interruption of blood flow to the brain was anticipated (T. 8/2 54). However, sodium thiopental was used ―nearly exclusively‖ for that purpose because it was a very common drug (T. 8/2 54). Moreover, when pentobarbital was used in those circumstances where patients required brain silence, an anesthetic was administered first (T. 8/2 56). Because of its extensive use, Dr. Waisel ―can't imagine there is a drug we know better in anesthesiology then sodium thiopental (T. 8/2 57). It has been tested in all sorts of patients, with all sorts of diseases, and all sorts of clinical situations, by novices and by experts. Because of this, we know its strengths and how to mitigate its weaknesses‖ (T. 8/2 59).
While ―nothing about [sodium thiopental] will surprise us,‖ (T. 8/2 59), the 11
same cannot be said for pentobarbital, which is only used in narrow circumstances (T. 8/2 60). Moreover, pentobarbital has been researched in the context of those narrow uses, but not in use for induction of anesthesia, because it was not used in that manner (T. 8/2 60). The information on pentobarbital is ―appropriately dismal‖ because it is not used for anesthesia (T. 8/2 60). Prior to June 8, 2011, the Florida lethal injection procedures called for five grams of sodium thiopental. The new lethal injection protocol calls for the use of five grams of pentobarbital. However, as Dr. Waisel explained, the dosages are not proportional. A 500 milligram dose of thiopental would anesthetize a 220 pound man, thus a dose of five grams is ten times the amount of the upper dose for induction of anesthesia (T. 8/2 61). However, with pentobarbital the upper dose for sedation, not for anesthesia, is 500 milligrams for an unspecified weight. That is also ten times the dose, but for sedation, which is significantly different than anesthesia (T. 8/2 61). In fact, the package insert for pentobarbital does not state that pentobarbital is to be used, or is approved for, the induction of anesthesia (T. 8/2 62).
Dr. Waisel explained that the package insert is ―the truth, the bible for what we know.‖ (T. 8/2 63). The Food and Drug Administration approves the package inserts for drugs, which lists the uses, effects and complications associated with its use (T. 8/2 64). According to the package insert, there is no average intravenous 12
dosage of pentobarbital that can be relied on to produce similar effects in different patients (T. 8/2 67). The commonly used initial dose for the 70 kilo adult is 100 milligrams (T. 8/2 67). "If necessary, additional small increments of the drug may be given up to a total of, from 200 to 500-milligrams for normal adults. However, there is a ―vast‖ difference between sedation and anesthesia (T. 8/2 68). It is probably best to think of sedation and anesthesia on a continuum from being wide awake to being completely anesthetized and being able to do an operation. In ―conscious sedation,‖ the patient can respond to voices, can make movements, and will respond to varying levels of pain (T. 8/2 68). As the patient gets closer to anesthesia, the amount of stimulus required to have the patient respond is increased. A greater stimulus will cause a response by the patient whereas lesser stimulus will not (T. 8/2 68). Dr. Waisel explained that trainees often will see a patient as quiet and still, assume that the patient is anesthetized, do something stimulating or painful. This results in the patient responding by grabbing whatever part of the body is being stimulated (T. 8/23 at 69). Dr. Waisel also explained that one cannot extrapolate an appropriate does of pentobarbital for anesthesia based on the upper limit dose because we do not have the data to know that (T. 8/2 70). This would only be done in the most extreme circumstances where there was no alternative (T. 8/2 70).
Pentobarbital is manufactured by a company called Lundbeck. Dr. Waisel 13
reviewed several letters from Lundbeck to officials in several states, including Florida, warning against the off-label use of pentobarbital (T. 8/2 71). As Dr. Waisel explained, such a manufacturer‘s warning is unusual. Nearly always, the FDA issues initial warnings and the drug manufacturers follow with their own statement (T. 8/2 72). Dr Waisel explained that ―I take any of these warnings very very serious, and so if the manufacturer chooses to do this in and of itself, I give it the highest regard.‖ (T. 8/2 72). If he, as an anesthesiologist, received such a warning about a drug, he would ―absolutely not use it‖ absent ―an absolute hail Mary situation‖ (T. 8/2 72). Dr. Waisel explained that the change in Florida‘s lethal injection protocol from sodium thiopental to pentobarbital was ―very significant‖ (T. 8/2 74) because: We're taking a drug that we know everything about, replacing it with a drug which we know nothing, almost nothing, about in terms of inducing anesthesia in otherwise healthy people. In addition, when we think about how errors happen, this increases the likelihood of errors and subsequent harm to the inmate -- substantial harm, dramatically. * * * The community knowledge of sodium thiopental provided a bulwark against substantial harm . . . When you have, as we've seen in other cases, a high risk procedure where there are many points where there could be errors, not having a bulwark, especially at the end exposes the inmate to extraordinary risk. (T. 8/2 74).
Dr. Waisel had the opportunity to speak to Greg Bluestein, a witness to the 14
execution of Roy Blankenship in Georgia3 (T. 8/2 75). Dr. Waisel also reviewed several affidavits of other witnesses to the Blankenship execution, including Eddie Ledbetter and Mitchell Peace, also journalists (T. 8/2 76). In addition, when consulting on the DeYoung case in Georgia, Dr. Waisel reviewed affidavits of approximately 13 employees of the Georgia Department of Corrections who witnessed the Blankenship‘s execution.
3 The State made a motion in limine ―to preclude Dr. Waisel from being used as a conduit for hearsay,‖ specifically regarding Dr. Waisel‘s conversations with Associated Press reporter Mr. Bluestein, who witnessed the execution of Roy Blankenship in Georgia on June 23, 2011, as well as the other affidavits Dr. Waisel reviewed with respect to the Blankenship execution (T. 8/2 6). Mr. Bluestein, a reporter for the Associated Press, was not available to testify due to journalist privilege and the policies of his employer. Attorneys for the Associated Press indicated that Mr. Bluestein would be available only if subpoenaed and would claim journalist‘s privilege (T. 8/2 9).
Blankenship was executed under Georgia‘s protocol, which calls for the use of pentobarbital (T. 8/2 80). Based on his review of the witnesses‘ affidavits, Dr. Waisel concluded that ―Mr. Blankenship suffered extremely during the execution.‖ (T. 8/2 78). By report, Blankenship looked to his one arm in pain and looked to the other arm in pain. He then grimaced, jerked his head up, continued breathing and mouthing words for up to three-minutes (T. 8/2 78-79). Dr. Waisel explained that this three minute span was significant in two ways. First, while some patients, while being induced under anesthesia, may make movements for the first 15 seconds or so, the movements are not focused or localized as Blankenship‘s were 15
(T. 8/2 79). Second, if pentobarbital worked as the state claimed, this would last for the first 3 seconds when the drug reaches the body, not for three minutes, which is not how the state claims pentobarbital works. On cross-examination, Dr. Waisel testified that ―phase induction‖ involves rendering a patient unconscious at the beginning of some surgical procedure, and induction of anesthesia is normally accomplished with intravenous drugs, but rarely just one (T. 8/2 82). For the duration or the of the surgical procedure, anesthesia is often maintained with a balanced anesthetic, which includes an inhaled anesthetic (T. 8/2 82). Sodium thiopental is no longer available (T. 8/2 70). Sodium thiopental is an ultra short acting barbiturate. Pentobarbital is classified as both a short acting and an intermediate acting barbiturate (T. 8/2 85). These classifications refer to the length that the drugs are effective, not to the rate at which they take effect (T. 8/2 85). Pentobarbital did not become the favored drug back before the 1950's because its effects last longer than sodium thiopental (T. 8/2 85).
Pentobarbital is used to control seizures. One of the primary objectives of seizure control using pentobarbital is to achieve burst suppression in the brain if the seizure is severe and intractable (T. 8/2 86). Burst suppression can be determined with the use of an EEG (T. 8/2 87). Dr. Waisel explained that the initial doses of pentobarbital to start are well established, because you want to start on the 16
lower end to build effect. The EEG is used as a monitor to help decide the appropriate amount of pentobarbital for this person who has a brain injury of some sort. Dr. Waisel opined that 5,000 milligrams of pentobarbital, if delivered intravenously, in the time frame of Florida‘s lethal injection protocol would most likely achieve burst suppression ―in the scenario of a patient who has brain damage, such as intractable seizures, such as a swollen brain.‖ (T. 8/2 89). However, there is no data of the affect of pentobarbital in a patient who does not have brain damage, intractable seizures, or brain swelling, so Dr. Waisel was not able to opine in that context (T. 8/2 90). While the dosages for burst suppression in people with injured brains is established, Dr. Waisel cautioned that in those situations, the patient is monitored and the dose is titrated to affect (T. 8/2 93). ―We don‘t just give a dose and walk away.‖ (T. 8/2 94). Anesthesiologists always monitor the patient closely. When they use a drug that we know less about, there is even greater vigilance (T. 8/2 97). We do not have the body of information about pentobarbital for induction of general anesthesia in healthy people (Id).

Dr. Jacqueline Martin, who testified by telephone from New York

2011-08-12T14:05:00.000-07:00

The State also presented Dr. Jacqueline Martin, who testified by telephone from New York. Dr. Martin is a deputy chief medical examiner at the Georgia Bureau of Investigations where she has been employed since 2001 (T. 7/28 123). Dr. Martin performs autopsies and performs some administrative duties. In the course of her responsibilities as a medical examiner for the State of Georgia, Dr. Martin witnessed the execution of Roy Blankenship. She had witnessed two other executions (T. 7/28 124). 7
Dr. Martin was seated in the witness area, in the front row by the window separating the witness area from the execution chamber. She estimated she was about five feet away from the inmate (T. 7/28 125). Dr. Martin stated that she did not have a clear and unobstructed view of Mr. Blankenship, but then indicated she could see him clearly (T. 7/28 125-126). She described what she saw: When he -- when the warden left, about two to three minutes later, Mr. Blankenship looked to his left arm, he made some movement of his mouth, and then looked to his right arm, and then -- well, he kind of laid -- well, pushed his head towards the pillow and stayed put. (T. 7/28 129). Dr. Martin opined that she did not observe Mr. Blankenship to be in any pain (T. 7/28 136). Dr. Martin does not treat living patients and does not have experience in anesthesia (T. 7/28 134). She does not practice surgery or anesthesiology. Her only experience in a surgical setting witnessing somebody who's been sedated or induced anesthetically was as a medical student in 1984 or 1985 (T. 7/28 134). She does not recall how many times she might have witnessed someone being induced. Blankenship was the first execution that that she witnessed where pentobarbital was used (T. 7/28 135). The Georgia Bureau of Investigation, who employs Dr. Martin, is a law enforcement agency (T. 7/28 137). After the Blankenship execution, the Georgia state attorney's office asked Dr. Martin to produce an affidavit (T. 7/28 138).
Dr. Martin described Mr. Blankenship‘s facial expressions during the 8
execution: Mr. Blankenship, when he first looked towards his left hand, he opened and closed his mouth like he was chewing. He had no teeth -- no natural teeth, it was somewhat awkward, and then he went -- did the same thing looking to his right arm, and then he closed his mouth and stayed put. (T. 7/28 140).

John Harper, a 23-year employee of the Georgia Diagnostic Prison in Jackson, Georgia

2011-08-12T13:57:00.000-07:00

The State presented John Harper, a 23-year employee of the Georgia Diagnostic Prison in Jackson, Georgia (T. 7/28 88-89).2 Mr. Harper has attended twenty-eight lethal injection executions in Georgia, including the execution of Roy Blankenship on June 23, 2011 (T. 7/28 89). During the Blankenship execution, Mr. Harper was in the mechanical room behind the actual execution chamber. Mr. Harper explained that there's a witness area separated from the execution chamber
2 Mr. Valle moved to strike the testimony of the State‘s witnesses Jacqueline Martin and John Harper, because their testimony was offered to rebut the testimony that would have been offered by Mr. Valle‘s witnesses, who the court had excluded upon argument by the State (8/2 at 28). 5
by a wall of windows. Behind that chamber, there's another window that leads into the mechanical room where he was situated. Between the mechanical room and the gurney is a one-way (or a two-way) mirror - you can see out but you can't see in (T. 7/28 90). Mr. Harper was approximately 86 inches from the head of the gurney (T. 7/28 90). He could see Mr. Blankenship‘s left side (T. 7/28 91). About 5 seconds after the injection of the first syringe, Mr. Harper saw Mr. Blankenship look at his left arm, then his right. He then made a noise that Mr. Harper described as a ―grunt.‖ Mr. Harper did not see Mr. Blankenship move after the consciousness check (T. 7/28 91-92).
Mr. Harper explained that he was not as close to the inmate as the witnesses in the first row. He could hear, but could not tell what was being said (T. 7/28 96). Mr. Blankenship's execution was the first Mr. Harper had witnessed involving pentobarbital (T. 7/28 98). Mr. Harper has never been trained in, and has no knowledge about pentobarbital (T. 7/28 98). He could not, or would not, estimate the size of the mechanical room in which he was situated (T. 7/28 99). Mr. Harper‘s duties during the execution involved communicating on the telephone with two command posts, letting them know what was happening (T. 7/28 100). While his view of the inmate is ―mostly‖ unobstructed (T. 7/28 100), people would walk in front of him. There were approximately eight people in the mechanical 6
room, including the person actually pushing the syringes (T. 7/28 100). Mr. Harper had indicated in an affidavit that there were two stopwatches in the mechanical room, however, he testified that he did not observe those stopwatches and relied on the clock in the execution chamber for his time line (T. 7/28 101-102). While present at the execution of Mr. Blankenship, Mr. Harper was on the telephone, there were people in front of him at times, and he saw the person pushing the syringes and he was taking notes (T. 7/28 102-103). Mr. Blankenship moved to look at his left arm within 5 seconds of the first syringe being pushed (T. 7/28 103). While he could not estimate the length of the IV tubing, Mr. Harper did not believe that this was enough time for the drug to actually reach the inmate (T. 7/28 105). Approximately five seconds after looking at his arm, Mr. Blankenship laid his head back (T. 7/28 106). Mr. Harper does not know what chemical is in each of the syringes (T. 7/28 107).

Matt Schulz, an attorney with the capital habeas unit of Federal Defender's Office for the Middle District of Alabama

2011-08-12T13:46:00.000-07:00

Mr. Valle presented Matt Schulz, an attorney with the capital habeas unit of Federal Defender's Office for the Middle District of Alabama (T. 7/28 29) who represented Eddie Powell, a death-sentenced Alabama inmate. Mr. Schulz witnessed the execution of Mr. Powell on June 16, 2011, with Federal Defender 2
Christine Freeman. Mr. Schulz felt that Powell was handling his execution about as well as he could possibly expect someone to handle it, so he was not in any sort of distress other than just obviously the general anxiety about what was coming (T. 7/28 36).
Mr. Schulz had never been to the execution chamber before and did not know what to expect (T. 7/28 38). Also present in the execution chamber were the guard who brought them into the room, Ms. Freeman and three members of the press. There were additional witnesses who Mr. Schulz could not see (T. 7/28 40). Mr. Schulz explained that the witness room was separated from the chamber by a window, which was covered by a curtain when he arrived (T. 7/28 40). He sat right in front of the window. Mr. Powell was in the middle of the execution chamber, already on the gurney. He was strapped down, and covered by a number of white sheets tightly wrapped around him. Mr. Schulz could not see Mr. Powell‘s feet below the sheets (T. 7/28 40-41). He could see most of Mr. Powell‘s body, approximately seven or eight feet away. Mr. Schulz faced the left side of Mr. Powell‘s body. He could see the entire left side of Mr. Powell‘s face, his arms which were strapped to extensions on the gurney (T. 7/28 41-42). Mr. Schulz observed two guards and a chaplain in the chamber. The warden then entered the room, read the death warrant, and asked if Mr. Powell had any last words. The warden placed the microphone close to Mr. Powell's face and Mr. Powell 3
apologized for the pain that he had caused the victim‘s family and his own (T. 7/28 43). Mr. Powell did not appear to be in any distress at that time (T. 7/28 43). After Mr. Powell‘s last statement, the warden stated the execution would now be carried out. He walked behind Mr. Powell and Mr. Schulz was not able to see the warden after that point. There was a wall behind Mr. Powell and the IV lines ran into and/or around the wall, so Mr. Schulz was not able to see the warden or know when they were injecting the lethal drugs (T. 7/28 44). Mr. Schulz described what he saw: After approximately one minute, Mr. Powell all of the sudden jerked his head up and kind of his upper body also jerked up rather abruptly. He looked to be pressing -- it looked as though his upper body was pressing against the restraints, and he had a real look of confusion on his face. He looked around, and then looked down at the chaplain, and he particularly had a look of confusion when he looked down at the chaplain, and then he began -- about the only way I can describe it is it look as though he was clenching his jaw and flexing the muscles in his face and in his neck quite strenuously. It's -- that looked as though -- I don't know whether it was his arteries actually throbbing or if it was just because of the muscles flexing, but it looked as though his artery was pumping and blood was sort of pumping into his face at that point, and that lasted for about a minute in and of itself, and then he -- at that point, his eyes started to kind of glaze over and rolled into the back of his head, and then his head went back down in what appeared to be involuntary at that point. * * * He appeared to be restrained clear throughout his lower and upper body…I was really only looking at his upper body, so it looked like -- kind of like his shoulders were pressing up against the restraints. * * * 4
After a few minutes, a guard approached Mr. Powell and then sort of bent down a little towards him and yelled very loudly, "Eddie, Eddie, Eddie," and there was no response, and then the guard ran his -- it looked like he ran his finger kind of lightly over Mr. Powell's left eyelash, and there was, again, no response. (T. 7/28 46-49). Mr. Schulz noted that Mr. Powell‘s eyes were open, but, by the end of the procedure which lasted 20 to 25 minutes, they appeared to be fully closed (T. 7/28 49). Mr. Schulz explained that, to his knowledge, Alabama uses a three-drug cocktail in their lethal injection procedures and that they recently announced they were switching from sodium thiopental to pentobarbital (T. 7/28 51). Mr. Schulz was surprised that the process would have taken so long (T. 7/28 58). He could see from the clock in the execution chamber that it took 20 to 25 minutes (T. 7/28 59).

The supplemental initial brief of Manuel Valle

2011-08-12T13:32:00.000-07:00

http://www.floridasupport.us/lethal/Valle/EB3A4d01.txt
http://www.floridasupport.us/lethal/Valle/Filed_08-12-2011_Appellant_Supplemental_Initial_Brief.pdf

IN THE SUPREME COURT OF FLORIDA 

NO. SC11-1387 

______________________________________________________ 

MANUEL VALLE, 

Appellant, 

v. 

STATE OF FLORIDA, 

Appellee. 

______________________________________________________ 

DEATH WARRANT SIGNED 

______________________________________________________ 

SUPPLEMENTAL INITIAL BRIEF OF APPELLANT 

______________________________________________________ 

NEAL A. DUPREE 

Capital Collateral Regional 

Counsel—South 

SUZANNE KEFFER 

Chief Assistant CCRC-South 

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

FSC order grants to supplement the record

2011-08-12T13:14:00.001-07:00

http://www.floridasupremecourt.org/pub_info/summaries/briefs/11/11-1387/Filed_08-11-2011_Order_Supplement_Record.pdf

State`s motion to supplement the record

2011-08-12T13:11:00.000-07:00

http://www.floridasupremecourt.org/pub_info/summaries/briefs/11/11-1387/Filed_08-11-2011_Motion_Supplement_Record.pdf

Spanish Government must act to stop execution of Manuel Valle, denied clemency by Florida

2011-08-12T12:27:00.001-07:00

Spain is being urged to intervene in the case of a possible Spanish national who is facing the death penalty in Florida in less than a month, having been denied due process.
Leer este articulo en Espanol
Manuel Valle, who is expected to be killed by lethal injection on 2 September, is a Cuban national but comes from a Spanish family. Due to the chaotic nature of record-keeping in Cuba, there is too little time to make an application for Spanish nationality before his execution date.
In what appears to be a serious lapse in due process, Mr Valle has been denied clemency proceedings by the state of Florida, despite having been held on death row for 33 years.
Reprieve, a charity which assists people facing the death penalty abroad, is appealing to the King of Spain and the Spanish Minister of Foreign Affairs to intervene in the case of Manuel Valle before it is too late, by submitting briefs in support of his case to the US courts.
Spain has previously had a strong record on opposing the death penalty, with Prime Minister Jose Luis Zapatero stating that “Spain and the Spaniards are fully committed to this fight against the death penalty” and claiming that he feels “personally involved in this struggle.”
Reprieve investigator Katherine Bekesi said:
“The Spanish Government must take steps to oppose this execution. We believe Manuel Valle could be recognised as a Spanish national, but in just a few weeks it will be too late for him.
“He has been on death row an inconceivable 33 years, against all international human rights norms – an enormous amount of time to be daily awaiting ones own death.
“Mr Valle has been denied clemency proceedings, in violation of Florida’s own Constitution. If the Spanish Government does not intervene as soon as possible, they risk damaging their country’s otherwise strong credentials as staunch opponents of the death penalty.”
ENDS
Notes to editors
Manuel Valle is a Cuban citizen but has strong family ties to Spain, primarily through his father’s side. However, due to difficulties accessing Cuban records, it has not been possible either to determine whether Mr Valle is eligible for Spanish nationality through his family background, and time is now running out. Additionally, the lack of proper Cuban consular representation in the US means that he has effectively been denied the consular support to which he should be entitled as a non-US citizen. Further information on Manuel Valle can be found here: http://www.reprieve.org.uk/cases/manuelvalle/?utm_source=Press+mailing+list&utm_campaign=fd4969c6de-2011_08_02_valle_stay&utm_medium=email
Reprieve has written to the King of Spain, the Spanish Minister of Foreign Affairs and the Spanish Minister of Justice, asking them to submit an ‘amicus curiae’ (‘friend of the court’) briefing in support of Manuel Valle’s case. So far, they have yet to do so.
Mr Valle’s execution was stayed earlier this month to allow consideration of whether the method of execution may constitute ‘cruel and unusual punishment’. More information on this issue can be found here: http://www.reprieve.org.uk/press/2011_08_08_Florida_risks_botched_executions/
Mr Valle’s execution is currently expected to take place on 2 September this year.
In February 2010, Jose Luis Zapatero, then holding the European Union presidency, participated in the 4^th World Congress against death penalty. On this occasion he reitered Spain’s dedication to universal abolition:
“At the present time, more than two thirds of UN member countries have abolished the death penalty in law […] Spain and the Spaniards are fully committed to this fight against the death penalty. Today is a new phase in that fight with the creation of a commission dedicated to its abolition. The commission will include people of high moral standing and from all regions of the world”. http://www.abolition.fr/ecpm/french/news.php?new=1270
In an interview preceding the congress, Mr Zapatero explained why abolition was a key objective of his foreign policy and of the Spanish presidency of the EU.
“As requested by the United Nations’ human rights bodies, we adopted a National plan for human rights as part of our foreign policy in December 2008. We included the fight for the abolition of the death penalty in that plan. Today, we see that a growing number of countries are in favour of abolition. We must support and encourage them. The Spanish presidency of the EU gives us visibility and an opportunity that can be leveraged for efficiency in this struggle. I feel personally involved in this struggle.” http://www.academicsforabolition.net/repositorio/ficheros/81_46.pdf

The Ugly Business of Lethal Injection

2011-08-12T07:47:00.000-07:00

Published on Friday, August 12, 2011 by OtherWords

The Ugly Business of Lethal Injection

Attorneys trying to prevent the cruelty of a botched execution are challenging states' efforts to conduct experiments on their clients with new execution drugs.

by Brian Evans

The pretense of lethal injection as a peaceful and painless way to execute prisoners is unraveling, and this may change the face of the death penalty in the United States.
In September 2009, the state of Ohio tried to execute Romell Broom. The execution team, with Broom's cooperation and even assistance, poked and prodded him with needles for more than two hours but was unable to find a usable vein. It wasn't the first bungled lethal injection in Ohio, but it was the first to end with the inmate still alive. "Eager prosecutors and prison officials, with the support of compliant courts, have managed to keep death chambers active." (photo: World Coalition Against the Death Penalty)
Since 1977, states have adopted the Orwellian practice of staging executions to look like benign medical procedures. This charade was designed to obscure reality. But now botched executions, such as Broom's, and increasingly pointed objections from the pharmaceutical industry, have focused attention on the legally and ethically dubious ways lethal injection actually works.
In March 2010 Hospira Inc., the sole Food and Drug Administration-approved manufacturer of sodium thiopental, formally asked Ohio prison officials and other states not to use the drug for executions. This plea fell on deaf ears, so in January 2011 Hospira ceased its production.
A mad scramble for a new source ensued. But in a globalized pharmaceutical marketplace, the search for sodium thiopental collided with the rest of the world's growing opposition to the death penalty. Novartis, a Swiss-based drug company, quickly announced that it would prevent the export of its generic version of sodium thiopental to the United States.
Several states acquired it from Dream Pharma, a small distributor operating out of a driving school in London, but much of it was confiscated by the U.S. Drug Enforcement Agency due to its questionable origins. Nebraska purchased its new sodium thiopental from Kayem, a supplier in India. Like Hospira and Novartis, Kayem tried to disassociate itself from lethal injection, stating that it would no longer sell the drug for use in executions, which it said aren't consistent with the "ethos of Hinduism." In the end Nebraska destroyed its newly purchased supply.
Without reliable sources of sodium thiopental, states have turned to a new anesthetic, pentobarbital, manufactured by Denmark-based Lundbeck. On June 23 of this year, Roy Blankenship was put to death in Georgia with Lundbeck's drug, even though the company had declared it was "not safe" and asked the Peach State not to use it. Pentobarbital, like sodium thiopental, is an anesthetic, and its purpose in executions is to render the prisoner unconscious so that the killing drugs that follow do not cause excruciating pain. Instead, Blankenship reacted strongly to this anesthetic, jerking his head, blinking rapidly, lunging and mouthing inaudible words.
Rather than halting executions temporarily to conduct a full investigation of what happened to Blankenship, the state responded to this debacle by agreeing to another death row inmate's demand that the next execution be videotaped. The inmate wanted to prove that this drug could cause pain and suffering.
This response illustrates the relentless enthusiasm with which Georgia and some other states pursue executions. Eager prosecutors and prison officials, with the support of compliant courts, have managed to keep death chambers active. There have been more than 90 executions since the bungled lethal injection attempt of Romell Broom.
But this may soon change. Attorneys trying to prevent the cruelty of a botched execution will continue to challenge states' efforts to conduct experiments on their clients with new execution drugs. In fact, states with small death rows and few executions, seeing costs but no benefits to being associated with such a sordid spectacle, will likely opt out by abolishing capital punishment outright, following the examples set by New Jersey, New Mexico, and Illinois.
Recent developments have permanently destroyed the myth of the humane execution. Lethal injection has been exposed as an ugly business, designed to divert attention from the even uglier reality that states are carrying out deliberate pre-meditated killings.
And in the end, that's what's wrong with capital punishment.

New federal order

2011-08-09T15:21:00.000-07:00

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION

http://www.floridasupport.us/lethal/Valle/CF892d01.pdf

Federal order

2011-08-09T15:12:00.000-07:00

http://www.floridasupport.us/lethal/Valle/EE6A7d01.pdf

Case 3:11-cv-00700-MMH-TEM Document 25 Filed 08/09/11 Page 1 of 1 PageID 540 



UNITED STATES DISTRICT COURT 

MIDDLE DISTRICT OF FLORIDA 

JACKSONVILLE DIVISION 





MANUEL VALLE, 

Plaintiff, 





v. Case No. 3:11-cv-700-J-34TEM 

STEVEN SINGER, 

etc.; et al., 





Defendants. 





ORDER 





Defendants, on or before Friday, August 19, 2011, shall 

respond to Valle's Motion for Immediate Scheduling Conference Under 

Rule 16 of the Federal Rules of Civil Procedure (Doc. #6) and 

Motion to Permit Discovery Prior to Rule 26(f) Conference and for 

Expedited Discovery (Doc. #7). 



DONE AND ORDERED at Jacksonville, Florida, this 9th day of 

August, 2011. 







sc 8/9 





c: 

Counsel of Record

Florida Issues: Warden on death penalty: "This is wrong"

2011-08-09T14:30:00.000-07:00

Florida Issues: Warden on death penalty: "This is wrong"

Florida Issues: DOCTORS & EXECUTIONS: A complex dilemma of medicine, ethics and law

2011-08-09T14:27:00.000-07:00

Florida Issues: DOCTORS & EXECUTIONS: A complex dilemma of medicine, ethics and law

Florida Issues: Fla.'s death penalty unchanged 2 years after study

2011-08-09T14:26:00.000-07:00

Florida Issues: Fla.'s death penalty unchanged 2 years after study

Florida Issues: Fla. marks 30 years since death penalty's return

2011-08-09T14:23:00.000-07:00

Florida Issues: Fla. marks 30 years since death penalty's return

Florida risks return to botched executions as expert warns on 'burning pain'

2011-08-09T11:51:00.000-07:00

Reprieve +44 (0)207 427 1082 FOR IMMEDIATE RELEASE (Mon 8 August 2011):

Florida risks return to botched executions as expert warns on 'burning pain'

The rejection by a Florida judge of an appeal against the use of a new and untested execution drug could see a return to botched executions in the state, according to evidence from experts in the US.

Florida is seeking to carry out its first execution using pentobarbital, a new drug which has recently been involved in several badly botched lethal injections across the US. Earlier this year, Georgia’s first lethal injection using pentobarbital went so badly wrong that the state took the rare step of videotaping a subsequent execution to provide evidence on whether the process broke restrictions on ‘cruel and unusual punishment’.

Florida's adoption of this new drug could provide a grim reminder of the execution of Angel Diaz, who took over half an hour to die following a botched lethal injection in 2006, leading then-Governor Jeb Bush to declare a moratorium.

Last week, the Florida circuit court heard from a Harvard anaesthesiologist who stated that, for the purposes of anaesthesia, “almost nothing” was known about pentobarbital, and that should the drug fail to work, prisoners would suffer “incredibly burning pain” from the subsequent injection of a heart-stopping drug. Dr David Waisel also testified that Roy Willard Blankenship, the first person executed in Georgia using pentobarbital, “suffered an extremely painful execution.”

Despite this, Judge Jacqueline Hogan Scola ruled that the onus was on the defense to prove a substantial risk of serious harm, and they had not done so. In making her order, Judge Scola sided with the prosecution, one of whose witnesses – a Georgia corrections official – had argued that Mr Blankenship’s pentobarbital execution was “relatively non-eventful,” despite eyewitness accounts describing “jerking”, “thrashing”, and the prisoner’s eyes remaining open until death.

The case will now proceed to the Florida Supreme Court, with lawyers for Cuban national Manuel Valle, who faces execution using pentobarbital in early September, expected to file later this week.

Reprieve investigator Katherine Bekesi said:

“It is disgraceful that it is being left up to the defense to prove that this drug is likely to cause extreme suffering. It is the state’s responsibility to prove that it will not cause pain, yet they have not even managed this.

“There is a real risk that the execution of Manuel Valle could cement Florida’s unwelcome reputation for botched executions.

“Should this new, untested drug be used, Mr Valle may well suffer severe pain, in breach of both state and federal laws against cruel and unusual punishment.

“It has to be hoped that the Florida Supreme Court will give this issue more careful consideration than it received from the circuit court before there is another unnecessary and tortuous killing by the State of Florida.”

ENDS

Notes to editors

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.

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.

An eyewitness from the Associated Press has described the “thrashing, jerking death of Roy Willard Blankenship” using pentobarbital, 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. Despite these accounts of a “clearly botched” execution, “John Harper, an employee of the Georgia Department of Corrections, described the June 23 execution in that state of Roy Blankenship […] as relatively non-eventful.” – see ‘Lethal injection drug hearing to continue next week’, Miami Herald, 28 July 2011

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My recent letter about your state's use of Nembutal® (pentobarbital sodium injection, USP) for the purpose of lethal injection in your state.

2011-08-08T15:03:00.000-07:00

June 8, 2011
The Honorable Rick Scott, State of Florida, The Capitol, 400 S. Monroe St., Tallahassee, FL, 32399-0001
Dear Mr. Scott,
I am writing to follow up on my recent letter about your state's use of Nembutal® (pentobarbital sodium injection, USP) for the purpose of lethal injection in your state.

The use of pentobarbital outside the approved labeling has not been established. 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.
We ask that you stop using pentobarbital in the execution of prisoners in your state because it contradicts everything we are in business to do — provide therapies that improve people's lives.
Thank you for your serious consideration of this matter.
Sincerely,
Staffan Schüberg, President, Lundbeck, Inc.

Here are the letters from Schüberg to Scott:

2011-08-08T14:57:00.000-07:00

Here are the letters from Schüberg to Scott:

May 16, 2011
The Honorable Rick Scott, State of Florida, The Capitol, 400 S. Monroe St., Tallahassee, FL, 32399-0001
Dear Governor Scott,
Lunbeck understands that the state of Florida has decided to use our product Nembutal® (pentobarbital sodium injection, USP) for the purpose of capital punishment. 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.
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. The Florida Department of Corrections has not responded to our letter and we therefore request that you take immediate action to stop the use of Nembutal as a means to end lives.
After exploring several potential means of restricting the distribution of Nembutal, we've learned that we simply cannot control how licensed healthcare professionals use this or any pharmaceutical product in the United States. The only potentially effective action we can take is to appeal to you and urge that Florida refrain from using our product for a purpose that severely contradicts Lundbeck's mission to provide therapies that help improve people's lives.
Thank you for your serious consideration of this matter.
Sincerely,
Staffan Schüberg, President, Lundbeck, Inc.

Danish company asks Florida to stop using its drug to kill inmates

2011-08-08T14:26:00.000-07:00

Danish company asks Florida to stop using its drug to kill inmates

The head of Lundbeck, Inc., the Danish company that makes ones of the drugs Florida plans to use to execute its first death row inmate in 18 months, has twice written Gov. Rick Scott urging him not to use their product for capital punishment.
Staffan Schüberg, president of Lundbeck, wrote to Scott in May and again in June after he said his letters to the Florida Department of Corrections went unanswered. It's unclear if Scott's office has responded, either.
The drug — pentobarbital sodium, branded as Nembutal — is at the center of the Florida Supreme Court's decision this week to delay the execution of Manuel Valle, who shot and killed a South Florida police officer 33 years ago.
"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."

Florida Lethal Injection Hearing to Proceed

2011-08-08T14:23:00.001-07:00

Thursday, July 28, 2011

Florida Lethal Injection Hearing to Proceed

"Miami judge to hear testimony in lethal injection drug challenge," is the title of Patricia Mazzei's Miami Herald report. The updated report is via the Sun-Sentinel.

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.

And:

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."

The News Service of Florida files, "Hearing on cop killer's execution can go forward." It's via the Fort Myers News-Press.

The Florida Supreme Court rejected a request by lawyers for a death row inmate to change the judge in a hearing over the state's lethal injection drug.

And:

The drug was changed in June, and the Valle execution is set to be the first in Florida in which it is used.
The question is over the efficacy of the first of the three drugs used, pentobarbital, which is used to make the prisoner unconscious before the other two drugs paralyze and kill him.

At the Palm Beach Post, Dara Kam posts, "Danish manufacturer of lethal injection drug twice asked Scott not to use it to kill prisoners."

The Danish manufacturer of the controversial drug now being used to execute prisoners pleaded with Gov. Rick Scott twice to abandon its use, saying it “contradicts everything we are in business to do.”
Staffan Schüberg, president of Lundbeck Inc., wrote to Scott twice before the first-term governor signed his first death warrant ordering Manuel Valle to be executed on Aug. 2.
“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,” Schüberg wrote to Scott on May 16.

And:

DOC issued a new protocol with the replacement drug pentobarbital sodium, also known as Nembutal, on June 8.
That same day, Schüberg wrote another letter to Scott, again asking him not to use the drug.
“The use of pentobarbital outside of the approved labeling has not been established. 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,” he wrote.
In his first letter, Schüberg said he had written to DOC officials urging them not to use the drug but had not received a response.

Earlier coverage of the Florida lethal injection challenge begins at the link. Related posts are in the lethal injection index.

Florida Issues: Expert report of David B. Waisel, MD

2011-08-08T08:53:00.000-07:00

Florida Issues: Expert report of David B. Waisel, MD

The Role of State Medical Boards in Regulating Physician Participation in Executions

2011-08-07T15:14:00.000-07:00

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1544623

The Role of State Medical Boards in Regulating Physician Participation in Executions

Ty Alper

University of California, Berkeley

Journal of Medical Licensure and Discipline, Vol. 95, No. 3, 2009

Dr. David Dershwitz, M.D. - the hearing in Miami

2011-08-07T14:02:00.000-07:00

http://www.floridasupport.us/lethal/Valle/ED74Fd01.txt
From the testimony of :

Dr. David Dershwitz, M.D.
On Tuesday, August 2, 2011 the State presented the testimony of Martin Dershwitz, M.D., who testified that he is a physician who has also had a Ph.D. in Pharmacology since 1982. He has had his license and certification in anesthesiology since 1987. He has taught Medical Pharmacology since 2001 at the
13
University of Massachusetts Medical School and also teaches Medical Biochemistry. He has written numerous articles, books and contributed chapters to books on pharmacology. He is presently an anesthesiologist at UMass Memorial Medical Center in Worcester, Massachusetts.
Dershwitz testified that pentobarbital, also known as Nembutal, is used primarily to induce a barbiturate coma or as a sedative or to treat intractable seizures. He explained that the dose usually administered was established in the 1970‘s. It is based on a person‘s body weight, age, and sometimes genetic factors though this last factor is not well-understood. The range of doses is quite large. However, the effect of 5000 mg. of Nembutal (pentobarbital), as provided for in the Florida lethal injection protocol, is ―far in excess of the dose that would be needed or used for a human‖. Two things would occur with the administering of this amount of drugs: first, the cardiovascular system and, second, the respiratory system would experience a shut-down. That is, the blood pressure would plummet and the circulatory system would cease to function. He distinguished the amount of the drug as well as the rate of administration of drugs given for hospital use versus that used in the execution protocol. The dose used in the lethal injection protocol at the rapid rate at which it is administered, would bring about a total flat line on the EEG in brain activity. Therefore, the person would have no perception of pain
14
or sensation. However, he did point out that unconscious patients, while under sedation, can still have active EEG‘s while remaining unconscious and being in an anesthetized state. It is even possible for anesthetized patients to move and/ or react to stimuli as a reflex at the spinal cord level. This reaction does not necessarily indicate consciousness. He also stated that it is possible, though it does not occur frequently that people‘s eyes remain open while unconscious. It would then be necessary to close their eyes to prevent corneal damage or drying out.
According to Dr. Dershwitz, Nembutal is not used as an anesthetic because it lasts longer and causes a longer ―hangover‖ after medical procedures; doctors prefer their patients awake at the end of surgery. The FDA has not approved it for use in lethal injection. This is considered an ―off label use‖. There are a number of drugs which are commonly used by doctors for an ―off label use‖ . Interestingly, both Dr. Waisel and Dr. Dershwitz referred to Fentanyl as such a drug.
Dr. Dershwitz admitted that he had testified in the Dickens and Alderman cases about the efficacy of sodium thiopental. However, that drug is no longer available and has not been, to his knowledge, for some two (2) years or more.
Ultimately he testified that no one could survive 5000 mg of pentobarbital intravenously. The doses and rates of administering the drug for surgery are one tenth of what is used in the protocol.
15
Dr. Dershwitz‘ testimony was credible and persuasive. Further, he refuted any suggestion that the dose of pentobarbital in the Florida lethal injection protocol would leave an inmate conscious and able to experience pain and suffering during the lethal injection process. The court credits the testimony of Dr. Dershwitz over that of Dr. Waisel.

Jacqueline M. Martin, M.D. - the hearing in Miami

2011-08-07T13:59:00.000-07:00

http://www.floridasupport.us/lethal/Valle/ED74Fd01.txt
From the teastinmony of :

Jacqueline M. Martin, M.D.
On Thursday July 28, 2011 the State called Jacqueline M. Martin, M.D., as a witness. Without objection she was sworn by both the clerk of Courts in Miami-Dade County, Florida, and a court reporter authorized to give an oath in New York, N.Y. from where the witness testified by telephone.
She stated that she was a witness to the June 23, 2011 execution of Roy Blankenship in Georgia. She is a physician licensed to practice in Georgia and also the Deputy Chief Medical Examiner for the Georgia Bureau of Investigation. She obtained her medical degree from Ponce School of Medicine in Puerto Rico in 1985. She has also acted as Deputy Medical Examiner in Rochester, N.Y. and from 1997-1999 she was the Medical Examiner in Palm Beach County, Florida. Though she is not a clinical physician she was trained in medical school to administer anesthesia. This was the third execution that she attended.
According to Dr. Martin she sat on the front row in the witness viewing area. She could see clearly from where she was and could see into the execution chamber. She was about 5 feet away from the inmate. Blankenship was strapped
12
down with I.V. lines in each arm. There was a nurse on the right of the gurney and officers to the left and right. The warden read the execution order and left. Two (2) to three (3) minutes after the warden left, Blankenship looked to his left arm and moved his mouth-he had no teeth-and looked at his right arm, put his head down on the pillow and stayed put. She saw no obvious signs of distress or facial features indicating pain.
She did not consult with the Department of Corrections or the Georgia Bureau of Investigation afterward. It is part of her duties as M.E. to view the execution.
Dr. Martin‘s testimony is consistent with that of Mr. Harper. She is a medical professional who could see Blankenship‘s actions and facial features. Her interpretation of his reactions to the drugs substantiate that Blankenship in no way experienced pain or suffering.

John Harper - the hearing in Miami

2011-08-07T13:49:00.000-07:00

http://www.floridasupport.us/lethal/Valle/ED74Fd01.txt
From the testimony in Miami Court of :

John Harper
On July 28, 2011, the State presented witness John Harper, who being sworn by the Clerk of Court, stated the following:
He is a 23 year employee of the Georgia Department of Corrections ("GDC"). He has attended all 28 lethal injections in Georgia as part of his duties.
He witnessed the June 23, 2011 execution of Roy Blankenship at the Georgia Diagnostic and Classification Prison in Jackson, Georgia. He was in the
10
mechanical room which is physically behind the execution chamber during the execution. That area is separated from the execution chamber by a one-way mirror and the gurney on which Blankenship lay restrained is 86 inches from where Harper was located in the mechanical room. His view was mostly unobstructed; however, people did walk in front of him. He could see Blankenship‘s left side profile. Blankenship had an intravenous line into each of his arms. He saw Blankenship look around and look at his left arm about five (5) seconds after the start of the first syringe. However, the pentobarbital was first administered to Blankenship‘s right arm. He heard Blankenship make a ―grunt‖ sound. Harper knew when the drugs were administered because he was given a signal and he was keeping a time log. About ten (10) seconds passed between the time the syringe was pushed and when Blankenship appeared to be unconscious. There was no flailing or thrashing. After the pentobarbital was administered a consciousness check was performed and Blankenship did not respond.
Of all the witnesses on the issue of the Blankenship execution, Harper is the most credible on this topic. He actually could hear and could see the pushing of the syringes and was keeping a time log. His testimony is in keeping, ironically, with the acceptable parameters testified to by Dr. Waisel. Waisel stated that if the pentobarbital were to work properly that it would take effect within fifteen (15)
11
seconds. That it did, according to the only witness able to testify with any degree of certainty as to the timing of the administration of the drugs and rendering of unconsciousness.

Dr. David Waisel - the hearing in Miami

2011-08-07T13:45:00.000-07:00

http://www.floridasupport.us/lethal/Valle/ED74Fd01.txt

From the testimony in Miami Circuit Court :

Dr. David Waisel
On Tuesday August 2, 2011 at 9:00 a.m. the defense presented Dr. David B. Waisel, M.D. who testified after being duly sworn by the Clerk of the Court as follows:
He is a practicing anesthesiologist at Children‘s Hospital Boston and an Associate Professor of Anesthesia, Harvard Medical School. He has been practicing clinical anesthesiology, primarily pediatric anesthesiology, for approximately 18 years. He has written numerous articles and teaches courses on anesthesiology at Harvard Medical School and presents to other physicians in his field both nation and worldwide.
He further has provided consultation for the death penalty clinic at University of California Berkeley and testimony on the Pavatt (Oklahoma) execution and DeYoung and Blankenship (Georgia) executions. He has also
provided consultations in written form for death penalty litigation in Delaware, Connecticut and Pennsylvania.
He has been asked by the attorneys who represent the Defendant to provide an expert medical and scientific opinion about observations of the execution of Roy Blankenship by lethal injection on June 23, 2011.
Dr. Waisel was not in attendance at the execution. His information about the execution comes from the affidavit and interview of an eyewitness, Greg Bluestein, a reporter, whose report is the type of information experts in his field normally and regularly rely on in forming expert opinions. He also reviewed the affidavits of other purported eye witnesses who are also reporters; i.e., Eddie Ledbetter and Mitchell Peace. He also reviewed and relied on the 2007 and 2011 Florida lethal injection protocol as well as defense Exhibit #A and other affidavits described as approximately twelve (12) DOC officials without further elaborating.
Waisel opined that Blankenship ―suffered extremely‖ based on Waisel‘s understanding of what took place; that is, that Blankenship looked at one arm with ―discomfort‖, looked at the other arm ―with pain‖, grimaced, jerked his head up, mouthed words and all of this lasted for three (3) minutes. He is also of the impression that pentobarbital was used and that had the pentobarbital worked properly Blankenship would have moved for only fifteen (15) seconds after the
drug was administered. Dr. Waisel never opined as to what time the pentobarbital was administered.
Waisel testified that he does not know the proper amount of pentobarbital necessary to anesthetize the patient; only to sedate them. He stated that sedation and anesthetizing can be viewed along a continuum. Sedation would be at one end where a sedated patient may still be responsive and the anesthetized patient may be unconscious enough to have open-heart surgery. The average patient he stated to be 150 pounds and the proper dosage for sedation with pentobarbital would be from 100 to 500 mg. The amount used by the state for anesthetizing the inmate, he acknowledged, to be 5000 mg. but claims that he cannot say that the dosage is actually 10 times the sedation dosage because there has not been enough testing. He calls this use of pentobarbital an off-label use. He acknowledges that there are legitimate off-label uses for drugs. That is, the use as an anesthetic in execution is not the ―intended use‖ of the manufacturer. Only when a drug has been tested systematically can one begin to reliably assess how an untested use of a drug will affect human subjects, according to Dr. Waisel. Because we do not have sufficient data, there is no way to know, in any given case, how an overdose of pentobarbital will affect basically healthy inmates.
Waisel admitted that Blankenships movements could indicate discomfort or pain. He conceded that sodium thiopental, which he says was an ideal drug for use in executions, is an ultra short-acting barbiturate while pentobarbital is a short to intermediate-acting barbiturate.
This witnesses‘ testimony cannot and does not establish the necessary ―substantial risk of serious harm‖. His testimony is based on speculation and, is therefore, inherently unreliable. At the very least, he does not establish a reasonable effective, readily implemented alternative to pentobarbital. See Baze at 52. Further he does not establish that pentobarbital will not work. He seriously doesn‘t know. His testimony falls far short of meeting the required standard of ―demonstrating a substantial likelihood of serious harm.‖

Matt Schulz - the hearing in Miami

2011-08-07T13:41:00.000-07:00

http://www.floridasupport.us/lethal/Valle/ED74Fd01.txt

From the testimony of :

Matt Schulz
The first defense witness presented was Matt David Schulz (―Schulz‖). By agreement of the parties he was sworn by the clerk of court for Miami- Dade County, Florida and testified by phone from Montgomery, Alabama.
Schulz testified that he is a three (3) year employee with the Federal Public Defender‘s Office in Montgomery, Alabama. On June 16, 2011, he witnessed the execution of his client, Eddie Powell, in Alabama. After visiting with Mr. Powell and his family and noting that Powell was in no visible distress, he was escorted by
4
the guards to a viewing room. There, he was seated, approximately 7-8 feet from Powell, who was covered with sheets except for his face and upper body and strapped down to the gurney. Schulz was facing Powell‘s left side and could see some of Powell‘s right arm also because the arms were outside of the sheets. The chaplain and warden then entered the room. The warden read the death order and asked Powell if he had any last words. The warden allowed Powell to make a last statement. The warden then walked behind Powell and made an announcement that the execution was to be carried out. The I.V. lines ran into the wall. Schulz was unable to see any activity behind that wall and unable to see when syringes were pushed. The chaplain approached Powell, spoke a few words to him, and nodded. Powell looked to the left, nodded, took a deep breath, and then put his head back down. The chaplain talked to him for 30-60 seconds. Powell lay there approximately one (1) minute then suddenly jerked his head and his upper and lower body appeared as if pressing against the restraints. Schulz believed that Powell was attempting to sit up. Powell, he said, had a look of confusion when he looked at the chaplain. Schulz asserted that Powell clenched his jaw, flexed his muscles, and his arteries bulged. His eyes rolled back in his head, he took a deep breath and closed his eyes. This lasted about one (1) minute. The guard approached and called his name (―Eddie, Eddie, Eddie‖) several times. He did not
5
respond. The guard did an ―eyelash check‖ to which there was no response. After a few minutes or so, he noticed that Powell‘s eyes were opened partly.
This was the first execution Schulz ever attended and it was very stressful for him.
The entire process that he observed seemed to last 20-25 minutes. He was able to see a clock directly but was not watching it. He did notice it but not until after the guard called Powell‘s name during the consciousness check.
He is not sure what the lethal injection protocol is but believes that 2500 mg. of pentobarbital is administered.1
This testimony is speculative and without more specific testimony or expert testimony it is of little value to the court in consideration of the question at hand. Even if the entire situation lasted one minute, it certainly does not establish that the Defendant suffered to establish an Eighth Amendment claim. See Baze.

DEFENDANTS’ NOTICE OF SUPPLEMENTAL AUTHORITY

2011-08-07T12:04:00.000-07:00

http://www.floridasupport.us/lethal/Valle/55912d01.pdf
DEFENDANTS’ NOTICE OF SUPPLEMENTAL AUTHORITY

IN THE UNITED STATES DISTRICT COURT FOR
THE MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION

PLAINTIFF’S RESPONSE TO THIS COURT’S ORDER TO ADVISE THE COURT ON THE LEGAL AND PRUDENTIAL IMPLICATIONS OF THE STATE COURT PROCEEDINGS ON PLAINTIFF’S MOTION TO STAY

2011-08-07T12:00:00.000-07:00

http://www.floridasupport.us/lethal/Valle/A7543d01.pdf
PLAINTIFF’S RESPONSE TO THIS COURT’S ORDER TO ADVISE THE COURT ON
THE LEGAL AND PRUDENTIAL IMPLICATIONS OF THE STATE COURT
PROCEEDINGS ON PLAINTIFF’S MOTION TO STAY

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION

DEFENDANTS’RESPONSE TO ORDER REGARDING THE FLORIDA SUPREME COURT’S STAY

2011-08-07T11:56:00.000-07:00

http://www.floridasupport.us/lethal/Valle/9BBFCd01.pdf

DEFENDANTS’RESPONSE TO ORDER REGARDING
THE FLORIDA SUPREME COURT’S STAY

IN THE UNITED STATES DISTRICT COURT FOR
THE MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION

ORDER DENYING MOTION TO VACATE DEATH PENALTY FOLLOWING REMAND - Manuel Valle

2011-08-07T11:45:00.000-07:00

http://www.floridasupport.us/lethal/Valle/ED74Fd01.txt

ORDER DENYING MOTION TO VACATE DEATH PENALTY 

FOLLOWING REMAND

IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT, 

IN AND FOR MIAMI-DADE COUNTY, FLORIDA

PDF -  http://www.floridasupport.us/lethal/Valle/VALLEorder11thCircuit.pdf

Amended scheduling order from FSC

2011-08-07T08:46:00.001-07:00

http://www.floridasupremecourt.org/pub_info/summaries/briefs/11/11-1387/Filed_08-03-2011_Amended_Scheduling_Order.pdf

The order issued by this Court dated July 25, 2011, is amended as follows: The supplemental record on appeal and supplemental initial brief shall be filed no later than 2:00 PM, Friday August 12, 2011. The supplemental initial brief shall be limited to 50 pages. The supplemental answer brief shall be filed no later than 2:00 PM, Tuesday, August 16, 2011. The supplemental answer brief shall be limited to 50 pages. The supplemental reply brief shall be filed no later than 2:00 PM, Wednesday, August 17, 2011. The supplemental reply brief shall be limited to 25 pages. NO MOTION FOR ENLARGEMENT OF THE BRIEFS SHALL BE CONSIDERED. Filing of the above briefs to this Court and to opposing counsel shall be via e-mail to the following address: warrant@flcourts.org. Oral argument, if necessary, shall be held on Wednesday, August 24, 2011, at 9:00 AM.

Well, maybe ax makers didn't care if they were used in executions

2011-08-05T14:57:00.000-07:00

Well, maybe ax makers didn't care if they were used in executions

I was wrong.
What I was wrong about makes for an even more interesting story.
In my column last week I wrote about the death penalty and the objections of a Danish pharmaceutical company to Florida's (among other states) use of one of its drugs in the execution of condemned prisoners.
"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," Staffan Schuberg, president of Lundbeck Inc., wrote in a May 16 letter to Gov. Rick Scott.
The courts, too, have an interest in Florida's use of pentobarbital in the execution of Manuel Valle, a convicted cop killer.
On Wednesday Miami-Dade Circuit Judge Jacqueline Hogan Scola rejected Valle's appeal challenging the constitutionality of Nembutal, generically called pentobarbital. An execution date has not been set.
This case will end up in front of the Florida Supreme Court before the end of the month.
In my column last week I said U.S. executions are on the decline and that evolving standards mean the death penalty is on the way out, using the angels-dancing-on-the-head-of-a-pin argument about pentobarbital as an example of that evolution.
After all, I pithily concluded, the power company didn't object to the misuse of its electricity when Florida's "Old Sparky" was in use before 2000.
Yes it did.
The beginning of electrocution as a means of executions goes back to the late 19th century and is tangled up in a marketing campaign and clash of business titans.
How very American.
Thomas Edison and George Westinghouse had competing power-delivery systems, direct current (Edison) and alternating current (Westinghouse).
It was the Beta vs. VHS of its day, if you will. Edison was an opponent of capital punishment, but marketing trumped scruples.
Among the differentiating characteristics of AC and DC electricity was safety. Both Westinghouse and Edison claimed the safer product.
Edison told a commission of the New York state Legislature that electricity was a fine way to execute someone, at least if they used AC, particularly a generator "manufactured principally ... by George Westinghouse."
Westinghouse paid for the condemned man's lawyers to challenge the state of New York, objecting to its use of his dynamos to deliver a deadly dose of voltage to a human being as cruel and unusual punishment (and, not coincidentally, very bad publicity for Westinghouse).
This is all according to author Richard Moran's "Executioner's Current: Thomas Edison, George Westinghouse and the Invention of the Electric Chair."
Westinghouse refused to sell the state's contractor the dynamos to power the electric chair.
Didn't matter. The guy got AC generators from a secondary source out of state.
Sound familiar to the shenanigans of some states to get hold of the previously used sodium thiopental illegally from a U.K. source?
So, as it turns out, the power company HAS objected to the use of its juice to execute a prisoner, despite my lame joke.
It's also likely it was never a possibility in Florida for the utility to raise such an issue.
Though the Department of Corrections hasn't confirmed this, I'm told reliably that when the electric chair was Florida's primary means of execution (it remains an option for condemned prisoner's to choose), prison officials fired up their own generator to produce the power.

Death date is set - Martinsville Bulletin

2011-08-05T14:52:00.001-07:00

http://www.martinsvillebulletin.com/article.cfm?ID=29556

Judge denies Fla. execution drug challenge

2011-08-03T12:36:00.000-07:00

Judge denies Fla. execution drug challenge

By CURT ANDERSON
The Associated Press
Updated: 1:54 p.m. Wednesday, Aug. 3, 2011
Posted: 12:09 p.m. Wednesday, Aug. 3, 2011

MIAMI — A death row inmate's challenge to Florida's planned use of a replacement drug in executions was rejected Wednesday by a state judge, who concluded that the new lethal injection drug would not result in needless pain and suffering.
Miami-Dade Circuit Judge Jacqueline Hogan Scola joined other judges around the country in finding that the barbiturate pentobarbital is suitable to render a condemned inmate unconscious before two other fatal drugs are administered. Pentobarbital, marketed under the name Nembutal, is replacing a drug whose sole U.S. supplier has stopped making it.
In a 21-page decision, Scola found no evidence of a potential violation of the Eighth Amendment's prohibition against cruel and unusual punishment.
"Usage of pentobarbital does not create an objectively unreasonable risk of suffering," Scola wrote.
The ruling came in the case of Manuel Valle, 61, who was sentenced to die for the 1978 shooting death of Coral Gables Police Officer Louis Pena. His execution would be the first in Florida using pentobarbital, and a divided Florida Supreme Court granted a one-month stay until Sept. 1 to allow time for his challenge to be reviewed.
"This drug has been used for lethal injections in many other states and has already been upheld in three federal district courts," said state Attorney General Pam Bondi. "This man killed a police officer, and his execution is long overdue."
The ruling now goes to the state Supreme Court for final review. A tentative oral argument date is set Aug. 24.
The state switched to pentobarbital earlier this summer because of a shortage of sodium thiopental, which had been a mainstay of lethal injections until its manufacturer halted production. States scrambled to find an alternative, and 18 people have been executed around the country using pentobarbital as a replacement anesthetic since Oklahoma became the first last year.
Valle's attorneys and a medical expert argued at a hearing Tuesday before Scola that pentobarbital was woefully untested in lethal injections and that there was some evidence an inmate suffered in a recent Georgia execution using it. But the state's medical expert said Florida's planned dosage would be fatal by itself and Georgia officials insisted nothing unusual happened in the execution of Roy Willard Blankenship in June.
Scola said she found the state's argument more persuasive.
"A defendant must show an objectively intolerable risk of harm which must be sure or very likely to cause needless suffering," the judge wrote. "Not only has the defendant failed to meet this standard, he has failed to present any credible evidence of any risk of needless suffering."
_____
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JACQUELINE HOGAN SCOLA order in Florida lethal injection case

2011-08-03T12:09:00.000-07:00

JACQUELINE HOGAN SCOLA order
Circuit Court Judge

http://myfloridalegal.com/webfiles.nsf/WF/JDAS-8KDKQT/$file/VALLEorder11thCircuit.pdf

Miami judge signs off on Florida’s new lethal injection drug

2011-08-03T12:00:00.000-07:00

Miami judge signs off on Florida’s new lethal injection drug

by Dara Kam | August 3rd, 2011

A Miami judge this morning ruled that Florida corrections officials can use a new drug as part of the lethal injection “cocktail,” setting the stage for a Supreme Court show-down later this month.
The Florida Supreme Court temporarily halted the execution of convicted cop killer Manuel Valle, originally slated for Monday, until a hearing was held on the use of the drug pentobarbital. Florida Department of Corrections officials switched to the drug in a new lethal injection protocol released in June after the manufacturer of the old drug, sodium thiopental. The Danish manufacturer of pentobarbital, also known as Nembutal, twice asked Gov. Rick Scott not to use the drug for lethal injections and has stopped selling it to distributors who resell it for that use.
Valle’s lawyers argued that the drug had not been tested and that its use may cause prisoners pain during executions in violation of the cruel or unusual punishment threshold set by a previous U.S. Supreme Court opinion known as “Baze.”
Miami-Dade Circuit Judge Jacqueline Hogan Scola agreed with three federal courts that already ruled the drug does not raise a substantial risk of harm.
The “usage of pentobarbital does not create an objectively unreasonable risk of suffering,” Scola wrote in her order.
Briefs from Attorney General Pam Bondi, who went to the U.S. Supreme Court to try to get the execution back on, and Valle’s lawyers are due to the Florida Supreme Court by Aug. 19, and the court has slated oral arguments for Aug. 24 if necessary.
Gov. Rick Scott signed a death warrant for Valle – his only since taking office in January – late in May. The Supreme Court rescheduled Valle’s execution for Sept. 2.

URGENT ACTION . STAY OF EXECUTION FOR CUBAN NATIONAL

2011-08-02T14:47:00.000-07:00

Further information on UA: 225/11 Index: AMR 51/069/2011 USA Date: 02 August 2011

URGENT ACTION
STAY OF EXECUTION FOR CUBAN NATIONAL

Manuel Valle, a Cuban national who was due to be executed in Florida on 2 August, has received a stay of execution until 1 September. He was convicted of the murder of a police officer in 1978. He was 27 years old when first sent to death row. He is now 61.
On 25 July, by four votes to three, the Florida Supreme Court granted the stay of execution to allow an evidentiary hearing to be conducted on Florida’s switch from sodium thiopental to pentobarbital as the anaesthetic component of its three-drug lethal injection protocol. The Florida Department of Corrections made the change to its protocol on 8 June, as have a number of other states in the face of a shortage of sodium thiopental (see USA: An embarrassment of hitches, http://www.amnesty.org/en/library/info/AMR51/058/2011/en). Lundbeck, the Denmark-based manufacturer of pentobarbital, has condemned use of its drug in executions, and has also questioned its efficacy for this purpose. On 1 July, it announced that it would now use a “specialty pharmacy” programme that would deny distribution of the drug to prisons in US states using lethal injection.
The majority on the Florida Supreme Court ruled that the switch to pentobarbital “warrants an evidentiary hearing” in trial-level court, and that expert and other evidence presented by Manuel Valle’s lawyers had raised “a factual dispute, not conclusively refuted,” as to whether Florida’s use of pentobarbital would subject the prisoner to an unconstitutional risk of pain during execution. Among other things, the court’s majority ordered the Florida authorities to produce correspondence and documents it had received from Lundbeck regarding pentobarbital’s use in executions, “including those addressing any safety and efficacy issues”.
The Florida authorities appealed to the US Supreme Court to lift the stay of execution. The appeal was denied on 29 July.
The execution is now stayed until 5pm on 1 September 2011. Under the Florida Supreme Court’s order, the hearing in trial court has to be concluded and the judge’s finding made by 2pm on 5 August 2011. The final day of testimony is taking place today, 2 August. The case will then be briefed to the Florida Supreme Court, which will conduct oral arguments on the morning of 24 August before ruling thereafter.
Manuel Valle could face execution on or soon after 1 September if the courts rule against him.
Please continue to write, in your own language:
 Acknowledging the seriousness of the crime for which Manuel Valle was sentenced to death and explaining that you are not seeking to downplay the suffering caused;
 Expressing concern that Manual Valle has not had access to a meaningful and transparent clemency procedure, as required under international law, and urging Governor Scott to rectify this;
 Pointing to the cruelty of the death penalty, not least subjecting someone to 33 years on death row, and noting that in that time, scores of countries have abolished the death penalty as they have come to recognize its risks, costs, ineffectiveness and incompatibility with fundamental human rights principles;
 Urging Governor Scott to prevent this execution and ensure commutation of Manuel Valle’s death sentence.
PLEASE SEND APPEALS AS SOON AS POSSIBLE, AND BEFORE 1 SEPTEMBER 2011 TO:
Office of Governor Rick Scott, State of Florida
The Capitol, 400 S. Monroe St.
Tallahassee, FL 32399-0001, USA
Fax: 1 850 487 0801
Email: http://www.flgov.com/contact-gov-scott/email-the-governor
Salutation: Dear Governor
Please check with the AIUSA Urgent Action Office if sending appeals after the above date.
Date: 02 August 2011
URGENT ACTION STAY OF EXECUTION FOR CUBAN NATIONAL
ADDITIONAL INFORMATION
On 2 April 1978, Officer Louis Peña of the Coral Gables Police Department in Miami, Florida, was shot dead after stopping Manuel Valle and Felix Ruiz in their car. Officer Gary Spell, who arrived at the scene separately, testified that Manuel Valle had shot Officer Peña and then fired two shots at Officer Spell. Manuel Valle was charged with murder and attempted murder. Felix Ruiz was charged as an accessory and sentenced to 10 years in prison.
Manuel Valle was sentenced to death in May 1978. In 1981, the Florida Supreme Court ruled that his lawyer had been prevented from adequately preparing a defence due to the speed with which the case had been brought to trial. At a new trial in 1981, Manuel Valle was again sentenced to death, but this sentence was overturned by the US Supreme Court in 1986. In 1988, a new jury voted by eight to four that Manual Valle be sentenced to death.
On 30 June 2011, Governor Rick Scott signed a death warrant in Manuel Valle’s case setting his execution date. The warrant stated that executive clemency was not appropriate. The state has said that a clemency process has been held, but the only information on any such process found by Manuel Valle’s current lawyers is a request made in 1992 by the then Governor, Lawton Chiles, that a clemency investigation be conducted. Manuel Valle’s lawyers have said that they can find no evidence of any clemency proceedings having been conducted, either in the 1990s or under the current governor. They have stated that “without notice, without the opportunity to be heard, without counsel, Mr Valle’s clemency proceedings, if any, did not comport with due process”. If any such proceeding has been conducted, the lawyers have asserted, “it was conducted in complete secrecy without counsel”.
The US Supreme Court has stated that executive clemency is the “fail-safe" in the criminal justice system, to provide the possibility for remedy or relief not provided by the judiciary. Under article 6.4 of the International Covenant on Civil and Political Rights, a treaty ratified by the USA in 1992, “anyone sentenced to death shall have the right to seek pardon or commutation of the sentence”. Respect for this right can only be achieved through a meaningful, transparent process, with the participation of the prisoner and his or her counsel. No such process has been conducted here, in violation of the USA’s international obligations.
Manuel Valle has been facing execution for 33 years, a torment deepened by the fact that during his time on death row more than 60 of his fellow inmates have been taken from their cells and killed by the State of Florida. The US Supreme Court has not ruled on whether prolonged confinement on death row violates the US Constitution, but individual Justices have raised concerns. In 1995, for example, Justice John Paul Stevens wrote that executing a prisoner who had been on death row for 17 years arguably negated any deterrent or retributive justification for the punishment, supposedly the two main purposes of the death penalty. In 2002, in the case of an inmate who had been on death row for more than 25 years, Justice Stephen Breyer stated that if executed, the prisoner would have been “punished both by death and also by more than a generation spent in death row’s twilight. It is fairly asked whether such punishment is both unusual and cruel.” Three years earlier, he had written that “It is difficult to deny the suffering inherent in a prolonged wait for execution – a matter which courts and individual judges have long recognized”, and added that “death row conditions of special isolation may well aggravate that suffering.” In 1996, a Florida Supreme Court judge noted that death row prisoners in Florida, as now, “are maintained in a six- by nine-foot cell with a ceiling nine and one-half feet high. These prisoners are taken to the exercise yard for two-hour intervals twice a week. Otherwise, these prisoners are in their cells except for medical reasons, legal or media interviews, or to see visitors…. These facilities and procedures were not designed and should not be used to maintain prisoners for years and years.”
Name: Manuel Valle (m)
Issue (s): Death Penalty
Further information on UA 225/11 (22 July 2011)
Country: USA
Issue Date: 2 August 2011

Doctor: Lethal Injection Drug May Cause Pain

2011-08-02T12:40:00.000-07:00

Doctor: Lethal Injection Drug May Cause Pain

Use Of New Execution Drug Declared Risky By Doctor

POSTED: 1:58 pm EDT August 2, 2011
UPDATED: 2:24 pm EDT August 2, 2011

MIAMI, Fla. -- A doctor testifying for a death row inmate said Florida's planned use of a new lethal injection drug could cause extreme pain in executions.Dr. David Waisel testified Tuesday that pentobarbital hasn't been sufficiently tested to ensure an inmate is unconscious before deadly drugs are administered. States are using the new drug because the previous well-tested drug is unavailable.

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Florida Supreme Court ordered Tuesday's hearing in the case of Manuel Valle, 61. He was convicted in the 1978 shooting death of Coral Gables Police Officer Louis Pena.Valle's scheduled execution was stayed for a month to allow arguments over Florida's plan to use pentobarbital. The drug has been used in other states but never in Florida.Circuit Judge Jacqueline Hogan Scola must rule on Valle's execution challenge by Friday.

Florida Issues: AFFIDAVIT OF DAVID B. WAISEL, MD

2011-08-02T12:14:00.000-07:00

Florida Issues: AFFIDAVIT OF DAVID B. WAISEL, MD

Florida Issues: Expert report of David B. Waisel, MD

2011-08-02T12:13:00.000-07:00

Florida Issues: Expert report of David B. Waisel, MD

Doctor: new Fla. Execution drug risky to inmate

2011-08-02T12:04:00.000-07:00

Tuesday, Aug. 02, 2011

Doctor: new Fla. Execution drug risky to inmate

By Curt Anderson - AP Legal Affairs Writer

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MIAMI -- A doctor testifying for a death row inmate convicted of killing a police officer 33 years ago testified Tuesday that Florida's planned use of a replacement drug for lethal injections could cause extreme pain in executions.
Dr. David Waisel, a Boston anesthesiologist, said the drug pentobarbital commonly sold as Nembutal, hasn't been sufficiently tested to ensure an inmate is unconscious before deadly drugs are administered. States are using the replacement drug because the sole U.S. manufacturer stopped making it.
Waisel said use of pentobarbital "exposes the inmate to extraordinary risk" compared with the old drug, sodium thiopental. He said pentobarbital is most commonly used as a sedative and that its effectiveness in rendering a person unconscious is not well known.

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"We're taking a drug that we know everything about, replacing it with a drug we know almost nothing about in terms of inducing anesthesia in otherwise healthy people," Waisel said. "If it did not work, they would feel the incredibly burning pain" of the lethal heart-stopping drug, potassium chloride.
Waisel testified on behalf of 61-year-old Manuel Valle, who was sentenced to death for the 1978 fatal shooting of Coral Gables Police Officer Louis Pena during a traffic stop. Valle's execution had been set for Tuesday - it would have been Florida's first using the replacement drug - but it was stayed until at least Sept. 1 to allow time for a judge to consider his challenge to the new lethal injection method.
Valle did not attend Tuesday's hearing. A medical expert for the state was scheduled to testify later in the day.
The Supreme Court gave Miami-Dade Circuit Judge Jacqueline Hogan Scola until Friday afternoon to issue a ruling, which will then be reviewed by the high court.
Pentobarbital has been used in 18 executions around the country since Oklahoma first did so last year. Like sodium thiopental before it, the drug is intended to render the inmate unconscious so that no pain will be felt when two other drugs that cause death are administered.
Lawyers for Valle and other condemned prisoners have seized on the June execution in Georgia of Roy Willard Blankenship, who appeared to witnesses to grimace, jerk and mutter for several minutes after the pentobarbital was administered. Waisel said based on his interviews with witnesses at the Georgia execution, "Mr. Blankenship suffered an extremely painful execution."
Last week, a Georgia corrections officer testified in the Florida challenge that nothing seemed particularly unusual about the Blankenship execution.
Attorneys for Valle failed in an attempt to introduce an affidavit about the Blankenship case by Associated Press reporter Greg Bluestein, who witnessed the execution. The affidavit affirms that stories Bluestein wrote about Blankenship's movements during the execution accurate portrayed what he saw, but Scola ruled it inadmissible as evidence.

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Florida Issues: Ga. Execution Is Fodder for Challenges to New Drug

2011-08-02T11:24:00.000-07:00

Florida Issues: Ga. Execution Is Fodder for Challenges to New Drug

Ga. Execution Is Fodder for Challenges to New Drug

2011-08-02T11:22:00.000-07:00

Ga. Execution Is Fodder for Challenges to New Drug

By GREG BLUESTEIN Associated Press

ATLANTA June 28, 2011 (AP)

The thrashing, jerking death of Roy Willard Blankenship has lawyers for death row inmates plotting fresh arguments against the drug used to execute him, even though they may never be able to prove that it caused the spasms in his last moments.
Medical experts say it's possible that Georgia prison staff botched the procedure last week using a controversial new sedative, that Blankenship had some sort of jarring reaction to the drug, or even that he faked it. Still, defense attorneys around the nation say they plan to cite Blankenship in requests to stop executions using pentobarbital, a chemical being adopted by a growing number of states as they run out of another commonly-used drug.
Blankenship jerked his head several times, mumbled inaudibly and appeared to gasp for breath for several minutes after he was pumped with pentobarbital on Thursday in Georgia's death chamber. Inmates are usually much more still during a lethal injection, but medical experts are split about what whether Blankenship's movements were a sign that his execution was bungled.
"As he's going to sleep, there could be many kinds of reactions. He could have had the same reaction with sodium thiopental," which was once the predominant execution drug, said Dr. Howard Nearman, who chairs the anesthesiology department at Case Western Reserve University's medical school. "And he could have been faking it. Anything's possible."

FILE - In this undated file photo released by... View Full Caption

Georgia's prison department has stopped short of publicly launching an investigation, but said in a statement it will work with the state attorney general's office to ensure "execution procedures are medically appropriate."
Whatever conclusions the state reaches, defense attorneys said they are planning to invoke Blankenship's execution in court filings as evidence that pentobarbital could violate the ban on cruel and unusual punishment.
"It is clear that something went very wrong during the Blankenship execution and lawyers challenging lethal injection in other states will be taking a very close look at what happened," said Ty Alper, a California attorney who represents several death row inmates and works with the death penalty clinic at the University of California-Berkeley.
The execution of Blankenship, condemned for the 1978 murder of an elderly Savannah woman, was the first in Georgia using pentobarbital as part of a three-drug execution combination. The state was forced to switch after it surrendered its supply of sodium thiopental to federal officials amid an investigation into how the drug was obtained.
Georgia is one of several states that have adopted pentobarbital, which is commonly used to destroy dogs and cats, since the sole U.S. manufacturer of sodium thiopental stopped making it in 2009 and dropped plans to resume production earlier this year.
Among the objections to the new drug were multiple challenges by Blankenship's attorneys, who argued in state and federal court that it could cause him needless pain and suffering. Each request was rejected.
As the injection began, Blankenship jerked his head toward his left arm and began rapidly blinking. He then lurched toward his right arm, lunging twice with his mouth wide open as if he were gasping for air. A minute later, he pushed his head forward while mouthing inaudible words. His eyes never closed.
The movements stopped within three minutes, and he was declared dead 12 minutes later.
Medical experts differ on whether the spasms indicate the execution was improperly carried out.
Dr. Mark Dershwitz, a University of Massachusetts anesthesiologist, said pentobarbital can sometimes cause pain and involuntary jerking movements even when it's properly injected. Case Western's Nearman said patients sometimes move during an "excitement phase" that takes hold as a patient slips out of consciousness.
Others said Blankenship's reaction is a sign the pentobarbital didn't work right.
"They clearly botched this execution and Mr. Blankenship clearly suffered," said Dr. David Waisel, a Harvard medical professor who has raised questions about using pentobarbital. He said it's clear "something went wrong."
It's rare to see an inmate struggle after a lethal injection starts. Lewis Williams had to be forcibly strapped to a gurney as he pleaded for mercy during his 2004 execution in Ohio. But observers said he went to sleep the moment sodium thiopental started.
Blankenship's execution, though, is the second example of odd movements in lethal injections involving pentobarbital this year. Eddie Duval Powell raised his head with a confused look on his face and glanced around Alabama's death chamber after he was injected with pentobarbital on June 16. He then dropped his head back down and appeared to be unconscious.
"This will become an issue," said Alabama death penalty attorney Bryan Stevenson, citing the two cases. "With Blankenship's execution, new concerns will be raised about the protocols states are employing with this new drug."
Officials in Georgia, meanwhile, are quietly trying to determine what, if anything went wrong. No new executions have been scheduled since Blankenship was put to death.
His lawyer Brian Kammer wants an independent investigation and a firmer ban on executions until such a probe is complete.
"I can't see how this is not further evidence that Georgia can't competently implement a judicial lethal injection, and that it would form the basis of future challenges," he said.
———
Associated Press reporter Bob Johnson in Montgomery, Ala., contributed to this report.
———
Bluestein can be reached at http://www.twitter.com/bluestein

From twitter now

2011-08-02T11:15:00.000-07:00

AP reporter's affidavit based on story about Ga. execution deemed inadmissible in Fla. inmate's challenge to use of new drug. More to come.

The lethal injection protocol of Florida ,dated 21/4-2008

2011-08-01T12:49:00.000-07:00

http://www.floridasupport.us/lethal/Valle/2-4.pdf

State`s motion to dismiss the Valle federal complaint

2011-08-01T06:59:00.000-07:00

http://www.floridasupport.us/lethal/Valle/10-main.pdf

State`s motion to dismiss the Valle federal complaint

NEW VOICES: "Alabama Juries, Not Judges, Should Decide Death Sentences"

2011-08-01T06:37:00.000-07:00

NEW VOICES: "Alabama Juries, Not Judges, Should Decide Death Sentences"

O.H. Eaton Jr. (pictured), who served as a judge for many years in Florida, recently wrote an op-ed in the Birmingham News calling for an end to Alabama's law that allows judges to override juries' sentencing recommendations in death penalty cases. Eaton, who presided over numerous capital cases during his 24 years on the bench, said that his experience convinced him that the practive of judicial override is unfair. Citing a report recently published by the Equal Justice Initiative, Eaton noted that one-fifth of Alabama's death row inmates face execution even though their juries believed they should have been sentenced to life in prison. He wrote, "While consistency in sentencing is the argument most often heard in support of judicial override, the evidence indicates that allowing judges to ignore jury recommendations actually leads to less consistency in sentencing rather than more. Some judges are more likely to override than others. Some counties are generally more supportive of the death penalty than others. So, a death sentence ends up depending on geography and luck of the judicial draw rather than the facts of the case." Eaton suggested a short-term solution of imposing a rigorous legal standard for allowing judicial override, but ultimately he recommended that juries should make the sentencing decision. Read full op-ed below.
OTHER VIEWS: Alabama juries, not judges, should decide death sentences
By O.H. EATON JR. | Special to The Birmingham News
For 24 years, I served as a trial judge in Florida, presiding over such a large number of death penalty cases that eventually I began instructing judges across the country how to try them.
Recently, I was privileged to teach judges in Alabama about death penalty trials. Florida and Alabama share the same basic death penalty scheme in which individual judges may "override" a jury recommendation and impose a death sentence in a case -- despite the fact the jury has determined a life sentence is appropriate for the defendant.
My years of experience on the bench convinced me the judicial imposition of death sentences when the jury has recommended life creates a system that is less fair, rather than more. Unfortunately, a recent report from the Alabama-based Equal Justice Initiative finds this practice is quite common in Alabama: one-fifth of the individuals on Alabama's Death Row are there even though juries believed they should have been sentenced to life, not death.
Murders understandably devastate the victims' loved ones and rightfully outrage communities. And the jury, as the representative of the community, is best positioned to determine whether a defendant must pay for his crime with his life.
An elected judge, on the other hand, may feel political pressure to sentence an offender harshly despite the facts. Judges may fear that when up for re-election, voters will only remember the number of death sentences they imposed, and not the facts of particular cases. This political pressure may lead a judge to impose a death sentence even when the community has determined it is not fitting for the crime.
In fact, the EJI report describes how candidates in Alabama's state judicial elections during their campaigns have boasted of their willingness to sentence murderers to death. The report even confirms the suspicion that judges' death sentences are politically motivated: In a recent election year, 30 percent of the death sentences were imposed by judicial override; compare that to less than 10 percent in a nonelection year.
While consistency in sentencing is the argument most often heard in support of judicial override, the evidence indicates that allowing judges to ignore jury recommendations actually leads to less consistency in sentencing rather than more. Some judges are more likely to override than others. Some counties are generally more supportive of the death penalty than others. So, a death sentence ends up depending on geography and luck of the judicial draw rather than the facts of the case.
There is even evidence to suggest that the race of the offender and race of the victim may affect override decisions. One Alabama judge admitted during sentencing, "If I had not imposed the death sentence (on a white defendant over the jury's recommendation of a life sentence), I would have sentenced three black people to death and no white people."
Thus, a system of judicial override creates a system in which geography, race, timing of trial and the individual judge, rather than the seriousness of the crime, determine whether one will be sentenced to death. This leads to an arbitrary and unfair administration of the death penalty, which should be imposed only when the community believes the crime to be so outrageous the offender must pay with his life.
There is a partial solution to this problem. The Florida Supreme Court imposed a rigorous legal standard for judges who want to override jury decisions in favor of life, requiring that the judge give "great weight" to the jury's recommendations and prohibiting override unless the facts in favor of a death sentence are "so clear and convincing that virtually no reasonable person could differ." The standard is so rigorous that no Florida judge has imposed death through override in 12 years -- since 1999. The Alabama Supreme Court ought to adopt a similarly rigorous standard.
But there's an even better long-term solution that only the Alabama Legislature can implement: Change the law so judges are not permitted to ignore a jury's recommendation for a life sentence. As long as elected judges are able to override juries' decisions and impose death sentences, arbitrariness and unfairness will continue to permeate the system.
O.H. Eaton Jr. served as a trial judge in the 18th Judicial Circuit of Florida from 1986 to 2010 and is a nationally recognized expert on capital trials. He serves as a member of The Constitution Project's Death Penalty Committee.
(O.H. Eaton Jr., "Alabama juries, not judges, should decide death sentences," Birmingham News, July 22, 2011). Read more New Voices.

Florida Supreme Court Stays Execution to Allow Lethal Injection Hearing

2011-08-01T06:36:00.000-07:00

Florida Supreme Court Stays Execution to Allow Lethal Injection Hearing

On July 25, the Florida Supreme Court (4-3) stayed the August 2 execution of Manuel Valle to allow a lower court to consider a challenge to a new lethal injection drug. Last month, Florida substituted pentobarbital for sodium thiopental as the first drug in its three-drug protocol for executions. Florida and many other states were forced to seek alternatives to sodium thiopental when the drug's sole U.S. manufacturer decided to stop its production. Valle's lawyers contend that the use of pentobarbital would subject him to a substantial risk of harm because the drug has never been tested on humans for the purpose of inducing an anesthetic coma. Federal judges in Ohio and Delaware have also recently stayed executions in those states because of lethal injection challenges, although the stay in Delaware was lifted pending clarification of the basis for the stay. On separate grounds, a federal judge in Florida found the state's death penalty law unconstitutional because jurors are not given decision-making power to determine whether a defendant is eligible for the death penalty. That case is still under review.
Valle's case will return to Circuit Judge Jacqueline Hogan Scola in Miami, who will hear evidence on the new drug and make a ruling by August 5.

FDOC letter to the Florida Governor presenting the new protocol of lethal injection, dated June 8, 2011.

2011-08-01T06:18:00.000-07:00

http://www.floridasupport.us/lethal/Valle/2-3.pdf

FDOC letter to the Florids Governor presenting the new protocol of lethal injection , dated June 8, 2011.

The Florida protocol has been changed secretly, and this new version has not been approved by the courts

Florida has changed the drugs to be used during the execution.

The new drug Nembutal is not approved by FDA, nor approved for lethal injection by the producer Lundbeck. not tested scientifically for this lethal injection purpose and can according to experts involve risk for great pain during the execution.

This is a serious violation of international law.

FDOC signed protocol of Florida lethal injection

2011-08-01T05:44:00.000-07:00

FDOC signed protocol of Florida lethal injection
probably signed June 8, 2011

Not presented to defense until June 9, 2011

Given to media around February 2011

The draft - same as protocol was drafted in FDOC around December 2010

Presented in court in June 2011, shortly before Florida warrant issued by the Governor

Why has this not been litigated before and why presented so late and now to be litigated under the rush of a warrant?

Expert report of David B. Waisel, MD

2011-08-01T04:13:00.000-07:00

http://www.floridasupport.us/lethal/Valle/2-2.pdf

Evaluation of Florida`s Execution Practices and Procedures and Planned Novel Use of Pentobarbital

Convicted killer Crosley Green in search of redemption

2011-07-31T11:22:00.000-07:00

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

Written by

KAUSTUV BASU
FLORIDA TODAY

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?

2011-07-31T10:24:00.000-07:00

CAPITAL PUNISHMENT

Is this killing necessary?

Posted on Sunday, 07.31.11

BY THOMAS WENSKI

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.

Lundbeck overhauls pentobarbital distribution program to restrict misuse

2011-07-31T10:02:00.000-07:00

http://www.lundbeck.com/investor/releases/ReleaseDetails/1527337/463058.pdf

H. Lundbeck A/S Ottiliavej 9

Tlf +45 36 30 13 11

E-mail information@lundbeck.com

DK-2500 Valby, Denmark

Fax +45 36 43 82 62

www.lundbeck.com

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

Death drugs

2011-07-30T16:44:00.000-07:00

Jury recommends death for Gregory

By FRANK FERNANDEZ, Staff writer

March 10, 2011 12:05 AM
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

2011-07-30T16:13:00.000-07:00

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.

2011-07-30T15:52:00.000-07:00

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

2011-07-30T15:47:00.000-07:00

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

2011-07-30T15:31:00.000-07:00

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?

2011-07-30T15:21:00.001-07:00

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.

2011-07-30T15:09:00.000-07:00

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,

2011-07-30T15:00:00.000-07:00

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

2011-07-30T14:53:00.001-07:00

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.

Paul Flemming: Drug debate puts execution on hold

2011-07-29T11:41:00.000-07:00

Paul Flemming

Paul Flemming
Capital Ideas

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 SchÃ¼berg, 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.
SchÃ¼berg 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

2011-07-29T08:35:00.000-07:00

Examine lethal-injection procedures, legislator says

Friday, July 29, 2011 03:05 AM

By Alan Johnson

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

2011-07-29T08:33:00.000-07:00

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

TALLAHASSEE, Fla. — 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

2011-07-29T05:45:00.000-07:00

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

2011-07-29T05:38:00.000-07:00

Posted on Thursday, 07.28.11

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.

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

2011-07-29T04:53:00.000-07:00

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

2011-07-29T04:28:00.000-07:00

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

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

By DAVID JOLLY

Published: July 1, 2011

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.

2011-07-29T04:08:00.000-07:00

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

2011-07-29T04:05:00.000-07:00

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.

The new distribution proc-ess will deny sales to corrections departments in states that impose death sentences and carry out executions.

Gannett News Services

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

2011-07-28T12:36:00.000-07:00

"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

2011-07-28T12:01:00.000-07:00

Florida

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

By Matthew Hendley Wed., Jul. 27 2011 at 3:15 PM

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

2011-07-28T11:47:00.000-07:00

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 2^nd). 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

Pentobarbital Manufacturer Says Drug is Not Safe for Lethal Injections

2011-07-28T11:43:00.000-07:00

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

Anesthesia-News and Analysis

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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American Anesthesiology Acquires Palm Beach Physician Practice
Diabetes Drug Can Control Inflammation That Causes Pain, Nerve Damage

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

2011-07-28T07:07:00.000-07:00

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

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

2011-07-28T05:07:00.000-07:00

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.

APPENDIX TO EMERGENCY PETITION FOR A WRIT OF PROHIBITION

2011-07-27T21:39:00.000-07:00

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

Danish company asks Florida to stop using its drug to kill inmates

2011-07-27T15:18:00.001-07:00

Danish company asks Florida to stop using its drug to kill inmates

The head of Lundbeck, Inc., the Danish company that makes ones of the drugs Florida plans to use to execute its first death row inmate in 18 months, has twice written Gov. Rick Scott urging him not to use their product for capital punishment.

Staffan Schüberg, president of Lundbeck, wrote to Scott in May and again in June after he said his letters to the Florida Department of Corrections went unanswered. It's unclear if Scott's office has responded, either.

The drug — pentobarbital sodium, branded as Nembutal — is at the center of the Florida Supreme Court's decision this week to delay the execution of Manuel Valle, who shot and killed a South Florida police officer 33 years ago.

"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."

Here are the letters from Schüberg to Scott:

May 16, 2011

The Honorable Rick Scott, State of Florida, The Capitol, 400 S. Monroe St., Tallahassee, FL, 32399-0001

Dear Governor Scott,

Lunbeck understands that the state of Florida has decided to use our product Nembutal® (pentobarbital sodium injection, USP) for the purpose of capital punishment. 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.

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. The Florida Department of Corrections has not responded to our letter and we therefore request that you take immediate action to stop the use of Nembutal as a means to end lives.

After exploring several potential means of restricting the distribution of Nembutal, we've learned that we simply cannot control how licensed healthcare professionals use this or any pharmaceutical product in the United States. The only potentially effective action we can take is to appeal to you and urge that Florida refrain from using our product for a purpose that severely contradicts Lundbeck's mission to provide therapies that help improve people's lives.

Thank you for your serious consideration of this matter.

Sincerely,

Staffan Schüberg, President, Lundbeck, Inc.

____________

June 8, 2011

The Honorable Rick Scott, State of Florida, The Capitol, 400 S. Monroe St., Tallahassee, FL, 32399-0001

Dear Mr. Scott,

I am writing to follow up on my recent letter about your state's use of Nembutal® (pentobarbital sodium injection, USP) for the purpose of lethal injection in your state.

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

We ask that you stop using pentobarbital in the execution of prisoners in your state because it contradicts everything we are in business to do — provide therapies that improve people's lives.

Thank you for your serious consideration of this matter.

Sincerely,

Staffan Schüberg, President, Lundbeck, Inc.

Read more: http://miamiherald.typepad.com/nakedpolitics/2011/07/danish-company-asks-florida-to-stop-using-its-drug-to-kill-inmates.html#ixzz1TLYhEFqD

Our product is being misused.

2011-07-27T14:17:00.001-07:00

Our product is being misused.

What has Lundbeck done to prevent the misuse?

In our view the misuse of our product is a result of laws and social practices that we have little prospect of changing. In situations like this, the UN guidance states that failure to sell into certain markets could be ethically wrong if the product in the majority of its use scenarios offers broader human and social benefits when used in the way in which it is intended. We believe this to be established as a fact with respect to pentobarbital.

Therefore we have focused our efforts on assessing ways to prevent the distribution of pentobarbital for use in capital punishment.

Objections directly to the states

We have gone straight to the Departments of Correction in the states using or considering the use of pentobarbital for lethal injection. To date, we have sent letters to 11 states strongly stating our objection to their use of our product to end lives, since it contradicts everything we are in business to do, namely provide therapies that help improve people’s lives. Thus far, we have sent letters to Governors and the Departments of Correction in the following states: Alabama, Arizona, Florida, Georgia, Louisiana, Mississippi, Ohio, Oklahoma, South Carolina, Texas and Virginia.

Further, we have emphasized to the states that the use of pentobarbital outside of the approved labelling has not been established.

SUPPLEMENTAL APPENDIX TO EMERGENCY PETITION FOR A WRIT OF PROHIBITION

2011-07-27T13:18:00.001-07:00

IN THE SUPREME COURT OF FLORIDA
NO. SCll -1434
MANUEL VALLE, Petitioner,
v.
STATE OF FLORIDA, Respondent.
SUPPLEMENTAL APPENDIX TO
EMERGENCY PETITION FOR A WRIT OF PROHIBITION
NEAL A. DUPREE Capital Collateral Regional Counsel-South
SUZANNE KEFFER Chief Assistant CCRC-South
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 SUPPLEMENTAL APPENDIX
DOCUMENT EXHIBIT
Transcript ofHearing July 27,2011 ......................................... D
EXHIBITD
Page 1
IN THE COUNTY COURT OF THE ELEVENTH JUDICIAL CIRCUIT
IN AND FOR MIAMI-DADE COUNTY, FLORIDA CRIMINAL DIVISION
CASE NO. F78-5281A
STATE OF FLORIDA,
Plaintiff, vs. MANUEL ADRIANO VALLE,
Defendant.
TRANSCRIPT OF PROCEEDINGS
BEFORE
THE HONORABLE JACQUELINE HOGAN SCOLA
1351 Northwest 12th Street Miami, Florida 33125
Tuesday, July 26, 2011
9:38 a.m. to 9:55 a.m.
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1
A P
PEA RAN C E
S
2
3
For the Plaintiff:
4
SANDRA
S. JAGGARD,
ESQUIRE
Attorney Generals's Office
5
444 Brickell Avenue
Suite
650
6
Miami,
Florida 33131-2406
(305) 377-5441
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and
-8
CAROLYN M.
SNUARKOWSKI,
ESQUIRE
9
Attorney Generals's Office
4519
Camden Road
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Tallahassee,
Florida 32303-7224
(850) 414-3300
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-and
-12
PENNY
H. BRILL,
ESQUIRE
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-and
-GAIL
LEVINE,
ESQUIRE
14
Miami-Dade
State Attorney's Office
1350
Northwest
12th Avenue
15
Miami,
Florida 33136-2102
(305) 547-0666
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17
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For
the Defendant:
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SUZANNE
M. KEFFER,
ESQUIRE
-and-
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NEAL A.
DUPREE,
ESQUIRE
-and
-21
PAUL
E. KALIL,
ESQUIRE
101 Northeast
3rd Avenue
22
Suite 400
Fort Lauderdale,
Florida 33301-1100
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(954) 713-1284
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25
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E X H I BIT I N D E X
(NONE)
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(Thereupon, the following proceedings were
had: ) THE COURT: Good morning. MS. JAGGARD: Good morning, your Honor. MS. BRILL: Good morning, your Honor. THE COURT: Okay. You're on the record.
We're in open court. I have you on the speaker phone. This is Judge Jacqueline Hogan Scola. And we are here on Manuel Valle pursuant to
the Supreme Court's order of last night regarding the mandate to hold an evidentiary hearing in this matter. I have received several motions after that order. So let me ask you all to announce your presence, and then we'll deal with those motions.
MS. JAGGARD: Sandra Jaggard and Carolyn Snuarkowski, Assistant Attorneys General on behalf of the State.
MS. BRILL: Penny Brill and Gail Levine,
Assistant State attorneys, co-counsel on this -THE COURT: Louis? THE BAILIFF: What? THE COURT: Hold on. I'm fine. Hello. Are you there?
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MS. BRILL: Yes.
THE COURT: Okay. Sorry. We had a phone issue here. THE BAILIFF: Sorry. THE COURT: All right. So Penny Brill and
Gail Levine for the State.
And for the defense?
MS. KEFFER: Suzanne Keffer, Chief Assistant CCRC, Neal Dupree, CCRC, and Paul Kalil, Assistant CCRC, on behalf of Mr. Valle.
THE COURT: Okay. All right.
The first motion I have in front of me that we need deal with is the defendant's motion to disqualify the judge and memorandum of law. I have reviewed that.
As well, I have the Attorney General's response to the motion for disqualification. I have reviewed that.
I am denying this motion.
I'm handing the clerk these motions.
I'm assuming that the originals will be coming the sign and sworn-to originals; is that
correct? MS. KEFFER: Yes, your Honor. I'll have those sent down today to be filed.
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THE COURT: All right. Thank you.
The next thing I have is the Attorney General filed a motion to lift the stay in a capital case, warrant signed, filed -MS.
JAGGARD: (Indiscernible) --the United
States Supreme Court, your Honor. THE COURT: Pardon me? MS. JAGGARD: That's in the United States
Supreme Court.
THE COURT: Oh, okay. Very well.
So I imagine that everybody has already started their federal filings?
MS. JAGGARD: Well, there's a 1983 action pending in the Middle District of Florida raising basically the same legal objection with some add-on.
THE COURT: In the Middle District in this
case or in -MS. JAGGARD: In this case, your Honor. THE COURT: Oh, okay. What's the
jurisdiction in the Middle District?
I'm just curious.
MS. JAGGARD: That's where the prison is.
THE COURT: Okay. That's what I figured. All right.
So that was sent to me as a courtesy.
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And now I guess what we need to do is be about the business of scheduling this evidentiary hearing.
So let me hear --obviously, the defense is going to call Dr. Waisel.
Would that be correct?
MS. KEFFER: Well, we haven't filed witness
lists or anything yet, but obviously I attached his affidavit. So I think yes.
But that wouldn't be the only witness.
THE COURT: Okay. Well, that's fine.
But I want to tell everybody that I have a vacation scheduled next week. And also this order is due by August 5th, which is a week from this Friday, the end of next week.
So I'm going to have this hearing on Thursday and Friday, if it needs to go over a second day, so that I can do my order over the weekend and get it done in plenty of time.
So when can we have our witness list filed, and do you know your witnesses's availability?
MS. JAGGARD: The State will file its witness list right now, along with the order to transport that you requested.
THE COURT: Okay. Can you fax or email the
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order to transport to me?
MS. JAGGARD: I am emailing it as we speak.
THE COURT: Okay. Thank you.
So right now I am scheduling this hearing for Thursday, July 28th, at 10:00 a.m. So who else will the defense be calling, Miss Keffer?
MS. KEFFER: Judge, right now --I mean, I'd like the opportunity to file a witness list at least by -THE
COURT: Noon.
MS. KEFFER: --today.
It's something that I need to discuss with
the team. I certainly have ideas -THE COURT: Okay. MS. KEFFER: --but I don't think I have a
set list at this very moment. THE COURT: Okay. Noon is the deadline to file all witness lists. So Dr. Waisel is Number 1. And he's going to talk about the only issue, which is the pentobarbital. So I don't think that it's appropriate to
have more than two witnesses.
So tell me who your other witness would be.
MS. KEFFER: Well, your Honor, I would
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disagree.
I mean, I think that Florida Supreme Court order is clear that I was given an evidentiary hearing on the safety and efficacy of pentobarbital.
THE COURT: That's right.
MS. KEFFER: And from the defense standpoint,
that involves more than two witnesses.
THE COURT: Well, let me say this.
There's really only one issue, and the Court has the discretion to limit the number of experts and this is an expert issue --with regard to the number of experts.
So -MS.
KEFFER: I'm --I don't know that I'm referring simply to experts, your Honor. And THE COURT: Okay. Well, who else? MS. KEFFER: I'm sorry? THE COURT: Who else do you have? MS. KEFFER: Well, I certainly think that
Timothy Cannon, the lead --the team leader for the execution, Reina Wallace, Greg Lustein, who is the person that witnessed the Blankenship execution --that goes to the safety and efficacy of pentobarbital.
There's two witnesses out of Alabama, who also have witnessed a debauched execution based on
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pentobarbital. That goes to the safety and efficacy. I
think there could additionally be another expert that I'm looking into at this point that I've recently become familiar with.
So I think there's numerous witnesses, your Honor, and I think that all goes to -THE COURT: Well, make sure --as long as they're available Thursday and Friday.
MS. KEFFER: Well, I can tell you right now, Judge, that when I got this order last night from the Florida Supreme Court, I scrambled, as I'm sure everybody did, to try and find out everybody's availability. I spoke with Dr. Waisel.
Unfortunately, he's not available until Tuesday the 2nd, which still falls within Florida Supreme Court's remand. That was the best that I could do. August --and he is
THE COURT: Well, he can testify by phone from wherever he is Thursday and Friday. So -MS.
KEFFER: I would not like to have him testifying by telephone. He's my witness. I have the opportunity --I'd like to present him so that this Court can make an adequate credibility finding.
THE COURT: Well, video teleconference. MS. KEFFER: There may be documents that
I
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want him looking at. There may be -THE
COURT: Well, you can fax them or email them to him, and he can testify, and you can show me the same documents. That's how we'll do.
I'm telling you that's how we're doing it. So-MS.
KEFFER: Your Honor, like I said, I don't know if he's in surgery, if he can stop a surgery to come talk on the telephone.
He said that he was available on the 2nd. That was the best that I know of.
I will have to look into that.
THE COURT: Okay. Well, I'm telling you: Look into it or find a substitute witness. Okay. State, who are you calling? MS. JAGGARD: Your Honor, given that the
order of concern, Dr. Waisel's affidavit and his report, the State will be calling an expert witness, Dr. Dershwitz.
And since the affidavit concerned the execution in Georgia and --we were going to call two witnesses to that execution
THE COURT: Civilian witnesses?
MS. JAGGARD: Yes, ma'am.
MS. KEFFER: Can I have their names, please,
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or we filing witness lists? MS. JAGGARD: I have filed a witness list already. It should be on your computer. THE COURT: Okay. Well, can you give me a hint? This is the judge. I'd like to know the names. MS. JAGGARD: I understand, your Honor. I have to pull it back up.
THE COURT: Okay.
MS. JAGGARD: One is a Dr. Jacqueline Martin. She was a medical examiner who was a witness to the execution. And the other is John Harper with DOC in Georgia, who was a witness to the execution.
And I know we will be needing to present Dr. Dershwitz by phone or video, depending on timing, and that the other two witnesses will --we're still in the process of making arrangements to either have them here or present them.
THE COURT: Okay. What kind of witnesses are they?
MS. JAGGARD: It's Dr. Martin and -THE
COURT: Oh, Harper.
MS. JAGGARD: --Harper.
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THE COURT: Oh, okay. I thought you meant two additional witnesses. Well, are Dr. Martin and Dr. Harper going to testify as experts? MS. JAGGARD: Dr. Martin is mainly testifying based on what she saw at the execution, your Honor. THE COURT: Okay. But she's going to draw
some expert opinion about what she saw, I'm assuming?
Pardon?
MS. JAGGARD: She will use her expertise as a medical examiner to explain to you what she saw. THE COURT: Okay. Why do we need two --why do we need two folks?
MS. JAGGARD: What?
THE COURT: Why do we need two folks?
I mean, what's good for the goose is for the gander. I'm limiting expert witnesses, and I think two is the maximum, but I don't know why we need two. So I'm going to ask each side to tell me if they have two MS. JAGGARD: Harper is not a doctor. He's a Georgia DOC person. THE COURT: Oh, he is. All right. Well, then that's different.
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Page 14 MS. JAGGARD: Basically one expert --one and two fact witnesses, one of whom has some expert ability. THE COURT: Okay. So I want everybody to exchange their witness lists by noon today. The State says they've already filed their witness list. The defendant will be here 10:00 a.m. this Thursday, the 28th of July, and we'll have our hearing. Are there any other motions or matters we need to deal with?
MS.
KEFFER:
No,
your Honor.
MS.
LEVINE:
Judge?
Judge, can you hear me?
This is Gail Levine.
THE COURT: Yes, ma'am.
MS. LEVINE: Okay. I just wanted to let you know that Mrs. Brill and I are going to appear on Thursday, but I have a doctor appointment early Thursday morning. So I'm going to be running a few minutes late.
THE COURT: That's fine.
All right. I don't know whether the State needs to set up the video teleconference or the court administrator needs to do that.
Do you have that information, Miss Levine?
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Page 15 MS. LEVINE: Yes, Judge. I believe the court
administrators office would help Miss Keffer.
THE COURT: Okay.
MS. JAGGARD: I know our office has been in
touch with him about doing that. THE COURT: Okay. Very well. So I'll have my JA contact the court administrator. MS. KEFFER: For clarification, I understand
that my witness list is by noon today. THE COURT: Yes, ma'am. MS. KEFFER: I indicated numerous witnesses. Your Honor had mentioned something about two
witnesses.
Are you limiting me
to
two
witness,
or
are
you waiting
to
see
the witness
list?
THE
COURT:
Two
expert witnesses
on
an
issue.
MS.
KEFFER:
Okay.
But
I
can
call lay
witnesses
as
well?
THE COURT: Yes.
MS. KEFFER: Okay. Thank you.
THE COURT: But if your lay witnesses are
going to say the same thing, I don't see any need for two people. That's why I was asking the State about their two witnesses to the execution. If there's one person
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Page 16
who's going to say the very same thing, I don't need the second person to tell me the same thing. That's all.
So just --I'm just advising you of what I think is going to give you some guidance when you're talking to your witnesses.
If they're going to say the same thing, and I hear them, you know, starting to say the very same thing, I might cut them off.
So -MS.
JAGGARD: Your Honor, might I ask for a proffer of what Miss Keffer believes Miss Wallace or Mr. Cannon would have to testify about?
THE COURT: These are the DOC folks?
MS. JAGGARD: Miss Wallace is the attorney
THE COURT: Right. Legal counsel.
MS. JAGGARD: Yeah.
THE COURT: Well, that's another matter I
wanted to address.
I'm going to ask --I will be happy to ask for a proffer, but there are also some DOC documents that the Supreme Court ordered turned over that I have not previously turned over.
Is that everyone's understanding?
MS. JAGGARD: Yes. They ordered letters from
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Lundown.
THE COURT: So I guess --actually, we should have called Miss Wallace. MS. JAGGARD: Miss Wallace is aware of it,
your Honor.
THE
COURT:
Okay.
So you know
that
she
is
aware.
All
right.
I
want
to make
sure
that
she's
aware
of that.
And I don't know how profuse those documents are, but I'm going to say that she should get those to Counsel by close of business today.
So I'll enter an order to that effect, and I will fax it to her. MS. JAGGARD: Okay. I will let her know after the hearing.
THE COURT: All right. Thank you.
No later than 5:00 p.m. today.
Okay. And what is --can you proffer, Miss Keffer, what it is you believe Miss Wallace will have to say?
MS. KEFFER: Your Honor, can I suggest that maybe what might be easier is that, when I file the witness list, I include a brief, little written proffer, if that's what your Honor is ordering?
THE COURT: Yes. That's fine.
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Page 18
And Timothy Cannon, the same thing?
MS. KEFFER: Yes.
THE COURT: All right. Very well.
Is there anything else from either side?
MS. KEFFER: Judge
THE COURT: Yeah.
MS. KEFFER: --can I ask the same from the
State as well, what Don Harper and Jacqueline Martin have to say?
I have no idea what their observations are from that execution. I haven't had the opportunity to depose them.
And so I'd like the same from the State.
THE COURT: Sure. Okay.
Miss Jaggard?
MS. JAGGARD: That should not be a problem with regard to Dr. Martin because she's filed an affidavit (indiscernible) .
So I will have to check into Mr. Harper.
THE COURT: Okay. Well, do the best you can do.
And I'm expecting everyone here at 10:00 a.m. on Thursday the 28th, unless someone asks to have a joint conference or files another motion and we need to get together. Okay?
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MS. KEFFER: Your Honor, may I ask one more question?
THE COURT: Yes, ma'am.
MS. KEFFER: With respect to Dr. Dershwitz
can I ask --has the State obtained a report with respect to Florida procedures from him. And, if so, I would like a copy of it.
MS. JAGGARD: Not that I'm aware of, but I am considering it's limited to the efficacy of pentobarbital. I believe she is already aware his -THE
COURT: Testimony?
MS. JAGGARD: --opinion, because she received, from the public records from the Governor's office, an affidavit he has done on this issue from Oklahoma.
THE COURT: Okay.
MS. KEFFER: I'm simply asking if there was
an additional, more specific
THE COURT: Right, right. I understand.
So there's no more of a report or anything in this matter? MS. JAGGARD: Not that I'm aware of, your Honor. THE COURT: Okay. So, of course, if there would be, that should be turned over.
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Page 20
And is there anything additional from anybody? MS. BRILL: Not from the State Attorney's Office, Judge. Thank you.
THE COURT: Thank you, Miss Brill.
Okay. Thank you, everyone, Miss Keffer and Miss Jaggard.
And I'll see everyone Thursday at 10:00.
MS. JAGGARD: Thank you.
THE COURT: Take care. Bye.
(Thereupon, the hearing was concluded at
9:55 a.m.)
* * *
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1
CERTIFICATE
2
STATE
OF
FLORIDA
SS.
3
COUNTY
OF
BROWARD
4
I,
PHILLIP
CLARK,
CERTIFY
THAT
I
WAS
6
AUTHORIZED
TO
AND
DID
REPORT
THE
FOREGOING
PROCEEDINGS.
7
I
DO
FURTHER
CERTIFY
THAT
THE
FOREGOING
IS
A
8
TRUE
AND
ACCURATE
TRANSCRIPT
OF
THE
TESTIMONY
AS
9
REPORTED
BY
ME
AND
BEFORE
ME
AT
THE
TIME,
PLACE,
AND
THE
DATE
HEREINABOVE
SET
FORTH.
11
I
DO
FURTHER
CERTIFY
THAT
I
AM
NEITHER A
12
RELATIVE
NOR
EMPLOYEE,
NOR
ATTORNEY
NOR
COUNSEL
OF
ANY
13
OF
THE
PARTIES
TO
THIS
ACTION,
AND
THAT
I
AM
NEITHER
A
14
RELATIVE
NOR
EMPLOYEE
OF
SUCH
ATTORNEY
OR
COUNSEL,
AND
THAT
I
AM
NOT
FINANCIALLY
INTERESTED
IN
THE
ACTION.
16
17
WITNESS
MY
HAND
AND
OFFICIAL
SEAL
IN
THE
CITY
18
OF
FORT
LAUDERDALE,
COUNTY
OF
BROWARD,
STATE
OF
19
FLORIDA,
THIS
27TH
DAY
OF
JULY
2011.
21
BY:
22 PHILLIP CLARK, REPORTER 23 24
APEX REPORTING GROUP
TRANSCRIPT (2)

APEX REPORTING GROUP (954) 467-8204
CERTIFICATE OF SERVICE
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 27th day of July, 2011.
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 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

Order from Florida Supreme Court on emergency petition

2011-07-27T13:06:00.000-07:00

___________________________________________________________________
Supreme Court of Florida
WEDNESDAY, JULY 27, 2011
CASE NO.: SC11-1434 Lower Tribunal No(s).: 78-5281A
MANUEL VALLE vs. STATE OF FLORIDA
Petitioner(s) Respondent(s)
The Emergency Petition for a Writ of Prohibition is hereby denied on the merits.
No motion for rehearing will be entertained by this Court.
CANADY, C.J., and PARIENTE, LEWIS, QUINCE, POLSTON, LABARGA, and PERRY, JJ., concur.
A True Copy Test:
th Served:
PENNY H. BRILL HON. HARVEY RUVIN, CLERK PAUL EDWARD KALIL SUZANNE MYERS KEFFER SANDRA SUE JAGGARD HON. JACQUELINE HOGAN SCOLA, JUDGE

No quick decisions on Jackson's execution appeal

2011-07-27T12:56:00.000-07:00

No quick decisions on Jackson's execution appeal

No decisions were immediately issued in two last-minute hearings in two separate courts today on motions intended to halt the Friday execution of convicted ax murderer Robert W. Jackson III.
In the first hearing, which took place in Wilmington before U.S. District Judge Sue L. Robinson, Jackson’s attorneys objected to the use of the new chemical Delaware uses as part of its three-drug lethal-injection formula. In the second hearing, which took place in Dover, attorneys asked the state Supreme Court to delay the execution so the land’s highest court can review the case.
Jackson is scheduled to be executed between midnight and 3 a.m. Friday for the 1992 killing of 47-year-old Elizabeth Girardi during a robbery of her Hockessin home. A cousin of Girardi declined to comment as he and other family left Robinson’s courtroom.
Court records show Girardi was killed with an ax after encountering Jackson and accomplice Anthony Lachette leaving her home with property they had stolen and planned to pawn to buy drugs.
Two different juries voted for Jackson’s death penalty, which was imposed both times by a judge.
Jackson, however, has claimed that Lachette killed Girardi. Lachette has since been released from prison.

Florida Issues

Florida Issues: DNA no match to inmate

Florida Issues: Paul Hildwin 2001

Florida Issues: Judge denies death row inmate Paul Hildwin's claim of ineffective counsel

Florida Issues: Paul Hildwin at trial

Paul Hildwin at trial

Paul Hildwin 2001

DeLand killer's appeal: IQ too low to execute

DNA no match to inmate

Add this button

Florida Supreme Court order in Manuel Valle

The supplemental replybrief in Manuel Valle

Appellee supplemental brief

Making a date with death

Making a date with death

Witnessing an execution

The affidavit of Eddie Ledbetter be admitted as evidence

Dr. David Waisel, testified that he is an anesthesiologist at Boston Children‘s Hospital and medical ethicist

Dr. Jacqueline Martin, who testified by telephone from New York

John Harper, a 23-year employee of the Georgia Diagnostic Prison in Jackson, Georgia

Matt Schulz, an attorney with the capital habeas unit of Federal Defender's Office for the Middle District of Alabama

The supplemental initial brief of Manuel Valle

FSC order grants to supplement the record

State`s motion to supplement the record

Spanish Government must act to stop execution of Manuel Valle, denied clemency by Florida

12 August 2011

Spanish Government must act to stop execution of Manuel Valle, denied clemency by Florida

The Ugly Business of Lethal Injection

The Ugly Business of Lethal Injection

Attorneys trying to prevent the cruelty of a botched execution are challenging states' efforts to conduct experiments on their clients with new execution drugs.

New federal order

Federal order

Florida Issues: Warden on death penalty: "This is wrong"

Florida Issues: DOCTORS & EXECUTIONS: A complex dilemma of medicine, ethics and law

Florida Issues: Fla.'s death penalty unchanged 2 years after study

Florida Issues: Fla. marks 30 years since death penalty's return

Florida risks return to botched executions as expert warns on 'burning pain'

My recent letter about your state's use of Nembutal® (pentobarbital sodium injection, USP) for the purpose of lethal injection in your state.

Here are the letters from Schüberg to Scott:

Danish company asks Florida to stop using its drug to kill inmates

Danish company asks Florida to stop using its drug to kill inmates

Florida Lethal Injection Hearing to Proceed

Thursday, July 28, 2011

Florida Lethal Injection Hearing to Proceed

Florida Issues: Expert report of David B. Waisel, MD

The Role of State Medical Boards in Regulating Physician Participation in Executions

The Role of State Medical Boards in Regulating Physician Participation in Executions

Ty Alper

Dr. David Dershwitz, M.D. - the hearing in Miami

Jacqueline M. Martin, M.D. - the hearing in Miami

John Harper - the hearing in Miami

Dr. David Waisel - the hearing in Miami

Matt Schulz - the hearing in Miami

DEFENDANTS’ NOTICE OF SUPPLEMENTAL AUTHORITY

PLAINTIFF’S RESPONSE TO THIS COURT’S ORDER TO ADVISE THE COURT ON THE LEGAL AND PRUDENTIAL IMPLICATIONS OF THE STATE COURT PROCEEDINGS ON PLAINTIFF’S MOTION TO STAY

DEFENDANTS’RESPONSE TO ORDER REGARDING THE FLORIDA SUPREME COURT’S STAY

ORDER DENYING MOTION TO VACATE DEATH PENALTY FOLLOWING REMAND - Manuel Valle

Amended scheduling order from FSC

Well, maybe ax makers didn't care if they were used in executions

Well, maybe ax makers didn't care if they were used in executions

Death date is set - Martinsville Bulletin

Judge denies Fla. execution drug challenge

Judge denies Fla. execution drug challenge

JACQUELINE HOGAN SCOLA order in Florida lethal injection case

Miami judge signs off on Florida’s new lethal injection drug

Miami judge signs off on Florida’s new lethal injection drug

URGENT ACTION . STAY OF EXECUTION FOR CUBAN NATIONAL

Doctor: Lethal Injection Drug May Cause Pain

Doctor: Lethal Injection Drug May Cause Pain

Use Of New Execution Drug Declared Risky By Doctor

Florida Issues: AFFIDAVIT OF DAVID B. WAISEL, MD

Florida Issues: Expert report of David B. Waisel, MD

Doctor: new Fla. Execution drug risky to inmate

Tuesday, Aug. 02, 2011

Doctor: new Fla. Execution drug risky to inmate

Follow Curt Anderson on Twitter: http://twitter.com/Miamicurt

Florida Issues: Ga. Execution Is Fodder for Challenges to New Drug

Ga. Execution Is Fodder for Challenges to New Drug

Ga. Execution Is Fodder for Challenges to New Drug

Ga. Execution Is Fodder for Challenges to New Drug

KAUSTUV BASU
FLORIDA TODAY