SUPPLEMENTAL APPENDIX TO EMERGENCY PETITION FOR A WRIT OF PROHIBITION

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
7
and
-8
CAROLYN M.
SNUARKOWSKI,
ESQUIRE
9
Attorney Generals's Office
4519
Camden Road
10
Tallahassee,
Florida 32303-7224
(850) 414-3300
11
-and
-12
PENNY
H. BRILL,
ESQUIRE
13
-and
-GAIL
LEVINE,
ESQUIRE
14
Miami-Dade
State Attorney's Office
1350
Northwest
12th Avenue
15
Miami,
Florida 33136-2102
(305) 547-0666
16
17
18
For
the Defendant:
19
SUZANNE
M. KEFFER,
ESQUIRE
-and-
20
NEAL A.
DUPREE,
ESQUIRE
-and
-21
PAUL
E. KALIL,
ESQUIRE
101 Northeast
3rd Avenue
22
Suite 400
Fort Lauderdale,
Florida 33301-1100
23
(954) 713-1284
24
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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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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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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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