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

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.

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

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.
APEX REPORTING GROUP (954) 467-8204
Page 2
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
APEX REPORTING GROUP (954) 467-8204

Page 3
E X H I BIT I N D E X
(NONE)
APEX REPORTING GROUP (954) 467-8204

Page 4
(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?
APEX REPORTING GROUP (954) 467-8204

Page 5
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.
APEX REPORTING GROUP (954) 467-8204
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Page 6
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.
APEX REPORTING GROUP (954) 467-8204
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Page 7
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
APEX REPORTING GROUP (954) 467-8204
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Page 8
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
APEX REPORTING GROUP (954) 467-8204
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Page 9
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
APEX REPORTING GROUP (954) 467-8204
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Page 10
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
APEX REPORTING GROUP (954) 467-8204
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Page 11
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,
APEX REPORTING GROUP (954) 467-8204
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Page 12
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.
APEX REPORTING GROUP (954) 467-8204
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Page 13
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.
APEX REPORTING GROUP (954) 467-8204
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
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?
APEX REPORTING GROUP (954) 467-8204
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
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
APEX REPORTING GROUP (954) 467-8204
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
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
APEX REPORTING GROUP (954) 467-8204
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Page 17
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.
APEX REPORTING GROUP (954) 467-8204
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
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?
APEX REPORTING GROUP (954) 467-8204
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Page 19
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.
APEX REPORTING GROUP (954) 467-8204
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
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.)
* * *
APEX REPORTING GROUP (954) 467-8204
5
10
15
20
25
Page
21
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

___________________________________________________________________
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

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.

Written by

ESTEBAN PARRA
The News Journal 

Contact Esteban Parra at 324-2299 or eparra@delawareonline.com.

Lawyers arguing today for halt to Friday execution of ax murderer

Attorneys trying to halt the execution of convicted ax murderer Robert W. Jackson III will present arguments today in a series of court hearings across the state.
The first began in Wilmington at 9 a.m. before U.S. District Judge Sue Robinson to raise objections to the new drug Delaware uses as part of its three-drug lethal-injection formula.
Robinson listened to arguments in the nearly hour-long hearing without giving an opinion. She did say she would make her decision "promptly."
A second hearing is slated for this afternoon in Dover, where attorneys will ask the state Supreme Court to delay the Friday execution so the land’s highest court can review the case, said Marc Bookman, one of Jackson’s lawyers and executive director for the Atlantic Center for Capital Representation, a Philadelphia-based nonprofit that gives representation in death penalty trials.
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. 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.
“Jackson’s innocence practically jumps off the page,” Bookman said. “You have to consider both sides of the coin: the evidence against him, and the evidence pointing to his innocence. The evidence against him is shockingly thin – essentially a few criminals trying to save their own necks. Then you consider the evidence of his innocence – four different people heard Lachette confess to the murder. It was Lachette’s idea to commit the burglary that led to the killing, and he was the one who knew the victim.
“This is precisely the sort of evidence that needs to be heard in a courtroom. If one of these courts doesn’t grant a stay of execution, an innocent man may be wrongly executed.”
Bookman asked the 3rd U.S. Circuit Court of Appeals in Philadelphia on Tuesday to stop Jackson’s execution to review claims he is innocent. That court has not set a hearing.
If the state goes ahead with the execution, Jackson will become the 15th person to be put to death in Delaware since 1992 -- that year marked Delaware’s first execution since the state reinstated the death penalty in 1961, according to the DOC. It would be the state’s first execution since Brian D. Steckel was put to death Nov. 4, 2005, for the 1994 murder of Sandra Lee Long.
In that execution, Delaware Department of Correction officials appeared to encounter problems. While lethal injections are supposed to cause nearly instantaneous death, Steckel lingered for 12 minutes and at one point looked up at prison officials and said, “I didn’t think it would take this long.”
That set off a series of filings, including by Jackson, who claimed the chemicals used by the state and the apparent lack of training for those carrying out the execution would make his punishment cruel and unusual.
During today’s first hearing, defense attorneys will appear before U.S. District Court Judge Sue L. Robinson to argue their objections about Delaware using a new drug -- pentobarbital -- as part of its three-drug lethal-injection formula. Delaware, like many other states that use lethal injection, turned to pentobarbital after the U.S. manufacturer of sodium thiopental -- the drug previously used as an anesthetic in the process -- stopped making it.
Robinson signed the initial order delaying Jackson’s death, but last week the 3rd U.S. Circuit Court of Appeals vacated the stay, saying Robinson needed to provide more reasoning for her decision for it to be upheld.
In the afternoon, attorneys will ask the state Supreme Court to stop the execution to give the U.S. Supreme Court time to review the case. His attorneys contend Jackson’s rights to a fair trial were violated because of comments his defense attorney made to the trial judge.
Jackson argued that his death sentence should be overturned because his initial attorney, Joe Hurley, was seeking to withdraw from the case and told Judge Vincent Bifferato that Jackson was guilty and should be executed. Hurley was allowed to withdraw, but Bifferato did not recuse himself from the case and went on to sentence Jackson to death.
“This is really a perfect storm for injustice,” Bookman said. “You take a terrible and high-profile crime and give the accused, who is only 18, a lawyer who thinks his client is not only guilty but also should be executed by the state. Then the lawyer actually tells the judge what he thinks. Any judge would be significantly influenced by such an admission. Later, with competent representation, it turns out there is real evidence that Jackson is innocent.”

AFFIDAVIT OF DAVID B. WAISEL, MD

STATE OF MASSACHUSSETTS
COUNTY OF SUFFOLK
AFFIDAVIT OF DAVID B. WAISEL, MD

Comes now the Affiant, David B. Waisel, MD, who, being first duly sworn
by an officer authorized by law to administer oaths, deposes and states as follows:

1. My name is David B. Waisel. I am over the age of eighteen and
competent to testify to the truth of the matters contained herein.

2. I am a practicing anesthesiologist at Children’s Hospital Boston and
an Associate Professor of Anaesthesia, Harvard Medical School. I have been
practicing clinical anesthesiology, primarily pediatric anesthesiology, for
approximately 18 years.
3. I have been asked by the attorneys who represent Roy Blankenship to
provide an expert medical and scientific opinion about observations of his
execution by lethal injection on June 23, 2011.
4. I was not in attendance at the execution. My information about the
execution comes from a comprehensive interview of an eyewitness, Greg
Bluestein, an AP reporter. Mr. Bluestein’s report is the type of information experts
in my field normally and regularly rely on in forming expert opinions. Mr.
Bluestein informed me that neither he nor any other witness was able to hear the
proceedings within the execution chamber as the microphone was off.
2
OBSERVATION REPORT
5. According to Mr. Bluestein, as the lethal injection commenced Mr.
Blankenship jerked his head toward his left arm and made a startled face while
blinking rapidly. He had a “tight” grimacing expression on his face and leaned
backward.
6. Shortly thereafter, Mr. Blankenship grimaced, gasped and lurched
twice toward his right arm.
7. During the next minute, Mr. Blankenship lifted his head, shuddered
and mouthed words.
8. Three (3) minutes after the injection, Mr. Blankenship had his eyes
open and made swallowing motions.
9. Four (4) minutes after injection, Mr. Blankenship became motionless.
10. About six (6) minutes after the injection, the nurse assessed Mr.
Blankenship’s eyes using a stick-like instrument about fingertips-to-mid-forearm
length to do something to the area on or about his eyes. Critically, Mr.
Blankenship’s eyes were still open and never closed during the entirety of the
lethal injection process.
11. About thirteen (13) minutes after the injection, Mr. Blankenship was
declared dead. Again, his eyes were open throughout.
3
OPINION
12. Based on his lurching toward his arms and the lifting of his head and
the mouthing of words, I can say with certainty that Mr. Blankenship was
inadequately anesthetized and was conscious for approximately the first three
minutes of the execution and that he suffered greatly. Mr. Blankenship should not
have been conscious or exhibiting these movements, nor should his eyes have been
open, after the injection of pentobarbital.
13. Given prior executions of Brandon Rhode and Emanuel Hammond in
September 2010 and January 2011, respectively, during which these inmates
reportedly exhibited similar movements and opened their eyes (Rhode’s eyes were
open throughout the execution process), Mr. Blankenship’s execution further
evidences that during judicial lethal injections in Georgia there is a substantial risk
of serious harm such that condemned inmates are significantly likely to face
extreme, torturous and needless pain and suffering.
14. The fact that executions using pentobarbital of inmates in other
jurisdictions (approximately 14 have occurred thus far, to my knowledge) have not
generated reports of problems like those observed in Mr. Blankenship’s case is not
dispositive of the safety, efficacy or reliability of pentobarbital as used to induce
anesthetic coma in human beings. Only when a drug has been tested
4
systematically on thousands of subjects, with their consent, can one begin to
reliably assess how an untested use of a drug will affect human subjects. We do
not have relevant data in similar populations for pentobarbital. 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. Mr. Blankenship’s reaction
to the pentobarbital injection may be indicative of other inmates’ reactions.
15. It has been opined in a recent news article1 that “Blankenship's
movements could also have come during an ‘excitement phase.’” Although
subanesthetic doses of pentothal (and likely other barbiturates such as
pentobarbital, although I have been unable to find any documentation of that) may
cause a very brief excitement phase, in my expert opinion that was not what caused
Blankenship’s movements. The excitement phase is abolished with higher doses.
Given the massive amount of the dosing claimed by the State, any excitement
phase could not last three minutes during the administration of pentobarbital.
Further, the localization of the pain and the mouthing of words are actions
inconsistent with the excitement phase.
16. It has also been opined in the same aforementioned article that
“...[Blankenship] could have been faking it.” Faking would require a level of
1 See http://www.macon.com/2011/06/24/1608968/medical-experts-dividedovergeorgia.
html?story_link=email_msg#ixzz1QUf61Gh1
5
consciousness inconsistent with how the State claims pentobarbital should work.
The intentional act of faking could only be explained if the pentobarbital did not
work as the State claims it should work. And one cannot fake eyes-wide-open at
death.
Dated this ___ day of ____________, 2011.
_________________________
David B. Waisel, MD
Sworn to and subscribed before me
this __ day of ___________, 2011.
____________________________
NOTARY PUBLIC

Why Lawyers and Judges Should Watch Executions

By Andrew Cohen Jul 26 2011, 11:30 AM ET

Andrew Cohen - Andrew Cohen has served as chief legal analyst and legal editor for CBS News and won a Murrow Award as one of the nation's leading legal analysts and commentators

By Andrew Cohen

Jul 26 2011, 11:30 AM ET 23

Transparency on death row can help hold states accountable for botched lethal injections

See Update Below:
Timothy McVeigh died with his eyes open. The Oklahoma City bomber was strapped to a gurney in the death chamber at the federal penitentiary in Terre Haute, Indiana. It was June 11, 2001, and the mass murderer died from lethal injection at 7:14 a.m. as he stared up at the closed-circuit camera in the ceiling of the room. The jarring image of the last moments of his life, and of his defiant death, were beamed to a room in Oklahoma City, where the victims and survivors of the April 19, 1995, had been granted special federal permission to see the execution via satellite.
Here is some detail of that momentous event, which tracks my own memory of it:

Ten people -- members of the victims' families and survivors of the bombing -- also witnessed the execution from a room beside the death chamber. Paul Howell, whose daughter was killed in the bombing, said McVeigh was expressionless.
"What I was hoping for is that we could see some kind of 'I'm sorry,' but we didn't get anything like that. My emotions were that it was just a big relief. Just a big sigh came over my body and it felt real good," Howell said.
More than 650 miles away in Oklahoma City, 232 survivors and family members watched on closed-circuit television. "He actually lifted his head and looked directly in the camera, and it was as if he was looking directly at us," said Larry Whicher, who lost his brother. "His eyes were unblinking. They appeared to be coal black. I truly believe that his eyes were telling me ... that if he could, he would do it all over again."

He died with his eyes open. Although I was in Terre Haute that day, in a muggy, buggy media tent on the grounds of the prison, and although I had covered every day of his federal murder trial, I did not see McVeigh's execution. A few hours before he died, I had lost a random drawing that was held among a small group of radio reporters for the one viewing seat made available to us. To this day, it remains one of the biggest professional regrets of my career. I don't believe that anyone who covers capital punishment in America can do so completely without having witnessed an execution. And I often wonder how the American people would have reacted, exactly three months before 9/11, had they been able to see what I so desperately wanted to see that day.
The topic of public executions, and what may be gained or lost in their viewing, is timely again because a judge in Georgia last week allowed the execution of a man named Andrew Grant DeYoung to be videotaped for subsequent use by lawyers for a death row inmate named Gregory Walker. Evidently, it was the first time since 1992 that an execution had been taped and the well-reported episode, predictably, has brought out into the open again many of the same arguments we've heard before about the possibility that the American people may one day be subjected to visible proof of the capital punishment which is routinely undertaken in their name.

"Prison officials and prosecutors should no longer be allowed to keep secret from the courts vital evidence in the fight over lethal injections."

No one involved in the latest drama, mind you, wants to see taped executions come to the primetime television lineup. Instead, the criminal defense attorneys who convinced Fulton County Superior Court Judge Bensonetta Tipton Lane to authorize the taping of the DeYoung's execution argued that the current legal and political debate over injection protocols and drug mixes would be aided by giving judges access to tapes of the executions. The jurists would benefit from seeing direct evidence of precisely how state executions are unfolding now that Georgia is using pentobarbital instead of thiopental in its lethal injection cocktail.
This, in turn, would better enable the courts to accurately determine whether such injections violate the "cruel and unusual punishment" clause of the Eighth Amendment. The debate on this topic has gained ferocity recently because Georgia, like other states that still perform executions, have had to scramble this year to concoct a new deadly "cocktail' after the Italian maker of one of its ingredients, thiopental, decided that it no longer wanted to be a part of what United States Supreme Court Justice Harry Blackmun once famously called America's "machinery of death."
So why, specifically, did Walker's attorneys want the tape?  "We've had three botched lethal injections in Georgia prior to Mr. DeYoung, and we thought it was time to get some hard evidence," defense attorney Brian Kammer told The New York Times. Walker's attorneys told the court:

Following three consecutive irregular Georgia executions, DEA seizure of Georgia's thiopental supply for its violation of federal drug importation laws, exposure of illegal narcotics activity by the medical personnel overseeing state lethal injections, Georgia's precipitous switch from thiopental to pentobarbital -- an anesthetic whose manufacturer warns is untested and unsafe for use in judicial elections, and the subsequent botched execution of Roy Blankenship, who  lurched and grimaced in obvious pain for several minutes while dying, Mr. Walker, who stands to be executed in the same manner, moved to preserve evidence of Georgia's next intended execution.

Judge Lane, smartly, framed her ruling in practical terms. She wrote:

The briefing on this motion reflects that eye witnesses to an execution may often have varying recollections regarding the details of what happened. In some of the other cases cited by the respondent the State has attacked the conclusions suggested by witnesses on the basis that the witness has not witnessed an execution performed by the State of Georgia and/or is unfamiliar with the protocols used here. These arguments tend to underscore the potential relevance of the evidence the petition seeks to gather.

If prison officials have nothing to hide, in other words, they should at least be willing to gather and hand over such videos for subsequent use by the courts; a simple matter of giving judges the "best evidence" available. Echoing Judge Lane, Richard Dieter of the Death Penalty Information Center told me Monday that the use of videotaped executions within the criminal justice system makes sense for several reasons:

Basically, the country is in a period of experimentation (with involuntary human subjects) as it tries to find a suitable means of execution. Although I believe the problems with the death penalty far exceed this narrower question, it is one over which there has been a veil of secrecy. Prisons and state governments have been reluctant to explain why they are choosing certain new drugs, whether they have explored all alternatives, and whether they have consulted about the side effects of new drugs being used. Having an objective view of what actually happens in the execution chamber could provide some degree of transparency in evaluating the various procedures.

Now, it is quite a stretch to go from allowing limited courtroom (or in-chambers) use of the videotape to enabling the public dissemination of such images. After all, no one I know (and no one you likely know, either) has ever seen the videotape of that 1992 execution (or of any other execution since the modern death penalty regime was established in 1976 by the United States Supreme Court). Every day in this country, judges deal with confidential or classified evidence which is sealed and which never sees the light of day. To think that the handful of judges and lawyers who would have access to the tape would allow it to be published is a insult to them and their staffs.
That didn't stop prosecutors in DeYoung's case, however, from making the familiar "parade of horribles" argument. The videotaping of one execution would lead to the videotaping of all executions, they argued, which would lead one day to such videos being uploaded onto YouTube for the whole world to see. Prosecutors all over the country routinely leak confidential information about criminal suspects. These prosecutors were arguing that it would be terrible indeed if the judge were to jeopardize the secrecy of the execution chamber. A known benefit (judicial access to the tapes) should give way to a theoretical possibility (the leaking of a tape). Even in the cynical world of capital punishment law, this is a bad argument. No wonder Judge Lane rejected it.
Making execution videotapes for lawyers and judges to evaluate is a no-brainer. It should be happening all over the country and with greater frequency. Prison officials and prosecutors should no longer be allowed to keep secret from the courts vital evidence in the fight over lethal injections. But after 15 years of covering the death penalty debate I confess I still don't know precisely where I stand on the issue of the public dissemination of such tapes. Executions happen. Sometimes more effectively than others. Sometimes gruesomely. And always at the expense of the American taxpayer. A big part of me thinks the world wouldn't end if an execution videotape were ever made public.
But part of me also thinks the public release of an execution tape would turn yet another dramatic moment into something blasé or, worse, circus-like. If such a release were to start online, as everyone presumes, it's hard to make a reasonable case that the images wouldn't shortly thereafter appear on cable television, to great fanfare. Nor is it worthwhile to pretend that the same dark sensibilities that drew thousands to public executions a century ago aren't still vibrant within people today. The good news, I guess, is that the Georgia case doesn't require us to test this tension, at least not yet.
Update: I received an interesting note Tuesday afternoon from Megan McCracken, an expert in lethal injection law at the University of California/Berkeley School of Law. She wrote:

"The videotaping of Mr. DeYoung's execution is a step in the right direction in terms of shedding light on what happens during an execution. However, videotaping only captures what witnesses see and cannot transmit the information we actually need. When something goes wrong in a lethal injection execution, witnesses, lawyers for condemned prisoners, and the public are prevented from knowing what happened because of the paralytic that is administered to the prisoner and the secrecy surrounding the entire process. A video will not tell us what actually happened in the room where the drugs are administered, and until DOCs reveal what happened behind the scenes, it is likely we will never know what happened to Mr. Blankenship or any of the other men and women who have been executed by an unnecessarily dangerous process."

Image: Ho New/Reuters

Editorial: Fix death penalty in Florida

3:07 AM, Jul. 27, 2011

The latest delay in the execution of Manuel Valle for killing a police officer 33 years ago shows how absurd the administration of the death penalty in Florida has become.
That's not to say the death penalty should be abolished; we think it still has merit. But years of delays in carrying out executions while the death row population mounts make a mockery of justice.
A meaningful limit should be placed on how long execution can be delayed unless significant new issues are raised.
But that has to be accompanied by a review of the whole death penalty process, as recommended by the American Bar Association. Florida, according to the Death Penalty Information Center, has exonerated more death row inmates than any other state since 1973. This year's mistaken abolition of the state Commission on Capital Cases, which was charged with reviewing the system and recommending reforms, didn't help.
If the state can't fix this system, the death penalty should be abolished.
Valle was scheduled to die by lethal injection Aug. 2 for the 1978 murder of Coral Gables police Officer Louis Pena, whose former wife and two children live in Lee County.
Monday, the state Supreme Court in a 4-3 decision stayed the execution until Sept. 1 and ordered a hearing on the new execution procedure. The state is using a new anesthetic as part of the execution protocol, and Valle challenged its effectiveness, worrying that he might suffer discomfort from the process.
The high court is micromanaging the chemistry of lethal injection. Lower courts wisely dismissed the appeal.
In April, Paul Flemming, columnist for The Tallahassee Democrat, a sister paper of The News-Press, found that the 393 inmates on death row had been there an average of 15 years, three months. The 69 who had been executed since 1979 were on death row an average of 12 years, nine months, from sentencing to execution. The most recent died in February 2010 for killing a wildlife officer in 1984.
Those mean justice delayed and denied for victims, their families and the inmate.
Pena's family has now asked six governors to carry out Valle's sentence. Their torture should end.

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."

AP

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

The recent execution of Roy Willard Blankenship in Georgia using pentobarbital was reminiscent of that of Mr Diaz

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.

Manuel Valle is a Cuban national

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.

Reprive

eFor 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.

The “thrashing, jerking death of Roy Willard Blankenship” during which “his eyes never closed”.

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 Scola has already conducted an "evidentiary hearing on paper,

Scola has already made determinations based on the factual and credibility findings
of an Oklahoma court that "were not persuaded by the testimony of Dr. Waisel"
and who "determined that his concerns about the efficacy of pentobarbital were
unfounded." Moreover, Judge Scola has already determined, based on evidence
presented in Oklahoma, that Dr. Dershwitz "persuasively responded to Dr. [David]
Waisel's testimony."

http://www.floridasupremecourt.org/pub_info/summaries/briefs/11/11-1434/Filed_07-26-2011_Emergency_Petitiondf.pdf

1.  
2.  
3.  
4.  
5. Mr. Valle fears that he will not receive a full and fair hearing before Judge
   Jacqueline Hogan Scola because she has already made credibility findings of the
   witnesses that Mr. Valle anticipates will testifY at the evidentiary hearing ordered
6. by this Court.

EMERGENCY PETITION FOR A WRIT OF PROHIBITION

http://www.floridasupremecourt.org/pub_info/summaries/briefs/11/11-1434/Filed_07-26-2011_Emergency_Petitiondf.pdf
EMERGENCY PETITION FOR A WRIT OF PROHIBITION

IN THE SUPREME COURT OF FLORIDA
NO.SC11-__
MANUEL VALLE,
Petitioner,
v.
STATE OF FLORIDA,
Respondent.
EMERGENCY PETITION FOR A WRIT OF PROHIBITION
DEATH WARRANT SIGNED
EVIDENTIARY HEARING SET FOR THURSDAY, JULY 28, 2011
NEAL A. DUPREE
Capital Collateral Regional
Counsel-South
SUZANNE KEFFER
Chief Assistant CCRC-South
CAPITAL COLLATERAL REGIONAL
COUNSEL-SOUTH
101 N.E. 3rd Avenue, Suite 400
Ft. Lauderdale, Florida 33301
(954) 713-1284
COUNSEL FOR MR. VALLE

The initial brief

http://www.floridasupremecourt.org/pub_info/summaries/briefs/11/11-1387/Filed_07-20-2011_Initial_Brief.pdf

IN THE SUPREME COURT OF FLORIDA NO. SC11-1387
MANUEL VALLE, Appellant, v. STATE OF FLORIDA, Appellee.
DEATH WARRANT SIGNED EXECUTION SCHEDULED FOR AUGUST 2, 2011 AT 6:00 P.M. ______________________________________________________ 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

The order from Florida Supreme Court - Manuel Valle

Supreme Court of Florida
MONDAY, JULY 25,2011 CASE NO.: SCll-1387 Lower Tribunal No(s).: F78-5281A MANUEL VALLE vs. STATE OF FLORIDA
Appellant(s) Appellee( s)
Manuel Valle, a prisoner under sentence of death and for whom a death warrant has been signed, appeals the summary denial of his amended successive motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.851. On June 30, 2011, the Governor signed a death warrant, and Valle's execution was set for August 2,2011. Valle sought postconviction relief in the circuit court, raising several claims, including a challenge to the June 8, 2011, protocol for lethal injection issued by the Department of Corrections (DOC), which.replaced the first drug in its three-drug protocol, sodium thiopental, with another drug, pentobarbital sodium (pentobarbital). Among other things, Valle challenged the efficacy of pentobarbital as an anesthetic to induce unconsciousness. As we explained in Lightbourne v. McCollum, 969 So. 2d 326, 351 (Fla. 2007), "[i]fthe inmate is not fully unconscious when either pancuronium bromide or potassium chloride [the second and third drugs in the protocol] is injected, or when either of the chemicals begin to take effect, the prisoner will suffer pain. "
The Court has determined that Valle's claim as to the use of pentobarbital as an anesthetic in the amount prescribed by Florida's protocol warrants an evidentiary hearing. We conclude based on Dr. David Waisel's expert report and affidavit, as well as the allegations in Valle's amended 3.851 motion, that Valle has raised a factual dispute, not conclusively refuted, as to whether the use of pentobarbital in Florida's lethal injection protocol will subject him to a "substantial risk of serious harm." Baze v. Rees, 553 U.S. 35, 50 (2008) (plurality opinion). In order to carefully consider this claim, we grant Valle's motion for stay, in part. This matter is stayed until 5:00 PM, September 1, 2011, absent further order of the Court.
Accordipgly, we hereby temporarily relinquish jurisdiction to the Circuit Court of the Eleventh Judicial Circuit, Miami-Dade County, until Friday, August
Case No. SCIl-1387
Page 2
5,2011, for the narrow purpose of holding an evidentiary hearing solely on Valle's
claim regarding the efficacy of pentobarbital as an anesthetic in the amount prescribed by Florida's protocol. This includes factual allegations raised by Dr.
Waisel in his expert report and affidavit concerning this discrete issue alone. We
further direct the DOC to produce correspondence and documents it has received from the manufacturer of pentobarbital concerning the drug's use in executions, including those addressing any safety and efficacy issues. In this relinquishment proceeding, Valle shall not be permitted to relitigate or raise any other claims.
Upon the conclusion of the evidentiary hearing, the circuit court shall enter a written order as to Valle's claim on the efficacy of pentobarbital as an anesthetic. The hearing shall be concluded and the order entered no later than 2:00 PM, Friday, August 5, 2011. Upon issuance of the circuit court's order, the circuit court clerk shall immediately transmit a copy of the order to this Court. The circuit court clerk shall file a record of the entire relinquishment proceeding, including transcripts, with this Court no later than 2:00 PM, Friday, August 12,2011. The record resulting from the above relinquishment proceeding shall reflect "supplemental record volume II, etc." and page numbering should start with page 48 and run consecutively. Per this Court's Administrative Order In Re: Mandatory Submission of Electronic Copies of Documents, AOSC04-84, dated September 13, 2004, the court reporters are directed to transmit a copy of any transcripts, in addition to paper copies, in an electronic format as required by the provisions of that order. An. electronic version of the circuit court's order and the transcripts shall be submitted to the following e-mail address: warrant@flcourts.org.
Thereafter, the parties are directed to file supplemental briefs limited solely to issues raised during the relinquishment proceedings regarding the efficacy of pentobarbital as an anesthetic in the amount prescribed by Florida's protocol. The 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, Wednesday, August 17, 2011. The supplemental answer brief shall be limited to 50 pages. The supplemental reply brief shall be filed no later than 2:00 PM, Friday, August 19, 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
Case No. SCll-1387
Page 3
held on Wednesday, August 24, 2011, at 9:00 AM.
This Court shall defer ruling on the remainder of the issues raised on appeal until after the eonclusion of the relinquishment proceedings and receipt of the supplemental record.
PARIENTE, QUINCE, LABARGA, and PERRY, JJ., concur.
CANADY, C.l, dissents with an opinion, in which LEWIS and POLSTON, JJ.,
concur.
CANADY, C.J., dissenting.
I dissent from the majority's decision to remand this case for an evidentiary hearing on Valle's claim that Florida's lethal injection protocol is unconstitutional. The record in this case conclusively shows that Valle is not entitled to relief on his claim. Because Valle has not raised a facially sufficient claim that requires a factual determ!nation-but instead makes merely conclusory and speculative allegations about the use of pentobarbital-the postconviction court did not err in summarily denying Valle's successive postconviction motion. See Fla. R. Crim. P. 3.851(f)(5)(B) ("If the motion, files, and records in the case conclusively show that the movant is entitled to no relief, the motion may be denied without an evidentiary hearing. ").
Article ~, section 17 of the Florida Constitution provides that "[a]ny method of execution shall be allowed, unless prohibited by the United States Constitution."
Article I, section 17 further requires that its prohibition of excessive punishment "shall be construed in conformity with decisions of the United States Supreme Court which interpret the prohibition against cruel and unusual punishment provided in the Eighth Amendment to the United States Constitution." We are therefore bound by the precedent of the United States Supreme Court regarding challenges to methods of execution. Here, binding Supreme Court precedent requires that Valle's claim be rejected.
The Supreme Court has held that to state a claim under the Eighth Amendment, a defendant must show that the state's lethal injection protocol is "'sure or very likely to cause serious illness and needless suffering.'" Brewer v. Landrigan, 131 S. Ct. 445, 445 (2010) (quoting Baze v. Rees, 553 U.S. 35, 50 (2008) (plurali'ty opinion)). Valle has not alleged a prima facie claim that Florida's execution protocol is sure or very likely to cause needless suffering. Accordingly,
Case No. SCll-1387
Page 4
the trial court properly rejected his claim.
In the PQrtion of his amended motion to vacate his sentence regarding lethal injection, Valle primarily alleges that the change from using sodium thiopental to using pentobarbital as the first drug of the three-drug protocol renders that lethal injection protocol unsound. Valle concedes that pentobarbital is a short-acting barbiturate used for preoperative sedation and for animal euthanasia but asserts that because pentobarbital has never been tested on humans for purposes of inducing an anesthetic co~a, its insertion into the lethal injection protocol creates a constitutionally significant risk of pain. In support of his motion, Valle submitted an affidavit by Dr. David B. Waisel. Importantly, while Dr. Waisel asserts that the lack of human testing of pentobarbital as an anesthetic and the lack of "standard clinical doses of pentobarbital to induce anesthesia" make it "much harder to determine how much pentobarbital would constitute a sufficient overdose," Dr. Waisel does nValle has not alleged that the dose of pentobarbital prescribed by the lethal injection protocol will likely result in his experiencing pain during his execution. Valle has not alleged that Florida's revised lethal injection protocol "creates a demonstrated risk of severe pain," and, despite the acknowledged unavailability of sodium thiope~tal, he has made no attempt to allege that any risk of severe pain created by the revised protocol "is substantial when compared to the known and available alternatives." Baze, 553 U.S. at 61.
Based on speculation and conjecture, Valle claims the right to judicial micromanagement of the execution process. He has no such right. In Lightbourne
v. McCollum, 969 So. 2d 326 (Fla. 2007), this Court explained its role in reviewing the State's lethal injection protocol. This Court expressly cautioned that "[d]etermining the specific methodology and the chemicals to be used are matters left to the DOC and the executive branch, and this Court cannot interfere with the DOC's decisions in these matters unless the petitioner shows that there are inherent deficiencies that rise to an Eighth Amendment violation." Id. at 352; see also id. ("We reaffirm the Court's essential holding in Sims [v. State, 754 So. 2d 657 (Fla. 2000)] that 'determining the methodology and the chemicals to be used are matters best left to the Department of Corrections.'" (quoting Sims, 754 So. 2d at 670». Similarly, a plurality of the United States Supreme Court has warned that the Eighth Amendment should not be used to "transform courts into boards of inquiry
Case No. SCll-1387
Page 5
charged with determining 'best practices' for executions, with each ruling
supplanted by another round of litigation touting a new and improved
methodology." Baze, 553 U.S. at 51.
Moreover, Valle overlooks that the portions of Florida's lethal injection protocol that ensure that an inmate is unconscious before the second and third drugs-pancuronium bromide and potassium chloride-may be injected have not been changed since we approved the August 1, 2007, protocol. This Court has repeatedly recognized that the defendant is not exposed to an unconstitutional risk ofpain so long as there are safeguards in place to ensure that the inmate is unconscious before the execution proceeds. See Ventura v. State, 2 So. 3d 194, 200 (Fla. 2009) ("Further, we have held that the condemned inmate's lack of consciousness is the focus of the constitutional inquiry."); Schwab v. State, 995 So. 2d 922, 927 (Fla. 2008) (adopting the trial court's order, which stated that the "critical point at which the Eighth Amendment comes into play in the course of a lethal injection is the point at which the second drug is administered" and that "the critical Eighth Amendment concern is whether the prisoner has, in fact, been rendered unconscious by the first drug"); id. at 929 (adopting the trial court's order, which stated that "the constitutional focus is unconsciousness, not the duration of the execution following unconsciousness" and that if the inmate has been rendered unconscious, "then any meaningful risk ofpain has been eliminated"); Lightbourne, 969 So. 2d at 346 (explaining that "the most significant difference between the August 2006 procedures under which Diaz was executed and the May 2007 procedures" is the "inclusion of a pause during which the DOC personnel will assess the inmate for the presence or absence of unconsciousness"); id. at 351 ("If the inmate's consciousness is appropriately assessed and monitored after the dosage of sodium pentothal is administered, he or she will not suffer any pain from the injection of the remaining drugs."); id. at 352-53 ("As stressed repeatedly above, it is undisputed that there is no risk of pain if the inmate is unconscious before the second and third drugs are administered .... DOC added additional safeguards into the protocol to ensure the inmate will be unconscious before the execution proceeds. In light of these additional safeguards and the amount of the sodium pentothal used, which is a lethal dose in itself, we conclude that Lightbourne has not shown a substantial, foreseeable or unnecessary risk of pain." (footnote omitted)); see also Baze, 553 U.s. at 114 (Ginsberg, J., dissenting) ("Kentucky'S protocol lacks basic safeguards used by other States to confirm that
Case No. SCII-1387
Page 6
an inmate is unconscious before injection of the second and third drugs. I would
vacate and remand with instructions to consider whether Kentucky's omission of
those safeguards poses an untoward, readily avoidable risk of inflicting severe and
unnecessary pain. H). Under the current protocol, if the pentobarbital does not render Valle unconscious, he will not be injected with the second and third drugs.
Rather, the execution will be suspended until Valle is unconscious.
This Court has consistently affirmed the summary denial ofpostconviction motions that fail to allege a risk of pain not addressed in Lightboume. See, e.g., Schoenwetter v. State, 46 So. 3d 535, 551 (2010) (HAppellant therefore failed to raise any challenge to Florida's lethal injection protocols that had not previously been considered by this Court. Accordingly, nothing in his claim required a factual determination.H); Tompkins v. State, 994 So. 2d 1072, 1082 (Fla. 2008) (HFurther, the trial court did not err in not allowing Tompkins to present additional witnesses because the proposed testimony of these witnesses does not support a departure from this Court's precedent, since it has already been considered by this Court. H).
We have also affirmed the summary denial of claims that alleged defects in the protocol that were not specifically addressed but were clearly refuted by Lightboume. For example in Troy v. State, 57 So. 3d 828, 840 (Fla. 2011), this Court stated that H[a]s to the remaining claims that were not duplicated in Lightboume, we conclude that Troy is not entitled to relief under the analogous and comprehensive analysis we undertook in Lightboume. H (Emphasis added.) Specifically, this Court declined to grant an evidentiary hearing on Troy's claims that a barbiturate-only protocol should be adopted and that Florida's procedures regarding venous access were inadequate. This Court reasoned that H[c]onclusory allegations are.not sufficient to establish a legally sufficient claim for postconviction relief. H Id.
There is no reason to treat Valle's successive motion differently. In the instant proceeding, Valle has at most presented conclusory and speculative allegations that pentobarbital might not render him unconscious as quickly or efficiently as sodium thiopental would-without addressing the safeguards built into the protocol that ensure that an inmate is unconscious before the execution proceeds. As a result, his allegations do not raise a material issue of fact that must be resolved in order to rule on his Eighth Amendment claim.
Finally, it is noteworthy that challenges to the use of pentobarbital by inmates in other states have been consistently rejected. See DeYoung v. Owens,
Case No. SCII-1387 Page 7
No. 11-13235 '.(lIth Cir. July 20,2011); West v. Brewer, No. 11-16707 (9th Cir. July 18,2011); Powell v. Thomas, No. 11-12613 (lIth Cir. June 15,2011); Dickens v. Brewer, 631 F.3d 1139 (9th Cir. 2011); Pavatt v. Jones, 627 F.3d 1336 (lOth Cir. 2010), cert. denied, 131 S. Ct. 974 (2011).
I therefore dissent.
LEWIS and POLSTON, JJ., concur.
,
A True Copy Test:
~/),JiII
Clerk Supreme Com1
bhp Served:
PENNY H. BI,ULL PAUL EDWARD KALIL SUZANNE MYERS KEFFER MICHAEL CHANCE MEYER SANDRASUEJAGGARD HON. JACQUELINE HOGAN SCOLA, JUDGE HON. HARVEY RUVIN, CLERK HON. RICK SCOTT, GOVERNOR HON. EDWIN G. BUSS

Execution Drug in Question

Manuel Valle was originally scheduled to die August 2nd for the murder of a Coral Gables Police officer 33 years ago, but because the state is using a new drug, the justices voted four to three for a review before the execution is carried out. Michele Taylor with the Florida Catholic Conference supports the decision but sees a contradiction in the ruling.
“Given the uncertainty of the new drug, the state does show a concern for human dignity, however there is a little bit of a disconnect because the death penalty in any form undermines human dignity and the respect for human life,” said Taylor.
Florida adopted a new drug after the European manufacture of the old one stopped selling in the US. Florida has yet to use the new drug, but last month it was given to a condemned Georgia man and witnesses of the execution say the man showed signs of pain.

REPLY BRIEF OF APPELLANT

IN THE SUPREME COURT OF FLORIDA
NO. SC11-1387
MANUEL VALLE,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
DEATH WARRANT SIGNED
EXECUTION SCHEDULED FOR
AUGUST 2, 2011 AT 6:00 P.M.
______________________________________________________
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

The initial brief

http://www.floridasupremecourt.org/pub_info/summaries/briefs/11/11-1387/Filed_07-20-2011_Initial_Brief.pdf

Emilia Carr Receives Death Penalty

by Natalia Martinez - February 23rd 2011 12:10am

The last time a Marion County Judge gave a woman the death penalty was back in 1992. Aileen Wournos was executed ten years later. Tuesday, Judge Willard Pope sentenced 26 year-old Emilia Carr to death.
Carr was convicted of kidnapping and murdering Heather Strong, a mother of two, in February, 2009.
Today Carr's mother was in disbelief. "A mother's worst nightmare," Maria Yera told TV20. "I didn't think she was going to get the death penalty." The prosecution contended Carr and Joshua Fulgham, Strong's estranged husband, lured Strong to a trailer in the back of Carr's mother's house one February night.
There, the prosecutors said, Carr tried to break Strong's neck before Carr and Fulgham placed a bag on Strong's head, ultimately suffocating her. Strong's body was later found by detectives in a shallow grave near the trailer. The defense proclaimed Carr's innocence, painting a troubled youth hurt by misguidance and abuse. In an exclusive in-jail interview, Carr, a mother of four, told TV20 she did not kill Strong.
But Tuesday, the defense's case was not enough for the Court to spare Emilia's Carr's life. Carr is now the second woman in the State on death row. Her case will be automatically appealed to the Florida Supreme Court. Carr's alleged accomplice, Joshua Fulgham will also face trail, which was expected to begin in March.

To save money, Florida should kill death penalty

Now that the hunt is on to wring out every superfluous dollar in the state
budget, how about getting rid of the death penalty?

Yes, the death penalty in Florida just might be the ultimate entitlement
program we can't afford.

"The number of inmates since 2000 on death row dying of natural causes has now
surpassed the number of inmates executed," Florida House Speaker Dean Cannon
said recently.

Surely, Cannon must be wrong. That sounds preposterous.

But Cannon's right.

In the past 10 years, the state executed 25 death row inmates, which was fewer
than the 30 who died of natural causes, according to a review by FactCheck.org.

Of the 392 Florida prisoners serving death sentences, 145 of them have been
there for 20 or more years and 34 have been there longer than 30 years. The
oldest inmate is 80. And another one, Gary Alvord, a Michigan mental
institution escapee who fled to Tampa and killed 3 women, has been on death row
for 37 years.

A long, expensive process

The state restarted executing inmates in 1979 and has averaged about 2
executions per year, a pace that far from keeps up with the supply of new
arrivals.

Part of that is due to gruesome application errors with the state's execution
methods, both in electrocution and lethal injections, that resulted in
temporary moratoriums. But mostly, it's because the legal process involved in
putting someone to death is long. And expensive.

It's cheaper to lock up inmates for life than to put them on the death row
carousel of legal appeals. The annual difference in cost is about $51 million,
according to a 10-year-old Palm Beach Post study. Another study by The Miami
Herald estimated that it costs about $3.2 million to execute a prisoner as
compared with $750,000 to lock that prisoner up for life.

Risk of killing innocent inmates

In some cases, their legal journey seems to border on never-ending.

Duane Owen, a sociopath who murdered a 14-year-old babysitter in Delray Beach
in 1984, has had 2 trials and at least 6 unsuccessful appeals to the Florida
Supreme Court.

Now, I know what you're thinking. The solution is to get in touch with our
inner Texas and just start picking up the pace.

But recent developments in the analysis of DNA evidence have pointed out the
unreliability of eyewitness testimony and have proven that people convicted of
horrible crimes are sometimes wrongly convicted by over-eager prosecutors. The
Illinois House of Representatives voted last month to abolish the death penalty
8 years after its governor emptied death row after finding that a dozen
innocent prisoners had been condemned to die.

And in Florida, Herman Lindsey was freed by the state Supreme Court a little
more than a year ago, becoming the 23rd death row prisoner in Florida who had
been exonerated since the death penalty was revived in 1979.

"The average time these exonerated prisoners spent on Death Row was eight
years," said Mark Elliot, the executive director of Floridians for an
Alternative to the Death Penalty. "If you speed the process up, you're
virtually guaranteeing that you'll be executing innocent people."

And here's a little icing on this macabre cake.

The only U.S. maker of the lethal injection drug, sodium thiopental, got out of
the business recently, and our would-be European suppliers don't want to export
death-penalty drugs to America because of an unwillingness to enable our
executions.

So there's a shortage of death-penalty drugs.

Ohio's response is to switch to pentobarbital - the drug veterinarians use to
put down dogs.

So this just might be a perfect time for Florida to reevaluate.

As long as our death row inmates are dying of old age, getting rid of the death
penalty could serve as a kind of twofer: We can rescue a bit of our humanity
along with our tax dollars.

(source: Palm Beach Post)