This proceeding involves the appeal of an order summarily denying Mr. Diaz’s successive Rule 3.850 motion. The following symbols will be used to designate references to the record in this appeal:

"R." – record on direct appeal to this Court;

"PC-R." – record on appeal from the denial of postconviction relief after a limited evidentiary hearing;

"PC-R2." – current record on appeal after summary denial

"App." -appendix to Mr. Diaz’s 3.851 motion in the

present proceedings.

All other references are self-explanatory or otherwise

explained herewith.

Mr. Diaz is presently under a death warrant with an execution scheduled for December 13, 2006, at 6:00 p.m. This Court has not hesitated to allow oral argument in other warrant cases in a similar procedural posture. A full opportunity to air the issues through oral argument would be more than appropriate in this case, given the seriousness of the claims involved, as well as Mr. Diaz’s pending execution date. Mr. Diaz, through counsel, urges that the Court permit oral argument.

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PRELIMINARY STATEMENT....................................................................................................ii

REQUEST FOR ORAL ARGUMENT..........................................................................................ii

TABLE OF CONTENTS...............................................................................................................iii

TABLE OF AUTHORITITES........................................................................................................v

PROCEDURAL HISTORY............................................................................................................1

STATEMENT OF THE CASE.......................................................................................................7

SUMMARY OF THE ARGUMENTS.........................................................................................15

STANDARD OF REVIEW..........................................................................................................17

ARGUMENT I..............................................................................................................................17

THE LOWER COURT ERRED IN DENYING MR. DIAZ’S DEMANDS FOR ADDITIONAL PUBLIC RECORDS PURSUANT TO FLA. R. CRIM. P. 3.852(i) AND (h)(3), IN VIOLATION OF THE EIGHTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE I, §§ 9 AND 17 OF THE FLORIDA CONSTITUTION....17

A. 3.852(i) Demands Filed November 1, 2006 (Lethal injection demands).........................18

B. 3.852(h)(3) and (i) Demands filed November 17.............................................................22

ARGUMENT II............................................................................................................................32

THE STATE OF FLORIDA’S LETHAL INJECTION STATUTE, FLA. STAT. § 922.105, AND THE EXISTING PROCEDURE THAT THE STATE OF FLORIDA UTILIZES FOR LETHAL INJECTION VIOLATE ARTICLE II, SECTION 3 AND ARTICLE I, SECTION 17 OF THE FLORIDA CONSTITUTION, AND THE EIGHTH AMENDMENT TO THE U.S. CONSTITUTION........................................................................................................................32

A. Cruel and Unusual Punishment.........................................................................................32

B. Separation of Powers........................................................................................................44

C. CONCLUSION.................................................................................................................45

ARGUMENT III...........................................................................................................................45

NEWLY DISCOVERED EMPIRICAL EVIDENCE DEMONSTRATES THAT MR. DIAZ’S CONVICTION AND SENTENCE OF DEATH CONSTITUTES CRUEL AND UNUSUAL PUNISHMENT IN VIOLATION OF THE EIGHTH AND FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION.................................................................................45

A. INTRODUCTION............................................................................................................47

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B. Florida – An Arbitrary and Capricious Death Penalty System.........................................49

1. The Number of Executions...........................................................................................49

2. The Exonerated.............................................................................................................49

3. Representation...............................................................................................................50

a. Trial level representation..............................................................................................50

b. Postconviction representation.......................................................................................51

4. Issues Related to the Jury’s Role in Sentencing...........................................................53

a. Jury Instructions............................................................................................................53

b. Unanimity.....................................................................................................................53

5. Racial and Geographic Disparities................................................................................55

6. Prosecutorial Misconduct..............................................................................................56

7. The Direct Appeal Process............................................................................................58

8. Retroactivity..................................................................................................................59

9. Procedural Default........................................................................................................60

10. Clemency..................................................................................................................60

11. Politics.......................................................................................................................61

12. Mental Disabilities....................................................................................................61

13. Crime Laboratories and Medical Examiner’s Offices..............................................62

C. Conclusion.......................................................................................................................63

ARGUMENT IV...........................................................................................................................63

MR. DIAZ IS EXEMPT FROM EXECUTION UNDER THE EIGHTH AMENDMENT BECAUSE HE SUFFERS FROM SUCH SEVERE MENTAL ILLNESS THAT DEATH COULD NEVER BE AN APPROPRIATE PUNISHMENT.......................................................63

ARGUMENT V............................................................................................................................68

NEWLY-DISCOVERED EVIDENCE ESTABLISHES THAT MR. DIAZ’S CAPITAL CONVICTION AND SENTENCE ARE CONSTITUTIONALLY UNRELIABLE IN VIOLATION OF THE FIFTH, SIXTH, EIGHTH, AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION.................................................................................68

CONCLUSION............................................................................................................................82

CERTIFICATE OF SERVICE.....................................................................................................84

CERTIFICATE OF COMPLIANCE............................................................................................84

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Cases

v

Statutes

vi

Other Authorities

Rules

Constitutional Provisions

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On December 21 1985, Mr. Diaz was convicted of first-degree murder and related offenses in the Circuit Court of the Eleventh Judicial Circuit, Dade County (R. 252-261) and on January 24, 1986, he was sentenced to death (R. 300-309). The judge’s sentencing order, drafted by the state prosecutor, was entered on February 14, 1986 (R. 319-330).

On October 8, 1987 Mr. Diaz’s convictions and sentence of death were affirmed on direct appeal. Diaz v. State, 513 So. 2d 1045 (Fla. 1987), cert. denied, 484 U.S. 1079 (1988).

Mr. Diaz applied for executive clemency on June 23, 1988. On August 28, 1989, clemency was denied by the signing of a death warrant and Mr. Diaz’s execution was scheduled for October 27, 1989.

Mr. Diaz thereafter simultaneously filed an emergency motion for post conviction relief and an application for stay of execution on October 24, 1989. On October 25, 1989, the circuit court temporarily stayed Mr. Diaz’s execution and the Florida Supreme Court subsequently granted an indefinite stay of execution on October 26, 1989.

An evidentiary hearing was held in circuit court on December 4, 5 and 6, 1991, on Mr. Diaz’s claim relating to ineffective assistance of counsel at penalty phase. However, the circuit court summarily denied the remainder of Mr. Diaz’s

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claims without attaching any files or records demonstrating that the claims were conclusively refuted by the record, and denied all relief (Supp. R. 1) in an order written by the State after ex parte contact between the court and State (PC-R. 301-20). Mr. Diaz timely filed a notice of appeal to the Florida Supreme Court (PC-R. 347).

On July 3, 1996, Mr. Diaz filed a petition for state habeas corpus and appealed the circuit court’s denial of post conviction relief. On June 11, 1998, the Florida Supreme Court affirmed the circuit court’s denial of post conviction relief and denied Mr. Diaz’s petition for a writ of state habeas corpus. Diaz v. Dugger, 719 So. 2d 865 (Fla. 1998), cert. denied, 526 U.S. 1100 (1999). Rehearing was denied, over a dissenting vote, on November 30, 1998.

Mr. Diaz timely filed a petition for writ of habeas corpus in the United States District Court for the Southern District of Florida on November 24, 1999. The federal proceedings were thereafter held in abeyance while Mr. Diaz sought state habeas corpus relief when the Florida Supreme Court acknowledged applying incorrect legal standards in reviewing Mr. Diaz’s post conviction appeal. Mr. Diaz filed the petition to reopen state habeas corpus proceedings on June 20, 2000. On July 5, 2001, the Florida Supreme Court denied relief in an unpublished order. Diaz v. Moore, 797 So. 2d. 588 (Fla. 2001).

Mr. Diaz moved to reopen his federal habeas proceedings, and thereafter

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filed an amended federal petition for habeas corpus on February 19, 2002.

On February 11, 2003, Mr. Diaz filed another petition for state habeas corpus relief in the Florida Supreme Court based on the United States Supreme Court’s decision in Ring v. Arizona, 536 U.S. 584 (2002). The Florida Supreme Court denied the petition on October 20. 2003. Diaz v. State, 869 So. 2d 538 (Fla. 2003), cert. denied Diaz v. Crosby, 543 U.S. 854 (U.S., Oct. 4, 2004).

The federal habeas petition was denied on January 23, 2004 by the United States District Court. A timely notice of appeal was entered and a Certificate of Appealability was granted. On August 11, 2004, Mr. Diaz filed an initial brief in the United States Court of Appeals for the Eleventh Circuit. On March 15, 2005, the Eleventh Circuit Court of Appeals affirmed the United States District Court’s denial. Diaz v. Secretary of Department of Corrections, 402 F.3d 1136 (11^{th Cir. 2005) cert. denied Diaz v. Crosby, 126 S. Ct. 803 (U.S., Dec. 5, 2005).}

Mr. Diaz filed a 3.851 motion in the circuit court on September 25, 2006 challenging the constitutionality of Florida’s lethal injection statute and procedure. At a November 1, 2006 case management conference/Huff hearing, Mr. Diaz, through counsel, requested leave to orally amend the 3.851 motion to address a new lethal injection protocol that was promulgated by the Florida Department of Corrections on August 16, 2006 but not revealed to the public and CCRC attorneys until October 17, 2006. The circuit court denied the request to orally amend but

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granted leave to file a written amended 3.851 motion.

On November 1, 2006, Mr. Diaz also filed Demands for Additional Public Records pursuant to Rule 3.852(i).

On November 9, 2006, Mr. Diaz filed an amended Rule 3.851 motion.

On November 14, 2006, the Governor’s Office signed a death warrant for Mr. Diaz setting the execution for December 13, 2006.

On November 15, 2006, this Court issued an Order directing that "Matters pending in the trial court shall be acted on and orders disposing of those matters entered on November 22, 2006. A Notice of Appeal, if any, shall be filed by November 27, 2006."

On November 16, 2006 the circuit court issued an order setting Mr. Diaz’s case for a hearing on November 17, 2006 and directing that all emergency motions be filed with the circuit court by 4:00 pm on November 16^{th, that same day. That afternoon, Mr. Diaz filed a Motion for Leave to File Amendment to Amended Motion to Vacate Judgment and Sentence Pursuant to Rule 3.851 with the attached Amendment to Amended Motion to Vacate Judgment and Sentence Pursuant to Rule 3.851.}

The Court held a hearing on November 17, 2006 and addressed Mr. Diaz’s amended motion, 3.852(i) public records demands filed on November 1, 2006, motion for leave to amend, and amendments to amended motion. Prior to the

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beginning of this hearing Mr. Diaz filed in open court additional Demands for Additional Public Records pursuant to Rule 3.852(h)(3) and 3.852(i). Based on Rule 3.852(h)(3), Mr. Diaz has 10 days in which to file public records demands from a person or agency from which records were previously requested. The State objected to the "late" filing of the public records demands because they were not filed within the time constraints ordered by the circuit court.

On November 20, 2006, Mr. Diaz filed a Motion to Compel Production of Co-Defendant’s Motion to Vacate. The State filed a response to Mr. Diaz’s Motion to Compel Production of Co-Defendant’s Motion to Vacate and a "global" objection to Mr. Diaz’s Demands for Additional Public Records. The Attorney General asserted that it represented all the agencies for which Mr. Diaz served with a Demand for Addition Public Records on November 17, 2006.

On November 21, 2006, the circuit court held a hearing on all outstanding motions and issued its ruling as to each one. As to the matters pending before the circuit court at the time the warrant was signed, the circuit court denied Mr. Diaz’s Amended Motion to Vacate Judgment and Sentence Pursuant to Rule 3.851 filed on November 9, 2006 as well as the Demands for Additional Public Records pursuant to Rule 3.852(i) filed on November 1, 2006. In addition, the circuit court denied Mr. Diaz’s Motion to Compel Production of Co-defendant’s Motion to Vacate Judgment and Sentence, Application for Stay of Execution, and the Second

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Amended Motion to Vacate Judgment and Sentence Pursuant to Rule 3.851 filed on November 16, 2006. Mr. Diaz’s Rule 3.851 motion, and the amendments thereto, were summarily denied without attaching any files or records demonstrating that the claims were conclusively refuted by the record.

On November 21, 2006, the circuit court also heard very limited argument on Mr. Diaz’s Demands for Additional Public Records pursuant to Rule 3.852(h)(3) and 3.852(i) filed on November 17, 2006. The circuit court denied all of Mr. Diaz’s Demands for Additional Public Records.

On November 22, 2006, Mr. Diaz timely filed his appeal.

On November 27, 2006, Mr. Diaz filed a successive Motion to Vacate Judgments of Conviction and Sentence Pursuant to 3.851 together with a Motion to Relinquish Jurisdiction to this Court.

On November 29, 2006, this Court granted the Motion to Relinquish Jurisdiction for the Circuit Court to consider the 3.851 motion, indicating that the circuit court must rule on the motion by December 3, 2006 at 5:00 p.m.; a notice of appeal was to be filed by December 4, 2006 by 9:00 a.m. and the briefs were due by 3:00 p.m. on the same date. On the same date, Mr. Diaz filed two Demands for Additional Public Records and a Renewed Application for Stay. The circuit conducted a hearing on November 30, 2006.

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On December 1, 2006, the circuit court summarily denied Mr. Diaz’s Motion to Vacate Judgments of Conviction and Sentence, denied his Demands for Additional Public Records and his Renewed Application for Stay.

Mr. Diaz timely filed his notice of appeal.

Mr. Diaz and codefendant, Angel Toro, were originally indicted on January 25, 1984 for first-degree murder of the bar manager, armed robbery of the bar and customers, and kidnapping of the persons confined in the bathrooms, as well as the use of firearms in committing those felonies. The case suffered numerous delays, some due to the absence of the judge regularly assigned to that division. A new trial judge took over and assigned a trial date of February 1986. She then reset the case earlier (January 6th, 1986) and finally pushed the date up to December 17, 1985 (R. 438), over defendant's objections. Mr. Diaz's attorney protested that he was prejudiced by having inadequate time to prepare for a late-produced state witness, Ralph Gajus (R. 440).1 By this time, the codefendant, Angel Toro, had accepted a plea offer for a life sentence and was no longer in the case. The state nolle prossed several counts, leaving one count of first-degree murder, four of

7

kidnapping, three of armed robbery, one of attempted armed robbery, and one of use of firearm (R. 692-693).

Throughout the pretrial proceedings and jury selection, the defense repeatedly objected to unusual and very obvious security measures in the courtroom: Mr. Diaz wore shackles for the entirety of the trial and, at first, even handcuffs (R. 435, R. 453, R.684-685); everyone who entered the courtroom, including the jurors, was searched upon entry (R. 449, R. 751); large numbers of security personnel were conspicuously present in the courtroom (R. 444). The trial judge made findings of fact that, in the opinion of court security personnel, all these measures were necessary (R.451-454, R. 701). She suggested, more than once, that Mr. Diaz hide his leg shackles behind a briefcase (R. 700-701). Mr. Diaz was not permitted to be alone with his attorney (R. 435), to visit the cells of fellow prisoners who might become witnesses (R. 1213), or to use a telephone (R. 1348) during the entire trial.

After the jury had been sworn (R. 762), but before the opening statements, defense counsel announced that Mr. Diaz desired to assume his own defense (R. 767). Rather than delay the trial, the judge allowed the state to open, then heard the newly-raised motion to act pro se while the jury was at lunch. Counsel for Mr. Diaz informed the court that Mr. Diaz had "exhibited rather bizarre tendencies" (R. 797). Counsel observed that Mr. Diaz was being irrational and unresponsive; Mr.

8

Diaz's eyes were not focusing properly; and when questions were posed to Mr. Diaz he did not respond or gave answers with no relevance to the question (R. 797). Upon defense motion for a psychological examination and a mistrial (R. 797), the court granted an examination to determine Mr. Diaz's competence to stand trial, but ordered it to take place in the evening, after court was recessed for the night (R. 808). In the meantime, the judge proceeded to question Mr. Diaz about his request to represent himself. During this colloquy, it appeared that Mr. Diaz (a) was unable to speak and understand English very well (R. 802) and would have to rely on an interpreter as he had from the outset of the trial (R. 436); (b) had "no idea" how a trial was conducted and had never read a law book (he could not read English well) (R. 803); (c) had never finished high school but had obtained an equivalency degree (R. 803); (d) had read only "part" of the U.S. Constitution (he is a Puerto Rican citizen) (R. 802); and (e) felt that his appointed counsel, though not incompetent, was unfamiliar with his case (R. 806). The court pointed out to Mr. Diaz:

(R. 805). However, even after concluding this, the court entered a finding that defendant had made a free, voluntary and intelligent choice to represent himself (R. 814). The Court placed his counsel, with his consent, as standby. The court

9

noted that any objections standby counsel might suggest to witness' testimony would generally come too late (counsel did not speak Spanish either, and the testimony and objection would both have to be translated) (R. 812).

Mr. Diaz gave an opening statement, and the prosecution commenced its case. State witness Candice Braun testified that she was the former girlfriend of Mr. Diaz and had lived with him during the time of the alleged incident (R. 878). Braun recalled that on the evening in question, Mr. Diaz had returned to the apartment with three other men, Willie, Luisito, and Angel Toro (who was also known as Sammy) (R. 880). Upon their return, the three men were arguing (Id.). Braun stated that everybody was yelling at Toro and he was responding so that the others would not be mad at him (R. 913). She specifically remembered that she didn't hear Toro's voice as loud as everybody else and, for this reason, she thought Toro was defending himself (R. 918). When she Asked Mr. Diaz later about the argument, he told her that Toro had "shot a guy during the robbery" (R. 881).

During Mr. Diaz's cross examination of his former girlfriend, he became agitated and the judge suggested that he was perhaps unable to handle his defense; he agreed (R. 899). Motion for mistrial was made by standby counsel, and denied (R. 901-902). After a brief recess, the case continued with Mr. Diaz acting pro se.

Two additional state witnesses, Vincent Pardinas and Norman Bulenda, confirmed that Mr. Diaz was not, and could not have been, the shooter. Pardinas

10

testified that he was a patron of the bar on the evening that it was robbed and was sitting at the bar next to Carroll Robbins (R. 947-948). Pardinas noticed something was happening when a man "came behind Mr. Robbins and myself, in between us...He said, ‘Hello.’ Pulled out a gun" (R. 950-951). Pardinas further testified that two other persons were involved, one man was on the stage, and the third man had "his arm around the young lady with a gun to her head and was leading her in toward the office" (R. 953-954). When shown a photographic line-up, Pardinas was able to choose three men that most likely fit the description of the man who came up behind himself and Mr. Robbins (R. 964). From those three individuals, he was able to narrow it down to one: Mr. Diaz (R. 964-967). The wallet that Pardinas described as being stolen from him (R. 956) matches the description of a wallet which Candice Braun testified was given to her by Mr. Diaz when he returned that evening (R. 881-882).

Throughout the presentation of the state's case, the prosecutor continually referred to the man who initiated the robbery at the bar as robber one (the same man identified by Mr. Pardinas as Mr. Diaz); the man on the stage as robber two; and the man in the back, by the office entrance, as robber three. Mr. Bulenda, when asked by the prosecutor the location of robber three, responded:

11

(R. 998). Based on the testimony of Ms. Braun, Mr. Pardinas and Mr. Bulenda, Mr. Diaz was not the man positioned near the office entrance and thus was not the shooter.

The only witness who claimed Mr. Diaz was the shooter was a jailhouse snitch named Ralph Gajus. Gajus testified that Diaz said he shot the man, but that he only inferred that the victim was shot in the chest based on Mr. Diaz acting out what took place (R. 1123-1124). However, Gajus described his cell and Mr. Diaz's cell as being approximately 15 feet apart (R. 682). Also, each confinement cell has two cell doors, so that a person must enter two doors from the main hallway before actually being inside the prisoner's cell (R. 679). To add to the physical obstructions, the court found that Mr. Diaz does not speak English very well, and in fact needed an interpreter in court. Mr. Gajus did not speak Spanish.

During the evening recess, two court-appointed psychiatrists examined Mr. Diaz. Based on their reports, the judge entered a finding that Mr. Diaz was competent to stand trial (R. 984). The record reflects that only one doctor, Dr. Haber, was present in court (R. 981). Dr. Haber informed the court, in a very conclusory manner, that Mr. Diaz was competent (Id.). Dr. Haber's conclusory presentation was also done outside the presence of the attorneys for either side and outside the presence of Mr. Diaz (Id.).

During cross examination of the lead detective, Mr. Diaz was reprimanded

12

for arguing with the witness (R. 1089) and became so agitated that the trial was again recessed (R. 1094). Upon conclusion of the state's evidence, Mr. Diaz moved for judgment of acquittal (R. 1159). That denied, he indicated his desire to call a number of witnesses whom his counsel had not subpoenaed. He did not seem to understand how to procure witnesses (R. 1160-1161). The court stated that no continuances would be given for obtaining witnesses (R. 1162-1163). Mr. Diaz attempted to explain what witnesses he needed and what testimony he hoped to elicit from them (R. 1188-1208). The court ruled that no effort would be made to locate witnesses (R. 1208-1210) but Mr. Diaz's standby counsel could interview two potential witnesses who were in jail near Mr. Diaz. That offer was refused by Mr. Diaz, who insisted on seeing the potential witnesses himself (R. 1213-1214). He insisted that the court had never warned him he would be unable even to speak to his witnesses (R. 1214). Finally, he was allowed to speak to them from an adjoining secure cell but not to view them, because security personnel feared having Mr. Diaz together with any of his witnesses (R. 1216-1217). After the inmate witnesses had been interviewed, the court informed Mr. Diaz that most of what they should testify about was inadmissible. He again asked the court for help in obtaining the other seven people he needed, and was again refused (R. 1224-1225). Eventually, the defense rested without presenting any evidence (R. 1240).

Mr. Diaz then moved unsuccessfully for mistrial, partly on the grounds that

13

it was error to permit him to defend himself "without the necessary intellect to do so" (R. 1242). The jury was instructed on first-degree murder and felony murder, and was specifically told that felony murder did not require "a premeditated design or intent to kill" (R. 1291-1292). During deliberations, the jury requested a copy of the instructions, which the court furnished (R. 1328); it also requested the "entire testimony" of witnesses Candy Braun and Ralph Gajus, which the court refused to furnish. The court replied that the jury must rely on its recollection (R. 1329). The jury found Mr. Diaz guilty of first-degree murder, four counts of kidnapping, two counts of armed robbery, one count of attempted robbery, and one of possessing a firearm during the commission of a felony (R. 1332-1334).

A recess of two weeks intervened before the penalty phase of the trial. Before the recess, the court again offered counsel to Mr. Diaz. He stated that he would accept his standby counsel as his attorney for the sentencing proceeding (R. 1341). To help his preparations, Mr. Diaz was to be allowed the use of a telephone but only if his conversations were monitored by court personnel (R. 1348-1349).

At the commencement of the sentencing proceeding, Mr. Diaz demanded the right to again represent himself, although under repeated questioning from the court he maintained that he was not capable of representing himself adequately (R. 1356-1361). Finally, the court appointed his standby counsel to represent him in the sentencing. At Mr. Diaz's insistence, defense counsel refrained from cross

14

examining the first few prosecution witnesses; finally, the court commented, in front of the jury, that although he had been appointed over Mr. Diaz's objection, counsel must nevertheless act as he thought best (R. 1394). Counsel’s motion for Mistrial, based on this remark, was denied (R. 1402-1403).

The state argued the statutory aggravating factors of prior violent felony, being under prior sentence of imprisonment, causing great risk to many persons, committing the capital felony to aid another crime, and acting for pecuniary gain; the defense argued the mitigating factor of being a mere accomplice to the crime of another, but presented no new evidence of this, or of any nonstatutory mitigating factors. The jury recommended a death sentence. At sentencing, the court merely stated that the jury had considered the aggravating and mitigating factors (R. 1467-1468). The court proceeded to list the aggravating factors and no discussion was had regarding the mitigators (R. 1468). After this vague pronouncement, the court sentenced Mr. Diaz to death (R. 1468-1469). The State informed the court that it would submit an appropriate order based on this pronouncement (R. 1470), and did submit a detailed order weighing the aggravators and mitigators, a task taken on independently of the court (R. 319-330).

SUMMARY OF THE ARGUMENTS

1. The lower court’s denial of public records prevented Mr. Diaz from receiving a full and fair postconviction proceeding.

15

2. The lower court erred in denying an evidentiary hearing on Mr. Lightbourne’s claim that Florida’s lethal injection statute and the existing procedure by which Florida carries out executions by lethal injection are unconstitutional under the Florida and United States Constitutions as it constitutes cruel and unusual punishment. New scientific research not presented to and/ or not considered by this Court in previous cases necessitates an evidentiary hearing on this claim.

3. Newly discovered empirical data and the conclusions drawn from that data, make clear that Florida’s death penalty system is so seriously flawed and broken that it does not meet the constitutional requisite of being fair, reliable or accurate. Florida’s death penalty scheme stands in violation of the Eighth Amendment. Mr. Diaz’s case encapsulates all that is wrong with Florida’s death penalty scheme.

4. Mr. Diaz’s severe mental illness renders him ineligible for the death penalty under the Eighth Amendment and the U.S. Supreme Court’s reasoning in Atkins v. Virginia, 536 U.S. 304 (2002) and Roper v. Simmons, 543 U.S. 551 (2005).

5. Newly discovered evidence demonstrates that the only witness indicating Mr. Diaz was the shooter now states that Mr. Diaz never told him he was the shooter and Mr. Diaz’s actions describing the shooting were unclear.

16

Alone and cumulatively, Mr. Gajus’ admission that he was untruthful when he testified establishes a reasonable probability of an acquittal and/or a life sentence. Jones v. State, 591 So. 2d 911 (Fla. 1992).

STANDARD OF REVIEW

The Constitutional arguments advanced in this brief present mixed questions of fact and law. As such, this Court is required to give deference to the factual conclusions of the lower court to the extent they are supported by supported by competent and substantial evidence. The legal conclusions of the lower court are to be reviewed independently. See Ornelas v. U.S., 517 U.S. 690 (1996); Stephens v. State, 748 So. 2d 1028 (Fla. 1999).

The lower court denied an evidentiary hearing, and therefore the facts presented in this appeal must be taken as true, even in a successor Rule 3.850 proceeding being considered during the pendency of a death warrant. Lightbourne v. State, 549 So. 2d 1364, 1365 (Fla. 1989); Scott v. State, 657 So. 2d 1129, 1132 (Fla. 1995); Roberts v. State, 678 So. 2d 1232, 1235 (Fla. 1996).

ARGUMENT I

THE LOWER COURT ERRED IN DENYING MR. DIAZ’S DEMANDS FOR ADDITIONAL PUBLIC RECORDS PURSUANT TO FLA. R. CRIM. P. 3.852(I) AND (H)(3), IN VIOLATION OF THE EIGHTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE I, §§ 9 AND 17 OF THE FLORIDA CONSTITUTION.

On November 1, 2006, collateral counsel filed Demands for Additional

17

Public Records pursuant to Fla. R. Crim. P. 3.852(i)(hereinafter "lethal injection demands) from the Medical Examiner - 8th District, the Office of the Attorney General, Florida Department of Corrections and the Warden of Florida State Prison (PC-R2. 787-792). These "i" demands related to Mr. Diaz’s pending Rule 3.851 Motion challenging the constitutionality of Florida’s use of lethal injection. Subsequently, on November 15, 2006, written objections were filed by the Department of Corrections and by the Attorney General’s Office, who filed its own objection, as well as objections on behalf of the medical examiner and the Governor’s Office (PC-R.2 814-826).

Governor Bush signed Mr. Diaz’s death warrant on November 14, 2006. On November 15, 2006, this Court ordered that all matters pending in the trial court be acted on and orders disposing of those matters be entered by November 22, 2006. On November 16, 2006, the circuit court ordered an emergency hearing for November 17, 2006, "to argue all pending motions, including the Amended Motion for Postconviction Relief and the Public Records Requests." The court further ordered that "any emergency motions shall be filed and faxed to the court by 4:00 p.m. on November 16, 2006." (Order Setting Emergency Hearing, November 16, 2006).

A. 3.852(i) Demands Filed November 1, 2006 (Lethal injection demands)

The lower court’s November 21, 2006 Order Denying Request for

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Additional Public Records addresses only the demands for public records filed before Mr. Diaz’s death warrant was signed (PC-R. 1528-1529). These demands involved records regarding Florida’s use of lethal injection. The lower court found that all of Mr. Diaz’s demands in this regard "are overbroad and are not designed to lead to relevant and discoverable evidence." (PC-R2. 1529).

The State argued that the 3.852(i) demands were untimely and overbroad and unduly burdensome (PC-R2. 1146). Collateral Counsel objected to the Assistant Attorney General speaking on behalf of the agencies, who had counsel and were not present at the hearing. (Id.) The assistant attorney general represented to the court that she had been requested by the agencies to represent them (PC-R2. 1447).

At the outset, it is important to note that this Court’s opinions in Hill v. State, 921 So. 2d 579 (Fla. 2006), and Rutherford v. State, 926 So. 2d 1100 (Fla. 2006), regarding public records requests do not control this case. Both Mr. Hill and Mr. Rutherford were under warrant at the time they made their public records requests relating to lethal injection, so their requests were governed by Fla. R. Crim. P. 3.852(h)(3), which does not allow requests to agencies from which the inmate has not previously requested records. Mr. Diaz was not under warrant at the time of making the requests, and therefore his records requests fall under Fla. R. Crim. P. 3.852(i).

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At the hearing, collateral counsel argued that the 3.852(i) demands stated specifically what counsel was seeking and were not unduly burdensome (PC-R2. 1461-1462, 1448-1452). The records requested, including the types and doses of drugs used, the order in which they are injected, and the method used to inject the drugs, would either be admissible evidence or were reasonably calculated to lead to admissible evidence in the form of expert opinions as to whether lethal injection, as conducted under Florida’s protocol, causes unnecessary pain. (Id.)

As argued supra, new evidence suggests that lethal injection may cause extremely painful and torturous death such as would violate the Eighth Amendment. Since this research was developed in other jurisdictions, Mr. Diaz’s expert witnesses would need to review records related to Florida’s lethal injection protocol in order to apply the new research to Florida’s procedures. The requested records are necessary for Mr. Diaz’s experts to determine whether Florida’s lethal injection procedures pose a risk of causing an unnecessarily painful and torturous death.

In order to fairly form an opinion on the lethal injection protocol, the experts would have to know the qualifications of the personnel involved in the execution. Lethal injection requires the mixing of drugs, insertion of IV catheters, administration of drugs, and other tasks requiring medical training and skills. The use of unqualified and untrained personnel would make it more likely that errors

20

will occur and that the designated drugs will not function as intended under the protocol, causing unnecessary suffering.

The experts would also need to review reports of observations of previous executions by lethal injection, including autopsies and toxicology reports and reports of complications, in order to form an opinion on the likelihood that condemned inmates in Florida have suffered painful and torturous deaths by lethal injection. It would also be necessary for the experts to review the documents related to the adoption of lethal injection as a means of execution in Florida in order to assess, among other issues, the criteria used for choosing the lethal injection protocols, whether the protocols were evaluated scientifically before being adopted, whether alternative protocols were considered, and whether there was an awareness of the risk of inflicting pain. Only after reviewing these records would Mr. Diaz’s expert witnesses be able to testify fully and fairly.

Additionally, the lower court made factual findings which are unsupported by the record. For example, the court found that Mr. Diaz should have requested records from the Medical Examiner’s Office "prior to filing the 2006 motion and not at the Huff hearing" (PC-R2. 1528). The records sought pertained only to the post-mortem examinations of Hill, Rutherford and Rolling. With the exception of Hill, these records would not have existed prior to the filing of Mr. Diaz’s motion to vacate on September 25, 2006. The court made additional bizarre findings that

21

have no basis in the record, but appear to be based on the Court’s personal opinion.

Since the lethal injection protocol itself would be admissible evidence,2 and since expert testimony on the issue of whether lethal injection is constitutional would be admissible, all of the records sought were reasonably calculated to lead to admissible evidence, and the lower court abused its discretion in finding that this requirement of Fla. R. Crim. P. 3.852(i) was not met.

B. 3.852(h)(3) and (i) Demands filed November 17

Pursuant to Rule 3.852(h)(3), Mr. Diaz had until November 24, 2006, to file Demands for Additional Public Records. On November 16, 2006, two days after the death warrant was signed, collateral counsel sent Demands for Additional Public Records by Federal Express to Miami-Dade Department of Corrections, Office of the Medical Examiner, Department of Health, Office of Executive Clemency, Florida Department of Law Enforcement and Office of the State Attorney, 11th Circuit (PC-R2. 1386-1425). Collateral counsel also sent demands pursuant to Fla. R. Crim. P. 3.852(i) to Division of Elections, Judicial Qualifications Commission, and the Office of the Attorney General, with affidavits as required under that rule (Id.). The demands were filed in open court on

22

November 17, 2006 (PC-R2. 1443). Pursuant to Mr. Diaz’s successive Rule 3.851 motion filed on November 27, 2006, Mr. Diaz filed two additional public records demands pursuant to Rule 3.852(i) on November 29, 2006. The trial court likewise denied these demands.

The State argued at the November 17 emergency hearing that Mr. Diaz’s 3.852(h)(3) demands were untimely because the court had set a deadline of 4:00 p.m. on November 16. The court heard argument on the merits of Mr. Diaz’s pending Rule 3.851 Motion but did not immediately rule on the substance of the motion, the lethal injection demands, or the 3.852(h)(3) demands. The court set a subsequent hearing for November 21, 2006. Collateral counsel sought to clarify whether the court would consider the merits of the 3.852(h)(3) demands:

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(PC-R2. 1484-1485).

Subsequently, on November 20, 2006, the Attorney General’s Office filed a written "Global Objection" on behalf of all agencies (PC-R2 1541-1547). The court did not conduct a hearing on Monday, November 20, nor did counsel receive any indication that the court would conduct a public records hearing. At the scheduled November 21st hearing, the State argued "on behalf of all the agencies served" that "in addition to it being filed after the pleading deadline these [3.852(h)(3)] requests are remarkably similar to the requests made in Mills v. State, 786 So. 2d 547 (Fla. 2001)" and "were nothing more than a last minute fishing expedition." (PC-R2. 1503). Collateral counsel again objected to the State representing all agencies served with a demand (PC-R2. 1506). The assistant

24

attorney general represented to the court that she had been requested by the agencies to represent them, however collateral counsel was not notified of this.3 Collateral counsel attempted to make argument on the demands and to the sweeping objection made by the State, however, the court indicated that the demands for additional public records were being denied (PC-R2. 1510). Again, when counsel requested to make argument for purposes of appeal, the court questioned counsel as to the timing of filing the demands and stated that she made her ruling (PC-R2. 1510-1512).

In its November 21, 2006 Order Denying Demand for Additional Public Records Filed November 17, 2006 the lower court denied all of Mr. Diaz’s public records pursuant to 3.852(h)(3) (PC-R2. 1532-1535). The court’s order does not address the issue of timeliness, which was the basis for the court’s refusal to hear further argument on the demands. Rather, the court made findings regarding each agency that are not supported by any facts elicited at the November 17 or 21 hearings, and are unsupported by the record. For example, the court found that the demand for the Medical Examiner’s file was "unlikely to lead to discoverable evidence" and denied the request, in part, because Mr. Diaz had not previously requested records as required under Rule 3.852(h)(3) (PC-R2. 1532). In fact, had

25

he been given the opportunity, Mr. Diaz would have shown at a proper public records hearing that he had requested records from the Medical Examiner on September 18, 1989. Similarly, the lower court denied Mr. Diaz’s request for information from the Department of Health, Judicial Qualifications Commission and Division of Elections, without hearing argument, by simply stating that the requests are "unlikely to lead to discoverable evidence." (PC-R2. 1532-1533).

The court denied Mr. Diaz’s demands from several law enforcement agencies and the State Attorney’s Office for records related to himself and his co-defendants (PC-R2. 1532-1535). The 3.852(h)(3) demands sent to the Florida Department of Law Enforcement and the Office of the State Attorney requested, inter alia, criminal records related to the jurors in Mr. Diaz’s case. Whether or not any of the jurors had any criminal history and/or involvement with the criminal justice system, law enforcement or the state is relevant because it gives rise to a claim for relief if a juror failed to disclose this information to the court at the time of trial. In Buenoano v. State, 708 So. 2d 941 (Fla. 1998), this Court made it clear that any such claim will be procedurally barred if counsel fails to exercise due diligence.

Likewise, the records requested pursuant to 3.852(i) from the Division of Elections and the Judicial Qualifications Commission were not extensive. The only request made was for records regarding Judge Amy Steele Donner. These

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, 49 F.3d 1483 (11th Cir. 1995). Mr. Diaz is prohibited from questioning a judge directly without first showing good cause. State v. Lewisrecords are necessary to investigate a claim whether the trial judge received contributions from any persons having an interest in Mr. Diaz’s case. See Lightbourne v. State, 549 So. 2d 1364 (Fla. 1989); Porter v. Singletary, 656 So. 2d 1248 (Fla. 1994); Porter v. Singletary. As a result, Mr. Diaz has no other means of establishing good cause.

In denying Mr. Diaz’s demands, the court relied, in part, on this Court’s emphasis in Glock v. Moore, 776 So. 2d 243 (Fla. 2001), that

(PC-R2. 1534, citing Glock v. Moore, 776 So. 2d at 253, citing Sims v. State, 753 So. 2d 66, 70, (emphasis in original)). To the extent that the court found Mr. Diaz’s 3.852(h)(3) demands were not an "update" of previously received records, this finding is demonstrably false. Had he been given the opportunity4, Mr. Diaz would have shown that he requested records from Florida State Prison on August

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30, 1989, May 27, 1990 and February 8, 1991; Metro-Date Police Department and Florida Department of Law Enforcement on September 6, 1989; Department of Business and Professional Regulation5 on February 13, 1991; Dade County Medical Examiner on September 18, 1989; and Dade County jail on September 20, 1989. Each of Mr. Diaz’s 3.852(h)(3) demands were for updated information consistent with the intent of the rule.

Similarly, the court’s reliance on Sims and Glock for the finding that "all of the additional demands were either overbroad, do not seek relevant information or likely to result in admissible evidence [sic]" (PC-R2. 1534) is misplaced here. Mr. Diaz was never afforded an opportunity to be heard on his public records demands or to adequately address the State’s global objection on behalf of the agencies, despite having requested that the court conduct a proper public records hearing with the agencies present.

At the November 21st hearing, the State argued that this Court’s holding in Mills v. State, which relied on Glock and Sims, prevented Mr. Diaz from obtaining additional records (PC-R2. 1503). In Mills, collateral counsel under warrant filed 3.852(h)(3) demands for records from several agencies. Rather than voicing a

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"global" objection, the agencies complied, at least in part, with the demands. The circuit court conducted public records hearings at which each agency, represented by counsel, argued their objections. The court carefully considered the substance of each demand and ordered that several agencies produce records over objection. Furthermore, many of the agencies produced some records, while objecting to producing everything contained in the demands. While the court denied production of many of the requested records, Mr. Mills did obtain records.

Such is not the case here. Mr. Diaz filed his demands pursuant to 3.852(h)(3) within the time required by this Court. The circuit court failed to conduct a proper public records hearing to address the demands, in part because the demands were made after the trial court’s imposed deadline. The lower court did not set a public records hearing, but heard argument without the agencies being noticed or present. Collateral counsel objected to the Attorney General representing every agency and noted that, as was the case in Mills, prior to the Attorney General’s self-appointment as counsel, many of the agencies would comply in part with the demands even if they objected to them in part (PC-R2. 1507-1511). Counsel pointed out that she has never had an objection to updated Department of Corrections records on her own client (PC-R2. 1507).6

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that the designated drugs for carrying out lethal injection will not function as intended under the protocol, causing unnecessary suffering.

Mr. Diaz sought public records pursuant to Fla. Stat. Ch. 119 and Fla. R. Crim. P. 3.852(h)(3) and (i). See Ventura v. State, 673 So. 2d 479 (Fla. 1996); Muehleman v. Dugger, 634 So. 2d 480 (Fla. 1993); Walton v. Dugger, 634 So. 2d 1059 (Fla. 1993); Mendyk v. State, 592 So. 2d 1076 (Fla. 1992); State v. Kokal, 562 So. 2d 324 (Fla. 1990); Provenzano v. Dugger, 561 So. 2d 541 (Fla. 1990). Counsel for Mr. Diaz has the duty to seek and obtain every public record in existence in this case. Porter v. State, 653 So. 2d 375 (Fla. 1995), cert. denied 115 S. Ct. 1816 (1995). This Court has ruled that collateral counsel must obtain every public record in existence regarding a capital case or else a procedural default will be assessed against the defendant. Porter v. State, 653 So. 2d 375 (Fla. 1995). However, a concomitant obligation under relevant case law as well as Chapter 119 rests with the State to furnish the requested materials. Ventura v. State, 673 So. 2d 479 (Fla. 1996). When the State's inaction in failing to disclose public records results in a capital post conviction litigant's inability to fully plead claims for relief, the State is estopped from claiming that the post conviction motion should be denied or dismissed. Id. ("The State cannot fail to furnish relevant information and then argue that the claim need not be heard on its merits because of an asserted procedural default that was caused by the State's failure to act").

This Court applies the "abuse of discretion" standard when reviewing

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appeals from denials of requests for public records. Hill v. State, 921 So. 2d 579 (Fla. 2006). "Discretion is abused only when the judicial action is arbitrary, fanciful, or unreasonable, which is another way of saying that discretion is abused only where no reasonable person would take the view adopted by the trial court." Parker v. State, 904 So. 2d 370, 379 (Fla. 2005).

The lower court here abused its discretion in several respects. First, the court ignored Fla. R. Crim. P. 3.852(h)(3) which provides ten days from the signing of a death warrant for collateral counsel to file demands for additional public records. Rather, the court imposed its own arbitrary and unreasonable rule, allowing Mr. Diaz only two days to request records. Second, the court sustained the State’s "global" objection on behalf of every served agency to Mr. Diaz’s demands without the opportunity to respond specifically to each agency’s objections, relying on factual findings that are demonstrably false. No reasonable person would take the view adopted by the lower court. Mr. Diaz’s rights to access to the courts, equal protection and effective legal representation are being denied because the circuit court has denied access to public records to which he is entitled. This Court should remand this case to the circuit court for full public records disclosure.

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ARGUMENT II

THE STATE OF FLORIDA’S LETHAL INJECTION STATUTE, FLA. STAT. § 922.105, AND THE EXISTING PROCEDURE THAT THE STATE OF FLORIDA UTILIZES FOR LETHAL INJECTION VIOLATE ARTICLE II, SECTION 3 AND ARTICLE I, SECTION 17 OF THE FLORIDA CONSTITUTION, AND THE EIGHTH AMENDMENT TO THE U.S. CONSTITUTION.

In his successive 3.851 motion, Mr. Diaz argued that new scientific evidence, not previously available to this Court when it decided Sims v. State, 754 So. 2d 657 (Fla. 2000), and not considered by this Court in the cases, Hill v. State, 921 So. 2d 579 (Fla. 2006), Rutherford v. State, 926 So. 2d 1100 (Fla. 2006) and Rolling v. State, demonstrates that the existing procedure that the State of Florida uses in executions violates the Eighth Amendment to the U.S. Constitution and the corresponding provision of the Florida Constitution, as it will inflict upon Mr. Diaz cruel and unusual punishment. The lower court denied an evidentiary hearing on this claim, stating that:

At the Huff Hearing/Case Management Conference, Diaz argued that an evidentiary hearing was not granted in the Rolling or Rutherford cases because of the time constraints due to the issuance of a death warrant. This court rejects that argument. If a court had even the slightest doubt that a defendant's constitutional rights were being violated, it would issue a stay and hold an evidentiary hearing on the issue.

(PC-R2. 1521). Mr. Diaz never made an argument that an evidentiary hearing was not granted in Rutherford and Rolling due to the "time constraints" of the warrant.

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Mr. Diaz argued that in Hill and Rutherford, federal courts characterized the lethal injection claim as eleventh-hour attempts to delay execution, and therefore denied the federal claims as barred. Hill v. McDonough, 464 F.3d 1256 (11^{th Cir. 2006). See also, Rutherford v. McDonough, 466 F.3d 970 (11th Cir. 2006). Mr. Diaz pointed out to the court that his challenge to lethal injection was being filed prior to the signing of a death warrant and thus, was in a different posture than the previous cases.}

The lower court further denied relief relying primarily on Sims v. State (PC-R2 1521-1523). The lower court’s reliance on Sims is misplaced as this is no longer applicable in light of new scientific evidence discussed infra. In Sims v. State, 754 So. 2d 657 (Fla. 2000), Terry Sims, who was to be the first death-sentenced inmate to be executed by lethal injection in Florida, challenged Florida’s lethal injection procedure as a violation of the Eighth Amendment. This Court denied relief, finding the possibility of mishaps during the lethal injection process insufficient to support a finding of cruel and unusual punishment.

This Court decided Sims more than six years ago. As Mr. Diaz argued in his 3.851 motion, a large amount of new scientific research has been published since 2000. This research, explained below, makes clear that the possibility of lethal injection mishaps that this Court considered in Sims is no longer speculative. Rather, it is the stark and certain reality of executions by lethal injection as carried

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out under Florida’s protocol. The lower court failed to consider much of the new research and thus, erred in denying Mr. Diaz an evidentiary hearing on this issue. Since the recent scientific research has been conducted in other states, an evidentiary hearing is necessary in order for Mr. Diaz to prove that the problems that occur under lethal injection procedures in other states also occur in Florida, and will occur when the State uses the same protocol to execute Mr. Diaz. Several recent developments since this Court’s previous decision in Sims, compel this Court to address this claim. First, the Florida Department of Corrections revised its lethal injection protocols, promulgating "Execution by Lethal Injection Procedures", signed by DOC Secretary James R. McDonough on August 16, 2006 ("2006 Procedures", Attachment A); second, an April 16, 2005 article published in the medical journal THE LANCET;7 and third, a number of U.S. District Court orders granting relief in lethal injection challenges.

On August 16, 2006, the Florida Department of Corrections revised its lethal injection protocols. The revised lethal injection protocol calls for three drugs to be administered in succession through an IV tube attached to the inmate: 5 grams of sodium pentothal, an ultra-short acting barbituate which is used to render the inmate unconscious; 100 mg of pancuronium bromide, a paralyzing agent; and

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finally 240 mg of potassium chloride, which stops the heart.8 As a backup, a second set of syringes containing the same doses of drugs is prepared in the event that "If after the complete administration of the lethal chemicals, the heart monitors do not reflect a flat line reading and/or the physician cannot pronounce the inmate dead, the executioner will begin a second flow of lethal chemicals….". (2006 Procedures, p. 8.) The use of this combination of drugs creates a risk that Mr. Diaz will experience excruciating pain if the dose of sodium pentothal is not sufficient to produce anesthesia or is not properly administered before the injection of the pancuronium bromide and the potassium chloride. Because the protocol provides for no means of monitoring the inmate’s consciousness after administration of the sodium pentothal, there is no means of determining if Mr. Diaz is in fact awake and feeling the effects of the lethal drugs.

While the lower court held that the new protocol contains nothing that conflicts with the procedure outlined in Sims, a thorough review of the new protocol reveals it is in stark contrast to the protocol asserted in Sims.9 The new

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The old protocol did not provide for maintenance or storage of the chemicals, while the new protocol does. This change causes many questions and concerns: How will the chemicals be stored so that they are secure? What qualifications does the execution member have to determine whether the chemicals have surpassed their expiration dates?

The new protocol calls for the use of a checklist. The old protocol did not provide for the use of checklist. Where is the checklist from the executions of Clarence Hill, Arthur Rutherford and Danny Rolling?

The old protocol did not provide for a determination of issues that could interfere with the lethal injection procedure and for a process to resolve those issues. This change causes many questions and concerns: What type of issues could interfere with the proper administration of the lethal injection process? Will the condemned and/or his attorney be notified? What resolutions will be considered in regard to the problems?

The new protocol calls for two hours prior to the execution to "prepare the lethal injection chemicals. The old protocol did not provide for preparation of the chemicals. This change causes many questions and concerns: Does it matter that the chemicals are prepared two hours prior to the execution? Who mixes the chemicals? What is his/her training?

The new protocol calls for "A designated member of the execution team" to "explain the lethal injection procedure to the inmate and offer any medical assistance or care deemed appropriate. This change causes many questions and concerns: What type of medical assistance is contemplated? Does this individual have the required medical training and ability to administer the medical care?

The new protocol calls for a central venous line to be placed with or without a venous cut-down if peropheral venous access cannot be achieved. The old protocol did not provide for a cut-down. This change causes many questions and concerns: Who will do the cut-down? How will it be done? When will it be done?

protocol does not remedy any concerns that Mr. Diaz will suffer undue pain and in fact, generates numerous additional questions as to the constitutionality of the protocol.

A 2005 study published in the prestigious medical journal THE LANCET detailed the results of research on the effects of chemicals in lethal injection. See Leonidas G. Koniaris et. al., Inadequate Anaesthesia in Lethal Injection for

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, 365 THE LANCET 1412 (2005). The study analyzed lethal injection protocols and autopsy and toxicology reports from a number of states that made such data available. This study confirmed, through the analysis of empirical after-the-fact data, that the use of sodium thiopental, pancuronium bromide, and potassium chloride creates a foreseeable risk of the gratuitous and unnecessary infliction of pain on a person being executed. Execution

While this Court has previously considered THE LANCET article and rejected it as requiring an evidentiary hearing, the Court must consider the article in conjunction with Dr. Richard Weissman’s letter to THE LANCET dated September 24, 2005, Dr. Richard Weisman explained that the actions of sodium thiopental in a dying individual undergoing lethal injection are not comparable to its actions in a ventilated surgical patient. See Correspondence, Robyn S. Weisman et al., 366 THE LANCET 1074 (2005) (Attachment D).10 According to Dr. Richard Weisman, a pharmacist and director of the Florida Poison Information Center, studies on living dogs showed that after a dog is injected with sodium thiopental, breathing slows and carbon dioxide builds up in the blood, leading to acidosis. See id. Acidosis causes the sodium thiopental to leave the blood and enter the fatty tissues. This suggests that the same dose of sodium thiopental may wear off more rapidly

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in an inmate undergoing lethal injection than in a surgical patient who is ventilated and not experiencing hypoxia and acidosis, risking that the inmate will be conscious and in pain from the effects of the pancuronium bromide and potassium chloride, but unable to communicate because he is paralyzed by the pancuronium (see discussion infra). This also indicates that the effects of doses used in clinical practice cannot be extrapolated to determine their effects on inmates during execution.

As stated above, Pancuronium bromide, sometimes referred to simply as pancuronium, is a paralytic agent that stops the breathing. It has two contradictory effects: first, it causes the person to whom it is applied to suffer suffocation when the lungs stop moving; second, it prevents the person from manifesting this suffering, or any other sensation, by facial expression, hand movement, or speech.11 Pancuronium bromide is unnecessary to bring about the death of a person being executed by lethal injection. Its only function is cosmetic -- to prevent spasms that would be disturbing to witnesses. See Denise Grady, Doctors See Way to Cut Suffering in Executions, N.Y. Times, June 23, 2006, at A1

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Human Rights Watch report, So Long as They Die: Lethal Injections in the United States (April 2006) at 26-27 (Attachment F). (Attachment E); see also

Significant is the fact that the American Veterinary Medical Association (AVMA) panel on euthanasia specifically prohibits the use of pentobarbital12 with a neuromuscular blocking agent to kill animals. (Attachment G). Additionally, 19 states have expressly or implicitly prohibited the use of neuromuscular blocking agents in animal euthanasia because of the risk of unrecognized consciousness.

Additional recent articles emphasize the necessity for review of Florida’s lethal injection protocol. The American Society of Anesthesiologists has issued a practice advisory. See American Society of Anesthesiologists, "Practice Advisory for Intraoperative Awareness and Brain Monitoring: A Report by the American Society of Anesthesiologists Task Force on Intraoperative Awareness" Anesthesiology 2006; 14:847-64 (Attachment H) The report advises that "use of neuromuscular blocking drugs may mask purposeful or reflex movements and adds additional importance to the use of monitoring methods that assure the adequate delivery of anesthesia." Id. at 854. On April 24, 2006, Human Rights Watch released a report, So Long as They Die: Lethal Injections in the United States, recommending that states suspend lethal injections until each state convenes a

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panel of experts authorized to review and recommend changes to lethal injection execution protocols to ensure the least possible pain and suffering for the inmate.

Furthermore, Florida’s procedure is similar to procedures in California, North Carolina, Missouri, Arkansas, and Ohio, where federal district courts have issued orders addressing serious Eighth Amendment questions raised by lethal injection.13 Most significantly, a federal district court judge found that a California

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that Oklahoma’s administration of the same three-chemical sequence for lethal injection "creates an excessive risk of substantial injury" and pain under the Eighth Amendment) (Attachment R).

Two courts have granted relief in response to lethal injection challenges brought pursuant to §1983. See, e.g., Order, Nooner v. Norris, No. 5:06CV0011OSWW (E.D. AK, June 26, 2006) (Attachment S); Order, Taylor v. Crawford, No. 05-4173-CV-C-FJG (W.D. MS, June 26, 2006) (Attachment T).

On August 21, 2006, Oklahoma altered the way it administers the lethal injection drugs so that now inmates receive larger doses of the anesthetic, sodium thiopental, before the potassium chloride is administered. Associated Press, Oklahoma Alters Lethal Injection Procedure, available at http://www.chickashanews.com/malicoat/local_story_233142149.html (August 21, 2006). Additionally, on August 29, 2006, South Dakota Governor Mike Rounds delayed the state’s first execution in 59 years, citing concerns that the state’s plan to use a three-drug protocol did not comply with a state statute specifying a two-drug combination. Reuters, South Dakota: Execution Postponed, available at http://www.nytimes.com/2006/08/30/us/30brfs-003.html (August 30, 2006).

Order Denying Conditionally Plaintiff’s Motion for Preliminary Injunction, Morales v. Hickmandeath row inmate had raised substantial questions regarding whether administration of California’s lethal injection protocol would create an undue risk that Morales would suffer excessive pain when he is executed. See , No. C 06 926 JF RS (N. D. Cal. Feb. 14, 2006) (Attachment I). Florida’s lethal injection protocol uses the same combination of three drugs as California.

The district court ordered that the State could proceed with the execution provided that it met certain conditions outlined by the court. See id.14 Morales’

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21, 2006 (Attachment K). The American Medical Association, the American Society of Anesthesiologists and the California Medical Association all opposed the anesthesiologists’ participation as unethical and unprofessional. See id.

The State of California opted to go ahead with the execution using a higher dosage of one drug, sodium thiopental, but had to postpone the execution indefinitely when it could not comply with the further conditions imposed by the court to prevent a botched and painful execution. The court ordered that the drug be administered by a licensed professional and injected directly into the prisoner’s vein, rather than flowing through an intravenous tube from outside the death chamber. See Order on Defendant’s Motion to Proceed with Execution Under Alternative Condition to Order Denying Preliminary Injunction, in Morales v. Hickman, No. C 06 219-JF (N.D. Cal. Feb. 21, 2006) (Attachment L).

, No. C 06 219-JF (N.D. Cal., 2006), contains an abundance of evidence not presented at the Sims hearing. The most striking difference is that no executions by lethal injection had yet been conducted in Florida at the time of the Sims , the testimony regarding the special properties of sodium thiopental that make it likely that an inmate will be conscious during an execution, is at a level of detail far beyond anything presented in Simsexecution was postponed indefinitely when the State could not comply with these conditions. As a result, an evidentiary hearing on whether California’s lethal injection protocol constitutes cruel and unusual punishment was held September 26 – 29, 2006. (Transcripts attached as Attachment M). Contrary to the State’s response and the circuit court’s order, the trial testimony in Morales v. Hickmanhearing. Therefore, no eyewitness testimony to a lethal injection could have been presented. Additionally, no testimony on veterinary euthanasia was presented in Sims. In Morales. Finally, no testimony regarding the requirements for monitoring anesthetic depth was considered in

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Sims.

This Court’s decisions in Hill v. State, 921 So. 2d 579 (Fla. 2006) and Rutherford v. State, 926 So. 2d. 1100 (Fla. 2006) (affirming the circuit courts’ denial of an evidentiary hearing on lethal injection under the 2000 lethal injection protocol), and Rutherford v. State, No. SC06-2023 (Fla. October 17, 2006) (denying a petition for all writs jurisdiction to consider the revised lethal injection protocols), do not preclude this Court from addressing Mr. Diaz’s claim. Hill and Rutherford, 926 So. 2d 1100 affirmed the circuit court’s denial of an evidentiary hearing, and Rutherford, No. SC06-2023 denied all writs jurisdiction to review the new lethal injection protocol. Mr. Diaz’s claim is based on the current lethal injection procedure, as well as evidence not previously considered.

Further, the Hill opinion, relying on Sims, addressed only the constitutionality of sodium thiopental as a lethal injection agent. The Court failed to address the use of pancuronium bromide and potassium chloride, the second and third drugs used in Florida’s lethal injection protocol.15 The Court also failed to address Dr. Weisman’s September 24, 2005 letter to THE LANCET (discussed supra). An evidentiary hearing is required upon this claim.

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appellate review in light of its later acknowledgement that it failed to properly apply Strickland v. Washington, 466 U.S. 668 (1984), to Mr. Diaz's case. See Stephens v. State, 748 So. 2d 1028 (Fla. 1999) (citing Diaz v. Dugger as a case where "this Court has been inconsistent in its approach to the standard of review of ineffective assistance of counsel claims")

examine its decisions predicated upon its understanding of the meaning of Strickland.26 In essence, this Court has stripped those death row inmates, including Mr. Diaz, of their Sixth Amendment rights as defined by the U.S. Supreme Court. Certainly, the manner in which the retroactivity rules currently operate has as at least as much to do with who gets executed and who does not as do the facts of the crime and the character of the defendant. This Court’s application of its retroactivity rules is arbitrary and violates Furman.

This Court frequently relies upon procedural defaults to create procedural bars that preclude consideration of meritorious issues that go to the reliability of the conviction and sentence of death. See Swafford v. State, 828 So. 2d 966, 977-78 (Fla. 2002). Certainly, the refusal to consider issues that go towards the reliability of the conviction and/or the sentence of death increase the risk that the innocent or the legally undeserving will be executed. It decreases a "meaningful basis for distinguishing the few cases in which [death] is imposed from the many cases in which it is not." Furman, at 313 (White, J., concurring).

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Clemency is a critical stage of the death penalty scheme. It is the only stage at which factors like lingering doubt of innocence, remorse, rehabilitation, racial and geographic influences and factors that the legal system does not correct can be considered. See Herrera v. Collins, 506 U.S. 390, 412 (1993). However, the assessment team found Florida’s clemency process to be severely lacking and entirely arbitrary because there are no rules or guidelines delineating factors for the Board to consider regarding clemency. Report at vii.

Undoubtedly politics is a factor that causes arbitrariness in Florida’s death penalty scheme. In fact, the state assessment team noted that judicial elections and appointments are influenced by consideration of judicial nominees’ or candidates’ views on the death penalty. ABA Report at xxxi. The team also cited this Court’s recent quantitative approach to proportionality review, which has been caused by political pressures and the change of composition of the Court. Id at 213. Florida’s death penalty scheme is infected by politics and decisions made for political gain rather than in fairness.

While Florida has recently excluded individuals suffering from mental retardation from the death penalty, it has not extended its logic to those suffering from severe mental disabilities. Id. at xi. The distinction between the mentally

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retarded and the mentally ill and corresponding culpability of those inflicted with each condition is arbitrary.27 Furthermore, the legislation and rule governing mental retardation procedures makes an arbitrary distinction between those individuals whose cases are final and those who are not. See Fla. Stat. §921.137; Fla. R. Crim. P. 3.203. The ABA assessment team also criticized the burden of proof imposed on capital defendants and recommended that the State be required to disprove a defendant’s substantial showing that he is mentally retarded. Report at xxxviii. The imposition of the burden of proof on the defendant will undoubtedly cause the decision as to who gets executed to turn on arbitrary factors, such as whether records demonstrating onset before age 18 exist, etc.

The ABA assessment team found that: "The deficiencies in crime laboratories and the misconduct and incompetence of technicians have been attributed to the lack of proper training and supervision, the lack of testing procedures and the failures to follow such procedures, and inadequate funding." Id at 83. The result of these problems is errors that go unchallenged and uncorrected before the jury, yet another factor unrelated to the circumstances of the crime or character of the defendant that injects arbitrariness into Florida’s death penalty

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scheme in violation of Furman.

When all of the arbitrary factors identified herein and more fully in the ABA Report on Florida (incorporated herein by specific reference) that are present in the Florida death penalty scheme are considered together in analyzing the system’s ability to deliver and/or produce a reliable result, the conclusion is inescapable: "it smacks of little more than a lottery system." Furman, 408 U.S. at 293 (Brennan, J., concurring). Florida’s process cannot "assure consistency, fairness, and rationality" and it cannot "assure that sentences of death will not be "wantonly" or "freakishly" imposed." Proffitt v. Florida, 428 U.S. 242, 259-60 (1976). Accordingly, Florida’s death penalty scheme stands in violation of the Eighth Amendment. Mr. Diaz’s case encapsulates all that is wrong with Florida’s death penalty scheme.

ARGUMENT IV

MR. DIAZ IS EXEMPT FROM EXECUTION UNDER THE EIGHTH AMENDMENT BECAUSE HE SUFFERS FROM SUCH SEVERE MENTAL ILLNESS THAT DEATH COULD NEVER BE AN APPROPRIATE PUNISHMENT.

Mr. Diaz has suffered continuously from severe mental illness since before the time of the crime for which he was convicted and sentenced to death. He has been diagnosed with suffering from borderline personality disorder and narcissistic personality disorder (Supp. RII. 89) as well as schizoid personality disorder. He

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falls within the class of persons who are so much less morally culpable and deterrable than the "average murderer" as to be categorically excluded from being eligible for the death penalty, no matter how heinous the crime. Cf. Roper v. Simmons, 543 U.S. 551 (2005) (holding that the death penalty is unconstitutional for defendants under 18 at the time of the crime); Atkins v. Virginia, 536 U.S. 304 (2002) (holding that the death penalty is unconstitutional for mentally retarded defendants).

The American Bar Association ("ABA") recently issued Resolution 122A, which recommends that each jurisdiction that imposes capital punishment implement policies and procedures to prevent severely mentally ill defendants from being executed. Resolution 122A, approved August 8, 2006, available at http://www.abanet.org/leadership/2006/annual/DAILY_JOURNAL.pdf (Attachment V). Given his severe mental illness, which Mr. Diaz’s counsel demonstrated at a 1991 evidentiary hearing through expert witnesses (PC-R. at), Mr. Diaz is constitutionally protected from execution because the death penalty is an unconstitutionally excessive punishment for Mr. Diaz for the reasons delineated in Atkins and Simmons.

In Gregg v. Georgia, 428 U.S. 152, 183 (1976), the U.S. Supreme Court identified retribution and deterrence of capital crimes by prospective offenders as the social purposes served by the death penalty. The Atkins Court ultimately

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found that neither justification for the death penalty was served by its imposition on mentally retarded individuals. See also Simmons. The reasoning in Atkins and Simmons applies with equal force to severely mentally ill offenders such as Mr. Diaz, as some judges across the county have begun to recognize.28 Mr. Diaz’s severe mental illness causes him to suffer from the very same deficits in reasoning, judgment, and control of impulses that lessen his culpability and render the penological justification of retribution ineffective against him. Likewise, the justification of deterrence is not served by executing severely mentally ill individuals, as severe mental illness can impair an individual’s ability to control impulses or understand long-term consequences.

At his 1991 evidentiary hearing, Mr. Diaz presented evidence of his severe mental illness through the testimony of several experts. Dr. Marina concluded that Mr. Diaz "is suffering from two major mental disorders; Borderline Personality Disorder and Narcissistic Personality Disorder" (Supp. RII. 89. Mr. Diaz's "psycho-social history, through previous psychological and psychiatric evaluations and through his need for medication and hospitalization and psychiatric placements in the past all indicate a pervasive pattern of instability of self image, interpersonal relationships, and mood" (Supp. RII. 89-90). Although Mr. Diaz has low average

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intelligence, his significantly different scores on the subtests of the Wechsler Adult Intelligence Scale led Dr. Marina to conclude, "this protocol presents a prepsychotic personality disorder in which his temporary loss of reality does not allow him to use his full cognitive abilities" (Supp. RII. 88). Dr. Marina concluded that at the time of the offense, Mr. Diaz's capacity to conform his conduct to the requirements of law was substantially impaired and Mr. Diaz suffered from an extreme mental or emotional disturbance at the time of the offense (Id. at 977).

Additionally, Dr. Francis concluded that Mr. Diaz suffered from schizoid personality disorder and organic personality disorder (PC-R. 428). Dr. Francis' report details Mr. Diaz’s mental illness and finds that "he had a disturbance that mentally and emotionally was extreme, had a capacity to conform conduct to requirements of law that was greatly diminished and substantially impaired …his functioning throughout his life, at the time of the offense, and at trial was effected and impaired by his mental illness. (Supp. RII. 113). Furthermore, Dr. Larson diagnosed Mr. Diaz as suffering from borderline personality disorder (Supp. RII. 640).

The lower court relies on Patton v. State 878 So. 2d 368 (Fla. 2004) in finding that "personality disorders are not mental illnesses." Both the court and the State improperly read Patton. The decisions cited in Patton, do not broadly cover "personality disorders," but specifically refer to antisocial personality disorder.

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Mr. Diaz has been diagnosed with borderline, narcissistic and more importantly schizoid personality disorder, which is characterized by temporary breaks with reality. The doctors who testified during Mr. Diaz’s postconviction evidentiary hearing, found that he was mentally ill.

Capital punishment’s twin goals of retribution and deterrence would not be served by executing Mr. Diaz. The extensive and compelling evidence of Mr. Diaz’s severe mental illness presented at his 2001 evidentiary hearing demonstrates that his significant impairments in reasoning, judgment, and understanding of consequences puts him in the same class as mentally retarded and juvenile offenders in terms of diminished culpability. Furthermore, because severely mentally ill defendants, mentally retarded defendants, and juvenile defendants are similarly situated with respect to the goals served by capital punishment, and because there is no rational basis for distinguishing severely mentally ill defendants from mentally retarded and juvenile defendants, executing Mr. Diaz would not comport with equal protection under the United States and Florida Constitutions. Mr. Diaz’s severe mental illness renders him ineligible for the death penalty under the Eighth Amendment and the U.S. Supreme Court’s reasoning in Atkins and Roper. Relief is proper.

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ARGUMENT V

NEWLY-DISCOVERED EVIDENCE ESTABLISHES THAT MR. DIAZ’S CAPITAL CONVICTION AND SENTENCE ARE CONSTITUTIONALLY UNRELIABLE IN VIOLATION OF THE FIFTH, SIXTH, EIGHTH, AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION.

A claim based on newly discovered evidence "if properly alleged...[is] not subject to the time limitations of Florida Rule of Criminal Procedure 3.850." Johnson v. State, 647 So.2d 106, 110 (Fla. 1994). In order to constitute "newly discovered evidence," Mr. Diaz bears the burden of proving the evidence was not discoverable through due diligence and that, if discovered and introduced at trial, would have "probably produced an acquittal." Swafford v. State, 679 So. 2d 736 (Fla. 1996). Contrary to the lower court’s order, the evidence newly discovered by Mr. Diaz easily meets both threshold requirements.

Mr. Diaz and codefendant, Angel Toro, were originally indicted on January 25, 1984 for first-degree murder of the bar manager, armed robbery of the bar and customers, and kidnapping of the persons confined in the bathrooms, as well as the use of firearms in committing those felonies. By the time Mr. Diaz’s case went to trial, the codefendant, Toro, had accepted a plea offer to second-degree murder and received a life sentence.

At Mr. Diaz’s trial the only witness testifying for the state who claimed Mr. Diaz was the shooter was a jailhouse snitch named Ralph Gajus. Interestingly, Mr.

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Gajus only surfaced as a witness a week before trial. Mr. Gajus testified that he was in the Dade County Jail at the same time as Mr. Diaz and their cells were located across from each other. During his testimony, Mr. Gajus indicated that Mr. Diaz was able to speak English very well (R. 1115). Gajus specifically testified:

(R. 1123). Mr. Gajus further indicated what Mr. Diaz allegedly told him:

(R. 1124).

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Several witnesses testified that Mr. Diaz was not the triggerman, including the former girlfriend of Mr. Diaz, Candace Braun (R. 881). Two additional state witnesses, Vincent Pardinas and Norman Bulenda, confirmed that Mr. Diaz was not and could not have been the shooter. Based on the testimony of Mr. Pardinas and Mr. Bulenda, Mr. Diaz was not the man positioned near the office entrance and thus was not the shooter. (R. 947-948; 950-951; 953-954; 964-967)(R. 998).

Despite the conflicting testimony, Mr. Gajus’ testimony left the jury to believe that Mr. Diaz had confessed to being the triggerman. However, Mr. Gajus’ testimony was untruthful. On November 19, 2006, counsel's investigator interviewed Ralph Gajus, the jailhouse snitch that testified against Mr. Diaz, and Mr. Gajus has now provided the following sworn affidavit:

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