THE SUPREME COURT OF FLORIDA

CASE NO. ________

IAN DECO LIGHTBOURNE, LLOYD CHASE ALLEN, CHARLES

ANDERSON, GUILLERMO O. ARBELAEZ, KAYLE BATES, LUCIOUS

BOYD, MCARTHUR BREEDLOVE, MICHAEL GEORGE BRUNO,

BYRON B. BRYANT, MILFORD WADE BYRD, LUIS CABALLERO,

JOHN CHAMBERLAIN, JIM ERIC CHANDLER, DANIEL CONAHAN,

DAVID COOK, LABRANT D. DENNIS, JOEL DIAZ, JAMES AREN

DUCKETT, PAUL EVANS, KEVIN FOSTER, CARLTON FRANCIS,

HENRY GARCIA, MICHAEL J. GRIFFIN, JERRY LEON

HALIBURTON, PATRICK HANNON, ROBERT HENRY, JAMES

EUGENE HUNTER, BRANDY BAIN JENNINGS, TERRELL M.

JOHNSON, VICTOR TONY JONES, BILLY LEON KEARSE, DEAN

KILGORE, RONALD KNIGHT, ANTON KRAWCZUK, CARY

MICHAEL LAMBRIX, CLEO DOUGLAS LECROY, RODNEY LOWE,

MATTHEW MARSHALL, MARBEL MENDOZA, SONNY BOY OATS,

THOMAS OVERTON, BRUCE PACE, MANUEL PARDO, DWAYNE

PARKER, NORMAN PARKER, ROBERT PATTON, ROBERT PEEDE,

HARRY PHILLIPS, NORBERTO PIETRI, THOMAS DEWY POPE,

ROBERT BEELER POWER, RICHARD RANDOLPH, WILLIAM

REAVES, ROBERT RIMMER, MICHAEL RIVERA, RICKEY

BERNARD ROBERTS, JUAN DAVID RODRIQUEZ, MANUEL

RODRIGUEZ, MICHAEL SIEBERT, DENNIS SOCHOR, ROY CLIFTON

SWAFFORD, DAVID THOMAS, WILLIAM THOMPSON, WAYNE L.

THOMPKINS, GEORGE JAMES TREPAL, MANUEL VALLE, JASON

D. WALTON, KENNETH WATSON, JOEL DALE WRIGHT, AND

THOMAS WYATT,

Petitioners,

v.

CHARLES CRIST, Attorney General for the State of Florida,

and JAMES MCDONOUGH, Secretary, Florida Department of Corrections,

Respondents. /

EMERGENCY PETITION SEEKING TO INVOKE THIS COURT'S

ALL WRITS JURISDICTION.I. INTRODUCTION

The media report of the December 13, 2006 execution of Florida

prisoner Angel Nieves Diaz was as follows:

[Mr. Diaz] was executed by lethal injection

Ron Word, "Man Executed for Miami bar slaying takes 34 minutes to die,"

He appeared to move for 24 minutes after the first

injection. His eyes were open, his mouth opened

and closed and his chest rose and fell.

What happened to him next looked agonizing.

Grimacing, Diaz took 34 minutes to die from the

drugs pumped through him. At times he seemed to

be squinting and at other times he appeared to be

flexing his jaw.

Phil Long and Marc Caputo, "Lethal injection takes 34 minutes to kill

Angel Diaz winced, his body shuddered and he

remained alive for 34 minutes, nearly three times

as long as the last two executions.

***

Obviously there was something very wrong here,

said Neal Dupree, supervisor of the capital

which represented Diaz in his appeals.

Dupree, who sat in the front row while Diaz was

executed, said the procedure appeared botched,

particularly when Diaz squinted his eyes and

tightened his jaw as if in pain.

Twenty-six minutes into the procedure, Diaz's

body suddenly jolted.

"It looked like Mr. Diaz was in a lot of pain,"

Dupree said. "He was gasping for air for 11

minutes. This is a big deal. This is a problem."

Corrections officials acknowledged that 34

minutes was an unusually long time but said no

records are kept that would tell if it's the longest

ever in state history.

They were not sure how many other times a

second dose was needed.

Gretl Plessinger, a DOC spokeswoman, said it's

unknown at what times the first and second doses

were given because those records are not kept.

2006 (Appendix "D").

Neal Dupree, Capital Collateral Regional Counsel for the Southern

Region further stated in an affidavit:

3. The curtains to the execution chamber were

opened at 6:00 p.m ... From my seat in the front

row of the observation room I was located

approximately six (6) to seven (7) feet from Mr.

Diaz. Initially, I observed Mr. Diaz laying on a

gurney covered by a white sheet. He was strapped

by a leather strap. Additionally, Mr. Diaz had

some type of tape or gauze holding his right hand

in place, and an intravenous needle had been

placed in his right arm where his elbow would

bend. There appeared to be two separate lines that

ran beneath the gurney hooking into the

intravenous line, and those two lines traveled into

a prepared space in the wall behind the gurney.

4. Mr. Diaz was asked if he had any last words,

and he was permitted to give a brief speech in

Spanish. Having met Mr. Diaz before, it appeared

to me that he was sedated in some manner, as his

speech was slower and somewhat slurred.

5. Within a few minutes, Mr. Diaz became

agitated, and it appeared to me that he was

speaking to the members of the Department of

Corrections staff. They did not appear to respond

to him and I was unable to hear his part of the

conversation because the intercom between the

execution chamber and the observation room had

been turned off. During the time Mr. Diaz

appeared to be speaking, it was my observation

that he was in pain. His face was contorted, and he

grimaced on several occasions. His Adam’s Apple

bobbed up and down continually, and his jaw was

clenched.

6. I could observe some type of fluid flowing

through the intravenous tube, and Mr. Diaz’s head

rolled to the right. A strap had been placed across

his forehead, and a member of the DOC staff held

the strap. I observed Mr. Diaz' right eye to close,

but his left eye remained open. His mouth opened,

and Mr. Diaz appeared to be gasping for air for at

least 10-12 minutes. It was apparent that the

complete drug cycle had been given to Mr. Diaz,

however, on several occasions over the next

Diaz, and he continued to gasp heavily for air.

7. Approximately twenty minutes into the

procedure, I observed two members of the DOC

staff, one large black male, and a slightly smaller

white male have several conversations into two

separate phones. The black male had been on one

phone since the initiation of the procedure, and I

observed him hand that phone to the white male

two times. After speaking into the first phone, the

white male picked up a second phone, and had

another conversation. It was apparent that

something was wrong, and it was my observation

that the other DOC staff members in the room

looked uncomfortable at that time.

8. After a total of 25-30 minutes, Mr. Diaz’s

breathing appeared to get shallower. His face

became slack, and his skin had a grayish pallor.

During the last 5-6 minutes, both of his eyes

opened and his Adam's apple slowly stopped

bobbing.

9. I next observed a person wearing a purple

suit (somewhat like a beekeepers outfit) enter the

room. He flashed a light into the opened eyes of

Mr. Diaz, and then checked his heart rate. That

person left the room, and another person similarly

garbed entered the room. He also checked Mr.

Diaz' eyes and his heart rate. Mr. Diaz was then

pronounced deceased by DOC personnel at 6:36

p.m. The time from when Mr. Diaz finished

speaking, until the time he was pronounced dead

was a span of 34 minutes.

(Affidavit of Neal Dupree, Appendix "E").

the Department of Corrections stated:

He had liver disease, which required them to give

to the liver is slowed.

Governor Bush affirmed the representations of the Department of

Corrections:

As announced earlier this evening by the

Department, a preexisting medical condition of the

inmate was the reason tonight’s procedure took

longer than recent procedures carried out this year.

December 13, 2006 (Appendix "F").

Based on the Department of Corrections’ representation, it expected

problems to arise during Mr. Diaz’s execution. Yet despite knowing that a

medical issue would interfere with the lethal injection procedure, the

Department obviously did not resolve the issue prior to moving forward with

the execution as dictated in its protocol. Then, after witnessing Mr. Diaz

continue to talk and move after the administration of the first drug (sodium

thiopental), the Department proceeded to administer the next two lethal

chemicals – pancuronium bromide, a paralytic, and potassium chloride,

indicating a serious problem with the initial anesthesia and no doubt

torturous pain from the second and third chemicals. Then, the Department

started over, administering a second series of lethal chemicals. The

Department’s actions demonstrated a wanton, reckless disregard for Mr.

Diaz’s pain and suffering.

The Department of Corrections attempted to justify the administration

of the second dose of lethal chemicals by asserting that Mr. Diaz had a

preexisting liver condition which complicated the lethal injection. However,

counsel for Mr. Diaz (as well as his family) had no knowledge that he

suffered from liver disease. In fact, counsel repeatedly asked Mr. Diaz if he

had any existing medical conditions or if he was taking any drugs. Mr. Diaz

denied such. Counsel for Mr. Diaz requested updated medical records for

Mr. Diaz from the Department of Corrections and argued to this Court that

his own records were particularly relevant to the instant proceedings where

he argued that errors will occur during the execution and that the designated

drugs for carrying out lethal injection will not function as intended under the

protocol, causing unnecessary suffering. The Department of Corrections

objected to providing these records, the lower court sustained the objection

and this Court affirmed. If in fact Mr. Diaz had liver disease, the

counsel, and his family.

During the recent oral argument in Mr. Diaz’s case, this Court

questioned the State regarding ongoing concerns over the lethal injection

procedure. The State responded that nothing had changed since this Court’s

decision in Sims, indicating that if there is newly discovered evidence of a

problem, the lethal injection procedure would need to be looked at again.

Unfortunately, Mr. Diaz’s execution and the eyewitness accounts thereto are

new evidence 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 involves the

unnecessary and wanton infliction of pain contrary to contemporary

standards of decency.

The Department of Corrections and the State have repeatedly objected

to public record requests and requests for evidentiary hearings in all cases in

which a lethal injection challenge is pending. The Department and the State

lodge objections to requests regardless of the posture of the case. Mr.

Lightbourne currently has an appeal pending before this Court asserting that

Florida’s lethal injection statute and the existing procedure by which Florida

carries out executions by lethal injection are unconstitutional under the

punishment. Likewise, all of the named petitioners have constitutional

challenges to lethal injection pending in different postures throughout the

State or will have such challenges filed based on the new evidence of

eyewitness accounts to Mr. Diaz’s execution. Thus, all of the named

Petitioners here have an interest in ensuring that the State of Florida carries

out its executions in a manner comporting with constitutional imperatives.

Petitioners, through undersigned counsel, petition this Court to invoke

its All Writs jurisdiction and address whether the State of Florida’s current

lethal injection procedures, created behind closed doors by an agency

making policy outside the scope of its usual business, involve the

unnecessary and wanton infliction of pain contrary to contemporary

standards of decency in violation of the Eighth Amendment to the U.S.

Constitution and the corresponding provision of the Florida Constitution.

In order to preserve the best evidence of the unnecessary and wanton

infliction of pain caused by the lethal injection procedure used by the State

of Florida, Petitioners respectfully request an immediate order from this

Court enjoining Respondents and their agents from conducting the autopsy

of Angel Nieves Diaz. The Petitioners request that the Court order that the

autopsy be conducted by an independent medical examiner and/or medical

Respondent to grant access to the autopsy by an independent expert and/or

designated representative of Petitioners. Petitioner further requests that this

Court order the medical examiner to produce for inspection and copying the

complete autopsy file and medical examiner’s records of Mr. Diaz’s

autopsy.

Petitioners respectfully request that the Court order the Respondents

to produce for immediate inspection and copying all records previously

requested by Petitioner Lightbourne. Just as Mr. Diaz had, Mr. Lightbourne

sought public records pursuant to Fla. R. Crim. P. 3.852(i). On March 23,

2006, Mr. Lightbourne sent public records requests to the Florida

Department of Corrections, the Office of the Attorney General, and Florida

State Prison. The Department of Corrections filed written objections to Mr.

Lightbourne’s demands, the Office of the Attorney General orally objected

to Mr. Lightbourne’s demands and the lower court ultimately denied Mr.

Lightbourne’s requests. Based on the Department of Corrections’ new

protocol, Petitioner is aware that the Department maintains checklists of

each execution. At the very least, Petitioner requests that the checklist for

Mr. Diaz’s execution be immediately produced.

hear and receive scientifically-reliable evidence regarding the conscious pain

and suffering experienced by the condemned during lethal injection. This

Court has previously remanded for evidentiary hearings in similar

circumstances involving an inmate’s challenge to the method of execution.

See Jones v. Butterworth, 691 So.2d 481 (Fla. 1997); see also Provenzano v.

Moore, 744 So. 2d 413 (1999). Since Petitioner is arguing, as was done in

those cases, that the State is carrying out a criminal sentence in a cruel or

unusual manner, Petitioner’s case should be treated the same and remanded

for an evidentiary hearing.

JURISDICTION

This Court’s All Writs jurisdiction has been previously recognized as

a proper means of raising a challenge to a method of execution. See Jones v.

Butterworth, 691 So.2d 481 (Fla. 1997). A petition to invoke this Court’s

All Writs jurisdiction is an original proceeding in this Court governed by

Fla. R. App. P. 9.100. This Court has original jurisdiction under Fla. R.

App. P. 9.030(a)(3) and Article V, § 3(b)(9), Fla. Const.

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 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 has repeatedly relied on Sims

to deny challenges to lethal injection. See Hill v. State, 921 So. 2d 579 (Fla.

2006), Rutherford v. State, 926 So. 2d 1100 (Fla. 2006); Rolling v. State;

Diaz v. State, 2006 Fla. Lexis 2810 (Fla. Dec. 8, 2006). However, this Court

decided Sims more than six years ago, and it is clear from recent events that

its reliance on Sims is no longer warranted. In Provenzano v. State, 739

So.2d 1150, 1156 (Fla. 1999), Justice Lewis, concurring noted, the need for

"stability in legal precedent to respect the rule of law," but acknowledged,

"that we must never fear confrontation with precedent when the factual

underpinnings of such precedent lack validity." It is inescapable that the

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 finally 240 mg of potassium chloride,

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.). It has been repeatedly argued to this Court, that the use

of this combination of drugs creates a risk that the inmate 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

2006, they were not released to the public or to CCRC until October 17,

28, 2000, did not specify the types of drugs or dosages used. ("2000

Procedures"). They are described in the Florida Supreme Court opinion in

Sims v. State, 754 So. 2d 657 (Fla. 2000).

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.

Both of these concerns regarding insufficient anesthesia and lack of

monitoring became a stark reality during Mr. Diaz’s execution. Eyewitness

move for 24 minutes," "his eyes were open, his mouth opened and closed,

his chest rose and fell," "he winced, his body shuddered," "he squinted his

eyes and tightened his jaw as if in pain" and "he was gasping for air." An

even greater concern lies in the fact that the initial sequence of drugs did not

bring about death. There is no evidence in Sims that the Department of

Corrections contemplated a scenario in which a second set of the lethal

drugs would need to be administered.

A thorough review of the new protocol reveals it is in contrast to the

"select two (2) executioners who are fully capable of performing the

designated functions to carry out the execution." This change causes many

questions and concerns: What capabilities need an executioner possess?

Does a "capable" individual possess any medical training?

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?

additional questions as to the constitutionality of the protocol. The

execution of Mr. Diaz is an example of the protocol failing miserably. It

was clear from the execution of Mr. Diaz that the execution personnel have

no training on what to do in the event that the execution goes wrong. As Mr.

Dupree described:

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? And, specifically in Mr. Diaz’s case, did that

person speak Spanish, Mr. Diaz’s native language?

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?

I observed two members of the DOC staff, one

large black male, and a slightly smaller white male

have several conversations into two separate

phones. The black male had been on one phone

since the initiation of the procedure, and I

observed him hand that phone to the white male

two times. After speaking into the first phone, the

white male picked up a second phone, and had

another conversation. It was apparent that

something was wrong, and it was my observation

that the other DOC staff members in the room

looked uncomfortable at that time.

(See Appendix "E"). It is clear that the Department of Corrections has no

procedure in place to resolve medical issues which may interfere with the

lethal injection process. The state should have disclosed any liver problems

in advance and explained its plans for dealing with them. There is still no

information that the Department of Corrections had a plan.

Based on the representations of the Department following the

was administered or when the second drug sequence began. The eyewitness

accounts were more thorough and detailed than any information the

Department could provide. As reported by the media:

unknown at what times the first and second doses were given because those

Diaz was put to death Wednesday night:

6:00 p.m.: The curtain opens. Angel Diaz gives a

short last statement claiming he is innocent.

6:02: Diaz begins grimacing and seems to speak,

though a microphone is off and none of the

witnesses can hear him.

6:06: Diaz squints his eyes and juts his chin as if in

pain. He continues this for several minutes.

6:12: Diaz's head slips to the right. He coughs

several times and appears to shudder.

6:15: His mouth has appeared to widen and his

breathing is deep.

6:18: A member of the execution team hands a

phone to another member of the team. What they

say on the phone is not revealed. Diaz's mouth and

chin move as he breathes deeply.

6:24: Diaz's mouth and chin slowly stop moving.

His eyes appear fixed.

6:26: His body suddenly jolts. His eyes appear to

be opening more widely. Again, a member of the

execution team gets on the phone.

6:34: A doctor wearing a blue hood that covers his

face enters the execution chamber and checks

Diaz's vital signs. The doctor returns a minute

later, checks the vital signs again and nods to a

member of the execution team.

6:36: A member of the execution team announces

that the sentence of Angel Diaz has been carried

out. The curtain closes.

protocol, there simply is no accountability.

In Provenzano v. State, 739 So.2d 1150 (Fla. 1999), this Court was

troubled that DOC had not followed the protocol established for the

appropriate carrying out of the death penalty. As such the Court "deem[ed]

it appropriate that the results of any and all tests and any other records

generated relating to the operation and functioning of the electric chair be

promptly submitted to this Court, the Attorney General's Office, the regional

offices of the Capital Collateral Regional Counsel (CCRC), and the capital

contemplate an open file policy relating to any information regarding

(emphasis added). There can be no question that an open policy approach is

necessary now. The lethal injection policies and procedures that were

created in secret cannot remain in the dark.

Mr. Diaz’s execution is newly discovered evidence of the pain and

suffering inherent in Florida’s current lethal injection procedure. Experts

need to review reports of observations of previous executions by lethal

injection, including autopsies and toxicology reports and reports of

inmates in Florida have suffered painful and torturous deaths by lethal

injection. Most importantly, because the Department of Corrections and the

State have an interest in seeing that the execution was carried out

successfully and in accordance with the vague protocol that does exist, it is

imperative to have independent review of the failings of Mr. Diaz’s

execution, including an unbiased autopsy.

In order for this Court to discharge its power and duty to determine the

constitutionality of lethal injection, this Court needs an adequate factual

record. Therefore, this Court should appoint a special master to hear

scientifically reliable evidence on the pain and suffering experienced by a

person during lethal injection. As Justice Lewis stated:

We must be ever vigilant to analyze and search for

an understanding of the execution procedures to

make certain that we walk within the boundaries of

constitutional requirements. The indications that

there have been variances from the established

protocol suggest that the mechanism itself must be

subject to question as to its continued validity in

constitutional terms. Recognizing that the people

of this State have enacted law for the ultimate

result of death, it is troubling that the

implementation of the process continues to walk

the edge of constitutional propriety [].

Id. at 1157, Lewis, J., concurring.

For all of the reasons discussed herein, Petitioners respectfully urges

the Court to exercise its All Writs jurisdiction, declare that the State of

Florida’s current lethal injection procedures violate Eighth Amendment to

the U.S. Constitution and the corresponding provision of the Florida

Constitution, enjoin Respondents and their agents from conducting the

autopsy of Angel Nieves Diaz or in the alternative allow Petitioner’s

designated representative to attend the autopsy, and order the Respondents to

produce for immediate inspection and copying all records previously

requested by Petitioner Lightbourne.

I HEREBY CERTIFY that a true and correct copy of the foregoing

has been furnished via facsimile and United States Mail to Kenneth S.

Daytona Beach, Florida 32118, (386) 226-0457, and Charlie Crist, Attorney

General, The Capitol PL-01, Tallahassee, Florida 32399-1050, (850) 410-

1630, on December 14, 2006.

/s/ Suzanne Myers Keffer

________________________

SUZANNE MYERS KEFFER

Assistant CCRC

Florida Bar No. 0150177

OFFICE OF THE CAPITAL

COLLATERAL REGIONAL

COUNSEL

Ft. Lauderdale, FL 33301

(954) 713-1284

COUNSEL FOR APPELLANT

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