ii

This proceeding involves the appeal of the circuit court's

denial of Mr. Lightbourne's motion for post-conviction relief.

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 3.850 appeal to this Court following

the 1990-91 evidentiary hearings;

"PC-R2" -- record on 3.850 appeal to this Court following

the 1995-96 evidentiary hearings;

"PC-R2. Sup." -- supplemental record on 3.850 appeal to

this Court following the 1995-96 evidentiary hearings;

"PC-R3." -- record on 3.850 appeal following the 1999

evidentiary hearing;

"PC-R3. Sup." -- supplemental record on 3.850 appeal to

this Court following the 1999 evidentiary hearing; and

“PC-R4" -- record on 3.850 appeal to this Court following

the denial of Mr. Lightbourne’s 2006 3.851 motion.

All other references will be self-explanatory.

iii

Mr. Lightbourne requests that oral argument be heard in

this case. This Court has not hesitated to allow oral argument

in other capital cases in a similar 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 and the stakes at issue.

iv

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

REQUEST FOR ORAL ARGUMENT .................................. iii

TABLE OF CONTENTS ........................................... iv

TABLE OF AUTHORITIES ........................................ vi

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

STATEMENT OF FACTS ........................................... 9

SUMMARY OF THE ARGUMENTS ..................................... 9

STANDARD OF REVIEW .......................................... 11

ARGUMENT I.................................................. 11

THE LOWER COURT ERRED IN FINDING THAT MR. LIGHTBOURNE’S CLAIM

THAT HE WAS DENIED HIS RIGHT TO CONSULAR NOTIFICATION WAS

PROCEDURALLY BARRED, IN VIOLATION OF ARTICLE 36 OF THE VIENNA

CONVENTION ON CONSULAR RELATIONS............................. 11

A. Introduction. .......................................... 11

B. Mr. Lightbourne’s Vienna Convention claim is not

procedurally barred because it could not have been raised

before...................................................... 15

C. Alternatively, this Court should not apply the procedural

bar rule to Mr. Lightbourne’s Vienna Convention claim. ....... 20

D. Appropriate Remedy. .................................... 29

E. Conclusion. ............................................ 34

ARGUMENT II................................................. 35

THE LOWER COURT ERRED IN DENYING AN EVIDENTIARY HEARING ON MR.

LIGHTBOURNE’S CLAIM THAT FLORIDA’S LETHAL INJECTION STATUTE AND

THE EXISTING PROCEDURE THAT THE STATE USES FOR LETHAL INJECTION

VIOLATE THE EIGHTH AMENDMENT TO THE UNITED STATES CONSTITUTION

AND ARTICLE I, SECTION 17 AND ARTICLE II, SECTION 3 OF THE

FLORIDA CONSTITUTION AS THEY CONSTITUTE CRUEL AND UNUSUAL

PUNISHMENT AND VIOLATE THE SEPARATION OF POWERS DOCTRINE...... 35

v

A. Cruel and Unusual Punishment............................ 35

B. Separation of Powers ................................... 52

ARGUMENT III ................................................ 57

THE LOWER COURT ERRED IN DENYING MR. LIGHTBOURNE’S REQUEST FOR

PUBLIC RECORDS PURSUANT TO FLA. R. CRIM. P. 3.852, IN VIOLATION

OF THE EIGHTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES

CONSTITUTION AND ARTICLE I, §§ 9 AND 17 OF THE FLORIDA

CONSTITUTION................................................ 57

CONCLUSION.................................................. 62

CERTIFICATE OF SERVICE ...................................... 63

CERTIFICATE OF FONT ......................................... 63

vi

Cases

Adam Smith Enterprises, Inc. v. State Dep't of Environmental

Regulation, 553 So. 2d 1260, 1270 (Fla. Dist. Ct. App. 1989) 55

Am. Ins. Ass’n v. Garamendi, 539 U.S. 396, 401, 413-20 (2003). 26

Anderson v. Evans, No. Civ-05-0825-F, (W.D. Okla. Jan. 11,

2006) ..................................................... 50

Anderson v. Glass, 727 So. 2d 1147 (Fla. 5th DCA 1999) ........ 7

Arbelaez v. State, 898 So. 2d 25, 47 (Fla. 2005) ............. 16

Brady v. Maryland, 373 U.S. 83 (1963) ...................... 4, 5

Breard v. Greene, 523 U.S. 371, 377 (1998) ................... 19

Brown v. Beck, No. 5:06-CT-03018-H (E.D. N.C., Western Division,

April 7, 2006)......................................... 49, 50

Case Concerning Avena and Other Mexican Nationals (Mex. v.

U.S.), 2004 I.C.J. No. 128 (Judgment of Mar. 31) (Avena) 17, 18,

19, 20, 21, 24, 25, 26, 28, 29

Cuyler v. Sullivan, 446 U.S. 335 (1980)....................... 3

Dep’t of Highway Safety & Motor Vehicles v. Schluter, 705 So. 2d

81, 83 (Fla. 1st DCA 1997) ................................. 55

Elledge v. State, 911 So. 2d 57 (Fla. 2005) .................. 58

Gaskin v. State, 737 So. 2d 509, 516 (Fla. 1999) ............. 11

Gordon v. State, 863 So. 2d 1215 (Fla. 2003) ............. 15, 26

Hill v. Crosby, 126 S.Ct. 1189 (U.S. 2006) ................... 39

Hill v. McDonough, 2006 U.S. LEXIS 4674 (U.S. 2006) ...... 39, 50

Hill v. State, 921 So. 2d 579 (Fla. 2006) .....35, 51, 52, 58, 59

Hill v. Taft, No. 2:04-cv-1156 (S.D. Ohio, Eastern Division,

April 28, 2006)............................................ 50

Jackson v. Taylor, Civ. No. 06-300-SLR. (D. Del. May 9, 2006). 50

Johnson v. State, 904 So. 2d 412 (Fla. 2005) ................. 58

vii

Lightbourne v. Dugger, 549 So. 2d 1364 (Fla. 1989) ........ 5, 33

Lightbourne v. Dugger, 829 F. 2d 1012, 1035 (11th Cir. 1987)... 4

Lightbourne v. Florida, 465 U.S. 1051 (1984) .................. 2

Lightbourne v. State, 438 So. 2d 380 (Fla. 1983) .............. 2

Lightbourne v. State, 471 So. 2d 27 (Fla. 1985) ........... 3, 33

Lightbourne v. State, 644 So. 2d 54 (Fla. 1994) ............... 5

Lightbourne v. State, 742 So. 2d 238 (Fla. 1999 ............... 6

Lightbourne v. State, No. 96,727.............................. 7

Massiah v. United States, 377 U.S. 201 (1964) ................. 3

Miranda v. Arizona, 384 U.S. 436 (1966)............. 1, 2, 3, 32

Morales v. Hickman, No. C 06 219-JF (N.D. Cal. Feb. 15, 2006) 40,

41

Morales v. Hickman, No. C 06 926 JF RS (N. D. Cal. Feb. 14,

2006) ..................................................... 40

Nooner v. Norris, No. 5:06CV0011OSWW (E.D. AK, June 26, 2006). 50

Ornelas v. U.S., 517 U.S. 690 (1996)......................... 11

Parker v. State, 904 So. 2d 370 (Fla. 2005) .................. 58

Peede v. State, 748 So. 2d 253, 257 (Fla. 1999) .............. 11

Provenzano v. State, 761 So. 2d 1097 (Fla. 2000) ..... 35, 36, 37

Reid v. Johnson, No. Civ. A. 3:03CV1039, August 30, 2004, p. 27-

28) ....................................................... 44

Ring v. Arizona, 536 U.S. 584 (2002).......................... 8

Robinson v. State, 913 So. 2d 514 (Fla. 2005) ................ 58

Rutherford v. Crosby, 126 S.Ct. 1191 (U.S. 2006 .............. 39

Rutherford v. State, 926 So. 2d 1100 (Fla. 2006) ......... 35, 59

Sanchez-Llamas v. Oregon, 126 S. Ct. 2669 (2006) .15, 20, 26, 27,

28, 29

Sims v. State, 754 So. 2d 657 (Fla. 2000) . 35, 36, 37, 38, 39, 53

viii

Sims v. State, 754 So.2d 657 (Fla. 2000) ............. 42, 52, 53

Sochor v. State, 883 So. 2d 766, 789 (Fla. 2004) ......... 35, 37

Stephens v. State, 748 So. 2d 1028 (Fla. 1999) ............... 11

Suggs v. State, 923 So. 2d 419 (Fla. 2005) ............... 35, 37

Taylor v. Crawford, No. 05-4173-CV-C-FJG (W.D. MS, June 26,

2006) ..................................................... 51

Terry v. Ohio, 392 U.S. 1 (1968).............................. 1

United States v. Chapparro-Alcantara, 226 F.3d 616, 622 (7th

Cir. 2000) ................................................ 30

United States v. Henry, 447 U.S. 264 (1980) ................ 2, 4

Statutes

Florida Statutes Chapter 119 ................................. 6

Florida Statutes §021.141 (1981).............................. 1

Florida Statutes §120.52 (2006).............................. 54

Florida Statutes §120.54 (2006).............................. 55

Florida Statutes §120.63 .................................... 56

Florida Statutes §775.082(1) ................................. 1

Florida Statutes §782.04(1) .................................. 1

Florida Statutes §828.058 ................................... 45

Florida Statutes §922.105 ........................... 52, 53, 56

Other Authorities

American Society of Anesthesiologists Task Force on

Intraoperative Awareness” Anesthesiology 2006; 14:847-64, at

848 ................................................... 47, 48

AP, Legal Wranglings Delay California Execution, N.Y. Times,

Feb. 21, 2006.............................................. 40

ix

Article 36 of the Vienna Convention on Consular Relations, (Apr.

24, 1963) .. 11, 13, 14, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25,

26, 27, 28, 29

Article I, Section 17 of the Florida Constitution ........ 52, 55

Article II, Section 3 of the Florida Constitution ........ 52, 53

Correspondence, Robyn S. Weisman et al., 366 THE LANCET 1074

(2005) .........................................39, 41, 43, 52

Eighth Amendment of the United States Constitution ........... 55

Fourteenth Amendment of the United States Constitution ....... 52

LaGrand Case (F. R. G. v. U.S.), 2001 I. C. J. 466 .. 16, 17, 21,

22, 23, 24, 29

So Long as They Die: Lethal Injections in the United States

(April 2006) at 26-27.................................. 44, 48

Rules

Florida Rule of Criminal Procedure 3.852 ................. 57, 59

Florida Rule of Criminal Procedure 3.140(d)(3) ................ 1

1

On April 25, 1981, Mr. Lightbourne was convicted of firstdegree

murder in the circuit court of the Fifth Judicial

Circuit, Marion County (R. 1436), and on May 1, 1981, he was

sentenced to death (R. 1500).

On September 15, 1983, Mr. Lightbourne’s conviction and

appeal: (1) The indictment did not allege the time of the

offense “as definitely as possible” under Florida Rule of

Criminal Procedure 3.140(d)(3), the indictment was overbroad and

vague, and the indictment could be construed as charging only

felony murder and charging only felony murder and proving

premeditated murder is impermissible; (2) The trial court erred

in denying defendant’s second motion to dismiss the indictment

on the grounds that aggravating circumstances to be applied at

the sentencing phase in capital felony cases must be originally

alleged in the indictment in order to confer jurisdiction on a

court to impose a sentence of death; (3) various constitutional

challenges to Florida Statutes 775.082(1), 782.04(1), and

021.141 (1981); (4) Theodore Chavers was acting as an agent of

the state during the time he shared a cell with the defendant

and any statements that the defendant made to Chavers should

have been suppressed because defendant did not know he was

talking to a government agent and such statements were obtained

in violation of his constitutionally guaranteed privilege

against self incrimination and his right to counsel; (5)

Personal items taken from the defendant at the time of his

arrests on the weapons charge should have been held inadmissible

in his trial on the murder charge; (6) Defendant’s detention by

Officer McGowan prior to his arrest on the concealed weapons

charge constituted an illegal stop under the rationale of Terry

v. Ohio, 392 U.S. 1 (1968); (7) Certain videotaped statements

made by defendant should have been held inadmissible under the

rationale of Miranda v. Arizona, 384 U.S. 436 (1966); (8) The

trial court erred in denying defendant’s motion to impose

sanctions under Rule 3.220(j) for the state’s failure to

properly notify defendant of a deposition to be taken of a

listed state witness; and (9) The death sentence was not

2

v. State, 438 So. 2d 380 (Fla. 1983). Justice Overton dissented

and would have granted Mr. Lightbourne a new trial based on a

denied on February 21, 1984. Lightbourne v. Florida, 465 U.S.

1051 (1984).

Mr. Lightbourne thereafter sought post conviction relief on

justified because it was based on inappropriate aggravating

circumstances, the court failed to consider an unenumerated

mitigating circumstance, and the mitigating circumstances

outweighed the aggravating circumstances.

I reluctantly dissent because I find the recent United

States Supreme Court decision in United States v.

Henry, 447 U.S. 264 (1980), mandates a reversal under

the circumstances of this case. A jailhouse informer

was placed in a cell adjacent to appellant’s and was

requested to keep his ears open. The investigating

officer understood that the informant expected

something in return for his information, and the

informant was paid two hundred dollars in cash, in

addition to being released nineteen days early in

return for his services. These factors make the

informant an agent of the state under the dictates of

Henry, which requires suppression of the statements

made by the appellant to the informant in the absence

of Miranda warnings. I find we have no choice but to

grant a new trial.

Id. at 392 (Overton, J., dissenting).

issues: (1) Lightbourne was entitled to the aid of experts; (2)

trial counsel was ineffective at sentencing; (3) trial counsel’s

3

was summarily denied the same day. The Florida Supreme Court

affirmed the summary denial of relief on June 3, 1985.

Lightbourne v. State, 471 So. 2d 27 (Fla. 1985). Justices

Overton, McDonald, and Shaw, dissented. Id. at 29.

Mr. Lightbourne thereafter filed a petition for writ of

habeas corpus in district court on June 3, 1985, which was

Appeals affirmed the denial of federal habeas corpus relief on

treatment of the jailhouse informers was a plain example of

ineffective assistance; (4) trial counsel failed to investigate;

(5) the prosecutor unlawfully struck black jurors; (6) the

evidence was insufficient to sustain the verdict or the penalty;

and (7) trial counsel was ineffective in not seeking jury

sequestration.

that police interrogators violated Miranda v. Arizona, 384 U.S.

436 (1966), in the course of obtaining incriminating statements

during custodial interrogation; (2) that he was denied the right

to the assistance of counsel in violation of Massiah v. United

States, 377 U.S. 201 (1964), and its progeny, by the admission

of incriminating statements made to cellmate Chavers; (3) that

an actual conflict of interest adversely affected his lawyer’s

representation in violation of his right to effective assistance

of counsel under the rationale of Cuyler v. Sullivan, 446 U.S.

335 (1980); (4) that trial counsel was ineffective by the

failure to adequately investigate petitioner’s background and

offer additional evidence of mitigating circumstances at the

sentencing phase; (5) that trial counsel was ineffective in

failing to object to the trial judge’s consideration of the

statements in the PSI report; and (6) trial counsel was

ineffective in failing to request the sequestration of the jury

between conviction and sentencing, but the court wouldn’t

consider the issue because it wasn’t raised in the habeas

petition.

4

September 17, 1986, over the ardent dissent of Judge Anderson,

who found that the Henry violation warranted a resentencing:

[T]he error is not harmless with regard to sentencing.

Chavers’ testimony contained the only direct evidence

of oral sexual assault on the victim as well as the

only graphic descriptions of the sexual attack and

comments by the defendant about the victim’s anatomy.

Since this evidence would support the existence of an

aggravating circumstance, and since it was likely to

have been influential with the jury on the sentencing

issue, I cannot conclude that the testimony was

harmless with regard to sentencing.

Lightbourne v. Dugger, 829 F. 2d 1012, 1035 (11th Cir. 1987)

(Anderson, J., concurring in part and dissenting in part).

On January 27, 1989, Mr. Lightbourne filed a petition for a

On January 30, 1989, Mr. Lightbourne filed his second Rule

Mr. Lightbourne argued that his appellate counsel was

ineffective for failing to raise the following claims: (1) The

sentencing court erred by failing to independently weigh

aggravating and mitigating circumstances; (2) The trial court

erroneously instructed the jury on aggravating circumstances

that were duplicitous; (3) The “especially heinous, atrocious,

or cruel” aggravating factor was unconstitutionally applied; (4)

The “cold, calculated, and premeditated” aggravating

circumstance was unconstitutionally applied; (5) The prosecutor

and the court misled and misinformed the jury concerning their

proper role in the sentencing proceedings; (6) The jury

instructions could reasonably have been read as requiring the

mitigating circumstances to be established beyond a reasonable

doubt; (7) The sentencing instructions unconstitutionally

shifted the burden of proof to the defendant; and (8) The

court's instructions misled the jurors by informing them that a

verdict of life imprisonment had to be rendered by a majority of

the jury.

5

violation with respect to jailhouse informants Chavers and

evidentiary hearing. Lightbourne v. Dugger, 549 So. 2d 1364

(Fla. 1989). Evidentiary hearings were held in circuit court in

1990. The circuit court granted Mr. Lightbourne’s April 17,

1991 motion to reopen the evidentiary hearing, and an additional

hearing was conducted. The circuit court denied relief on June

12, 1992, and Mr. Lightbourne appealed. The Florida Supreme

Court affirmed on June 16, 1994. Lightbourne v. State, 644 So.

2d 54 (Fla. 1994). On January 28, 1995, Mr. Lightbourne filed a

Petition for Writ of Certiorari to the U.S. Supreme Court, which

was denied on March 27, 1995.

On November 7, 1994, Mr. Lightbourne filed a new Rule 3.850

motion requesting another evidentiary hearing to present

8

In this 3.850 motion, Mr. Lightbourne argued (1) that the

state deliberately used false and misleading testimony and

intentionally withheld material exculpatory evidence; (2) that

the State’s unconstitutional use of jailhouse informants to

obtain statements violated Mr. Lightbourne’s constitutional

rights; (3) that he was denied his constitutional rights because

he was tried, convicted, and sentenced to death before a judge

who was not impartial; and (4) that his trial counsel was

ineffective for failing to present mitigating evidence at the

sentencing phase of his trial.

was denied an adversarial testing when critical, exculpatory

6

was held on October 23 and 24, 1995. On February 23, 1996, Mr.

Lightbourne filed a motion to reopen the hearing to present

additional testimony and a motion to disqualify the state

attorney. The circuit court held a hearing on these motions on

March 15, 1996, and denied both motions. The circuit court

denied relief on June 19, 1996. On appeal, the Florida Supreme

Court held that Mr. Lightbourne was not barred from presenting

the testimony of Larry Bernard Emanuel, an inmate who was

incarcerated with Mr. Lightbourne prior to trial, and remanded

“for an evidentiary hearing as to Emanuel’s testimony and for

the trial court to consider the cumulative effect of the posttrial

evidence in evaluating the reliability and veracity of

Chavers’ and Carson’s trial testimony in determining whether a

new penalty phase is required.” Lightbourne v. State, 742 So. 2d

238 (Fla. 1999).

On August 13, 1999, Mr. Lightbourne filed a motion to

evidence was not presented to the jury during the guilt or

penalty phase of his trial, 2) the State’s unconstitutional use

of jailhouse informants to obtain statements violated Mr.

Lightbourne’s Fifth, Sixth, Eighth, and Fourteenth Amendment

rights; 3) access to files and records pertaining to Mr.

Lightbourne’s case in the possession of certain state agencies

has been withheld in violation of Chapter 119, Fla. Stat., and

Mr. Lightbourne cannot prepare an adequate Rule 3.850 motion

until he has received public records materials and been afforded

due time to review those materials and amend; 4) Mr. Lightbourne

is innocent of the death sentence.

7

between his office and the State Attorney’s Office (PC-R3. Supp.

1418-24). On September 28, 1999, Mr. Lightbourne supplemented

his motion to disqualify, arguing that under the authority of

Anderson v. Glass, 727 So. 2d 1147 (Fla. 5th DCA 1999), the

motion had to be granted due to the delay in excess of thirty

(30) days in ruling on the motion, and that no hearing on the

motion was requested (PC-R3. 27-30). On October 12, 1999, with

no ruling still from the trial court, Mr. Lightbourne sought a

writ of prohibition and mandamus from the Florida Supreme Court,

October 14, 1999, the Court ordered the State to respond to the

writ. The response was filed on October 18, 1999 (Id. at 123-

42). On the same day Judge Angel held a hearing on the motion

to disqualify (PC-R3. 79-119) and ultimately denied the motion

(Id. at 118). Two days later, on October 20, 1999, the Florida

Supreme Court denied Mr. Lightbourne’s writ (PC-R3. Supp. 1432).

The evidentiary hearing occurred on December 2, 1999 (PC-R2.

911-1088). On February 26, 2001, the circuit court denied

relief. (Id. at 1395-97).

On March 12, 2001, Mr. Lightbourne filed a 3.850 appeal,

which was denied on January 16, 2003. On June 17, 2003, Mr.

8

Lightbourne filed a Petition for Writ of Certiorari to the U.S.

Supreme Court, which was denied on November 10, 2003.

Mr. Lightbourne thereafter filed a Petition for Writ of

Habeas Corpus to this Court on June 18, 2003, which was denied

filed a Petition for Writ of Certiorari to the U.S. Supreme

Court, which was denied on June 20, 2005.

On February 27, 2006, Mr. Lightbourne filed a successive

Rule 3.851 motion, alleging that his rights under the Vienna

Convention had been violated and that Florida’s lethal injection

statute as well as the existing procedure by which Florida

carries out executions by lethal injection violate the Florida

and U.S. Constitutions (PC-R4. 1-108). A case management

conference was held on April 10, 2006 (PC-R4. 274-326). A

hearing on Mr. Lightbourne’s request for additional public

records was held on April 24, 2006 (PC-R4. 327-355). On May 2,

2006, the circuit court denied Mr. Lightbourne’s Rule 3.851

motion and his demands for additional public records without an

evidentiary hearing (PC-R4. 482-483). On June 1, 2006, Mr.

Lightbourne filed a timely notice of appeal.

capital sentencing procedures, as employed in his case, violated

his Sixth Amendment right to have a unanimous jury return a

verdict addressing his guilt of all the elements necessary for

the crime of capital first degree murder, in violation of Ring

v. Arizona, 536 U.S. 584 (2002).

9

Mr. Lightbourne, a Bahamian citizen, was arrested on

January 24, 1981 for carrying a concealed weapon. While Mr.

Lightbourne was detained pending the concealed weapon charge,

one of his cellmates reported to authorities that Mr.

Lightbourne had made some incriminating statements regarding the

murder of Nancy A. O’Farrell on January 17, 1981. On February

3, 1981, when Mr. Lightbourne was questioned by officials from

the Marion County Sheriff’s Department, he admitted that he

owned the .25 caliber pistol found on his person and that he

owned a rose shaped pendant bearing three Greek letters attached

to a fine gold chain. Mr. Lightbourne was charged with murder

after a ballistics report connected his gun to the homicide.

At no time was Mr. Lightbourne, who speaks with a very

thick Bahamian accent, informed of his right to contact the

Bahamian consulate, and at no time was the Bahamian consulate

notified of Mr. Lightbourne’s arrest and detention. Mr.

Lightbourne’s purported statements to his cellmates and his

statements regarding ownership of the .25 caliber gun and the

gold necklace featured prominently in the State’s case at trial

and were used to obtain a conviction and death sentence.

1. The lower court erred in denying, without an

evidentiary hearing, Mr. Lightbourne’s claim that his rights

10

under the Vienna Convention were violated. The lower court

erred in finding that Mr. Lightbourne’s claim was procedurally

barred. Mr. Lightbourne’s claim could not have been raised

before, and is therefore not procedurally barred.

Alternatively, this Court should not apply the procedural bar

rule to Mr. Lightbourne’s claim because the State of Florida is

obligated to give meaningful review and reconsideration to the

violation of Mr. Lightbourne’s rights under the Vienna

Convention.

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. The lower court erred in denying Mr. Lightbourne’s

demands for additional public records involving Florida’s lethal

injection protocol as the requested records would themselves be

admissible evidence or were reasonably calculated to lead to the

discovery of admissible evidence.

11

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. 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. Peede v. State, 748 So. 2d 253, 257 (Fla. 1999); Gaskin

v. State, 737 So. 2d 509, 516 (Fla. 1999).

In his successive 3.851 motion, Mr. Lightbourne, a Bahamian

citizen, argued that the State of Florida violated his rights

under Article 36 of the Vienna Convention on Consular Relations,

(Apr. 24, 1963), [1970] 21 U.S.T. 77, 100-101, T.I.A.S. No.

reads as follows:

1. With a view to facilitating the exercise of consular

functions relating to nationals of the sending State:

12

24, 1963, and with the unanimous advice and consent of the

Senate, see CONG. REC. 30,997 (Oct. 22, 1969), President Nixon

ratified it on December 24, 1969. See 21 U.S.T. 77,185.

Pursuant to the Vienna Convention, Mr. Lightbourne, a Bahamian

(a) Consular officers shall be free to communicate

with nationals of the sending State and to have access

to them. Nationals of the sending State shall have the

same freedom with respect to communication with and

access to consular officers of the sending State;

(b) If he so requests, the competent authorities of

the receiving state shall, without delay, inform the

consular post of the sending state if, within its

consular district, a national of that state is

arrested or committed to prison or to custody pending

trial or is detained in any other manner. Any

communication addressed to the consular post by the

person arrested, in prison, custody or detention shall

also be forwarded by the said authorities without

delay. The said authorities shall inform the person

concerned without delay of his rights under this subparagraph.

(c) Consular officers shall have the right to visit a

national of the sending State who is in prison,

custody or detention, to converse and correspond with

him and to arrange for his legal representation. They

shall also have the right to visit any national of the

sending State who is inprison, custody or detention in

their district in pursuance of a judgment.

Nevertheless, consular officers shall refrain from

taking action on behalf of a national who is in

prison, custody or detention if he expressly opposes

such action.

2. The rights referred to in paragraph 1 of this Article

shall be exercised in conformity with the laws and

regulations of the receiving State, subject to the proviso,

however, that the said laws and regulations must enable

full effect to be given to the purposes for which the

rights accorded under this Article are intended.

13

citizen, was entitled to consular notification at the time of

his arrest.

Article 36 of the Vienna Convention establishes a system of

rights that enables consular officers to protect nationals who

are detained in foreign countries. Article 36(1)(b) requires

authorities of the detaining state to notify “without delay” a

detained foreign national of his right to request assistance

from the consul of his own state and, if the national so

requests, to inform the consular post of the arrest or

detention, also “without delay.” Article 36(1)(a) and (c)

require the detaining country to permit the consular officers to

render various forms of assistance. Finally, Article 36(2)

directs that the rights in paragraph 1 “be exercised in

conformity with the laws and regulations of the receiving State,

subject to the proviso, however, that the said laws and

regulations must enable full effect to be given to the purposes

for which the rights accorded under this Article are intended.”

The State Department distinguishes between foreign

nationals from countries for which consular notification is at

the foreign national’s option and foreign nationals from

countries for which consular notification is mandatory. The

U.S. has entered into bilateral agreements with numerous

countries under which consular notification of the arrest or

14

detainment of a foreign national from that country is mandatory.

On June 6, 1951, the United States signed a bilateral agreement

with United Kingdom of Great Britain and Northern Ireland, under

which consular notification is mandatory upon the arrest or

international law principles relating to successor states, a

treaty that applied to a country when it was part of another

country may in some circumstances continue to apply to that

country when it becomes independent. The Bahamas declared

independence from the United Kingdom on July 10, 1973. The

State Department lists The Bahamas as a mandatory notification

Mr. Lightbourne argued in his successive 3.851 motion that

the State of Florida violated his rights under Article 36 of the

Vienna Convention by not informing him of his right to contact

the Bahamian Consulate and by not informing the Bahamian

(signed 1951; entered into force 1952) (“A consular officer

shall be informed immediately by the appropriate authorities of

the territory when any national of the sending state is confined

in prison awaiting trial or is otherwise detained in custody

within his district.”).

http://travel.state.gov/pdf/CNA_book.pdf (last accessed

September 15, 2006) (referring to the 1951 Bilateral Agreement

between the U.S. and the United Kingdom of Great Britain).

15

Consulate that he had been arrested. On May 2, 2006, the lower

court denied this claim without an evidentiary hearing:

With respect to the Defendant’s first claim, the

Florida Supreme Court has held that a consular

notification claim is subject to Florida’s procedural

bar rules. Therefore, since this claim could have

been, but was not raised on direct appeal, it is

procedurally barred. Gordon v. State, 863 So. 2d 1215

(Fla. 2003).

Order at 1.

On June 28, 2006, the United States Supreme Court decided

Sanchez-Llamas v. Oregon, 126 S. Ct. 2669 (2006) and held that

states may apply procedural bar rules to Vienna Convention

claims. Mr. Lightbourne’s argument in this appeal is (1) Mr.

Lightbourne’s claim is not procedurally barred because it could

not have been raised before, or (2) in the alternative, this

Court should not apply the procedural bar rule in this case.

Lightbourne could not have raised his Vienna Convention

claim before, for several reasons. First, Mr. Lightbourne did

not know that he had a claim because he was not aware of his

rights under the Vienna Convention, and his lack of knowledge

was directly attributable to the Convention violation itself,

i.e., the failure of law enforcement to notify him of his

rights. Second, the issue was not raised or preserved at trial,

16

and therefore could not have been raised on direct appeal. See

Arbelaez v. State, 898 So. 2d 25, 47 (Fla. 2005) (stating that

"appellate counsel cannot be deemed ineffective for failing to

raise this [Vienna Convention] issue because it was not raised

or preserved at trial"). Third, the International Court of

Justice’s (I.C.J.) interpretation of Article 36 and President

Bush’s implementing memo did not exist at the time of Mr.

Lightbourne’s direct appeal or prior post-conviction proceeding.

The I.C.J. has interpreted Article 36 in two recent cases.

In 2001, the I.C.J. decided LaGrand Case (F. R. G. v. U.S.),

2001 I. C. J. 466 (Judgment of June 27) (LaGrand), a case

involving two brothers, both German citizens, who were arrested,

tried, convicted, and executed in Arizona for committing capital

murder. There was no dispute that the Arizona authorities had

failed to inform the brothers that they could request that the

German Consulate be notified of their arrests. Germany brought

suit in the I.C.J., claiming that the U.S. had “violated the

Id. at ¶ 48 (emphasis added). Agreeing with Germany’s

construction of Article 36, the I.C.J. rejected the U.S.’s

assertion that “rights of consular notification and access under

the Vienna Convention are rights of States, not individuals.”

Id. at ¶ 76.

17

In 2004, the I.C.J. decided the Case Concerning Avena and

Other Mexican Nationals (Mex. v. U.S.), 2004 I.C.J. No. 128

(Judgment of Mar. 31) (Avena), after Mexico argued that the U.S.

had denied 54 Mexican nationals their individual rights under

the Vienna Convention. Citing LaGrand, the I.C.J. again held

that Article 36 creates individual rights in detained foreign

nationals. Id. at ¶ 40. The I.C.J. confirmed that an

individual’s rights under Article 36 “are to be asserted, at any

rate in the first place, within the domestic legal system of the

U.S. was obligated to provide judicial review and

reconsideration of the convictions and sentences of the Mexican

nationals in question, and that procedural default rules may not

be invoked to prevent meaningful review and reconsideration of

cases in which violations of Article 36 have occurred. Id. The

On February 28, 2005, President Bush issued a memorandum

directing that “the United States will discharge its

international obligations under the decision of the [I.C.J.] by

having State courts give effect to the decision in accordance

with general principles of comity in cases filed by the 51

18

Mexican nationals addressed in that decision.” George W. Bush,

Memorandum for the Attorney General (Feb. 28, 2005). Although

the President’s memo referred specifically to the Mexican

nationals involved in the Avena decision, it must apply equally

to Mr. Lightbourne because limiting its application to only

those individuals would violate the Equal Protection Clause of

the Fourteenth Amendment. Furthermore, courts in the U.S.

cannot provide a remedy to Mexican nationals that is not equally

applicable to non Mexicans without violating the United States'

obligations under the Convention on the Elimination of All Forms

of Racial Discrimination, which was ratified by the U.S. Senate

in 1994. Finally, since the I.C.J. clearly stated in Avena that

its judgment should apply to all individuals in similar

circumstances in the U.S., regardless of nationality, the memo

must be read as directing state courts to give effect to the

Avena decision in Mr. Lightbourne’s case.

Mr. Lightbourne could not have raised his claim before

because the triggering event for Mr. Lightbourne’s claim was

President Bush’s memo, which directed state courts to give

effect to the I.C.J.’s Avena decision in the cases of 52

individuals who were identically situated to Mr. Lightbourne.

As the Mexican nationals are now entitled to review and

reconsideration of the Article 36 violations in their cases, so

19

too is Mr. Lightbourne. Prior to the President’s memo, which was

written within a year of the filing of Mr. Lightbourne’s

successive Rule 3.851 motion, Mr. Lightbourne could not have

raised this claim.

Furthermore, recent court decisions may be read to suggest

that if a foreign national is required to show how he was

prejudiced by an Article 36 violation, postconviction

proceedings are a more appropriate forum for claims involving

Article 36 violations than direct appeals. Although the precise

standard of review for violations of Article 36 rights is not

yet clear, both the I.C.J. and the U.S. Supreme Court have

indicated that some showing of prejudice may be required. See

Breard v. Greene, 523 U.S. 371, 377 (1998) (“Even were Breard's

Vienna Convention claim properly raised and proven, it is

extremely doubtful that the violation should result in the

overturning of a final judgment of conviction without some

showing that the violation had an effect on the trial.”); Avena,

at ¶ 121. Proof of prejudice, however, generally requires a

record. If a Vienna Convention violation is not raised or

preserved at trial, there will be no record on which to rely in

raising the issue on direct appeal. Such is the case for Mr.

Lightbourne. Therefore, his claim was properly raised in

postconviction, where he may have the opportunity to develop a

20

record via an evidentiary hearing, and could not have been

raised on direct appeal.

Although the U.S. Supreme Court recently held that state

courts may apply their procedural bar rules in cases involving

violations of Article 36, this Court should provide meaningful

review and reconsideration of the state’s violation of Mr.

Lightbourne’s Article 36 rights, and not apply the procedural

bar rule in his case, for several reasons.

First, while Article 36 itself directs that the rights

contained therein be exercised in conformity with the laws and

regulations of the receiving State, the direction is expressly

subject to the proviso that “the said laws and regulations must

rights accorded under this Article are intended.” Second, the

I.C.J. has interpreted Article 36(2) to preclude the application

of procedural bar rules. Third, President Bush’s memo in

response to the I.C.J.’s Avena decision directs state courts to

give effect to the Avena decision in the case of 51 Mexican

nationals, and the Equal Protection Clause of the Fourteenth

Amendment demands that Mr. Lightbourne not be treated

differently. Fourth, in Sanchez-Llamas v. Oregon, while the

21

U.S. Supreme Court held that states may apply their procedural

bar rules to claims of Article 36 violations, the Court left

open the possibility that state courts could refrain from

applying such rules to give effect to foreign nationals’ rights

under Article 36. Finally, it would be manifestly unfair to

apply the procedural bar rule to Mr. Lightbourne’s Vienna

Convention claim.

Paragraph 2 of Article 36 expressly directs that the rights

created by paragraph 1 “shall be exercised in conformity with

the laws and regulations of the receiving State, subject to the

proviso, however, that the said laws and regulations must enable

full effect to be given to the purposes for which the rights

accorded under this Article are intended.” Vienna Convention on

Consular Relations, (Apr. 24, 1963), [1970] 21 U.S.T. 77, 100-

101, T.I.A.S. No. 6820. The plain meaning of this paragraph is

clear: countries may apply their own procedural rules to claims

involving Article 36 rights, so long as those rules enable full

effect to be given to the purpose for which the rights were

created.

The I.C.J. has twice interpreted Article 36 as prohibiting

the application of procedural bar rules when those rules

preclude full effect from being given to Article 36 rights. See

Avena; LaGrand. Although the U.S. Supreme Court has recently

22

rejected the I.C.J.’s interpretation that procedural bar rules

it is helpful to consider the I.C.J.’s reasoning because the

I.C.J.’s emphasis was on the U.S. providing meaningful review

and reconsideration to Article 36 violations, and the U.S.

Supreme Court has left open the possibility that state courts

may refrain from applying their usual procedural bar rules to

Article 36 claims. See discussion, infra.

The LaGrand case involved a dispute between the United

States and Germany over 1) whether Article 36 creates individual

rights, and 2) whether the application of the procedural default

rule violated Article 36, paragraph 2. The United States

conceded that it had violated Article 36, paragraph 1 by failing

to promptly inform the LaGrand brothers that they could ask that

a German consular post be notified of their arrest and

detention. Id. at ¶ 15. The LaGrands learned of their rights

under Article 36 after their convictions and sentences had been

upheld on direct appeal and in state postconviction, and they

raised the issue for the first time in petitions for writs of

habeas corpus in federal court. Id. at ¶ 22-23. Their claims

were rejected as procedurally defaulted because they had not

raised them in state court. Id.

23

As mentioned supra, the I.C.J. decided in LaGrand that

Article 36, paragraph 1 created individual rights. Id. at ¶ 77.

Furthermore, the I.C.J. decided that in itself, the procedural

default rule used in U.S. courts does not violate Article 36 of

the Vienna Convention. Id. at ¶ 90. Under the circumstances of

the cases involving the LaGrand brothers, however, the

procedural default rule had the effect of preventing “full

effect [from being] given to the purposes for which the rights

accorded under this article are intended,” in violation of

paragraph 2 of Article 36. Id. at ¶ 91.

The U.S. had argued that counsel assigned to the LaGrands

had failed to raise the Article 36 violation in a timely

fashion, but the I.C.J. refused to allow the U.S. to rely on

that fact, “as it was the United States itself which had failed

to carry out its obligation under the Convention to inform the

LaGrand brothers.” Id. at ¶ 60. The I.C.J. reasoned that the

application of the procedural default rule prevented U.S. courts

from attaching any legal significance to the fact that the

LaGrand brothers’ Article 36 rights had been violated and that

violation “prevented Germany, in a timely fashion, from

retaining private counsel for them and otherwise assisting in

their defense as provided for by the Convention.” Id. at ¶ 91.

Therefore, concluded the I.C.J., the application of the

24

procedural default rule prevented “”full effect [from being]

given to the purposes for which the rights accorded under this

article are intended", and thus violated paragraph 2 of Article

36.” Id.

The I.C.J. again had occasion to interpret Article 36 in

its Avena decision in 2004, a case involving 52 Mexican

nationals whose Article 36 rights had been violated. In Avena,

the I.C.J. referred to its conclusion in its LaGrand decision,

that “the procedural default rule prevented counsel for the

LaGrands to effectively challenge their convictions and

sentences other than on United States constitutional grounds”

and declared that “this statement of the Court seems equally

valid in relation to the present case, where a number of Mexican

nationals have been placed exactly in such a situation.” Avena,

at ¶ 112. The I.C.J. emphasized that review and reconsideration

of Article 36 violations must be effective and must take account

of the violation of the rights set forth in Article 36 of the

Vienna Convention. Id. at ¶ 138. The Court also stressed that

“the rights guaranteed under the Vienna Convention are treaty

rights which the United States has undertaken to comply with in

relation to the individual concerned, irrespective of the due

process rights under United States constitutional law.” Id. at

¶ 139.

25

After the I.C.J. decided Avena, and before the United

States withdrew from the Optional Protocol that gave the I.C.J.

jurisdiction to decide Vienna Convention disputes involving the

General declaring that “the United States will discharge its

international obligations under the decision of the [I.C.J.] in

the [Avena] by having State courts give effect to the decision

in accordance with general principles of comity in cases filed

by the 51 Mexican nationals addressed in that decision.” This

memo means that state courts must provide review and

reconsideration of the Article 36 violations in the cases of the

Mexican nationals. Although the memo addresses only the 51

Mexican nationals specifically, it would violate the Equal

Protection Clause of the Fourteenth Amendment to afford such

protections to certain Mexican nationals and not to Mr.

Lightbourne, who is similarly situated. The President’s

determination provides an independent ground under federal law

by which Mr. Lightbourne may enforce his Article 36 rights. The

President’s determination establishes a “binding federal rule”

and hence constitutes the supreme law of the Land. See, e.g.,

A. Annan, Secretary-General of the United Nations (March 7,

2005).

26

Am. Ins. Ass’n v. Garamendi, 539 U.S. 396, 401, 413-20 (2003)

(Presidential foreign policy preempts contrary state law).

This Court has previously found claims involving Article 36

violations which were raised for the first time in

postconviction to be procedurally barred, Gordon v. State, 863

So. 2d 1215 (Fla. 2003). However, based on the combination of

events including the decision of the I.C.J. in Avena and the

President’s memo, this Court should allow meaningful review and

reconsideration to be given to the violation of Mr.Lightbourne’s

Article 36 rights.

In fact, the United States Supreme Court has left it to the

states to apply or not apply procedural default rules to Vienna

Convention claims. After the lower court issued its order

denying Mr. Lightbourne’s Vienna Convention claim, the U.S.

Supreme Court decided Sanchez-Llamas v. Oregon, 126 S. Ct. 2669

(2006), concerning the availability of judicial relief for

violations of Article 36 of the Vienna Convention. Sanchez-

Llamas involved two consolidated non-capital cases of foreign

nationals who had not been informed of their rights under

Article 36. Id. Before his trial, Moises Sanchez-Llamas, a

Mexican national, moved to suppress some incriminating

authorities had failed to comply with Article 36. Id. at 2676.

27

Mario Bustillo, a Honduran national, first raised his claim

involving the failure of authorities to comply with Article 36

in his state habeas petition, after his murder conviction became

final on direct appeal. Id.

The consolidated cases presented three questions to the

U.S. Supreme Court:

may invoke against the detaining authorities in a

criminal trial or in a postconviction proceeding?

suppression of a defendant's statements to police?

treat a defendant's Article 36 claim as defaulted

because he failed to raise the claim at trial?

Id. at 2674. In deciding the cases, the Court held that even

assuming without deciding that the Convention creates judicially

for a violation, and a State may apply its regular procedural

default rules to Convention claims. Id.

While the Court noted that the I.C.J.’s interpretation of

Article 36 deserved “respectful consideration,” it held that it

was not bound by the interpretation that prevented American

courts from applying procedural default rules to Article 36

claims. Importantly, the Court’s holding does not mean that a

the I.C.J. that the Vienna Convention grants rights that may be

invoked by an individual in a judicial proceeding. Sanchez-

Llamas v. Oregon, 126 S. Ct. 2669, 2688, 2691 (2006).

28

rule to Vienna Convention cases. In fact, the Court expressly

recognized that “the United States has agreed to “discharge its

international obligations” in having state courts give effect to

the decision in Avena, [although] it has not taken the view that

the I.C.J.’s interpretation of Article 36 is binding on our

courts.” Id. at 2685, quoting President Bush, Memorandum for

the Attorney General (Feb. 28, 2005). As the Court has left it

to the states to apply or not apply their procedural default

rules in Vienna Convention claims, and as Justice Ginsberg,

concurring, did not foreclose the possibility that there may be

“some times when a Convention violation, standing alone, might

warrant … the displacement of a State’s ordinarily applicable

default rules,” Id. at 2690, this Court should refrain from

applying the procedural bar rule to his claim.

Finally, it would be manifestly unfair to apply the

procedural bar rule to Mr. Lightbourne’s claim where his failure

to raise the issue at trial or on direct appeal is directly

attributable to the Vienna Convention violation of which he

complains, i.e., law enforcement’s failure to notify him of his

Article 36 rights.

29

Although the U.S. Supreme Court in Sanchez-Llamas held that

a violation of Article 36 does not by itself require suppression

of evidence, the decision does not preclude any effective remedy

in other cases if it can be shown that a defendant was actually

prejudiced by the failure to inform him or her of the right to

contact the consulate. 126 S. Ct. 2669 (2006). In Avena, the

ICJ, relying on its LaGrand decision, noted that it was

immaterial whether Mexico would have offered consular

assistance, “or whether a different verdict would have been

rendered. It is sufficient that the Convention conferred these

been acted upon. Based on this holding, Mr. Lightbourne

maintained below that he need not demonstrate what the Bahamian

asserted that it would be helpful to consider what a consular

did indicate to the lower court that if it interpreted existing

precedent to require a showing of prejudice, he was prepared to

do so at an evidentiary hearing. The trial court did not

address whether Mr. Lightbourne was required to prove prejudice.

One of the most important functions of a consul is to serve

as “a cultural bridge for detained nationals who must otherwise

30

navigate through an unfamiliar and often hostile legal system.”

United States v. Chapparro-Alcantara, 226 F.3d 616, 622 (7th

Cir. 2000). Arrested foreign nationals in the U.S. are often

isolated from family and friends, speak English only as a second

language or not at all, and fail to understand their rights

under the U.S. criminal justice system.

Consular assistance for detained nationals generally serves

three basic purposes: providing protective assistance, by

ensuring that foreign nationals are not mistreated in custody;

humanitarian assistance, by providing detainees with access to

the outside world and ensuring that they have the basic

necessities of life; and legal assistance, by advising detainees

on the basic procedures under the local legal system and

providing them with lists of local lawyers to defend them. The

most essential function of the consul in these cases is to

explain to the detainee what their legal rights are and the

differences between the U.S. criminal justice system and that of

the home country—in terms that the foreign national will

understand.

Even in capital cases where a foreign national is familiar

with U.S. criminal justice procedures, the consulate still

provides an indispensable function. Consular assistance in a

capital case may include: monitoring the performance of court31

appointed attorneys; attending court hearings; contacting

friends and family in the home country; ensuring that the

detainee and the defense attorney are in close contact; funding

expert witnesses and investigators, where the courts deny

adequate defense funding; notarizing and conveying documents

from the home country (e.g., medical, educational, military

records); funding mitigation investigations in the home country;

bringing mitigation witnesses to testify; submitting amicus

briefs or motions based on any violations of international law;

participating directly or indirectly in appellate review;

petitioning for clemency; and any other assistance necessary to

ensure that the national receives fair, equal and humane

treatment, both before trial and after sentencing.

Mr. Lightbourne, a Bahamian citizen, was arrested on

January 24, 1981 for carrying a concealed weapon. While Mr.

Lightbourne was detained pending the concealed weapon charge,

one of his cellmates reported to authorities that Mr.

Lightbourne had made some incriminating statements regarding the

murder of Nancy A. O’Farrell on January 17, 1981. On February

3, 1981, when Mr. Lightbourne was questioned by officials from

the Marion County Sheriff’s Department, he admitted that he

owned the .25 caliber pistol found on his person and that he

owned a rose shaped pendant bearing three Greek letters attached

32

to a fine gold chain. Mr. Lightbourne was charged with murder

after a ballistics report connected his gun to the homicide and

witnesses identified the necklace as belonging to the victim.

At no time was Mr. Lightbourne, who speaks with a very

thick Bahamian accent, informed of his right to contact the

Bahamian consulate, and at no time was the Bahamian consulate

notified of Mr. Lightbourne’s arrest and detention. At his

trial, Mr. Lightbourne’s purported statements to his cellmates

and his statements regarding ownership of the .25 caliber gun

and the gold necklace featured prominently in the State’s case

and were used to obtain a conviction and death sentence.

Had Mr. Lightbourne been informed of his rights under the

Vienna Convention, there is a likelihood that contact with

consulate would have resulted in assistance. With regard to the

statements and admissions made by Mr. Lightbourne, consular

assistance would have proved critical in several ways. The very

obvious assistance would have been to explain the importance of

legal representation prior to making such statements or waiving

his right to counsel during his initial conversations with law

enforcement. Further, consular assistance would have been vital

in challenging the voluntariness of his statements and the

33

have provided information crucial to assessing the totality of

the circumstances before the trial court at Mr. Lightbourne’s

would have been suppressed.

Additionally, assistance from the Bahamian consulate would

have been vital in the investigation of mitigation and the

presentation of mitigating circumstances at the penalty phase.

Most importantly, notification and the subsequent involvement of

the Bahamian consulate would have curtailed the ineffectiveness

of trial counsel. Instead, Mr. Lightbourne’s attorney’s failed

to present any meaningful mitigation.

Mr. Lightbourne has asserted throughout his postconviction

proceedings that his trial counsel was ineffective for failing

to present mitigating evidence at the sentencing phase of his

trial. See, Lightbourne v. State, 471 So. 2d 27 (Fla. 1985);

see also, Lightbourne v. Dugger, 549 So. 2d 1364 (Fla. 1989).

For example, Mr. Ligthbourne has previously alleged that trial

counsel never obtained any records pertaining to Mr. Lightbourne

such as school records or medical records. The Bahamian

motions including a motion to suppress the videotaped statement

of the accused, motion to suppress the statements of state

witness Theodore Chavers on the grounds that he interfered with

the right to counsel, motion to suppress the statement of

Theophilous Carson and motion to suppress items seized from the

personal property of the accused at the Marion County Jail.

34

consulate would have been able to assist in obtaining these

types of documents. Additionally, family and friends located in

the Bahamas were not contacted by trial counsel. The consulate

would have been able to assist in locating, contacting and

bringing forth the witnesses to testify. Trial counsel himself

has indicated that he was not provided funds to travel to the

Bahamas to investigate or secure relevant information. The

consulate would have been an invaluable resource given the

restraints placed on trial counsel.

The record in Mr. Ligthbourne’s case does not conclusively

refute that Mr. Lightbourne was not notified of his rights under

the Vienna convention and that prejudice ensued. This Court

should remand this case to the circuit court for an evidentiary

hearing on Mr. Lightbourne’s claim to allow him to present

evidence of how he was prejudiced by the violation of his

Article 36 rights.

The lower court’s order finding Mr. Lightbourne’s Vienna

Convention claim procedurally barred is erroneous. This Court

should reverse the lower court’s order and remand this case for

an evidentiary hearing.

35

In his successive 3.851 motion, Mr. Lightbourne 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), and Rutherford v. State, 926 So. 2d 1100

(Fla. 2006), 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. Lightbourne cruel and unusual punishment. The lower court

denied an evidentiary hearing on this claim, stating that:

With respect to the Defendant’s second claim, the

Florida Supreme Court has consistently held that

Florida’s lethal injection process is constitutional.

Suggs v. State, 923 So. 2d 419 (Fla. 2005). See,

e.g., Sochor v. State, 883 So. 2d 766, 789 (Fla. 2004)

(rejecting claims that both electrocution and lethal

injection are cruel and unusual punishment);

Provenzano v. State, 761 So. 2d 1097 (Fla. 2000)

(concluding that execution by lethal injection does

not amount to cruel and/ or unusual punishment); and

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

that execution by lethal injection is not cruel and

unusual punishment).

36

Order at 2.

The lower court’s order is erroneous. The lethal injection

claims in Ernest Suggs’s and Dennis Sochor’s 3.850 motions were

summarily denied without evidentiary hearings. 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.

Similarly, in Provenzano v. State, 761 So. 2d 1097, 1099

(Fla. 2000), this Court affirmed a circuit court’s finding that

Florida’s lethal injection procedure does not constitute cruel

and unusual punishment. There, after the Governor had signed a

death warrant for Thomas Provenzano, a circuit court granted Mr.

Provenzano a two-day evidentiary hearing on his claim that the

lethal injection method used by the State of Florida in Bennie

Demps’s execution then-recent execution constituted cruel and

unusual punishment. Id. at 1098. After hearing testimony from

eyewitnesses to the Demps execution, the circuit court held that

the lethal injection procedure did not constitute cruel and

unusual punishment and this Court affirmed. Id. Notably, the

37

circuit court excluded testimony from members of the execution

team, as well as evidence regarding their qualifications. Id.

at 1099.

The lower court’s reliance State v. Suggs, State v. Sochor,

State v. Provenzano, and State v. Sims is misplaced as these

cases are no longer applicable in light of new scientific

evidence discussed infra. Furthermore, Provenzano does not

control this case because of the very nature of Mr.

Lightbourne’s claim. As recent research shows, a conclusion

that a lethal injection procedure does not constitute cruel and

unusual punishment cannot be based on the testimony of

eyewitnesses to an execution by lethal injection. As explained

infra, one of the major problems with the lethal injection

procedure is that while the condemned remains conscious as he

suffers the excruciating pain of chemicals burning through his

veins and then a massive heart attack, he is completely

paralyzed and unable to communicate his consciousness. Despite

the agonizing pain that the inmate suffers as he remains

conscious, the chemicals used in Florida’s lethal injection

procedure ensure that eyewitnesses observe what appears to be a

humane and painless death.

This Court decided Sims and Provenzano more than six years

ago. As Mr. Lightbourne argued in his 3.851 motion, a large

38

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 out under

Florida’s protocol. The lower court failed to consider any of

the new research and thus, erred in denying Mr. Lightbourne 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. Lightbourne 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. Lightbourne.

In Sims v. State, this Court summarized Florida’s lethal

injection protocol:

In all, a total of eight syringes will be used,

each of which will be injected in a consecutive order

into the IV tube attached to the inmate. The first two

syringes will contain “no less than” two grams of

sodium pentothal, an ultra-short-acting barbiturate

which renders the inmate unconscious. The third

syringe will contain a saline solution to act as a

flushing agent. The fourth and fifth syringes will

contain no less than fifty milligrams of pancuronium

bromide, which paralyzes the muscles. The sixth

syringe will contain saline, again as a flushing

agent. Finally, the seventh and eighth syringes will

contain no less than one-hundred-fifty

milliequivalents of potassium chloride, which stops

the heart from beating.

39

compelled to file his recent 3.851 motion by several recent

developments which lead him to conclude that the use of the

above combination of drugs creates a risk that Mr. Lightbourne

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. The developments relied

upon by Mr. Lightbourne in his Rule 3.851 motion included (1) an

April 16, 2005 article published in the medical journal THE

LANCET, (2) a September 25, 2005 letter from Dr. Richard Weisman

to THE LANCET, (3) the U.S. Supreme Court’s January 2006 grant

of stays of execution in two Florida capital cases and grant of

a writ of certiorari in one of those cases to hear a § 1983

(4), on February 14, 2006, a California district court judge

been unable to obtain a copy of Florida’s written lethal

injection protocol, and therefore Mr. Lightbourne has no way of

knowing whether the protocol has changed since 2000.

of execution in two Florida capital cases, Hill v. Crosby, 126

S.Ct. 1189 (U.S. 2006); Rutherford v. Crosby, 126 S.Ct. 1191

(U.S. 2006), and granted of a writ of certiorari in Hill to

decide whether a § 1983 claim is a proper format for challenging

Florida’s lethal injection procedure. The Court subsequently

held that Hill could proceed with a § 1983 challenge. Hill v.

McDonough, 2006 U.S. LEXIS 4674 (U.S. 2006).

40

requiring the state to change its lethal injection procedure

before proceeding with an execution, because of concerns that

lethal injection as administered poses a substantial risk of

death 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. Morales v. Hickman, No. C 06 926 JF

RS (N. D. Cal. Feb. 14, 2006) (PC-R4 59-73). California’s

lethal injection protocol uses the same combination of three

drugs as Florida, but provides for 5 grams of sodium thiopental,

in contrast to Florida’s 2 grams.

U.S. District Court Judge Jeremy Fogel ordered that the

State could proceed with the execution scheduled for February

21, provided that it 1) certify that it will use only sodium

thiopental or another barbiturate or combination of

barbiturates in Morales’s execution, or 2) agree to

independent verification, through direct observation and

examination by a qualified individual or individuals, in a

manner comparable to that normally used in medical settings

where a combination of sedative and paralytic medications is

administered, that Morales in fact is unconscious before

either pancuronium bromide or potassium chloride is injected.

Id.

The State of California opted to have two anesthesiologists

present for the execution. See Defendants’ Response to Court’s

Conditional Denial of Preliminary Injunction, in Morales v.

Hickman, No. C 06 219-JF (N.D. Cal. Feb. 15, 2006). The

anesthesiologists scheduled to monitor the execution, however,

backed out at the last minute, citing ethical concerns. See AP,

Legal Wranglings Delay California Execution, N.Y. Times, Feb.

21, 2006. The American Medical Association, the American

Society of Anesthesiologists and the California Medical

Association all opposed the anesthesiologists’ participation as

unethical and unprofessional. Id.

The State of California then chose 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 Judge Fogel to

prevent a botched and painful execution. Judge Fogel ordered

41

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 Execution, 365

THE LANCET 1412 (2005) (PC-R4. 49-51). 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. The authors found that in toxicology reports in the

cases they studied, post-mortem concentrations of thiopental in

the blood were lower than that required for surgery in 43 of 49

executed inmates (88%). Moreover, 21 of the 49 executed inmates

(43%) had concentrations consistent with awareness, as the

inmates had an inadequate amount of sodium thiopental in their

bloodstream to provide anesthesia. In other words, in close to

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)

(PC-R4. 75-78).

An evidentiary hearing on whether California’s lethal

injection protocol constitutes cruel and unusual punishment is

scheduled for late September 2006.

42

half of the cases, the prisoner may have felt the suffering of

suffocation from pancuronium bromide, and the burning through

the veins followed by the heart attack caused by the potassium

chloride. The chemicals used in Florida executions are

identical to those used by the states included in the study.

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

Sodium thiopental, also known as sodium pentothal, is an

ultra-short acting barbiturate that produces shallow anesthesia.

Healthcare professionals use it as an initial anesthetic in

preparation for surgery while they set up a breathing tube in

the patient and then use different drugs to create a “surgical

plane” of anesthesia to last through the operation and block the

stimuli of surgery which would otherwise cause pain. Sodium

thiopental is intended to be defeasible by stimuli associated

with errors in setting up the breathing tube and initiating the

wake up and signal that something is wrong. Sodium thiopental

is unstable in liquid form, and must be mixed up and applied in

a way that requires the expertise associated with licensed

healthcare professionals who cannot by law and professional

ethics participate in executions.

The authors of the study note that it is simplistic to

assume that 2 to 3 grams of sodium thiopental will assure loss

43

of sensation, especially considering that personnel

administering it are unskilled, that the execution could last up

to 10 minutes, and that people about to be executed are

extremely anxious and their bodies are flooded with adrenaline,

thus necessitating more of the drug to render them unconscious.

In a 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

(2005) (PC-R4. 53). According to Dr. Weisman, 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 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 dosages used in clinical practice cannot be

44

extrapolated to determine their effects on inmates during

execution.

The second chemical used in lethal injection in Florida is

pancuronium bromide, sometimes referred to simply as pancuronium

or by its trade name, Pavulon, a chemical that paralyzes the

muscles but has no anesthetic effect and that also 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.

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 Human Rights Watch report, So Long

as They Die: Lethal Injections in the United States (April 2006)

at 26-27, available at http://hrw.org/reports/2006/us0406/

index.htm (last visited September 20, 2006) (“The pancuronium

will prevent motor manifestations of physiological processes

that could be perceived by witnesses as unpleasant or suffering

on the part of the inmate.”) (quoting Testimony of Dr. Mark

Dershwitz, Reid v. Johnson, No. Civ. A. 3:03CV1039, August 30,

2004, p. 27-28).

45

The American Veterinary Medical Association (AVMA) panel on

euthanasia specifically prohibits the combination of

pentobarbital with a neuromuscular blocking agent to kill

animals because of the risk of unrecognized consciousness. 2000

Report of the American Veterinary Medical Association (AVMA)

Panel on Euthanasia, 218 J. Am. Veterinary Med. Ass'n 669, 680.

(March 1, 2001). (PC-R4. 80-107). Pentobarbitol is an

intermediate-acting anesthetic with a half-life of many hours,

which means that its effects last much longer than the ultrashort

acting sodium thiopental.

The use of sodium thiopental in combination with a

neuromuscular blocking agent would certainly be even more

unacceptable under the AVMA standards because of the increased

risk (compared with pentobarbital) that an animal would regain

consciousness after the ultra-short acting anesthetic wears off.

Additionally, 19 states have expressly or implicitly prohibited

the use of a neuromuscular blocking agent in animal euthanasia

because of the risk that it would prevent veterinarians from

detecting consciousness in animals.

Section 828.058, Florida Statutes, prohibits the use of

paralyzing agents in euthanizing dogs and cats. The statute

also specifies that only sodium pentobarbital or another agent

approved by rule by the Board of Veterinary Medicine may be used

46

in euthanizing dogs or cats. The statute also specifies the

training required for an individual performing euthanasia.

Therefore, the protocol used in Florida to execute condemned

inmates would be illegal to euthanize a dog or cat.

The third chemical used in Florida lethal injections is

potassium chloride, which is the substance that causes the death

of the prisoner. It burns intensely as it courses through the

veins toward the heart and causes massive muscle cramping before

inducing cardiac arrest when it reaches the heart. Without

adequate anesthesia, the condemned would feel the intense

burning and the pain of a heart attack, but is unable to

communicate his pain because the pancuronium bromide has

paralyzed his entire body so that he cannot express himself

either verbally or otherwise.

Since Mr. Lightbourne filed his 3.851 motion, there have

been even more developments which underscore the importance of

Mr. Lightbourne’s need for an evidentiary hearing on this claim.

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

http://www.chickashanews.com/malicoat/local_story_233142149.html

47

(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

http://www.nytimes.com/2006/08/30/us/30brfs-003.html (August 30,

2006).

Awareness under anesthesia is a phenomenon known to happen

during surgery when a patient is insufficiently sedated and

becomes conscious during surgery. When the patient has been

given a paralyzing agent, the patient is unable to alert

surgical staff that the sedation has worn off. Survivors of

anesthetic awareness describe the experience as nightmarish and

horrifying. The American Society of Anesthesiologists has

issued a practice advisory:

Intraoperative awareness occurs when a patient becomes

conscious during a procedure performed under general

anesthesia and subsequently has recall of these

events.

American Society of Anesthesiologists, “Practice Advisory for

Intraoperative Awareness and Brain Monitoring: A Report by the

American Society of Anesthesiologists Task Force on

848. The report advises:

48

Intraoperative monitoring of depth of anesthesia, for

the purpose of minimizing the occurrence of awareness,

should rely on multiple modalities, including clinical

purposeful or reflex movement) and conventional

monitoring systems (e.g., electrocardiogram, blood

pressure, HR, end-tidal anesthetic analyzer,

capnography). The 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:

[U]ntil each state convenes a blue ribbon panel of

medical, scientific, legal, judicial, and correctional

experts authorized to review and recommend changes to

lethal injection execution protocols as necessary to

ensure the protocol adopted causes the inmate the

least possible pain and suffering.

Finally, 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. In North

Carolina, a federal district court conditionally denied an

inmate’s motion for a preliminary injunction:

[O]n the condition that there are present and

accessible to Plaintiff throughout the execution

personnel with sufficient medical training to ensure

that Plaintiff is in all respects unconscious prior to

and at the time of the administration of any

pancuronium bromide or potassium chloride. Should

Plaintiff exhibit effects of consciousness at any time

49

during the execution, such personnel shall immediately

provide appropriate medical care so as to insure

Plaintiff is immediately returned to an unconscious

state.

Order, Brown v. Beck, No. 5:06-CT-03018-H (E.D. N.C., Western

Division, April 7, 2006) (PC-R4. 230-244). It is notable that

the original North Carolina protocol called for 3000 mg of

sodium pentothal, a higher dose than the 2 grams (2000 mg)

called for in Florida.

In response, the North Carolina Department of Corrections

implemented the following changes to their lethal injection

procedure. The Defendants purchased a bispectral index monitor

(“BIS monitor”), a diagnostic device approved by the Food and

Drug Administration (“FDA”) that is used extensively in clinical

settings to ensure the unconsciousness of surgical patients;

revised the execution protocol to utilize the BIS monitor to

measure the Plaintiff’s level of consciousness throughout the

execution procedure; revised the execution protocol to provide

for the administration of additional quantities of sodium

pentothal beyond the initial dose of not less than 3000 mg, if

the Plaintiff, based on the readings of the BIS monitor, has not

been rendered unconscious; and revised the execution protocol to

insure that Plaintiff is in fact unconscious, as measured by the

BIS monitor, prior to the administration of any pancuronium

50

bromide. See Defendant’s Notice and Response to 7 April 2006

Order, Brown v. Beck, (April 12, 2006) (PC-R4. 356-360).

A number of federal district courts have granted stays of

execution in response to lethal injection challenges. See,

e.g., Order, Jackson v. Taylor, Civ. No. 06-300-SLR. (D. Del.

May 9, 2006); Order Granting Preliminary Injunction, Hill v.

Taft, No. 2:04-cv-1156 (S.D. Ohio, Eastern Division, April 28,

2006). See also Order, Anderson v. Evans, No. Civ-05-0825-F,

Anderson v. Evans, (Dec. 20, 2005), (district court accepted in

its entirety a Magistrate Judge’s report finding that deathsentenced

inmates stated a valid claim 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). Subsequent to the U.S.

Supreme Court’s decision allowing a condemned Florida inmate to

go forward with a § 1983 challenge to Florida’s lethal injection

protocol, Hill v. McDonough, 2006 U.S. LEXIS 4674 (U.S. 2006),

two courts have granted relief in response to such challenges.

See, e.g., Order, Nooner v. Norris, No. 5:06CV0011OSWW (E.D. AK,

June 26, 2006) (granting inmate plaintiff’s motion for stay of

execution and preliminary injunction in § 1983 action); Order,

Taylor v. Crawford, No. 05-4173-CV-C-FJG (W.D. MS, June 26,

51

2006) (granting relief on inmate plaintiff’s § 1983 claim and

staying all executions in the state pending approval of protocol

incorporating provisions for monitoring of inmate’s

consciousness by board certified anesthesiologist); see also

Order, Taylor v. Crawford, No. 05-4173-CV-C-FJG (W.D. MS,

September 12, 2006) (rejecting Missouri’s revised protocol and

ordering the state to submit another revised protocol on or

before October 27, 2006).

While the circuit court did not rely on this Court’s

decision in Hill v. State, 921 So. 2d 579 (Fla. 2006), it is

important to distinguish Hill from Mr. Lightbourne’s case. This

Court’s decision in Hill v. State does not preclude this Court

from reversing the lower court’s order denying an evidentiary

hearing on Mr. Lightbourne’s lethal injection claim. The

procedural posture of Hill was different from that of Mr.

Lightbourne’s claim as Mr. Hill was under a death warrant. Mr.

Lightbourne is not under warrant and his claim was a timely

filed Rule 3.851 claim. Further, the Hill opinion addressed

only the constitutionality of sodium thiopental as a lethal

injection agent. This Court did not address the use of

pancuronium bromide and potassium chloride, the second and third

drugs used in Florida’s lethal injection protocol. The Hill

opinion also did not address Dr. Weisman’s September 24, 2005

52

letter to THE LANCET (discussed supra) or the American Veterinary

Medical Association’s euthanasia standards.

Since the scientific research described here was all

conducted based on the lethal injection protocols and executions

in other states, an evidentiary hearing is necessary to prove

that this research also applies to lethal injections under

Florida’s protocol. The lower court erred in denying an

evidentiary hearing on this claim because Sims and Hill do not

control the issue and because Mr. Lightbourne’s claim required a

factual determination. This Court should reverse the lower

court’s order and remand the case for an evidentiary hearing on

Mr. Lightbourne’s lethal injection claim.

In his 3.851 motion, Mr. Lightbourne argued that Florida’s

lethal injection statute, Section 922.105, Florida Statutes,

violates Article II, section 3 and Article I, section 17 of the

Florida Constitution and the Fourteenth Amendment of the United

States Constitution because it is an unlawful delegation the

legislature’s lawmaking power. Mr. Lightbourne’s argument was

twofold: the delegation is unlawful because the legislature did

not give the Department of Corrections sufficient standards

formulated for guidance to create a rule of lethal injection

protocol, and/or because the legislature’s exemption of policies

53

and procedures relating to the lethal injection protocol from

the constraints and procedures of Florida’s Administrative

Procedure Act, without offering alternative procedures, gives

the Department of Corrections unfettered discretion to create a

lethal injection protocol.

The lower court denied this claim, finding that:

No court has held that the lethal injection statute is

an unconstitutional delegation of legislative

authority. See Sims v. State, 754 So. 2d 657 (Fla.

2000).

Order at 2.

The lower court’s order is erroneous and its reliance on

Sims is again misplaced. In Sims, this Court found that the

legislature’s failure to define the chemicals to be administered

in the lethal injection did not necessarily render the statute

unconstitutional, but Terry Sims did not raise, and this Court

did not consider, the argument that the legislature’s explicit

exemption of the policies and protocols from the procedural

safeguards of the Administrative Procedure Act gave the

Department of Corrections unfettered discretion to legislate, in

violation of Article II, section 3 of the Florida Constitution.

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

Section 922.105, Florida Statutes, violates the Separation

of Powers clause of the Florida Constitution because it

delegates to the DOC the complete power to create policies and

54

procedures for lethal injection and exempts the making of such

policies and procedures from the requirements of Chapter 120,

Laws of Florida, Florida’s Administrative Procedure Act (APA).

Absent the statutory exemption, the DOC policies and procedures

would fall under the definition of a “Rule” under the APA. §

(15) "Rule" means each agency statement of

general applicability that implements, interprets, or

prescribes law or policy or describes the procedure or

practice requirements of an agency and includes any

form which imposes any requirement or solicits any

information not specifically required by statute or by

an existing rule. The term also includes the amendment

or repeal of a rule. The term does not include:

(a)Internal management memoranda which do not affect

either the private interests of any person or any plan

or procedure important to the public and which have no

application outside the agency issuing the memorandum.

(b) Legal memoranda or opinions issued to an

agency by the Attorney General or agency legal

opinions prior to their use in connection with an

agency action.

(c) The preparation or modification of:

1. Agency budgets.

2. Statements, memoranda, or instructions to

state agencies issued by the Chief Financial Officer

or Comptroller as chief fiscal officer of the state

and relating or pertaining to claims for payment

submitted by state agencies to the Chief Financial

Officer or Comptroller.

3. Contractual provisions reached as a result

of collective bargaining.

4. Memoranda issued by the Executive Office of

the Governor relating to information resources

management.

55

formal or informal rulemaking requirements of the APA, including

notice, comments/ and or a hearing, and a complete rulemaking

record. See § 120.54, Fla. Stat. (2006). The rulemaking

procedures of the APA are designed to ensure that an agency is

informed to its fullest before making a rule on a particular

subject. See Adam Smith Enterprises, Inc. v. State Dep't of

Environmental Regulation, 553 So. 2d 1260, 1270 (Fla. Dist. Ct.

App. 1989).

While the State may argue that the lethal injection

protocols do not have general application because they apply

only to those inmates under sentence of death, this argument

would not be persuasive. The protocols apply uniformly to all

inmates under sentence of death, without exception. See Dep’t of

Highway Safety & Motor Vehicles v. Schluter, 705 So. 2d 81, 83

(Fla. 1st DCA 1997).

Similarly, the lethal injection policies and procedures

cannot be construed as internal management memoranda which do

not affect either the private interests of any person or any

plan or procedure important to the public and which have no

application outside the agency issuing the memoranda. The

lethal injection protocols address the tremendous task of

carrying out a sentence of death. The DOC is charged with

accomplishing this task without violating the Eighth Amendment

of the United States Constitution or Article I, section 17 of

the Florida Constitution. Ensuring that the State complies with

the Constitution is an interest in which all Florida citizens

have a stake, not just those under a sentence of death.

Therefore, it cannot be said that the lethal injection protocols

are internal management memoranda which do not affect either the

private interests of any person or any plan or procedure

important to the public and which have no application outside

the agency issuing the memoranda. See Dep’t of Highway Safety &

Motor Vehicles v. Schluter, 705 So. 2d 81, 83 (Fla. 1st DCA

1997).

56

In Section 922.105, Florida Statutes, the Legislature has

given the DOC unfettered discretion to devise a method by which

to execute a human being in a manner that complies with the

Eighth Amendment – a task which clearly requires specialized

do so behind closed doors, without the safeguards that the APA

rulemaking procedures provide and without providing any

alternative procedures to ensure that the DOC makes its policies

The lower court erred in denying Mr. Lightbourne’s claim.

Mr. Lightbourne asks this Court to reverse the lower court’s

order and remand this case for an evidentiary hearing on the

claim so that Mr. Lightbourne will not be executed using a

procedure that was created behind closed doors by an agency

making policy outside the scope of its usual business, that will

likely involve the unnecessary and wanton infliction of pain

contrary to contemporary standards of decency (see Argument IIA,

Administration Commission to exempt any process or proceeding of

an agency governed by the APA from one or more requirements of

the APA, but the Commission may not exempt an agency from any

requirement of the APA under this section until “it establishes

alternative procedures to achieve the agency's purpose which

shall be consistent, insofar as possible, with the intent and

purpose of the act.” Id. It stands to reason that the

Legislature should have provided the DOC with alternative

procedures by which to create an informed and unbiased rule of

lethal injection.

57

supra), and that Mr. Lightbourne has been prevented from

challenging effectively because the lethal injection policies

and procedures that were created in secret still remain in the

dark (see Argument III, infra).

After filing his successive 3.851 motion, 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, and on April 24, 2006, the lower court held a hearing

at which the Office of the Attorney General and the Department

of Corrections orally objected to Mr. Lightbourne’s demands.

The lower court refrained from ruling on the requests and

objections at that time.

On May 2, 2005, the lower court issued an order denying Mr.

Lightbourne’s 3.851 motion as well as his public records

requests. The lower court based its denial of the public

records requests on its denial of the 3.851 motion:

58

Since the Defendant’s motion fails to present any

issue requiring evidentiary hearing, his demands for

additional public records would be moot, as there is

no issue before the Court to be tried, and the

Defendant has failed to show how it could be

reasonably calculated to lead to the discovery of

admissible evidence. See Robinson v. State, 913 So.

2d 514 (Fla. 2005); Elledge v. State, 911 So. 2d 57

(Fla. 2005); Johnson v. State, 904 So. 2d 412 (Fla.

2005); and Parker v. State, 904 So. 2d 370 (Fla.

2005).

Order at 2.

This Court applies the “abuse of discretion” standard when

reviewing 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).

While the Assistant Attorney General and the Department of

Corrections objected to the requests as being overly broad,

unduly burdensome, and irrelevant, the lower court did not find

them to be so. Rather, the lower court denied Mr. Lightbourne’s

requests for public records on the basis that (1) such requests

were moot because Mr. Lightbourne failed to present any issue

requiring an evidentiary hearing, and thus there was no issue

before the Court to be tried, and (2) Mr. Lightbourne failed to

59

show how his requests for public records were reasonably

calculated to lead to the discovery of admissible evidence.

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. Lightbourne is not

under warrant, and therefore his records requests fall under

Fla. R. Crim. P. 3.852(i).

As to the first basis, the lower court erred in denying Mr.

Lightbourne’s claim that Florida’s lethal injection procedure is

unconstitutional. See Argument I, supra. As to the second

basis, the lower court abused its discretion in finding that Mr.

Lightbourne failed to establish that the additional public

records are either relevant to the subject matter of the

postconviction proceeding or are reasonably calculated to lead

to the discovery of admissible evidence. 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,

60

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.

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. Lightbourne’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. Lightbourne’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 will occur and

that the designated drugs will not function as intended under

the protocol, causing unnecessary suffering.

61

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. Lightbourne’s

expert witnesses be able to testify fully and fairly.

Since the lethal injection protocol itself would be

admissible evidence, 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.

62

The lower court abused its discretion in denying Mr.

Lightbourne’s public records requests because no reasonable

person would take the view adopted by that court. Effective

collateral representation has been denied Mr. Lightbourne

because of the lower court’s erroneous denial of his request for

pertinent public records. This Court should remand the case to

the circuit court for full public records disclosure and to

permit amendment of his Rule 3.851 motion based on future

records received.

In light of the foregoing arguments, Mr. Lightbourne

submits that he is entitled to have the lower court’s order

reversed and his case remanded to the circuit court for an

evidentiary hearing on his claims.

63

I HEREBY CERTIFY that a true and correct copy of the

foregoing has been furnished by United States Mail to Kenneth S.

Floor, Daytona Beach, FL 32118 and Rock E. Hooker, Assistant

State Attorney, 19 NW Pine Avenue, Ocala, FL 34475on September

21, 2006.

_____________________________

SUZANNE MYERS KEFFER

Assistant CCRC

Florida Bar No. 0150177

ANNA-LIISA JOSELOFF

Staff Attorney

Florida Bar No. – Pending

OFFICE OF THE CAPITAL

COLLATERAL REGIONAL COUNSEL

Ft. Lauderdale, FL 33301

(954) 713-1284

COUNSEL FOR APPELLANT

Counsel certifies that this brief is typed in Courier 12-

point font.