MOTION FOR REHEARING AND/OR CLARIFICATION. Defendant, IAN DECO LIGHTBOURNE, by and through undersigned counsel,

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1 IN THE CIRCUIT COURT OF THE FIFTH JUDICIAL CIRCUIT, IN AND FOR MARION COUNTY, FLORIDA STATE OF FLORIDA, Plaintiff, vs. Case No CF-A-01 IAN DECO LIGHTBOURNE, Defendant. / MOTION FOR REHEARING AND/OR CLARIFICATION Defendant, IAN DECO LIGHTBOURNE, by and through undersigned counsel, respectfully submits this Motion for Rehearing and/or Clarification. As grounds in support of this Motion, Mr. Lightbourne submits: 1. The Florida Supreme Court remanded this cause to the circuit court for an evidentiary hearing regarding Mr. Lightbourne s All Writs Petition filed on December 14, This Honorable Court entered a final order denying relief on September 10, Mr. Lightbourne seeks rehearing and/or clarification of that Order because this Court has either overlooked or misapprehended certain points of law or fact or, there are certain points of fact or law that are in need of clarification. 2. On July 22, 2007, the circuit court granted a temporary injunction prohibiting the State from setting an execution date in this cause based on several concerns regarding the May 9, 2007 procedures for carrying out lethal injection. As recognized by this Court, the May 9, 2007 protocol did not remedy concerns that inmates will suffer undue pain. During the oral pronouncement, this Court recognized that the problems inherent in the protocol were more than 1

2 simply scrivener s errors. Rather, this Court recognized that the procedure for carrying out an execution must be consistent with the evolving standards and notions of the dignity of man. This Court made suggestions regarding how the procedures could be modified so as to comport with the requirements of the Eighth Amendment and gave specific examples regarding its concerns Following the promulgation of the August 1, 2007 protocols by the Department of Corrections, this Court held further evidentiary hearings. Despite Mr. Lightbourne s arguments that the latest protocols are merely cosmetic and do not address the Eighth Amendment concerns, this Court did not address or discuss its previous concerns in the Order denying relief. Nor did the Court address how its concerns were remedied by the August 1, 2007 protocols. 4. On September 11, 2007, Mr. Lightbourne learned that this Court spoke to a reporter from the St. Petersburg Times and provided additional information that is pertinent to this case and the ruling. See Alex Leary and Meg Laughhlin, Times Staff Writers, Stay on Death 1 For example, this Court expressed that the procedures must take into account the concerns over the inexplicable lack of minimum qualifications for the executioners and technical team members in the May 9, 2007 protocol; the lack of any requirement for the minimum experience of these people in doing their regular jobs; and the need to know that the Department has the equipment and building facilities necessary to carry out an execution by lethal injection. There was a special concern that the protocols should reflect that the person or persons responsible for administering the lethal chemicals must retain a degree of independence. It was also contemplated that the Department of Corrections should consider public input in the adoption of its execution procedures. This Court was also concerned that the existing protocol placed too large a burden on the Warden in charge of executions, in that the protocol required him to choose the personnel who would make up the execution team, including the executioners charged with pushing the chemicals, the technical team members charged with mixing the chemicals, starting the IVs, monitoring the heart monitors, and consulting with the Warden regarding consciousness of the inmate, without any guidance as to what sorts of qualifications, training, and experience is needed to carry out these functions. This Court also contemplated an actual certification process whereby each team member would have to formally demonstrate to the warden that he or she was qualified to do the job. 2

3 Penalty Lifted, A judge who held up a case says concerns he had about lethal injection are resolved, The St. Petersburg Times, September 11, 2007 (Attachment A). 5. According to the article: In that earlier order, Judge Angel expressed concerns about the way the execution procedure is staffed, from the qualifications of the executioner to the job descriptions for the lethal injection team. Reached by telephone at his Ocala home Monday night, Angel explained why his opinion had changed: "The Department of Corrections appeared to me to be sensitive to those concerns and addressed them." Id. Mr. Lightbourne s subpoena for Secretary James McDonough was quashed so he was unable to question the policy maker regarding the new protocols and whether they addressed the deficiencies in the procedures. It is unknown where in the record there is support for the conclusion that the Department of Corrections is sensitive to the concerns. Without the benefit of rehearing, or a clarification of the Order, Mr. Lightbourne cannot properly prepare his case for appeal. 6. The article also provided further insight into this Court s reasoning regarding this case that remains pending: Angel said Monday night that it's worth remembering that the state Supreme Court has yet to consider these issues. Oral arguments in the Lightbourne and Schwab cases are scheduled for Oct. 11. "The concerns I expressed in the July order are real, legitimate concerns and can't be ignored," said Angel, 64. "The state and the department are going to have to be sensitive to them. Maybe the Florida Supreme Court will say something about it but... I obviously don't feel I have the authority to change things the Florida Supreme Court changes." Id. (Emphasis added). Mr. Lightbourne requires clarification as to which of this Court s previous concerns remain and which of those real and legitimate concerns the State will have to 3

4 be sensitive to in the future. Certainly, nothing in the State s closing argument suggests that the State harbors any lingering concerns it is the State s continued position that Florida s procedures provide more protection than is required by the Constitution. 7. Mr. Lightbourne also seeks rehearing because the comments to the press indicate that this Court may have misapprehended the scope and purpose of the remand. The Florida Supreme Court remanded this cause to the circuit court for fact-finding along with full authority to grant any necessary relief. While this Court based on the Order certainly believed that it had the authority to deny relief, the comments to the press indicate that this Court did not understand that it had the authority to grant the relief requested. 8. Based on the Florida Supreme Court order dated August 6, 2007, jurisdiction terminated in this Court on September 10, Therefore, Mr. Lightbourne has filed a motion in the Florida Supreme Court seeking relinquishment of jurisdiction so this Court may consider the instant motion. 9. This Court s concerns, as reported to the media, are not clearly set forth in its order. As stated, the order provides no discussion as to how the Department of Corrections was sensitive to those concerns, or how this Court feels those concerns have been remedied in any way. WHEREFORE, Mr. Lightbourne seeks rehearing and/or clarification of the order dated September 10,

5 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true copy of the foregoing Motion for Rehearing and/or Clarification has been furnished by U.S. Mail, first class postage prepaid, and facsimile to all counsel of record on September 10, Copies furnished to: Kenneth S. Nunnelley Assistant Attorney General 444 Seabreeze Blvd, 5 th Floor, Daytona Beach, FL Fax Rock E. Hooker Assistant State Attorney 19 NW Pine Avenue Ocala, FL Fax The Honorable Carven D. Angel SUZANNE MYERS KEFFER Assistant CCRC Florida Bar No ROSEANNE ECKERT Assistant CCRC Florida Bar No ANNA-LIISA NIXON Staff Attorney Florida Bar No Capital Collateral Regional Counsel - South 101 NE Third Avenue, Suite 400 Ft. Lauderdale, FL (954) Attorneys for Mr. Lightbourne 5

6 Circuit Court Judge Marion County Judicial Center 110 NW First Avenue Ocala, FL Fax Maximillian J. Changus Assistant General Counsel Florida Department of Corrections 2601 Blair Stone Road Tallahassee, FL Fax