THE LAST CASE O N THIS MORNING'S DOCKET IS THE CASE OF C LARE NC E EDWAR D H IL L V ERSU S THE STATE OF FLORIDA . THE CASE IS HER E B EC AUSE MR. HILL IS UNDER A DEA TH WARRANT , A ND THE RE H AS B EE N S ULEMENTAL BRI EF IN G . WE HAVE A LL OT TE D 1 5 M IN UTES A SIDE. MR. DOSS, I UNDERSTAND YOU ARE GOING TO TAKE T EN MIN UT ES AND THEN FIVE M INUTES FOR REBUTTAL .

THAT'S CORRECT, YOUR H ONOR .

CHIEF JUSTIC E: ARE THE PARTIES READY? GOT THE RIGHT CAS E OUT YOU MAY PROCEED.

MAY IT PLEASE T HE C OURT . THIS COURT HAS NOT HESIT AT ED IN THE PAST TO HOLD H EARING S WHENEVER PROBL EMS W IT H T HE METHODOLOGY UTILIZED IN EXECUTION S H AS COM E T O T HE F LOOR. THAT'S WHAT WE HAV E HER E WIT H T HE S TU DY THA T W AS AUTHORE D B Y DR. LUBARSKI AND I S FUR TH ER DEVELOPED IN HIS AFFIDAVIT THAT WE HAD A TTACHED.

CHIEF JUSTICE: SO WE ARE CLEAR, YOU ARE HERE ON THA T YOU ARE ASK IN G F OR T O REV ER SE THE TRIAL C OURT F OR A N EVIDENTIARY HEARING ON THE ISSUE O F W HETH ER A L ET HA L INJECTION IS C RUEL AND U NUSU AL P UNISHMENT?

THA T'S CORRECT, B UT N OT LETHAL INJEC TI ON PER S E . IT IS NOT LET HA L INJ ECTI ON PER S E THAT I S C RU EL A ND U NU SUAL P UNISHMENT BUT T HE CURRENT METHODOLOGY THAT IS USED IN THE STATE OF FLORIDA. IS CRUEL AND UNUSU AL PUNISHMENT AND WE HAD - -.

CHIEF JUSTICE: AND THE PART OF THE STUDY S UGGE ST ED T HA T I N AUT OPSIES THERE WAS S OM E CONCERN THAT IN A CERTAIN NUMBER, NOT JUST F RO M THIS STATE B UT OTHER STA TE S , T HA T THERE WAS N OT LOSS OF C ONSCIOUSNESS?

THAT'S C OR RECT . AS MANY AS 4 3% I T I S THE S ODIUM PEN TO THAL .

HOW MANY O F T HO SE STU DIES W ERE FROM FLO RI DA ?

NONE WERE FRO M F LORI DA . WE WERE DENIED ANY RECORDS IN THE LOWER COURT REGARDING THE .

NO, IN THE STU DY . IN THE STUDY, H OW M AN Y O F T HE

NONE. IT WAS A NA LAGY ZE D T O F LO RIDA BASED ON THE FOUR STATES THEY HAD BEEN ABLE TO G ET THE D AT A FROM WITHIN T HE AFF ID AV IT , THE ATT ACHMENT I HAV E O N A TTACHMENT A. DR. LUBARSKI LOOKED AT THE PROTOCOLS AND PROCEDU RES UTILIZED AS D ES CR IB ED I N SIMS , AND THO SE W ER E S O L IK E T HE STATES THAT HE HAD REA D T HE TOXICOLOGY REPORTS F RO M T HA T HE S AI D T O A R EA SO NABL E DEGREE OF S CI EN TI FI C C ER TAINTY T HA T HE C OU LD E XT RA POLATE T HO SE F INDINGS AND ALY T HE M T O O UR PROCEDURES HERE IN FLORIDA , AND THAT'S THE ONE WHERE 4 3% WERE A T A POS IT IO N WHE RE T HE Y COULD BE AWARE AND CON SC IO US OF WHAT W AS GOING ON , AND INDEE D 88% W ER E NOT EVE N T O THE LEVEL O F W HA T T HE SUR GI CA L PLAN OF A NEST HESI A T HAT' S REQUIRED

W AS THE RE A N EXACT RELATIONSHIP BETWEEN THE LEVELS OF S OD IU M P ENTO TH AL I N FLORIDA AS C OMPARED TO T HE OTHER STATES OR WAS T HERE A SIGNIFICANT DIFFERENCE?

I BELIEVE THAT EACH ONE OF THE STATES , W IT HI N F LORI DA I T SAYS NOT LESS THAN TWO G RA MS , AND T HAT'S , S O T HE RE I S A - -

AND THE O THER STA TE S W ERE HOW MUCH?

I BELIEVE IT WAS TWO G RA MS , JUSTICE BELL.

TWO GRAMS ?

A ND W HAT COM PO UN DS T HE PROBLEM HER E I S T HE S EC ON D CHEMICAL THAT'S USED I S T HE P ANCURONIUM BROMIDE. THAT'S A P ARAL YTIC AGE NT THA T PARALYZES T HE MUS CL ES S O I F THE SOD IU M PEN T A T HAL DOES NOT TAKE EFFECT AND DOE S N OT PRODUCING T HE D ES IR ED E FFEC T OF ANE ST HE CISI NG THE P ERSO N BEING EXECUTE D . ESSENTIALLY THEY ARE AWARE AND THEY ARE CONSCIOUS AND THEY ARE ABLE TO FEEL T HE P AI N IF THEY CAN'T, T HEY C AN 'T SAY ANYTHING WHATS OEVER I N REG ARDS TO WHAT I S GOI NG O N , AND W HE N Y OU LOOK AT T HE L IK EL IHOO D T HAT THERE I S C ON SCIO US NE SS , THE LIKELIHOO D THA T T HE RE I S AWA RENESS, THA T' S W HERE W E G ET INTO THE ASPECT O F I T BEI NG CRUEL A ND UNU SU AL A ND T HAT I T IS AN U NN EC ES SA RY I NF LICT ION OF PAIN.

WHAT'S T HE NEW A SPECT OF THIS STUDY THAT WAS N OT AVAILABLE IN SIMS OR OTH ER WI SE AS TO THOSE R ES PE CT IV E L EV EL S?

THE DIFFE RENC ES B ET WE EN N OW AND S IMS , AND A S FA R A S WHA T DR. LUBARSKI HAS DISCOVERED. WITHIN SIMS, AS IT IS R ELAT ED IN THE OPI NION , P RO FE SSOR RATILET HAD WEN T A ND R ECOU NT ED INFORMATION HE HAD GATHE RE D REGARDING BOTCHED EXE CU TION S , BUT HE HAD SAID THAT IT W AS JUST FROM N EWSPAPER A CCOUNTS. IT WASN'T A S CIEN TI FI C S TU DY . IT WASN'T BASED ON A NY SKIN A T ALL. IT WAS HIM BAS IC ALLY DOING A THOROUGH INVESTIGATION OF THE VAR IOUS NEWSPAPERS OUT T HE RE . AS FAR AS D R. LIT MA N , H E HAD PRO VIDED A LIST O F P OSSIBL ES ON SPECULATION. NOTHING WITH ANY H ARD D AT A , NOTHING SPECIFICALLY RELATED TO A S CIEN TI FIC S TU DY , O NL Y WHAT HE KNEW M IG HT B E P OSSIBLE. HERE, D R. LUB ARSK I A ND H IS ASSOCIATES, THEY BASE THEIR INFORMATION ON RIGOROUS SCIENTIFIC STUDY. THEY LOOKED AT THE AUTOPSY RESULTS FROM THE STATES T HAT HAD ALLOWED THEM TO H AV E T HE T OXICOLOGY REP OR TS , AND T HE Y CONDU CTED PERSONAL I NTER VI EW S OF STATE OFFICIALS T HA T H AD A TTENDED THESE EXECU TI ON S , P ERSONAL I NTER VI EW S THE Y HAD G EA RE D T HEIR P UBLI C RECORDS REQUEST SPECIFICALLY TO THEIR STUDY AND T HE N I NDEE D T HE L AN CE T T HA T I T WAS P UBLISHED I N I S A PEE R R EVIE W WORLD RENOWNED MEDIC AL JOURNAL.

WAS THERE AN U LT IM AT E CONCLUSION THAT THE P ROTOCOL AROVED IN S IM S L EA DS T O T HE P ROBLEMS THEY ARE C ONCERNED ABOUT?

YES, AND T HAT' S WIT HI N T HE AFF IDAVIT T HA T W AS S UBMI TT ED .

WHAT PART OF T HE AFFIDAVIT?

IT WAS PARAGRAPH 2 3 A ND PARAGRAPH 2 4 I S THE CONCLUSARY ASPECT OF IT. HE HAD LAID O UT H IS B AS IS I N THE PREVIOUS PARAGRAPHS , BUT I QUOTE FROM P ARAGRAPH 2 3 , I T SAY S ON THE BASIS OF T HE INFORMATION CITED IN THE SIMS OPINION, THE P ROCE DURE USE D I N EXECUTIONS IN FLO RI DA I S SUBSTANTIALLY SIMILAR T O T HE P ROCEDURE IN THE S TA TE S WHI CH KEPT AND PROVIDED T OXIC OL OG Y DATA. THEREFORE, I D RAW THE INFERENCE TO A REASONABLE DEGREE OF SCIEN TI FI C CER TAIN TY THAT THE LEV EL S O F S ODIU M PENTOTHAL IN THE BLO OD STRE AMS OF PERSONS E XECU TED B Y LET HA L INJECTION IN FLORIDA ARE A RE AT BEST SIMILAR T O THOSE LEVELS EXERC ISED T HERE .

CHIEF JUSTICE: THE I SS UE WASN'T THE P ROTO CO L B UT HOW THE PROTOCOL O R THE PRO CE DU RES MAY BE CARRIED OUT? IN OTHER WORDS, THE S UG GE STIO N ISN'T THAT T HE A MO UN T I N T HE PROTOCOL , WHI CH I S T HE S AM E AS IN S IM S , I S I NADE QUAT E T O RENDER SOMEONE UNC ON SC IOUS , BUT A SUG GESTION I N THE SE AUTOPSIES THAT P ERHA PS L ES S THAN THE R EQUI RE D D OS E W AS GIVEN ? BECAUSE THAT'S AN I MP OR TA NT DISTINCTION TO UND ERST AN D WHETHER YOU ARE ATTACKING T HE PROTOCOL OR HOW THE PRO TO CO L IS ACTUALLY A LI ED .

THEY ARE INT ER RE LA TE D IN THE SENSE.

CHIEF JUSTICE: CAN YOU ANSWER THAT?

THE D OSAGES I S D EF IN IT EL Y AT ISSUE IN THE TWO G RA MS I S N OT E NO UGH , AND I T HI NK T HA T THE S TU DY ITS EL F R EL AY S T HAT INFORMATION VERY WELL . THE REASON THAT THE D OSAG E I S IMPORTANT IS BECAUSE THIS IS A SHORT ACTING A NEST HESI A . I F IT IS NOT A DM IN IS TE R ED A T THE PROPER LEVEL, IT WEA RS O FF VERY, V ER Y Q UI CK LY .

WOULDN'T THIS HAVE BEEN TRUE BACK I N 2 00 0? WHA T HAS CHANG ED ? I'M GETTING BACK TO M Y N EW EVIDENCE.

IT WAS M ERE S PE CULATI ON BACK IN 2000. NOW WE H AVE SCIEN TIFI C D AT A , HARD DAT A RATHER THA N J US T SOMEONE SAYING, WELL , T HI S POSSIBLY COULD HAEN.NOW W E KNOW THAT I T I S VER Y LIKELY THAT IT I S H AE NI NG , AND THAT

HOW DO W E KNO W T HA T FRO M THIS STUDY? BECAUSE AGAIN ALL I SEE I S THEY ARE ARGUING, I MEA N DOE S THE STUDY SAY THAT THE T WO GRAMS IS NOT ENOUGH ?

IT REL ATES T HA T THE T WO GRAMS, AS A DM IN IS TE R ED , A ND WHENEVER THEY TAKE THAT AND THEY GO AND THEY LOO K A T THE LEVELS THAT IS FOUND I N T HE SE BODIES AFTER T HE A UTOPSY W HEN THEY HAVE BEEN EXECUTE D , T HE Y SPECIFICALLY RELATE THE AMOUNTS T O WHA T W OULD B E REQUIRED T O O BT AI N A SUR GICA L PLAN OF ANE ST HE SIA A ND R EL ATE IT T O WHE TH ER SOM EONE I S A WARE AND C ON SC IO US AND THE P EO PLE THAT ARE DOING THIS ARE IMMINENTLY QUALIFIED. DR. LUBARSKI IS ACTUALLY I F YOU LOOK AT THE CV T HA T W AS ATTACHED IS THE CHAIRMAN OF THE DEPARTMENT OF ANEST HE SI A - - ANE STHE SIOL OG Y.

YOU ARE SAY IN G THERE S HOULD HAVE BEEN AN EVIDENT IA RY HEARING B EC AUSE NOW T HE AMOUNTS ARE NOT ENOUGH. DO THEY HAVE A R ECOM MENDAT ION? SHOULD IT BE 2 7B .5 ? IS THERE S OMEPLACE WE ARE GOI NG WITH T HIS IN TER MS O F WHAT WOULD B E - - W HA T W OU LD OCCUR IF T HE RE WERE AN EVI DENTIARY HEARING IF YOU ARE NOW ATTACKING THE P ROTOCO L A S OOSED TO WHETHER IT IS B EING CARRIED OUT PROPERLY?

HE M ADE NO R ECOM MEND ATION AS TO THE AROPRIATE DOSAG E , AND I T HINK C IT ED ETH IC AL C ONCERNS AS FAR AS T O D O N O H ARM.

.

CHIEF JUSTICE: SO WHAT WOULD WE GET OUT OF AN EVIDENTIARY HEA RING?

THE FACT T HAT AS I T I S ADMINISTERED THAT IT IS CRUEL AND UNUSUAL PUNISHMENT .

LET ME ASK YOU A BO UT

THERE MIGHT B E A NO TH ER METHOD.

THE THE S TU DY T HAT W AS CONDUCTED IS BASED ON AUTOP SY REPOR TS IN FOUR STATES?

THAT'S CORRECT.

IS THAT CORRECT? HAS THERE BEEN ANY F ED ERAL O R STATE COURT THAT HAS D EC LARE D THE LETHAL I NJ ECTION I N T HO SE STATES UNCONST ITUT IONA L?

NOT THAT I 'M AWARE OF.

HAS THERE BEEN ANY S TATE O R FEDERAL COURT IN THE UNITED STATES THAT HAS DEC LA RE D E ITHER IN PRI NC IP LE O R A S ALIED LETHAL INJEC TI ON UNCONSTIT UTIONAL?

NO , A ND AS FAR AS I KNO W , I HAVEN'T FOUND ANY R EP OR TE D DECISIONS THAT DIRECTLY ADDRESS D R. L UB AR SK I 'S STU DY . SDPLOOCH AND A S I U ND ERSTAND IT, YOU ARE N OT A TTACKI NG T HE LETHAL INJ ECTION AS B EING CRUEL AND UNUSUAL , O NLY WHE THER THERE I S E NO UG H O F T HE SEWED JUM SOD IU M P ENT A THAL T O REN DE R SOM EO NE UNCONSCIOUS IF THE Y DON 'T EXPERIENCE

AS IT A LI ES HER E I N FLORIDA BASED ON WHAT W E DO IN FLORIDA . IT IS NOT A C ONCEPT I N GENERAL.

YOU'RE CLA IMING AS U SE D I N FLORIDA, THE PROCEDURE IS USED , RENDER IT UNCONSTIT UTIO NAL BECAUSE IT IS C RUEL AND UNUSUAL PUNISHMENT?

THAT IS CORRECT.

WHAT ABOUT THE 8TH CIR CUIT'S OPINION IN BROWN VERSUS CRA WF ORD?

THEY NEVER REACHED T HE MERITS OF THE C LAIM IN T HAT. THAT WAS A 1 98 3 ACT IO N B RO UGHT ON M R. B RO WN 'S B EH ALF. THEY FOUND THAT IT W AS PROCEDURALLY BARRED B EC AU SE H E HAD N OT EXHAUSTED HIS REM ED IES BELOW SO THE Y N EV ER REA CH ED THAT. INTERESTINGLY ENOUGH IN ONE OF THE F OOTNOT ES I N M Y B RIEF I HAD INDIC AT ED T HE RE H AD B EE N FOUR JUSTICES O N THE U.S . SUPREME C OURT THAT V OTED T O ACCEPT CERT O N T HA T , B UT BECAUSE HE WAS UNDER A DEATH WARRANT IT TAKES FIVE AT THA T POINT.

LET ME ASK YOU THI S BEFORE YOU SIT DOWN. I KNOW YOU ARE IN YOUR REBUTTAL BUT TO A NA LOGI ZE I T TO THE P RE VIOU S MET HO D O F E LECTROCUTION, YOU A RE C LAIMING BEC AU SE NOT E NOUG H S ODIUM P ENTO TH AL I S U SE D , THERE WAS PAIN BEF ORE DEA TH OCCURS. IN A LYIN G E LECT RO CUTION WAS THERE ANY K IND OF AGENT INJECTED INTO THE D EF EN DANT BEFORE EXECUTION?

NO , B UT I B ELIE VE T HE T ESTIMONY IN THO SE CAS ES WER E THAT IT WAS A LM OS T INSTANTANEOUS BECAUSE OF THE AMOUNT O F ELECTRICITY THAT WAS PUT INTO THE BOD Y , B UT INTERESTINGLY ENOUGH, WE HAVE A SITUATION H ER E T HA T I S W HA T ANALOGOUS TO WHERE E VIDENT IARY H EARINGS WERE HAD A FTER PROBLEMS HAD O CCURRE D W IT H I BELIEVE IT WAS JESSE TAF AR RO WIT H A LLEN D AVIS A ND T HOSE CASES THAT THIS COURT A LL OW ED EVIDENTIARY HEARINGS A FTER THAT TO GET TO THE BOTTOM OF THE P ROBLEM SO T O S PE AK A ND THAT'S WHERE WE ARE AT HERE. WE'RE NEVER GOING TO HAV E G RU E !!!!!!!! GRUESOME PHOTOS LIK E W E D ID O F MR. DAVIS BECAUSE OF THE WAY IT IS CARRIED OUT .

IT SEEMS TO M E THA T THE BOTTOM OF THE PROBLEM IN THOSE CASES WAS D EATH W AS N OT INS TANTANEOUS IN E LECT RO CU TI ON , BUT W E NEVERTHEL ESS U PH ELD THAT IT IS C ONSTITUT IO NAL , A ND IT DOESN'T S EEM UNLESS Y OU C AN CITE ME A CAS E THAT A NY COU RT IN THE C OUNTRY HAS S AI D I N ORDER FOR THE DEATH PENALTY T O BE CON STITUT IONAL A S A LI ED T HAT D EATH HAS TO B E INSTANTANEOUS A ND TOTALLY PAINLESS?

NO , BUT I T C AN NO T B E WAN TO N AND UNNECESSA RILY P AI NF UL . BY THE WAY I T I S ADM INIS TE RE D IN FLORIDA, THAT'S WHAT WE HAVE AND I WOULD LIKE TO RESERVE THE REST OF MY T IME. THANK YOU .

FOR THE RECORD, MAY IT PLEASE THE COURT. MY NAME IS C AROL YN SNU RK OWSK I FROM THE ATTORNEY GENERAL'S OFFICE.

CHIEF JUSTICE: COULD Y OU REFRESH MY RECOLLECTION? BEFORE THE NEW MET HO D O F EX-ACCUSE WAS SELECTE D A ND JUST AS JUSTICE CANTE RO I N THOSE DAY S U P HER E , WE WER E CONCERNED ABOUT WHETHER THERE WAS ENOUGH C UR RE NT GOI NG I N.

THERE WAS S TU DI ES A ND T HE RE WAS HEARINGS WIT H R EGARD T O THE ADEQUACY O F T HE S TUDIES BUT THAT WAS B ASED O N A TAK E ON WHETHER OR NOT IT DID NOT REFLECT WHAT KIND OF CUR RE NT THERE WAS.

CHIEF JUSTICE: WERE WE REQUIRING THAT THERE BE UPDATED PROTO COLS S UB MI TTED T O MONITOR T HE S ITUA TION ?

I THINK THERE WAS MONITORING WITH REGARD TO WHAT WAS GOING ON, B UT T HA T W AS - -.

CHIEF JUSTICE: DO W E H AVE ANY CAUSE AND T HIS IS SOMETHING THAT OF COURSE THE DEPARTMENT OF CORRE CTIONS , I MEA N I'M N OT , I DON 'T WAN T T O BE CYNICAL ABO UT T HI S B UT YOU UP THE DOSAG E B Y A NO THER . 5 , I MEAN WHA T' S T HE - - TEL L U S T HE STATE'S POINT OF V IEW.

FIRST OF ALL I D ON'T THI NK ANYTH ING HAS CHA NGED S INCE THEN AND I DON'T THINK T HE L ANCET ARTICLE IS A NY DIF FERENT. I MEAN IF YOU LOOK AT SEE WHA T DR. LITMAN WAS SAYING HE WAS TALKING IN T HE OR ET IC AL B UT H E WAS A N EU RO PSY CH O P HARM AC IS T WHO HAD DEA LT W ITH T HI S , W HO HAD DONE THIS R OUTI NE LY W IT H REGARD TO A DM IN ISTERI NG D RUGS , A ND THE S AM E S TU DI ES Y OU REALLY GET DOWN T O WHAT THE LANCET ARTICLE TALKS ABOUT THE S AME STU DI ES TAL KI NG ABOUT THE SAME THINGS H OW VET VET S W ILL NOT - - V ETER IN ARIA N S W IL L NOT USE T HIS KIND O F P ROCE DURE T O E THANIZE A NI MA LS . THE SAME KIND OF P RESENTATION THAT WAS MADE IN 200 0 WIT H REGARD TO W HETHER L ET HAL INJECTION WAS C ONSTIT UT IONALLY AROPRIATE AND A BLE TO BE CAR RIED OUT. I THINK WHAT I S I NTERESTING WITH REGARD TO THE LANCET ARTICLE AND I'M GOI NG T O M AY BE MISS SPEAK BUT I'M GOING T O THROW IT OUT THERE AND WE C AN CLARIFY IT. I BELIEVE T HAT NOT A LL O F T HE STATES HAD THE SAME D OSAG E LEVELS. THERE WERE STATES THAT HAD DOSAGE LEVELS AT TWO. SOME THAT HAD FIVE AND I N FAC T CALIFORNIA WHERE THEY TRIED TO USE THE L AN CET S TU DY H AD FIV E OR SIMILAR EVIDENCE WAS BROUGHT OUT WHERE THE FIRST DRUG IS A T A 5 M ILLI GR AM DOSAGE.

5 M IL LI GR AM S , N OT G RA MS ?

CHIEF J US TICE: WE H AVE I N FLORIDA WHAT?

WE H AVE TWO , AND I W IL L JUST READ FROM O UR REC OR D I N THE SIMS CASE IT SAY S , THEY WERE HE WAS ASKED A ND T HI S COURT FOUND THAT H E A LS O ADMITTED HIGH DOSAGES OF LETHAL STANCE INTENDED T O BE USED BY D OC D EATH W OU LD CERTAINLY RESULT QUICKLY A ND WITHOUT SENSATION. THAT WAS THE F IN DING S B ASED O N THE SAME PARADE O F P OSSIBILITIES THA T W AS PRESENTED THEM A ND I S NOW BEING PRESENTED. THERE IS NOTHING NEW I N T HIS ARTICLE THAT DOES THAT. WHAT IS NEW IS THAT T HE Y HAVE HAD ACC ESS T O S EV ERAL AUTOPSIES, AND THE RE I S SOM E DISPUTE AS TO WHETHER , I N FAC T , T HE AUT OPSIES OR THE E VIDENCE THAT THEY ARE TAKING B ASED O N THE AUTOPSY EVIDENCE I S R IGHT . THERE IS CHALLENGES. I MEAN, BEHIND ALL OF THIS IS A CHALLENGE WHETHER T HE AUTOPSY PROTO CO LS ARE C OR RE CT .

THAT C OMES O UT A T THE E VIDENTIARY HEARING. THAT WOULD BE FLESHED OUT A T A H EARING SOMEPLACE.

I'M SAYING THERE IS J UST A WHOLE L OT OF T HING S THE Y A RE T ALKING ABOUT. THE STATE HAS M ADE THE ARGUMENT THAT THERE IS A PROCEDURAL BAR WITH WHAT THE TRIAL C OURT FOUND. THERE IS NOTHI NG H ERE N EW THA T WOU LD RELATE T O A N EW CLA IM WITH REGARD TO POS T-CO NVICTIONAND HE IS P ROCEDU RALL Y B AR RE D. THERE H AS ALWAYS BEE N T HE OORTUNITY TO MR. HILL T O RAISE THE C ONSTIT UT IO NALITY O F LETHAL INJECTION AND HE HAS NOT DONE THAT IN THE PAST AND HE HAS NOT DONE I T IN A T IM E AND MANNER THAT WOULD HAVE BEEN TIMELY BECAUSE IF Y OU A LL R ECALL, WE JUS T W ENT T HROUGH IT ALL BUT HE HAD A 200 3 P OST-CONVICTION MOTION AND OTHER SUC CESSIVE POST-CONVICTION MOTION AND AT THAT TIME HE RAISED R IN G. HE COULD HAVE C ER TAINLY R AI SE D THE VITALITY AND C OR RE CTNESS OF LETHAL I NJ ECTI ON AND H E DID NOT DO THAT.

BUT HIS A RGUMENT I S T HA T THIS STUDY, W HI CH W AS D ON E , WAS NOT A VA IL ABLE.

NO.

AT THAT TIME , A ND S O T HI S INFORMATION THA T T HE SE L EV EL S MAY N OT BE S UF FICI ENT W AS NOT SOM ETHING THAT R EALLY COULD HAVE BEEN RAISED I N HIS P REVIOUS P OS T- CONVIC TION ?

WELL, I THINK THAT T HA T I S TRUE. THE ARTICLE CAME O UT I N A PR IL 2005 IN THE L AN CET A ND I ASSUME IT IS BEING PREPARED BECAUSE IT WAS PREPARED OVER A PERIOD OF TIME DURING THE T IME WHEN HE C OULD HAVE CHA LLENGE D THEM, DONE THE SAME C HA LL ENGE AND DONE THE SAME I NVESTIGATION THAT WAS B EING UNDERTAKEN BY THE SE DOCTORS BUT I MIGHT ADD I F YOU L OO K AT THE A UTHORITIES THAT I HAVE CITED I N M Y PLE AD IN GS Y OU WILL SEE S INCE 2 00 0 T HE RE HAV E B EEN A NUMBER OF PEOPLE LIT IG AT IN G THE VITALITY OR THE CORRECT NESS OF LET HA L INJECTION.

CHIEF JUSTICE: IN THIS STATE?

IN THIS STATE, ABSOL UT ELY IN THIS STATE. THIS COURT JUS T I N S UGGS A C OUPLE O F D AY S A GO D ETER MI NE D WE DID NOT NEE D A N E VIDENT IA RY HEARING WITH REGARD TO LETHAL INJECTION.

CHIEF JUSTICE: UNTIL THE WARRANT IS SIGNED IT IS NOTQUITE THE SAME THI NG , BUT W HA T IS THE A GA IN T WO V ERSU S F IVE. I MEAN, IS T HERE SOMET HING T HE DOC D OE S , D O T HE Y C ON TINU E T O LOOK AT W HETHER THEY ARE D OI NG IT IN THE WAY T HAT IS MOS T LIKELY TO CAU SE , Y OU K NOW , O R NOT TO CAUSE U NNECES SA RY P AIN?

I THINK THE PROTOCO L S T HA T WERE CREATED WERE BASED ON PROTOCOLS THAT HAVE OCCURRED IN MOST OTHER S TATES A ND T HEY ARE THE NUMBERS THAT ARE OCCURRING IN MOST OTHER STA TES AND THEY WERE S UCCE SSFULL Y HAVING E XE CU TI ON S THA T DID NOT HAVE ANY PRO BL EM S . I THINK THAT HAS S O F AR B EEN T HE STANDAR D BY W HI CH THE Y HAVE OPERATED. THERE HAS BEEN NO C AUSE, T HERE IS NO BASIS.

CHIEF JUSTICE: IS THERE A DOCTOR THAT IS T HE RE T HA T I S A DMINISTERED AND DO T HEY HAV E DISCRETION IF THERE IS ANY INDICATION OF SOME C ON TI NU ED CONSCIOUSNESS TO INJECT M ORE?

THE Y HAVE A SER IE S O F N EEDLES THAT HAV E T HE REQUISITE AMOUNT OF D RU GS T HA T GO INTO A S EQ UE NC E A ND THE PLUNGER I S P LU NG ED A ND I T GOE S THR OUGH THE PROCESS. THERE IS NO EVIDENCE IN THE EXECUTIONS THAT HAVE O CCUR RE D AND CERTAINLY NOT THE 1 6 THAT HE POINT ED T O T HA T H E W AN TE D RECORDS FROM THAT ANY O F THE EXECUTIONS HAD ANY PROBLEMS AT ALL.

WHAT IS THE D OWNS ID E O F HAVING AN E VIDENTIARY H EA RING IN WHICH THE S TA TE C AN C OM E FORWARD AND SAY FIRST O F ALL WE DON'T BEL IEVE T HESE PROBLEMS EXIST, AND H AV E C OMPETENT EXP ER T T ESTI MONY T HAT EST AB LI SH ES THA T ? THAT IF I T C ON TR OVER TS T HE RESULTS OF THE STUDY O R ON THE OTHER HAND SAY WE'VE EXAMI NE D THE STUDY AND A S A R ESULT OF THAT, W E HAV E U PED T HE DOS AG E O F T HI S PAR TI CU LA R DRU G I N ORDER TO A VO ID E VE N T HE POSSIBILITIES THAT ARE RAISED IN THE STUDY , S O THA T THE BOTTOM LIN E R ISK T HA T Y OU R O ONENT I S POINTIN G OUT H ER E ARE ELI MINA TE D T HE N. WHAT IS T HE DOWN SIDE?

WELL , C ER TAIN LY W EBER , A N OLD CAS E T ALKS A BO UT I N TER MS OF E XE CU TION T HE RE I S N O G RATUITOUS PAIN. IF THERE IS A MISTAKE , W E DON'T WANT THAT TO HAP PE N , B UT WEBER IS OUT T HE RE BUT M ORE IMPORTANTLY I THINK IT IS WE ALREA DY HAD A HEARING O N THIS. WE HAD SIM S F IV E Y EARS A GO , NOW 6 BEC AUSE WE ARE IN 200 6 , S IX YEARS AGO A ND T HE RE H AS NOT , ANY TH IN G T HAT OCCURRED THAT HAS CHANGED THAT.

EVENTS H AVE OCCURRED THAT CHANGED THAT. THAT IS THAT WE'VE HAD T HIS S CIENTIFIC I NVES TI GATION NOW INTO IT AND FOR I NS TA NC E WIT H T HE ELE CTRI C C HAIR SIT UA TION, YOU KNOW, WHA T WE H AD SUBSTANTIALLY W AS T HESE E VE NT S THAT OC CURRED, YOU K NO W , I N PRECEDING E XE CUTI ONS.

BUT THA T P RECI PITA TE D A HEARING TO FIND OUT THE PROBLEMS.

HERE WE DON'T HAVE THE EVENTS BUT THE S TUDY SEE MS T O SUGGEST THAT BECAUSE OF THIS MASKING E FF EC T O F THE W EA RING OFF OF THE D RUG THAT THE PERSON IS NOT GOING TO BE ABL E TO ACT OUT O R I N A NY W AY INDICATE THAT THE PAIN I S THERE, AND S O I 'M J US T , I 'M TRY ING TO - - WHA T IS THE DOWNSIDE OF EXPLORING THAT?

BECAUSE I THINK YOU HAVE T O HAVE SOMETHING MORE THAN SAYING THAT THERE I S A POSSIBI LITY THAT SOMETHING COULD - - THEY H AVE N OT ONE - - THERE IS NO EVIDENCE T HAT ANYBODY SUFFERED A NY P AIN I N ANY OF THOSE O THER EXE CU TI ONS. ALL THEY CAN COME U P W ITH IS AN AUTOP SY D ET ER MINATION THAT THE P OOLING OF THE DRU GS FRO M WHERE T HE SPOT OF THE L OC AL E OF WHERE THE DRUG WAS T AKEN WAS NOT OF THE SAME L EV EL AS WHEN A DM IN ISTE RE D , WHI CH IS NOT U NC OM MO N , BEC AUSE , I N FAC T , THIS IS A F AST A CTIN G DRU G. IT IS N OT TOO A ND T HI S I S Y OU ARE TALKING ABO UT WHEN THE AUTOPSY IS TAKEN, B UT S EVEN HOURS LATER , T EN DAY S L AT ER , WHENEVER THE AUTOPSY M Y OCC UR . THIS IS NOT T HE DRUG T HA T KIND OF STAYS IN YOUR S YSTEM A ND POOLS AND SITS THERE AND Y OU GET A HIGHER DOS AG E BEC AU SE YOUR CHEMICAL O F Y OUR B OD Y D EVEL OPS IT. THIS IS ONE T HAT GOES I NTO YOUR SYSTEM FOR A SPECIFIC PURPOSE AND THE N D IS SI PATE S S O YOU CAN BECOME A WA KE A GA IN A T SOME POINT IF IT I S U SE D I N SURGERY. THERE HAS BEEN N O EVIDENCE I N THIS RECORD, THE LAN CET , THE ARTICLE IN THE LANCET DOE S N OT SAY AS S TRONGL Y A S B EI NG P URPORTED T HAT , I N FAC T T HERE IS ANY PROBLEM IN A NY O F THESE CASES.IT IS ALL M AYBE , S HOUL D , POSSIBLY, SOME , MAY. THAT'S ALL IT SAYS. AND THAT IS NOT THE B AS IS U PON WHICH WE GO FORWARD WITH AN EVIDENTIARY HEARING.THERE HAS TO BE SOMET HING M ORE TANGIBLE THAN THAT, BUT MORE IMPORTANTLY, I CAN'T OVEREMPHASIZE THE N EED THAT THERE HAS BEE N THI S C LAIM HAS ALWAYS BEEN A VA ILAB LE T O MR. HILL. HE COULD HAVE RAISED I T AT THE MOMENT THAT LETHAL I NJ ECTION HE OPTED FOR LETHA L I NJ EC TI ON AS THE M ET HO D B Y W HICH H E W AS GOING TO BE E XE CU TE D A T SOM E POINT IN THE FUTURE AND HE H AS NEVER CHALLENGED T HA T UN TIL NOW ON THE E VE O F E XE CU TION AND I DON'T BEL IEVE WHI LE I ADMIT THAT MANY TIMES WE DON'T LOOK AT I T AS SERIO US LY PERHAPS WHEN THEY RAISE IT, YOU KNOW, ON AEAL THAT T HAT IS STILL A VALID MET HO D B Y WHICH THEY OUGHT TO BE RAISING IT. WE SHOULD NOT D ISCOUNT T HA T .

YOU SEEM T O B E SAYIN G M AKE SURE THAT I U NDER ST AN D T HA T DUE TO THE NATURE OF THIS I S THAT THE S CA NS O F A NY AUTOPSIES , SIM PL Y C ANNO T , CANNOT EVER B E U SE D A S A - - T O T RANSLATE THE LEVEL S AT THE TIME OF THE EXECUTION D UE T O THE NATURE OF THE S UBST ANCE ?

THAT'S R IGHT.

IS THAT JUST

T HAT' S JUS T GEN ERAL L OG IC ON THIS.

I DON'T KNOW WHETHER IT IS LOGIC OR NOT.

HE I S SAY IN G I T IS A FAST-ACTING DRUG. HE IS GOING TO BE A WAKE . HOW ARE YOU G OING TO POS SI BLY GET TRACES OR THE LEVEL OF TRACES?

THAT IS ESTAB LISHED TO THE POINT THAT EVEN IF W E G O T O D O AN ANA LY SI S , T HAT' S NOT T HE ROAD YOU CAN G O D OWN?

RIGHT. I AGREE.

IT H AS TO B E S OME O THER ROAD?

AND I THINK THERE I S NOTHING IN THIS RECORD. IF Y OU C OM PARE WHA T T HE L ANCE T , THE ARTICLE IN THE LANCET A ND W HAT T HE IR C ONCL US IONS , A ND THAT'S THE BEST , THAT'S A GENEROUS STATEMENT, THEIR CONCLUSIONS DRAW AND YOU R EA D WHAT WAS PRESENTED AND WHA T THIS C OU RT F ATHOMM ED F RO M WHA T DR. LIT MAN T ES TIFIED TO A ND WHAT HIS RECORDS SHO W THE RE I S NOT A LOT OF D IFFERENCE. THE ONLY DIFFERENCE IS NOW THEY HAVE SOMEBODY COMING I N AND SAYING, WELL , WE THINK THAT THE A UT OP SY REPOR T C OULD SHOW THIS. COULD SHOW IT. NOT THAT THEY D O. COULD SHOW IT. AND THEY HAVE NOT IDE NT IFIE D ONE S INGL E L ET HA L I NJ EC TION EXECU TION WHERE P ROBL EMS H AV E OCCUR RED WHERE, IN FAC T , A N INDIVIDUAL WOULD HAVE , IN FACT , A WAKEN ED.

AND A RE T HESE AVA IL ABLE , THE E XAMINE T IO N R EPORTS , AVA ILABLE F OR IND IV IDUA LS T O R EVIEW AND H AVE E XP ERTS R EV IEW OR HAVE THO SE B EE N P RO DU CED T O ANY ONE ANYWHERE?

NOTHING HAS BEEN P RODUCED. ALL THAT WAS PRODU CE D W AS T HE LANCET ARTICLE AND I ASSUME THAT W E H AV E A CCES S T O W HATEVER THE S TUDY WOU LD SHO W. BUT THAT WAS NOT A TTACHED TO ANY OF THIS. ALL WE H AV E I S T HIS ART IC LE THAT WAS PRODUCED AND AS I THINK THE COURT HAS M ENTI ON ED, IT HAS BEEN PRESENTED IN O THER COURTS WITH REGARD TO LETHAL INJECTION ON THE EVE O F EXECUTION AND HAVE BEEN R EJECTED AS NOT B EING SIGNIFICANT.

BUT I S T HE A UT OP SY - - ARE THESE SIMILAR AUT OPSY R UMENTS IN FLORIDA AVAILABLE?

THE AUTOPSY

ACC ES SI BL E?

WELL , T HE A UTOP SY INFORMATION IS A VAILABLE I N THE SENSE THAT T HA T THE MEDICAL EXAMINER R ET AINS INFORMATION WITH REGARD T O WHAT TRANS PI RE D I N D OI NG A N A UTOPSY BECAUSE AN AUTOPSY W AS REQUIRED IN EVERY CASE.

I GUESS WOMAN L IN E -H E B OTTOM LINE, THIS IS BASED O N TEXAS, VIRGINIA , GEORGIA , A COUPLE OF OTHER STATES?

COULD HAVE B EEN IN F LORIDA.

COULD T HA T I NF ORMA TION HAVE BEEN O BTAI NE D F RO M FLORIDA ?

SURE.

AND N O P RO HIBI TI ON?

IN FACT , ONE O F THE FOOTNOTES IN THIS CASE IN HIS I THINK REP LY B RIEF I S , I N FACT, IN THE R ONALD K NIGH T CASE THE TRI AL COU RT H AS ORDERED AN EVIDENTIARY HEARING WITH RAILROAD TO THIS S O W E - - WITH REGARD TO THIS SO WE A RE GOING TO HAVE SOME S OR T O F HEARING BUT THAT' S A N I NI TI AL POST-CONVICTION MOTION .

WHAT IS T HE ISSUE T HERE ? IS IT THE SAM E I SSUE O F WHETHER OR NOT T WO G RA MS - -

A LL I C AN S AY I S I K NO W THERE HAS BEEN A HEARING A ND THAT WAS REFLECT ED I N H IS LEADING - - PLEAD INGS . I DON'T THINK THEY HAV E A CCES S , THEY DIDN'T G ET ACCESS TO THE MATERIALS BUT THEY ARE GOING TO HAVE A HEARING ON SOMETHING. I DON'T KNOW WHAT THEY ARE GOING TO HAVE A HEARING O N.

YOU'RE SAYING THAT THE PUBLIC CANNOT OR A DEFENDANT CANNOT GET ACCES S T O THE AUTOPSY? THEY CAN OR CANNOT?

THEY CAN, YES, A ND, IN F AC T , THE INFORMATION T HERE WAS A PUBLIC RECORDS REQUEST MADE O F THE MEDICAL EXAMINER FOR THE 8TH JUDICIAL CIRCU IT I N R ONAL D KNIGHT, AND, IN FAC T , T HEY PRODUCED THOSE PIE CE S O F EVIDENCE, A ND T HE P RO BLEM E XISTS WIT H T HO SE F ILES I S THAT WHERE ARE THEY? THE MEDICAL EXAMINER SWE AR S THAT HE SENT THEM TO THE REPOSITORY AND THE R EP OSIT OR Y SAYS THEY DON'T HAVE T HEM , B UT WE KNOW THAT T HERE IS GOING T O BE AN EVIDE NTIA RY H EA RING I N RONALD KNIGHT.

HOW DOES THAT M AKE S EN SE T O HAVE AN EVI DE NT IA RY H EARI NG I N THAT C ASE O N T HI S I SS UE W HE RE T HERE IS N OT A N E XECU TION PENDING, AND Y ET D EN YING A N E VIDENTIARY HEARING IN T HI S CASE BEFORE THE EXECU TI ON IS PENDING?

THAT H AS BEE N S ET F OR A NUMBER OF MON THS AGO. THE S TATE HAS O BJ ECTED T O THAT. THERE IS NO NEE D F OR - - I AM NOT GOING TO TALK ABOUT T HAT CASE BUT THE S TA TE IS

I S T HA T A N I NI TI AL MOTION?

YES, I T IS.

I GUESS OUR RUL E P RO VIDES THAT THERE SHALL BE EVIDENTIARY HEARINGS ON A LL ISSUES?

YES, YOUR HONOR.

AM I T O U NDERST AND T HE ORIGINAL DOCUMENTATION WITH REGARD TO A LL O F THE AUT OP SI ES AND T HE T OX IC OLOG Y S CANS FOR A LL E XE CUTI ON S PRE VIOU SL Y PERFORMED HERE I N FLO RIDA , A LL THAT DOC UM ENTATION I S NOW L OS T OR CAN'T BE F OUND?

NO, NO , NO.

I THO UG HT THAT'S WHAT YOU SAID.

THEY MADE C OP IES. THEY MADE COPIE S FOR THAT CAS E AND WE WERE T RYING TO LOCAT E THEM, AND W E T HINK T HAT T HE DEFENSE LAWYER HAS THEM.

BUT THE S OURCE D OC UMENTS ARE STILL THERE?

THEY ARE THE RE AND THEY A RE AVAILABLE.

AND Y OU WERE TALKING A BO UT ONE S PECIFIC CIRCUIT AS WEL L , NOT THE ENTIRE S TATE, CORRE CT?

CORRECT. THAT'S IN SOUTH FLO RIDA , RIGHT.IF THERE ARE NO FURTHER QUESTIONS THE STATE WOULD ASK THAT YOU AFFIRM THE TRI AL COURT'S DENIAL OF POST-CONVIC TION RELIEF B ASED ON P RO CE DURAL B AR AS T O ALL O F THE CLAIMS PRESENTED. THANK YOU .

CHIEF JUSTICE: REBUTTAL , MR. DOSS ?

AS T HE DR. LIT MA N' S Q UO TE IN I B EL IE VE T HE S TATE HAD INDICATED THE Q UO TE OUT O F SIMS WHERE IT SAY S D R. LIT MA N ADMITTED THAT LETHAL I NJECTION IS A SIMPLE PROCEDURE A ND THA T IF THE LETHAL S UBST ANCE S T O B E USED BY D OC I S ADM IN IS TE RE D IN THE PROPER D OS AG E AND S EQUE NC E AT THE AROPRIATE TIME THEY WILL BRING ABOUT THE D ESIR ED EFFECT. INTERESTINGLY ENOUGH, DR. LUBARSKI IN THE ARTICLE RELATES THAT THAT T HAT' S AN OVERLY S IMPL IS TI C V IE W A ND H E CONCLUDES OTHERWISE IN H IS STUDY ON PAG E 1 41 2 H E S TA TE S THE ASSUMPTION OF TWO GRAMS O F SODIUM PEN TO THAL I S O VE RL Y S EUM POLICE IK , HOWEV ER , AND HE PROCEEDS T O C ON CLUDE O N P AGE 141 3 , PAC ED O N T HE POSTMORTEM REP ORTS , MOS T INMATES HAD I T N OT E NOUG H T O PER FORMANCE THEERB YA A ND 63% HAD SIMPLE TOM S C ONSI ST EN T S YMPTOMS WITH A S HUSN ESS.

W HY W OU LD S OM EONE NOT G ET T HOSE RECORDS FOR T HIS C ASE RATHER THAN TAL KING ABOUT IT?

WE SPECIFICALLY A SK ED F OR THAT. WE WERE DENIED BELOW S AYIN G W E DIDN'T PRESENT A C OL ORABLE CLAIM.

TO EVEN GET THE D OCUMENTS?.

TO EVEN GET THE DOC UM EN TS .

WHEN DID YOU REQUEST IT?

REQ UE STED THEM O N D EC EMBER 7TH.

DECEMBER 7TH O F 2 005?

200 5.

THE Y W ER EN 'T - - H AD N OT BEEN REQUESTED A T A NY P RI OR TIME I N T HIS PROCE ED ING?

NO, SIR.

HAVE YOU F AM IL IA RIZE D YOURSELF WITH THE KNIGH T CAS E IN TERMS OF WHAT THE MOTION I S THERE AND WHAT IS S ET F OR AN E VIDENTIARY HEA RING A ND CAN YOU RELATE THAT TO US?

I H AD S PO KE W IT H DEF EN SE COUNSEL ON THA T C AS E. MY UNDERSTANDING I S T HA T T HE Y WERE SET. IT WAS BASED O N D R. L UBAR SK I' S STUDY. THAT IT IS ANA LO GOUS T O W HA T WE HAVE HERE, AND THEY HAV E NOT B EEN GIV EN P UB LI C R ECOR DS , IT IS MY UNDER STAN DING, THE LAST TIME I SPO KE WITH COU NS EL ON THAT C ASE.

WHEN IS THE EVIDE NT IARY HEARING SCHEDULED IN THAT CASE?

I RONICALLY ENO UGH I B EL IEVE IT IS JAN UARY 24TH , T HE D AY O F M R. HILL'S E XE CU TION.

AND WHAT CIRCU IT I S T HA T IN?

PALM B EA CH C OUNTY. I BELIEVE IT IS JUDGE GARRISON.

LET ME A SK A R EA L QUI CK QUE STION. THIS LANCE T A RTICLE IS T IT LE D A RESEARCH LETTER AND THERE IS A NOTE THAT O NE OF THE AUT HORS IS AN A TTOR NE Y W HO REPRE SE NT S DEATH INM ATES, A ND P ARTICIPATING C OLLECT IN G A LL OF T HI S D AT A. WHAT EVIDENCE O F PEER REVIEW DO WE HAVE O F THI S LET TER?

THAT IS ACT UA LL Y C ONTA INED , I BELIEVE , W ITHIN T HE LAN CET. THERE IS A DR. H EA TH T HA T H AD RESPONDED TO THA T . I H AD NOT S EEN AN YB OD Y ELSE. I K NOW DR. H EATH HAD A CTUA LLY BEEN PRODUCED AS AN E XP ER T W ITNESS I N K EN TU CKY , IN I BELIEVE IT WAS

IS THERE E VI DENCE THA T T HI S RESEARCH LET TE R WAS P EE R REVIEWED?

ABSOLUTELY , AND IT MEN TI ON S THAT IN THE AFFIDAVIT T HAT I T GOES THROUGH PEER REVIEW BEFORE IT I S EVE N P UB LI SHED IT GOES T HR OUGH THE P EE R R EV IE W .

CHIEF JUSTICE: THANK YOU, MR. DOSS. THE COURT WILL TAKE THE CAS E UNDER ADVISEMENT , A ND T HE COURT WILL BE IN REC ES S .

THE MARSHAL: PLEASE RISE.