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ERIC SCOTT BRANCH, Petitioner, V

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ERIC SCOTT BRANCH, Petitioner, V Filing # 68107654 E-Filed 02/16/2018 05:45:45 PM IN THE SUPREME COURT OF FLORIDA NO. SC-_________ ______________________________________________ ERIC SCOTT BRANCH, Petitioner, v. JULIE L. JONES, SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS Respondent. ______________________________________________ EMERGENCY PETITION TO INVOKE THIS COURT’S ALL WRITS JURISDICTION TO DIRECT THE DEPARTMENT OF CORRECTIONS TO PROVIDE ATTORNEY ACCESS PRIOR TO AND DURING THE EXECUTION ______________________________________________ Stacy Biggart Billy H. Nolas Florida Bar No. 89388 Florida Bar No. 806821 Kathleen Pafford Chief, Capital Habeas Unit Florida Bar No. 99527 Kimberly Sharkey Assistant Capital Collateral Florida Bar No. 505978 Regional Counsel – North Attorney, Capital Habeas Unit Office of the Capital Collateral Office of the Federal Public Defender Regional Counsel – North 227 N. Bronough Street, Suite 4200 1004 DeSoto Park Drive Tallahassee, FL 32301-1300 Tallahassee, Florida 32301 (850) 942-8818 RECEIVED, 02/16/201805:48:30 PM,Clerk,Supreme Court (850) 487-0922 [email protected] [email protected] [email protected] [email protected] Counsel for Appellant PRELIMINARY STATEMENT An Appendix is attached to this Petition. The following symbol will be used to designate references to the Appendix: “A. ___”. JURISDICTION This Court has jurisdiction in this matter pursuant to the Florida Constitution Article V § 3(b)(7)-(8). Article V § 3(b)(7) gives this Court the authority to “issue writs of prohibition to courts and all writs necessary to complete the exercise of its jurisdiction.” In Williams v. State, 913 So. 2d 541 (Fla. 2005), this Court stated that the “all writs provision . operates as an aid to the Court in exercising its “ultimate jurisdiction,”’ as opposed to operating as a separate and distinct source of jurisdiction. Additionally, this Court has the authority to “issue writs of mandamus and quo warranto to state officers and state agencies.” Fla. Const. Art. V § 3(b)(8). This court has construed a writ of mandamus to be the “appropriate vehicle for addressing claims of unconstitutionality ‘where the functions of government will be adversely affected without an immediate determination.”’ Allen v. Butterworth, 756 So. 2d 52, 54-55 (Fla. 2000) (quoting Division of Bond Finance v. Smathers, 337 So. 2d 805, 807 (Fla. 1976). The Department of Corrections (DOC) is substantially inhibiting the functions of government by denying Petitioner’s limited and specific requests related to his pending execution. These unjustified denials adversely affect the functions of government and risk allowing Petitioner’s execution to proceed in violation of the Eighth Amendment. Since Petitioner is scheduled to be executed at 6:00 p.m. on February 22, 2018, it is necessary for this Court to issue an immediate determination. REQUEST FOR ORAL ARGUMENT The DOC’s refusal to allow Petitioner safeguards to ensure his execution is carried out in a manner that complies with the Eighth Amendment’s prohibition against cruel and unusual punishment substantially affects his ability to enforce his Constitutional rights. Petitioner requests oral argument on this Petition to allow for a full discussion of this issue. FACTUAL BACKGROUND Eric Branch’s execution is scheduled for 6:00 p.m. on February 22, 2018. On February 1, 2018, counsel for Petitioner sent a letter to Warden Barry Reddish, warden of Florida State Prison, requesting the following: 1) that Petitioner’s designated legal witness be allowed access to a writing pad and pen during Petitioner’s execution; 2) that Petitioner’s designated legal witness be allowed access to a telephone before and during the execution process;1 3) that Petitioner be 1 Petitioner made clear that the requested telephone need not physically be with the witness, only that the witness be able to access the telephone in the event the execution went awry. 2 afforded a second witness to his execution; and 4) that one of Petitioner’s witnesses be allowed to view the IV insertion process.2 (A. 001-002). On February 6, 2018, counsel for Petitioner sent Warden Reddish a follow-up e-mail, informing him that Petitioner’s spiritual advisor would not be attending Petitioner’s execution, thereby opening a witness chair. Petitioner requested again that a second witness from his legal team be able to occupy this seat. (A. 003). On February 15, 2018, counsel for Petitioner received a letter from the DOC, granting Petitioner’s request that his designated witness be allowed access to writing implements and denying all other requests. The DOC provided no basis for its decision, legal or otherwise. (A. 004-005).3 This Writ follows. ARGUMENT This Court should direct DOC to comply with Petitioner’s three remaining requests: 1) allow for a second witness to observe his execution, 2) allow at least one of the witnesses access to a telephone, and 3) allow at least one of the witnesses to observe the IV insertion process. Failure to do so amounts to a denial of due process and access to the Courts, preventing Branch, and other similarly situated inmates, from raising and proving that his execution procedure violates the Eighth 2 Counsel for Petitioner suggested to DOC a way in which this could be done, yet still protect the identity of the execution team members. 3 The letter also references DOC’s denial of Mr. Branch’s request to waive an autopsy, but Mr. Branch is not challenging that refusal at this time. 3 Amendment. DOC’s refusal of these requests denies Branch a fair opportunity to protect his Eighth Amendment rights because it deprives him of the necessary information and access to challenge whether his execution is constitutional. As such, he is being denied a “basic ingredient of due process.”: “an opportunity to be allowed to substantiate a claim before it is rejected.” See Ford v. Wainwright, 477 U.S. 399, 414 106 S. Ct. 2595, 2604(1986)(plurality opinion)(internal quotation marks omitted). This Court recently denied Mr. Branch’s public records requests relating to the expiration dates of the lethal chemicals stating that it “will presume ‘the DOC will act in accordance with its protocol and carry out its duties properly. This same presumption would extend to presume that the DOC will obtain viable versions of the drugs it intends to use and confirm before use that the drugs are still viable, as the protocol requires.’” Branch v. State, --- So.3d. ---, 2018 WL 879079 (Fla.)(emphasis in original)(citing to Muhammad v. State, 132 So.3d at 206). Affording DOC this presumption while at the same time granting DOC unfettered discretion to limit attorney access and decrease transparency of the execution process poses an unacceptable and unconstitutional risk of an execution that runs afoul of the Eighth Amendment. As this Court is aware, Florida has a troubled history with botched executions, from a repeatedly malfunctioning electric chair to the 34 minute execution of Angel 4 Diaz in 2006, which “raised legitimate concerns about the adequacy of Florida's lethal injection procedures and the ability of the DOC to implement them.” Lightbourne v. McCollum, 969 So.2d 326, 345 (Fla. 2007). Florida has been through numerous protocol changes since the Diaz botch, and instead of increasing transparency in the pre-execution and execution process, DOC has taken active steps to reduce transparency. In 2013, the first inmate executed using the Midazolam Protocol was William Happ. Shortly after the administration of midazolam, which was supposed to have anesthetized him such that he would not feel the excruciating pain that was about to follow from the second and third drugs, DOC performed the “consciousness check” required by their Protocol to ensure that he was unconscious. However, witnesses observed movement by Mr. Happ after the consciousness check. These movements evidence insufficient anesthetic depth before the administration of the painful second and third drugs. (A. 006 - 017). As a result, and according to Dr. Lubarsky, “the worst possible death experience was delivered – the paralytic effectively burying the patient alive, whose agony at being aware but unable to draw a breath was only brought to a horrendous end through the agonizing delivery of a caustic chemical surging through his body.” (A. 014). Specifically, after Mr. Happ’s execution Warden Cannon decided to tweak the Midazolam Protocol by adding the trapezius pinch to ensure the inmate was unconscious. (A. 067). 5 The trapezius pinch involves gripping and pinching the trapezius muscle in the inmate’s shoulder. (A. 060). Aware of the shortcomings of midazolam as an anesthetizing agent, DOC then adopted measures designed to actually prevent the inmate from moving, which would evidence lack of consciousness and/or prevent witnesses from observing any movement by the inmate. Specifically, during the execution of Mr. Darius Kimbrough on November 12, 2013, which was the first execution after Mr. Happ, DOC covered him from his shoulders to his feet with a white sheet that appeared to be tented over his body instead of just draped, such that witnesses could not observe any movement of Mr. Kimbrough under the sheet. (A. 084-087). This was different from the previous executions where the sheet was merely draped over the inmate and witnesses could see the chest of the individual rising and falling during the execution. DOC further tweaked its actual execution procedures, though made no changes to the written protocol, by beginning to tightly bandage the hands of the inmates. (A. 084-087). DOC changed its protocol again in January of 2017, using a completely new three-drug protocol, the Etomidate Protocol. The execution of Michael Lambrix was carried out using the Etomidate Protocol, and that is the same protocol expected to be used for the execution of Eric Branch. 6 Though it is unclear precisely when, at some point since the Diaz execution, DOC has altered the position of the body of the prisoner in the execution chamber.
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