Filing # 68107654 E-Filed 02/16/2018 05:45:45 PM

IN THE SUPREME COURT OF

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 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. (A.

088-090, filed in State v. Hannon, SC17-1837, ROA p. 519-522.) “Mr. Lambrix was not placed in the same position as Mr. Diaz. Where Mr. Diaz was perpendicular to my position in the front row giving an unobstructed view of his face; right side of his body, including the insertion site; and right hand, Mr. Lambrix was strapped to the gurney with his feet pointed directly towards me.” (A. 089). “Mr. Lambrix was covered by a sheet and his hands and fingers were completely covered up to his wrists with what appeared to be a giant mitten making observation of his hands impossible. There was nothing completely covering Mr. Diaz’s right hand during his execution leaving his hand partially observable for the witnesses…And, instead of a direct unobstructed view of Mr. Lambrix’s face, like I had of Mr. Diaz, I had to look over Mr. Lambrix’s feet and his covered body in order to see his face.” Id. The attorney witness was also without access to his cell phone, even though the execution had been delayed. “From 5:30 p.m. to 9:30 p.m….I was unable to contact Mr.

Lambrix’s legal team as I had no access to my cellular phone. However, I observed as least one Florida Department of Corrections’ employee who was also a witness to the execution using a cellular phone during the time the witnesses were confined to the chapel.”). (A. 088).

7

Unlike in Florida, in other states where lethal injection executions have gone awry, those states have taken steps to increase transparency and attorney access. For example, after the botched executions of Romell Broom and Dennis McGuire, the

State of Ohio increased access and transparency. The State of Ohio specifically allows for the prisoner to “request that one or two attorneys attend the execution.”

(A. 094). The protocol also provides that “[i]f the prisoner chooses to have his or her counsel as a witness, at all times after counsel enters the witness room, counsel shall have free access to the phone near the entrance door of the Death House.” (A.

103) (emphasis added). Finally, the Ohio protocol directs that while the curtain in the execution chamber closes, the “closed-circuit camera shall remain on to allow the witnesses to view the establishment of the IV site(s).” Id.

Similarly, after the botched execution of Joseph Wood, Arizona increased access and transparency in its execution procedure. (A. 110-145). Arizona allows for up to 3 witnesses from the legal team, and there is no requirement that the witnesses be an attorney.

In the event that the inmate wishes to designate one or more of their attorneys or other members of their legal team (not to exceed a cumulative three persons) to witness the execution, then the inmate shall identify these witnesses twenty-one days prior to the execution, and these witnesses shall sign and timely submit an Official Witness Agreement (Form 710-6), whereupon the Director shall invite these witnesses to attend the execution in accordance with section 710.10, 1.2.1.1 of this Department Order. (A. 120). 8

Further, Arizona explicitly allows the witnessing attorney immediate access to a cell phone:

In the event the inmate has designated one of his attorneys to witness the execution, temporary office space will be provided for the inmate’s counsel in the Administration Building during the scheduled day of execution. One attorney and two additional members of the legal team may be permitted to remain in the office space during the execution. The inmate’s legal team will be permitted to bring into the temporary office space one mobile phone, one tablet, and one laptop. While the attorney witness is in the witness room, a member of the Witness Escort Team shall hold one mobile phone designated by the attorney, to be made available to the attorney in exigent circumstances. The mobile phone may not be used inside the witness room. (A. 127). The Arizona protocol further mandates that witnesses view the IV insertion process: Existing closed-circuit monitors will allow witnesses in the designated witness room to observe the IV Team’s vein assessment and placement of IV catheters in the inmate. In addition, the audio feed from the overhead microphone will be turned off following the IV Team’s assessment and placement of IV catheters. 11. A camera will be focused on the area in the chemical room in which syringes are injected into the IV line, and existing closed-circuit monitors will allow witnesses in the designated witness room to observe the administration of the lethal injection drug(s), including the administration of additional or subsequent doses of the drug(s). All cameras and monitors shall be placed in such a manner so as to ensure and preserve at all times the anonymity of all personnel involved in the execution process. (A. 141). These procedures in Ohio and Arizona, who like Florida, have a history of botched executions, allow for an increased transparency in the process, while at the same time balancing the safety, identity, and security of DOC personnel and other

9 witnesses. Counsel for Mr. Branch has made identical requests to those that have been established in Ohio and Arizona. DOC flatly refused these requests, offering no justification or reasoning. (A. 004-005).

To ensure adequate access to the courts, it is necessary to have at least two attorneys present at the viewing—one who can access a phone, and one who can continue to monitor the execution should phone access be necessary. By preventing witnessing counsel adequate phone access—indeed, any phone access—during the execution, DOC’s policy violates Branch’s right of access to the courts. Further, by refusing to allow a member of the legal team to witness the IV insertion process,

DOC is actively preventing Branch from bringing an Eighth Amendment challenge that would arise after the execution process begins yet prior to the flow of lethal chemicals that will cause death. Such a violation would serve as a basis for a stay of execution.4 If DOC has difficulty in achieving venous access, and it either takes an unusually long time with multiple attempts to locate a vein, and/or requires a painful cut-down procedure to be used, Mr. Branch has no way of communicating his pain and suffering to his counsel, in violation of both his Sixth and Eighth

Amendment rights.

4 In fact, this is what happened in Ohio with the 2009 attempted execution of Romell Broom, and more recently in the 2017 attempted execution of Alva Campbell, which was halted after approximately 80 minutes of attempting venous access. https://www.nytimes.com/2017/11/15/us/ohio-execution-alva-campbell.html (last visited February 15, 2018). 10

This Court should exercise its broad discretion and direct DOC to comply with

Mr. Branch’s specific and limited requests. The privilege of being granted the assumption that an agency will faithfully carry out its duties while exacting the highest possible penalty on a Florida citizen comes with the responsibility that the agency create as much transparency as possible to prevent an unconstitutional execution. This Court should grant the Writ.

Respectfully submitted,

/s/ Stacy Biggart /s/ Billy H. Nolas

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 (850) 487-0922 [email protected] [email protected] [email protected] [email protected]

11

CERTIFICATE OF SERVICE

I hereby certify that on February 16, 2018, the foregoing was electronically served via the e-portal to Ryan Padgett, Assistant General Counsel, Florida

Department of Corrections, ([email protected]); Charmaine

Millsaps, Assistant Attorney General, ([email protected]), and Lisa Hopkins, Assistant Attorney General ([email protected]) and [email protected]

/s/ Stacy R. Biggart Stacy R. Biggart

CERTIFICATE OF FONT

This is to certify that the foregoing Initial Brief of Appellant has been reproduced in Times New Roman 14-point font, pursuant to Rule 9.100(1), Florida

Rules of Appellate Procedure.

Respectfully submitted,

/s/ Stacy R. Biggart Stacy R. Biggart

IN THE

STATE OF FLORIDA CASE NO. v.

ERIC SCOTT BRANCH, Defendant. ______/

APPENDIX TO WRIT OF PROHIBITION

INDEX TO APPENDIX

1. Letter from CCRC-N to Warden Reddish dated February 1, 2018….001-002

2. E-mail from CCRC-N to Warden Reddish dated February 6, 2018 ……..003

3. Letter from DOC to CCRC-N dated February 15, 2018……………004-005

4. Expert Declaration of Dr. David Lubarsky…………………………..006-017

5. Transcript from evidentiary hearing in State v. Paul Howell………..018-083

6. Affidavit of Richard Kiley………………………………………….084-087

7. Affidavit of Neal Dupree…………………………………………….088-090

8. State of Ohio execution protocol…………………………………….091-109

9. Arizona Department of Corrections execution protocol…………..…110-145

Telephone: (850) 487-0922 ROBERT F'RIEDMAN CAPTTALæLIATERAL REGIOMLæLTNSEL }.¡ORN.IERNRECICÌ{

OFFICE OF THE CAPITAL COLLATERAL REGTONAL COUNSEL NORTHERN REGION 1004 DeSoto Park Drive Tallahassee, FL 32301

February 1,2018

V/arden Bany Reddish Florida State Prison P.O. Box 800 Raiford, FL 32083

Dear Warden Reddish,

Our office has been appointed to represent Eric Scott Branch in his post-conviction proceedings, which necessarily include the death warrant stage we now find ourselves in. As õounsel for Mr. Branch, we are duty bound to witness the execution, currently scheduled for Thursday, February 22,2018 at 6:00 p.m. We have a number of requests regarding the witnessing of Mr. Branch's execution that we hope you will consider.

Our first request is to allow our designated witness to bring a writing pad and pen into the observation room during the time the execution is taking place. It is our understanding that the members of the press present at executions have been allowed to have a notepad and writing instrument to record their observations as they take place. Additionally, we have been informed that the FDLE agent, whose obligation it is to record his/her observations, also has access to writing implementations to records their observations. V/e would request that whoever witnesses the execution from our office be afforded the same access to writing materials as the press and FDLE.

Our second request is that a witness from the legal team be allowed access to a phone before and during the execution process. This would allow the witness to be apprised of the most up to date information regarding Mr. Branch's case. Additionally, should the execution go awry, it could be necessary for the witness in the observation room to contact the courts and/or legal team to stop the execution. We certainly understand that cameras are not allowed in the observation room, and we have no intention of taking pictures, nor are we requesting to do so, however, in the event an execution goes badly it is impossible for members of the legal team to take any action since the legal witness has no access to any communication device. It is also problematic that the witness from the legal team cannot remain in contact with attorneys outside ihe grounds of the prison during periods of delay. Communication between members of the team during this time is extremely important when critical legal decisions are being made and that can

001 only occur when access to a cellular device is allowed. The phone does not have to be physically on the witness, the witness just needs to be able to access the phone if they need to.

Along those same lines, our third request is to allow our offrce an additional witness, bringing the total of legal team witnesses to two. In the event that Mr. Branch's execution goes wrong, the presence of two legal witnesses will allow for one witness to leave and promptly alert the legal team and courts, while the other witness remains in the observation room.

Finally, our fourth request is that you allow one of our witnesses to be present and/or have unobstructed viewing during the IV insertion process. As Iom sure you're aware, this is a critical moment during the lethal injection process and any difficulties achieving venous access andlor errors in obtaining proper access would cause Mr. Branch severe pain, in violation of the Eighth Amendment's prohibition against cruel and unusual punishment. We are mindful that the identities of the execution team are kept secret under the law, but perhaps the IV insertion process can be observed via a video that is narrowly focused on the insertion sites, and as such would continue to shield the identities of the execution team members. Additionally, the attorney witness is an officer of the court, and therefore bound not to reveal the identity of any team member.

We appreciate the solemnity of this process, however, as legal representatives of Mr. Branch, we feel a responsibility to him, and others similarly situated, to be able to communicate effectively within the legal team before and during his execution. We hope you will respond favorably to our requests and we look forward to hearing from you. "ffifu,p^

Kathleen Pafford Assistant CCRC-N Co-Counsel for Mr. Branch

002 2t16t2018 Capital Collateral Regional Counsel - North Mail - Requests regarding Eric Branch execution

GMail Kath leen Pafford u¡d,rxr¡trlr

Requests regarding Eric Branch execut¡on

Kathfeen Pafford Tue, Feb 6,2018 at 11:31 AM To: Barry.Reddish@fdc. myfl orida.com Cc: Stacy Biggart , "Godwin, Shawn"

Hello again,

I just wanted to add that we found out today Mr. Braneh's spiritual adviser will not be attending the execution. Our understanding is that this leaves open one witness chair, which, as stated in our previous written request, we'd like to fill with a second witness from the legal team. lf you have any questions, please feel free to contact me.

Thank-you, Kathleen Pafford lQuoted text hiddenl

003 https://mail.google.com/mail/u/0/?ui=2&ik=0babf91d19&jsver=9CtlOcfiWQ."n.*u¡"r¡v=pt&msg=1616bfs02febd42b&search=sent&siml=l6l6bf502febd42b 111 FLORIDA Govcrnor DEPARTMENT of RICK SCOTT

CORRECTIONS !ìccrelary JULTE L. JONES

50 I Suuth L'ul houn Strcct,'l'ul lahasscc, l"L 32399 -25Af) http://rvrvrv.dc.stûte, ll. us

February 15,2018

Kathleen Pafford Assistant CCRC-N 1004 DeSoto Park Drive Tallahassee, FL 32301

l)ear Ms. Pafford,

'l'he F'lorida l)epartment of Corrections (fDC) is in receipt of your letter dated February l, 2018 regarding your request to FDC to waive several of the procedures in the January 4,2017 lethal injcction protocol (protocol). To summarize, you are requesting the following: a writing pad and pen during the execution, access to a phone during the execution, an additional witness (to be designated by CCRC), and to witness the IV insertion process. In conjunction with rWarden l{eddish, the Offrce of the General Counsel has reviewed each of your requests. We have no objection to CCRC's designated witness bringing a writing pad and a pencil.

FDC must respectfully decline your remaining three requests. The procedures in the protocol werc developed from extensive discussion by FDC both at the Central Office and at the institutional level. As stated in the certifïcation on the frrst page of the protocol, FDC's foremost objective is a humane and dignified death. In order to ensure F'DC complies with its statutory duties pursuant to Chapter 922,Florida Statutes and to maintain the security of our institutions, FDC must adhcre strictly to the procedures in the existing protocol and will only waive these procedures in exceptional circumstances. FDC has previously denied requests similar to those in your letter.

It is F'DC's understanding that your client would like to waive the post-execution autopsy. Section 922.11(3), Fla. Stat. provides:

(3) 1'he body of the executed person shall be delivered to the medical examiner for an autopsy. AIIer completion of the autopsy, the body shall be prepared for burial and, if requested, released to relatives of the deceased. If a coffin has not been provided by relatives, the body shall be delivered in a plain coffin. If the body is not claimed by relatives, it shall be given to physicians who have requested it for dissection or to be disposed of in the same manner as are bodies of prisoners dying in the state prison.

004 'fo comply with the above statute, the January 4,2017 lethal injection protocol provides at Specific Procedure ( I 3)(e):

(e) the inmate's body will be hansported by the hearse attendants to the medical examiner's ofüce in Alachua County for an autopsy.

'['he language in s. 922.11(3), F.S. in unambiguous and, through the use of the word "shall," requires FDC to deliver the body of the executed inmate to the medical examiner's office for an autopsy. Additionally, section 406.1l, Fla. Stat., requires that autopsies be performed on any individual who dies in "any prison or penal institution." {j 406.1 I (l)(a)6., Fla. Stat. Because the autopsy requirement is in statute, FDC has no discretion with regards to the performance or waiver of an autopsy in this matter. Further, FDC cannot waive the provision relating to autopsies in the protocol as it would create a conflict with the existing statute.

Sincerely,

stant General Counsel

*INSPIRING SUCCESS BY TRANSFORMING ONE LIFE AT A TIIII|E * 005 COÜRT UNITED STÀTES DISTRICT "iöfü-olsrn¡cr otr ÍLoRIIDÀ " -JÃcxsoxtts'tp Drvl$ol{

) v- Ollq q''q fi t{- JBT ETEf,IRIA V. JÀCT

Í.YEFRT IIFIÇI ¡ IIATI.O.T{ QF I}R' I'4I|ID.LT'BASSIC||

l.MynamaigD.DavidLubarsky.IholdancndouædhonomrytitlcæüroErra¡rucllvl.

PåppcfP¡ofessorofAngsthôaiolog¡yendlrrvcscnlgdforthclsstt2ycalËutbeChalrmgt ofthcDoportrncntofAncethesiologyforthcUniversityofMiamiMillerSchoolof and concd to ürc bcst I makc in ürls declars¡ion ¡¡c tuc Modicino. Ïbe facil¡l st¡tsmÊnß

of mY knorvlodgc and acPcricncc' sorvice my cxporicncc as an $esthËsiologist inclrdas 2. tn additton to fny ounÊnt positiofir ccttcl of Ancdrcsiotogy ¿t Dukc univcrsity Msdkrl as thc vicc-chair ofthc Dcpailmcnt

fiomJulyIgtSúoNovcmbcrof200l'lrmliænscdtopracticcmodicineinFlorida'Nortr in pain Certiûod in Ancsthesiolory, and ceftif¡ed Ca¡tlina. arrd Now York. I arr Bo¡¡d

managcmeutfro¡irt,h¿AcadcmyofPainManagønont.Ihavccondr¡ctctlrcsørcha¡'d of varior¡s drugF as ancsthdcs ¡nd how prblistred pecr ævieu,od a¡tlclæ on ùe suitabitity

I

006 Case 3:14-cv-01149-MMH-JBT Document 14-5 Filed 12101/14 Page 3 of 70 PagelD 422

to,adÈquatfrly m{¡irttäir ûnös-theüq.dcpth. ¡n'a o-ljnioattetttng I a¡n a r.ecurin-g'autltor of'the

öhaptcr on int¡hv@ous inductiqn agenls in qur qpecialty':s prirnary authoritative te¿tbook

(Miller's Anesthesia).

3. I h¿iy€-publishcd poe,r i:eviewed arfi.g,lcô:o¡ tcth*l injectffi ineludÌ¡g''the çnly rçioutific,

ptipel thrt êvaluatpd availab!ç,medicål data" and h¿vc s¿rved,a*an ç¿{pttrt wiffess iin leüral

injectìon litigation in sevual stafus'inÇludingìn Aloba,ma in the ç¿so oÊ Arthttt v, Tfui¡nas,

674 F3d 1257 (tlrh Cir. 2þ12)'. I þave also servad as an c¡(pert witnass in cases in Ohio,

Tennessee,. and PJorlda, I testifrçd at,a limitcd evidentiary hearÍng in tht Juqn Cal-'lps

Chavez c.ase before the FJonorable Judge D¡vis in this Fedemt Distriet Court on Februaty

5,2A14,3:14-cv-l l0-J-39JBT. A cument oopy of my ømptete CV is att¿chçd to this

Deolaration as Exhibit l. r'Exæution 4. I hav.ç becn a.iked by Plaíntiff to. rcvierv Deftndants' by Lethal trp'ootió-n

Procedurçsir deted:Septenrber 9.,,2013'(,I{øoinafter.Mldaaolam P.rotocol) dnd t0 addfcssthc

sûitab,ilþ of nridazolam as ara anrsthetic in a thrceidnrg lethal iUiaCtion pIotrilÖJ. ,l have.

been æked to opine whetfter the usp of midazolam for this ¡ruçose oreates.it sbstantia!

risk ofrserjous, hatm to Flaintiff.

5. tn formul4fing my opiníon, I have revicwed:

'a. The Midazo-lâm Prolocol

b, Dcfendants''piior pJoloeoJ, dated Scptember 4; 2012n which utilizcd pentcrbarbitâl

aS the {irsf drug in the t}iree-drug protoeol

2

007 423 Case 3:14-cv-01149-MMH-JBT Document 14-5 Filed 12101¡|14 Page 4 olTO PagelD

ByewÍtross pness r€ports the o:rtoutions II*pp, ô, of sf,Willlam "Aska¡l AbrlUlldr

Muhamruad, and Juan, Carlos Chavezl

d. Thc Affrdavit of Richard Kiley, EsE" tvhç hæ Ob-¡ervd- thç axçputian¡ of lvl'trt¡n

Grossman, Darius Ivtlark Kirno'rough, and Eddie WayncDariis

e. The test¡mony of Er. Mark Heath, Dr. Roswe!!Lce Evans,,and fEt¿n InSpeotqÍ

Jonathsn Feltgen from the Ftodda çtate oircuit cÒúrl praçeèdingS inigfa¡e u'$sktri

Abdultøh M.Tthanma¿l

f, FDLE logs fio-m thç,rniæqtïons .Ðf lü-illism Happ" Àskari Âbduliah Muhammod,

Þarius'Mark Ki¡nbrcggbr,¡4¡¡ ëarlos Çh¿vez, Palil Hbrroll, Rohert Henry

g. Two letters fioil Ìlospira,. thç mirtufacturer 0f t¡ìdszolâm, i¡rdicating the

unsuitability of midazolrrn fb¡ use in e lettrat itr¡atrtiùi'l

h. Exeoution logs and èyewitnes's reporn,from the Joseph Wood execufion in. Ari'¿ona

i. Execution logs, autopsy report, and Deparnnent of Puhlio Safcty Repor,t dated

Seþtenber 4,2014 fi'om the Clayton Lookett e,rpcution in Olclahorn¿

6. Since my teçtimony in the Ciravaz case, there have been tlvo additional problematic

exæutio¡s nàtionwidc nsing,midtuolarn * Cla¡on Lockett in Olclahoma and Jbscph Wood

in Arìzo¡ra Thcse, two e¡æputions¡ part'icularly the Joseph rübod ext¡cutibn, provido

obþetive scientif¡c svidçlrce that mldasolam has a .ceiling'effeot, and fhat no a¡nount of

1.f¿e Brendan FarringÊon, îla, Exe(iute.r.rnan for lllinory wotlqn's l-98ó mwdet; Tamp4 Tribune (Octobër 15,.20 I 3) alailable qt citus.ço-!rng:{nurder-201 3 I 0 t5/; ttti¡losl Faur qnÐêsthRov, fwnate Executed, The Gainesvills Sun 712014) gvailable at trlVêavel ¿¡n¿l David. Oveile, Juan Carlo.c Cltæ¡cz exe al ed þt nur&r oJ.Jirwtgt tzr 20'14) availaþle, dl ieiccts.html

3

008 Case 3:14-cv-01149-MMH-JBT Document 14-5 Filed tZJOtlt4 Page 5 of 70 PagelD 424

rnidazolam is, suffisíent to guarantee.Plaintiff w.ill be'insensate for ths achninjstrstionof ûho

seoond.snd ihird drugs called for in Defendants' Protocol.

7, I rendered this same opinion .in the Ch¿vez caso, basod on fi¡y ÊstraÞöletion fto. rn animal

studipp a¡d w,hat is known about tþg.sciençe behind how tåp:dr¡€ rworkg,Õn.nÐèp-tors ln

thç b¡An. H,orryever" in €havg¡ JudgeD¿vís'ul(.ìnral,ly:rgicctcd rny n'p,inrcu ++.bçing.too

sl.¡e0-uiafiveslnoe'I readily a -rnitted thut U.ec*iuse fhec,had:þ,eclrJ¡o"¿xBrri¡ng$_lipn hmùglls

,in tbudoss¡ calted for by D¿fqn&.ntsi p¡otdeol,lhsrçw.qs,¡OlftçraHi.ç:qù-O¡rt ho.rN,lougþliqh

a dOçe would [ast; of wheth.ei fhè dOsè would actu4lly supplêbs coÍ]SöiÕusrìgss adéquafely

to prevent pcin associated witli a causTic chernicr¡l injcctiolr or a foelïng of str.ffocation.by

the Plaintiff l{owever, I opined, b.ased on what was lcnown, thàt rbidazolårtr Ìtad a æilìng

effect, whjch was one of severâl reasons it was an unsuitable ancsthotiq as thö first drugjn,

a thrcc drug proto.col aÉd crsâtcd a sori¡sus risk of s'ubstântial Þain fto'¡n tlro ad¡niäisaatìon

ofthe second and,third drugs.

8. IntheJoseph'lVoodexeeudon,whichtook,ncarlytwohounslocornþlótc,ihswåsgivén'?$0,

rng of rnidazolame t5Orng more than, is c¿lled for.i¡t Defend,ants' protoool.

9, T'tiis experimertal'execution nswoffers definitivcss:ientific;proofftat Defendantcl S0û¡ng

dosage will noi rapidly or r'eliably. produce'unconsgiousness and ftrther supports my

origlnal opinion drat,ûrerc is acelling ef.fect with midazolam and,that hilher dosos ofthe

dtug do not equøte to a deeper level of,rmoonsciousnsss.

IQ. Itr,a olinica{ setting; the p-utpoæ,of ânesthesi$ is'ts rcñder,apa¡thnt lnsensate'to..tho cffcots

of a pnr*posed intcrvcrrtion¿ When a gcneral anesthetlo ie utít:ized, indl¡etion and

¡naintenance ofUnc9rtsciousne$s: alrd l¿ek of:r€sponsiveness to" noxious stimuli is the goal

and expected outcÕmo.

4

009 Case 3:14-cv-01149-MMH-JBT Document 14-5 Filed 1?01/14 Page 6 of 70 PagelD 425

I I . Midazolam is not intended for use as s totûl ançsthqric,i Ïfuorvr undpr fic tr¿de naË¡e

Versed, il is tlie shotest acting o-enzodirøgpine sn üe mmtceti

12. Benzodiauqp,lnps Aro,¿ cf¡Ss of;d¡ugç urùich arqp¡n{rily uSod for,treatjn$qû¡(iety, TT¡py

'ireludç dt$gp suöh.ag Valit¡n, At¡vaft aird Xa¡ær. In çlinicai use; nridazola¡l¡ is.rypiÇâll]1

administe¡ed prior'to rhe in(iuotion sf'ênesthosia in purgical sÕtti.ltgs to tr€ãt and.sÊdätg:¡ 'patient.

l3' While midazolarn can he used üo induce unconsqiciusness, it h¿s no aüalgcsic properiies,

and Ìviüoutpairt reliwinÈ drr¡gs, is not suit¿bleas h form of anæqhçsia as E singlc drug;

14. Midazolam iS not nDe-AÞproved ás thc¡tp/á drugtoprgduce ahôithçSia jlr rnino¡ surgìcal procdures. Itis never used æ a sqle ;anesthçticth¿t:inlolft$ ariynoliióus Ètirr¡ulj as hlræ

zero ariâlgpsie cff€cr.

15. I h¿ivþ rcviewd the Florida Supreme,Corirr's deciùicrn in .ìtfuhaninad v. gtate,,20tl Fla.

LEXIS 2757' (Dwenb.er 19, 2013). Thir fqctual fìnding made by the eircuit caurt and

upheld by the F'lo¡ida Suprûtne Cour,t sating,that:midazolarn is F'ÐA approved as an

anesthetis iñ r¡inor surgcries is iucsrreet. As stated aboye,.it is not FD.A appnrved as.rhe

so/cdrugforpainfulprooeduresrbes¿useithasnoanalgesiopropertios, J,6,fieves,Rober

I. Fragen, 'Phurmacologt H..ftonald Vinilq David J. Greenblatt ¡ Mídæolam, and,Ilst*s¡ t),

Anesthesiology* 3 I 0,324 (t 9S5).

16.This differs fr.om the barrbiturate pentobarbial, which is approved as asole anestùdio.

Pentobaúital dorls ¡ot have a eeili-ng ef.fect. Pentobæbital produués twc¡ different cffects

orr the brain. lr aots on fhe CABA ¡eeeptor to promote biq{ì¡g, that will in{uce:

UnesrtsoiouSn6Q, br¡t alsO produces sedqtiort diteafly in largo doseç, actìirg as a çAgA

substitritç. lVlidazqlam þinds to a rgcepûor øjawrt tp the,GABd. receptor ar¡d iner-eascs

å

010 Case 3:14-cv-01149-MMH-JBT Document 14-5 Filed L2lOlJt'4 Page 7 otTO PagelD 426

effective binding of GABA to its rctÊptor ts induce uRconsciousr¡ess, bqt does not ha$e

any direit effect (thc second nreehanism of ) to produce dsÞp ançstlötio'gtafgs.

Âlso; .onee thai ¡eerytor is satu:rated wlth mtdazôlatrt" adminisEatiO¡t Of ino.te of ths drrrg

dtæs not ido an:¡thíng.o inercaso,the levcl of r¡nsoti$ciousnos-s, Th-e¡e is a mäxÍütrrn cf&êl:

shor,1 of-EEGsïlence (Phyeiolo$f :and Pharmaeo.lggy in A¡cght*io ftaosþc; S¡opltirtg¿n"d

Flillier, 4th edition) which islyhy if is nqt uæd tö inducp corna as Þarbitur¡ts$ atq.

17. IüVîthout an adequatg detennina{jon .Qf tlie dgpth of unçþnseiousnsss" if gilrèrl a paihfb!

stinuli, suojt as 4tr i4ieotiön of vecüloniurn. bromide qr pçtâssîutn. ohtOiltiç., tllèrs iS. a

substantial risk thef Flaintiff'might awaken ftonr the noxious and painñrl sÍirltuli, ltlt/trile a

heavily sedgtcd petie¡t mìght not rospond to name caliing or a,subtlc pinctr, thät is a vory

different level of stimulus than being starved fbr air onoe paratyzed, or having a caustic

charrisal injected inff¿vonously. As.an analogy, a patient asleep migtrt not.å\/akert ib th€

stroke sf a feathsr on thè leg but would oertainly awakøt to a blowtoreh aþplied. to the same

ârea.

l&. T,ts conssiousness ch¿mk desc¡ibod in thc Mid.azola¡¡ Flotosol and, detailed þy tho

,rry:itnesseg in the Happ and Kirnbnougþ øtecutions is uoî sufficienl to deternïne

unèòn.seiousness and inabilþ to feel pain ûorn.ths, noxious stimuli o,f tho vocr¡lioniurn

brornide and poassium ohlorido. Moreovot¡ Defondants: wholly 'failEd to csnduct a

osnsciousnes eheck in fhe most recÊnt €s(Ggution of Eddie Davis.

I 9. Defôndants' t¡seof rnidae. olam ts induce unoonsciou$ress also Ígnores a.substantial risk of

peradoxical reaction's in vulnerable populstiq¡s. into. which Plaintiff, and :arguably the

entire death row popirlation, belonp.

ç

011 Case 3:14-cv-01149-MMH-JBT Document 14-5 Filed tZlOLlL4 Page I of 70 PagelD 427

10. A pariidoxicgl reqctio¡t ÍS whçn thç drug doçs not îvork as i¡ is intsnded. In lhe i'r¡'stant

qtqy seJtjnil, it wguld t[êt¡n that'thc i¡Unatelould not go to sloep and/or not aslcop long

enough for:thc expçUfio¡l to b-êovoq qnd rnightindUEè..qnxtèty., diS$ordìoarcd nnovwtanq

hyperaotivity arrd/ôr ag$.rassidtt ii¡ liËu öfisedatiitn,

2l . A¡ noted åbove, thcsûipôr.adgx¡a¡-¡ ¡¿¿çtiohs ttmnif:cst in many Y/4yl$rsUsh æ hy.þer'aotiv'iiv

ard.restlossnoss, but árc not.aftcndü by tlrc expectÈd Sed¿tlvq effbqts, atid ers. aÉûe.s¡ed

by reverrsal of ¡nidazotam, not furtbcr administ¡¡tion. Midszolafn dqn þ.revprsçë b,y

administeri n g tlre d rug Roina¿i c

22, Studies show that when midazolam is given in high dos* to the elderly (over 65), to peoplo'

withahistory ofaggression.ori.mpulsivi.ty, a histol.y ofalcohol ¿6sge,.and otherpsyohiatric

disorders, thero:is,a substânüal risk of a pâradoxical reæti.orr. I havç been advised by

counset that Plaintiff suffers from some dr âll,ofthesoconditions.

23. Flrther compounding the risk of using midazolarh æ thc frtst drug is the hct that a

neuromuseular blocking agcnt; vesuronium brornide¡ is usod ,as the- sccohd dntg iti thc

Mid¿zoÌam Frotocol, Tho vecuroniu,m'bromide would'paral¡ee ,Pleintitr'ànd.,render him

uuabic to cor¡vey any pain or suffering. Plaintiff.would experiçnce a senstltion akin:fo

o-olng þuriø ¿[iye, but not be abie to qonv.Gv the ,feeling of pain or suflosåtion; and the

paiaþsìs would Camõ.ufl4tp any Volqntary movement that might resrlt frorn an incomplete'

lqss of co¡ sc iouÊnes"s'

24. Vesuronium bfor¡ride tnaskq the abili¡y of any Iay observer to discern wl¡ether ths

anesthetio drug has been properly delivmcd. Nfot'èover, ;h'ccausç of the risks associated

with the admlnistr¿tiön gf vccilonuim brgmide and its abilifl to eamouflagpåwarßncssi

even to bained p¡ofessionals, thç Arnetic4¡ Veterihqry Mediqai Assooiation (AU\,ÍA)

7

012 Case B:14-cv-01149-MMH-JBT Document 14-5 Filed 12l0U14 Page 9 of 70 PagelD 428

prphibitç thc usu of pa¡elytic$ for ôuth{urasia sf animals: By statuþ Flo¡ida also Brohibíts

thç usë of Bar'¿lyt¡os ih uair,ral eutluanasie Fl. Stat .8?8;053(3). The only pur-pose of the

admiilistration of the vecuroniu¡n :brorn,ide'is to ¡n¡iks the exeeution morç aesthetically

plæsing to obsþrvers in that it'reducas.thoobitþ ofiheindividuat being eprcsuted tp movc

or Shsw any pain associaæd wìth the oxccution proeess.

ZS, fh1 third drug in the Midazolanr Proûocol is potassíum ehloride.. Fot'asslum cblsrideis.a

c¿ustiq chemioal and wouldrcaus€ excruciatlngpah to,Plaintiff upon injecito¡.i.flre:,i.$ npt

ptaced and meintained in a surgical plane of anesihesia from tlie into the.¡UidåZolarn 'fÕr

duralion o f rhe execution.

26. fn order to appropriatcly deter.mine comsciousness gfter the adr¡linistratiq¡rl qf midazotath

as described in the Midazolanr Pro¡æol, Þefendant$ Would nsed to wait seryþral ûinütes

and then oondue¿ an adequote cgnse¡ouu¡Êst check, whish t.hey are not ti,âinoil tò, do,

C;srrectional persornel rannot bc adeQuatoly trained without the .formel repetitive

'afrgsthgsiq ÊxperiçncEoqe'obtainç ovqr a four yeqr rÈsidency in anssthssia afterra,four

yc.ãrcÕur-s.e. of mediç{i tchçoJ a¡¡d afqu¡;ye¿.r pre+riedical prÈpàrátion.iti collcge.

27. Datennin.Tirg vhgúqr soiheoúe ïs Tru:ly, inse¡sate uikes repctitive,tràinirrgland:experienco,

'becâusé tt¡e signs that someonÞ is riot i¡rcnsaæ can bc veif .srt,btla I¡,a clinical.setting " you wþuld typio-ally sæ subtle fine: tnofiri movernç¡ts suèh as a rnoving,of.the ilËeior.,hands.

'Ihis. is nÖt spmetliing that a lay person will neco¡sqrily obsenrre or notice.

28. Mqt'eover, in order to make sur6 an individual will be insensate to nox¡ous stimuli, they,

must be in a surgicul þlaue of aircsthesia, ln clinjoal praot¡ûe, a comrntn nty to tost for a.

.$úrgical plane of änesthesia is to applya surgieal elanç (strarp toothed, e.g: å Kctly) on the

arø w.hefe you .&rê going to ¡nake,the ineision. The pai,n/pressuttr cf€s{d.by this elamp.

8

013 10 of 70 PagelD 429 case o:14-cv-01149-MMH-JBT Documenr 14-s Filed 12l0u14 Page

cennot be.equated with a hurn4p þciqg so4dVÉtihg a trapt¿ir¡s pindi;tousliirtg.an eyelld,.o.r

shaking a Bersou's, shoulder.

29. Ìlowevgr, ln addition to i¡r,itially asses$ing.t¡rrco¡sejouÈ-Res\ unqonsciO.$Sr¡.gss insqt bs

continualþ mqnitgred tl"iroughquttlre r.emainder of thë'execiltti'ojt lt,is ¡rot pli,igsiblUfot any

with.Oqt ihe ass¡6¡dnce qf å- IaJ Bsrs,o¡ to evqlu4tg whcther $rnþO¡¡g is unp$tst{oud.

prooqssed tÌE€ ¡non'nor or q Ëaincd medlcal pro&ldional'

30. As qvidanæd"by the eyewitness réports. frorn FloridÈ'ç: rvill¡am Hgp.P eIèôutiÈrt) thçie:was'

movçinent after the conscir¡usnçss checþ which indicates an insuffìsient aile$Thetic

individual docs not make absolute eVidenae of his riot being adoquatdy anè-sthetizöd. 'dn

thh. failed. It Ittovpms6üî if he is totally uD@nsqious arrd ânesthìsti?ad, Tliersfore potocol the'paralyäc is my OÞiniorl, tliat tliç. worst Bossiblê dê¿th expóri¿nss. was. dellvEred -

a cffectivcty bulying the p8tient alive, whose agony àt beingawårebut unable to'draw .detivery breath was onfy brought to.a horre¡ldous end through'thc agonizing 'of a eeustic

chcrnical surging. through-his body.

ûre 31. The eyewifncss rcport fbom Kimbrougþ does uot dæcrfbe such;movornen! howcver¡ his affidavit states that view of tL¡e innrate was obstruated by the sheet th¿t was tfited over

.body. Additionally, in the Kirnbrough execution, the'}Iêndrix exeaution, and the,Ðavis

execution, the imr¡ates' hands were tightly bandaged, whioh wotrld preventtl¡e o-bservation

ofthesubtle firre motor moveñeht$ one would See if a psrsoh iq eithø nÖJ tlnconsçiÓus or

has awakoned dirring the execution. Thcreforç¡ it appears that Þe,feudanfs hs.ve. tb!çn

afÏirmarive sJeps rq minimiee th9 o. þsêrvat¡p.4 çf pgtqntial 'movsmþriÎ aftç¡ the

,administrgtion of the midazolam,

9

014 Case 3:14-cv-0114$,MMH-¡BT Document 14-5 Filed L2l01,lt4 Page 11 of 70 PagelD 430

32" The.cxeoutíonsof Muharnmad. and Chav,eu, whsrü i"twæ æported tftatMuhamrnadns ey.e

.opened and Chavez' feet rnoved after the:,admlni.stration .of '*tc mida¡olqm, sffprs

a{ditional examples of fine motror moverrrent indisating:eonÞsloûsrrass,artd furrhër sgppg{ts'

my opÌnion that rnìdazolar¡ in any doss'is.un¡ible to rçnder Flaintiff,r,elia.þfy insç¡s¿lo fsr

rhe.adnúnisçation of the çeco¡d a¡.ld ¡n"ird dnrgsi

33.,I hwe rovieu¡ed tþe FDLE lggs from soveral qf Dsfcqda¡b.' midâgçta.m, exgþutlon$. It

app€ars that in flll casqs, the timq bgtween the cp:nclusian 0f thË administ¡eiiott of the

midszolar¡, lte consoiou$nesscheük; alid th€ admigisttaqiOn ofthqveeu-ronium t'ro¡UidÞ is:

one minute or less. This ilno¡nt of timc is insufficient fbr a graded an

congciousnesg eheok añd expo"seÞ Piaintiif to a subsfântjal risk of ssrious harm.

34, As notQd ,abo-ve; whlle tlrqre iô no scientific JiteraRrrÉ that has festeü,the effecus of

midaizolarn attho dosag€ anticÍpatcd by Defendants in úreirþro-üo,col, wé now have amassed

a wgalth of info-rr¡ation;f-oËl pr:èvhus cæeþutiohs involving tnidazoiam.

35. T:hêfð iarrrains no scfçntific lifêrattire tttd n* telted the u.CE cif rnidazqla¡n as a humftre

iùa¡rrlsr to adminiSter lethal iújoclions in hu¡nan¡ orrin an:imal ,eutli,ùnásia. .floweyeri tte

available evidence to.date strongJ,y rsupports' PJainriffs ;contenlion tlmt the, lvfidaaolam

Plotscol 'is inhrr¡nane, sreates a substantial rìsk of seri:or¡s hatn, and arnounts to

cxperimentation on human subjeets and vrilnerable populations, whielr is prohibi:fed by

federallaw.

36,'l'hc Josryh.l#ood sxecutíon provides o-bjcctive, scientifiB evidcnec o.f the unsuitability.of

mid*zolam to guarantee suffioient anesthetic depth to,al'low .Plaintiff to. withstand the

noxior¡s st¡mt¡l¡ of tlæ seosnd and ihi¡d dn¡gç.

xq

015 page L20t 70 PagerD 431 case 3:14-cv-01149-MMH-JBT Documenr 14-5 Filed LatouL4

tothi'sDpsla¡ation; 37..fbe executìon logs, aswell as theeyowitness reports frvhicù,1 arc,atuched to grrarantee that a ,as Exhibit Q reveal that a 750 rng dose o$: midazolam h'insuffrsient

.p.r.son wil¡be inspnsateforthcproposd intcrvsntion, in ancxoctttiotl setting..tåoproposod'

jntervention woritd'bo the administration,of thê sæond and thitd.dlugs" Ihis,is?$.0''mg'

more tbanthe doæ presoribod.in Defondûnt$r Midazolam Protoool.

level of pain zufferedrby Joseph ü'oo{'in 3g. Whilo I ¿m nor oi.forìng an opi¡ ion ,tegarding the hydrornorpÞone,''ii is bis cxeoution us.ing the two-drug pratogol of midazolan and havo ørpcriencÈd undisputed that under Defendantst three-drug pfotocolr ho would

render Fl¿intisinsonsate, ho will sutrstantial pain. If the 500. mg of midazolam doçs not

of the soctlnd and third drugs" u¡.doubtedly be in excruciati¡g pain upon thÉ:admirtistration pstalylie. yst,will be unable to expr'e$s lnovement or pairr. beoauçc of the uçq Sftht

c,xeoÛfioils, rsltph 3g. fhe only reaso$ Dofendants have not+enductcd exrir¡ofdinpuly'lc.rtgthf quiekly to stop .qs was seen in the Joseph Wood ca$q, is hocause p-gtassium chlslide âcts.

the hogti and P-roduÙç üetith.

40. The èxecutlon of Clayon Lockctt in Oklahoma usêd an identisâl drugr oombination 'a¡

lOOfng,0f midazolÉnn Defendants intend to uss, though Oklahoma's protocol catls fof

insæad of 500mg'

identíflted the'ínability ro achieve and rnaintain 4l . The intarnal report conduc.tod by Oktahoma prob'lert'as'lwo v.aou$ aecçss and the faiture to have contingency plans in ttre eveût of a eould not rnajOi contributÍng factors to thE botchocl execution' Flowever, thc'report

the ability- determine thc suitability ofmidazolam itsclfi because thc IV failure complicated

to dctenninc the effectivancss of the drugs'

11.

016 Case 3:14-cv-01149-MMH-JBT Document 14-5 FiledLZllLlL4 Page 13 of 70 PagelD 432

drug in a thrpe drug protÔcol 42.In sumrnar]; rnidazolâm is an uusqit4ble ehoiæ as the'fiIst

æy doso gUâtadtee à pcfson for th¡ee :reâsotrs. First, it has a ccililg effoct and eannot:at 6c sccond nrd third dhrgs' will be rmcousoioue auð ln$t t$âto to the,'pæûfu[ sffÊpt$of it'doæ produce;uloonsoioUsness Seoond, iÈhas,no anaþesiC:prðperliÈq; tktefore çvmif ovuoorile et the S0omg,dosoi ü¡e llitriist¡s sti$ùli of:the,eecond $4 thitd'idrugswillllkoly

of parado.ïieal roaotlsns ih vulnerâblo orr.y anesthetia,effcct. Third, ithes'afi mo¡eased risk

populatlonq ts whieh Plairrtiff betongs' it isny'opiitíon toa 43; As suc}* based on üo informatit¡n tbat l..havc bcen provided tlrl¡$fbr' by roasonable'dogree o'f uredieal seúåinfy that using rnidæolam in the mannøinre;ndeil

to Plaintif'f' Þefind¡næ in tho ù4idazolarn Prorocol,creates a substadtiat nskof serlous hanq*

iho exag-t sÊt:up' an oxaminatlon 44, If¡were given addition¿l infonnatiol, $rcb aspioures Of exoeulio¡\ of thè erecrrfion chanrber, a video of thc :practíse n¡rrg, a'vlde0'Of the asfilÞl of spccifioally inptuding close picnrresof all connectisns and tubingi; more dçtailed logs

conditions pfdn¡g-ô' timing:Of delivcry Ofthc actuai Chemicslo, o

wo¡¡kl bs",ât'le ffi' trainiag and e*pei.icnce of lhe person conüupting oonscisusness ehcc\ I

offeir a morecomPlote oPiriion.

thæ üre is ti'ut Pursuant to2& üS-e. Seç. 1746 I declueqrrdø;pgnalç of pe¡jury bre'gsing and co.rÉçt, D¡ Add¡$q. alç" f.Pàr, trL *ilt3, E-mail:

Datedthis 1ø,dayof ?¿fo^fu ,2A14.

12

017 IN THE CIRCUIT COURT OF THË. sEcoND JUDTCTAL crRcurr, ÏN AND FOR JEFFERSON COUNTY, FLORIDA

CASE NO. L992-CF-22

STATE OF FLORTDA vs.

PAUL AUGUSTUS HOWELL, oefendant.

voLUME rr - Pages L34 thru 199

PROCEEDINGS: EVIDENTIARY HEARING

BEFORE: THE HONORABLE ANGELA C. DEMPSEY

DATE: February LL, 20L4

TIME: Commenci ng at 1-0:40 a. m Concluding at t2:L5 p.m

LOCATION: Leon County Courthouse ral I ahassee, F'lori da

REPORTED BY: rugen'ia B. Lawrence, RPR Official Court RePorter

eugeni a B. Lawrence, RPR official court Reporter

018 Leon county Courthouse, Room 34L ral I ahassee , FL 32 301-

019 136

1- APPEARANCES

2 REPRESENTING THE STATE:

3 CHARMAINE MARY MILLSAPS, ASSISTANT ATTORNEY GENERAL CAROLYN SNURKOT^/SKI, ASSOCIATE DEPUTY ATTORNEY GENERAL 4 OFFICE OF THE ATTORNEY GENERAL STATE OF FLORIDA 5 PL-01, THE CAPTTOL TALLAHASSEE, FLORTDA 32399-1050 6 EDDIE EVANS, ASSISTANT STATE ATTORNEY 7 OFFICE OF THE STATE ATTORNEY LEON COUNTY COURTHOUSE, SUITE 475 I 301- SOUTH MONROE STREET TALLAHASSEE, FLORIDA 32301. 9 MITCHELL D. BISHOP, ASSTSTANT ATTORNEY GENERAL 1-0 OFFICE OF THE GENERAL COUNSEL 444 SEABREEZE BOULEVARD, SUrrE 500 1-1_ DAYTONA BEACH, FLORTDA 32LL8

L2 REPRESENTING THE DEFENDANT:

1-3 SONYA RUDENSTINE, ATTORNEY AT LAW 253T NW 41ST STREET, SUITE E L4 GAINESVILLE, FLORIDA 32606 l-5 MARA V. J. SENN, ATTORNEY AT LAW ARNOLD & PORTER r-6 555 TI^IELFTH STREET, NW IiVASHINGTON, DC 20004-L206 L7

1_8 MTCHAEL TYE, ATTORNEY AT LAW ARNOLD & PORTER 1-9 555 TWELFTH STREET, NW IVASHINGTON , DC 2OOO4- L2O6 20 MICHAEL UFFERMAN, ATTORNEY AT LAW 2L MICHAEL UFFERMAN LAI,V FIRM 2022-1 RRVIIIOND DIEHL ROAD 22 TALLAHASSEE, FLORIDA 32308

23

24

25

020 L37

1_ ÏNDEX

2 Iì/ITNESSES: PAGE: 3

4 ROSh/ELL LEE EVANS, J R.

5 Direct Examination By Mr. eishop 1,42 Cross Examination By Ms. Senn L49 6 nedirect examination By Mr. eishop L64

7 DAVID LUBARSKY I ojrect Examination By Ms, Rudenstine L70 cross Examination By Mr. eìshop L72 9

1_0 TIMOTHY HAMILTON CANNON

11_ Djrect examination BY Mr, Evans 175 cross Examination By Mr. Tye t77 t2 Redirect Examination By Mr. Evans 1_9s

13 STATE'S EXHTBIT:

L4 1 L43

1_5

16 certificate of Reporter 1_99

L7 r_8

L9

20

2L

22

23

24

25

021 138

1_ PROCEEDINGS

2 THE COURT: Okay. So we're back on the paul uowell

3 case around 1-0:30, instead of 9:00 today, because

4 Mr. ufferman sent an email last night around 7:00 or so

5 ìndicat'ing that the defense did not p-lan to call

6 Mr. McDonough as a witness and the next witness wasn't

7 avai I abl e unti I about L0: 30. rs that correct,

8 Mr. ufferman?

9 MR. UFFERMAN: Good mOrn'ing, YOUr HOnOr. YeS, that

1_0 is correct. rhe defense, after consultation, decided not

LL to present the proffered testimony of rt'lr. tvtcoonough.

L2 THE COURT: okay. Rnd then the lawyers via email

1-3 brought up a second jssue regard'ing whether a reporter

L4 wi I I be requ'i red to testi fy j n a moti on to quash rel ated

1-5 to that. Ms. Millsaps brought up that issue vja email.

1_6 Rnd then Mr. ufferman poìnted out that the defendant only

L7 planned to call the reporter depend it would be

1_8 dependent on what Mr. cannon said today.

19 so the plan is to hear from Mr. cannon and then

20 address the motion to quash after that. and r did sìgn

2L an order allow'ing the lawyer for the newspaper to appear

22 vi a tel ephone.

23 MS. MTLLSAPS: Your Honor, we may have an even

24 we've sort of moved a step beyond that. what we've

25 agreed js that we are goìng to put Warden Cannon on the

022 139

l- stand for the sole and very limited purpose of descrìbing

2 the current protocol and the steps of the consciousness jcit 3 check. h/e are not go'ing to djscuss or el f rom him

4 any test'imony regardi ng prior executi ons or any

5 occurrences durìng those prìor executions.

6 So, with that agreement, what we understand, and

7 r'll let Mr. ufferman speak for himself, but we I understand that they are go'ing to withdraw their subpoena

9 with that understanding. r-0 MR. UFFERMAN: That is correct, Your Honor. As I

1_1 expl ai ned vj a emai I I ast n'ight, those wi tnesses woul d

T2 only be for the purpose of rebuttal of any observations

1_3 of prior executions and, with the State's representatjon t4 that Mr. Cannon will not go jnto that area, then

1_5 obviously our witnesses would not be relevant.

1_6 we apprecjate the State's explanatjon as to what

L7 Mr. Cannon will address. Rnd as long as we stick to

ng sounds 1_8 that , the re ' s no poi nt i n ho-l di ng any heari . It

1-9 like it would be moot.

20 THE CoURT: Okay. At this poìnt, I guess t'm going 'lawyer 2L to kjnd of just hold off on canceling that

22 appearing by phone just to make sure everything goes

23 smoothl y w.ith Mr. Cannon. It sounds I i ke i t's goì ng to,

24 but we mìght as well just keep them on standby.

25 MR. UFFERMAN: Your Honor, I think the only concern

023 140

L was that r don't think the State intends to put

2 Mr. Cannon on this mornìng, r thjnk they intend to put

3 him on this afternoon

4 THE COURT: Oh, r didn't know that. who are we

5 hearing f rom thi s morn'ing?

6 MR. BrsHoP: That's probabl y Dr. Evans ca'lf i ng i n

7 right now.

I MS. MILLSAPS: DT. EVANS.

9 THE couRT: okay. nll right. So maybe r'll have

1_0 the newspaper lawyer, r think her name is Ms. Fugate,

1_1 r'll have her on standby for thjs afternoon instead.

L2 MR. UFFERMAN: That will work, Your Honor. Thank

1_3 you. t4 MS. MILLSAPS: Thank You.

L5 THE COURT: okay. Dr. Evans, can you hear me?

16 MR. EVANS: Yes, r can, just barely.

L7 THE COURT: okay. so that speaker -- the phone

1_8 comes out over here? okay. So r guess if everybody r-9 could just talk loud so Dr. Evans can hear us okay.

20 Anythj ng el se that we need to tal k about before we

2L start with Dr. Evans' testimony?

22 MR. UFFERMAN: No, Your Honor.

23 THE COURT: Anything else from the State before we

24 get started with him?

25 MS. MILLSAPS: NO, YOUr HOnOr.

024 L4L

1_ THE COURT: Okay. And does he have a notary with

2 hi m?

3 MR. BISHOP: No. We've previously sworn him over

4 the phone through the clerk here, Your Honor. we've done

5 that i n p rev'i ous heari ngs .

6 THE COURT: Okay. Do you have any objection to

7 that, Mr. Ufferman? I MS. SENN: NO, YOUr HOnOr. I MR. UFFERMAN: Ms. Senn will be handlìng this r_0 witness, Your Honor.

1_ 1_ THE COURT: okay. rhanks.

L2 Rnd y'al 1 probabl y recogn-ize hi s voi ce as wel I .

1_3 MR. BrsHoP: rt js in fact him, Your Honor'

L4 THE COURT: okay. So, Dr. Evans, if you could go

1_5 ahead and raise your rìght hand, please.

1_6 (wrrruess swoRN)

L7 THE coURT: Okay. Thank you. please state your

1-8 ful I name.

19 THE Iì/ITNESS: My name i s Roswel I tee Evans, J r.

20 THE COURT: OkaY. rhank You.

2L okay. You can 'inqui re.

22 whe reupon ,

23 ROSI^IELL LEE EVANS, J R.

24 was called as a witness, havìng been first duly sworn, was

25 exami ned and testi fì ed as fol I ows:

025 L42

1_ DIRECT EXAMTNATION

2 BY MR. BISHOP:

3 a rhank you, Your Honor. Good morning' uitch eìshop 4 on behalf of the state of rlorida.

5 Dr. Evans, can You hear me okaY?

6 A Yes, I can.

7 a rhi s i s Mr. aì shop. You 've al ready i ntroduced

8 yourself my name. Can you gìve a brief introduction of what

9 your current posìtion and occupatìon js?

1_0 A Yes. currently, r'm a professor and dean, Auburn

1_ 1_ uni vers'ity Harrj son school of eharmacy.

12 a Rnd professor specifically of what?

1_3 A eharmacy practi ce. L4 a what is your educational background?

1_5 A I hold a bachelor's of pharmacy, a doctorate of

1_6 pharmacy degree for resìdency, post-graduate residency. t7 a h/e're go'ing to get to your cv jn just a second, but

1-8 can you gìve a general descrìpt'ion briefly about some of your

1_9 experi ence i n cl i ni cal pharmacy?

20 A Yes. My employment h'istory began with the

2L Universìty of Tennessee, where I Was a professor focus'ing on

22 psych'iatry. I subsequently left and went to the Univers'ity of

23 M'issouri , Kansas C'ity, where I was a member of the School of 24 eharmacy faculty and also the Department of esychìatry.

25 r eventually became department head there, res'idency

026 t43

1_ d'irector, taught both pharmacy and medical nursìng students.

2 Rnd 1-9 years ago r moved to Auburn as the dean and

3 professor.

4 a Do you have any board certifications?

5 A Yes, r am a board-certi fj ed psychi atri c pharmac'ist.

6 r'm also a fellow in the Rmerican co1'lege of clinical

7 eharmacy, a fe11ow in the Amerjcan society of Health systems

8 pharmacists. That's probably enough words out.

9 a rair enough. Dr. Evans, r have here marked as r.0 State's exhjbit B here in the courtroom a 46 page document

1_L revised in October of 201-3 that is your curriculum vjtae. Is

L2 that a correct representation?

L3 A YCS. L4 a Rnd you've had a chance to review that before you l-5 submitted it to us?

1_6 A YES.

L7 MR. BISHOP: May I approach, Your Honor?

1-8 THE COURT: YES.

1-9 MR. BISHOP: At this time, I would like to move

20 state's exhibit B in as state's exhibit 1-.

2L THE COURT: AnY objection, Ms. Senn?

22 MS. SENN: No, YOUr HOnOr.

23 THE coURT: So that will be entered as State's 1-.

24 (stRte's EXHTBTT NO. L RECETVED rN EVIDENCE.)

25

027 L44

L BY MR. BISHOP:

2 a Besjdes your duties as a dean and professor of

3 pharmacy at Auburn, do you have any other type of consultìng

4 practi ce?

5 A Yes, r do prov'ide some consultation to private

6 jndividuals regarding psych'iatrjc issues. I'm also involved

7 pe riodì cal 1y i n I ega'l consul tati on . I a Do you testify in criminal proceedings in those

9 I egal consul tat'ions?

1_0 A Yes, r do.

1-1 a For the state and the defense? L2 A Both. j 1_3 a okay. You testi f i ed recentl y n the ev'ident'iary L4 hearing of chavez v. palmer in the U.S. oistrict Court in

1_5 Jacksonville on rebruary 5, 20L4; is that correct?

1_6 A Yes, it is. t7 a You've also had a chance to review Dr. tubarsky's l_8 affidavit in this proceeding; js that correct?

1-9 A Yes, r did. j 20 a r want to start wj th some basj cs. what s

2L mi dazol am?

22 A ui dazol am i s a benzodi azepi ne hypnot'i c , primari 1y

23 used to induce various levels of anesthesia. -injectìon 24 a Have you had a chance to revjew the lethal

25 protocol from the Department of Corrections here in florida

028 L45

1- f rom September 9, 20L3? 2 A Yes,rhave. 3 Q rt calls for 500 mill'igrams of mjdazolam to be 4 admjnistered to the subject jn the initial drug of the three 5 drug protocol; is that accurate? 6 A That's true. 7 e what would be the effect of that dosage of midazolam I on the i nmate? 9 A Well, that's a toxic dose. It is not a therapeutic 1-0 dose. It would induce a comatose state in an individual with i-l- al I the sequel ae of that state, 'incl ud'ing di ffi cul ti es wi th L2 respiration, p€rhaps respìratory arrest. It would simply 1-3 cause a person not to be able to sense his envjronment, is L4 prìmar-i'ly the kind of effects that the drug will cause at that l-5 dose. 16 a How long would jt take to render -- how long would L7 it take for the midazolam to take effect? j-B A rt begìns to have an effect almost jmmediately, peak 1"9 effects from the drug within ten minutes, and renderìng 20 someone comatose probably much quìcker than that. 2t a At that poìnt, once it's taken effect and rendered 22 the subject comatose, would the subject be able to perceive

23 paì n? 24 A No. ey defìnìt'ion, if you're in a coma, you're not

25 abl e to pe rcei ve pa'i n .

029 L46

L a Are you familiar with, in your experience, midazolam

2 being fatal in subjects at much lower doses than

3 500 milligrams?

4 A YES.

5 a can you tal k about that a I i ttl e bi t?

6 A rhe reported doses in the literature suggest that as

7 little as a .71 nicrogram per k'ilogram dose, wh'ich is about I f i ve mi I I 'i g rams , has cau sed death . the re are 81 case repo rts

9 in the United States of midazolam causing death at various

1_0 I evel s of dose.

1-1 a Rnd in your clinical practìce, you do research not L2 only in the therapeutic use of the drug but also when the drug

1_3 has been abused or been administered at toxic levels?

L4 A YES. l_5 a tf you were intending to render someone unconscious

L6 and your goal was to render them incapable or unaware of

L7 noxious stimulj or pain, would a dose of 500 milfigrams, in

1_8 your op'inìon, be sufficient to achjeve that result?

1_9 A YES.

20 a Is midazolam usually combined with another drug like 2t an op'iate or something like that? -if 22 A It certai nly can be, especì a]l y you' re deal ì ng

23 with therapeutic anesthesia. 24 a rn a medi cal settì ng?

25 A rn a medi cal setti ng.

030 T47

1 a why is that? 2 A rt produces a much more level impact, a much more 3 level response to the drug. You can also reduce the dose of 4 both drugs. 5 e Are you fami I i ar wi th paradox-ical reacti ons that 6 could occur with midazolam? 7 A YeS. 8 a can you expl ai n that? 9 A wel I , the mechani sm i s qu'ite unexpl ai nabl e, but i t 1-0 typically happens in inductjon phases of anesthesia in low

1-1- doses that exace rbate unde 11 y-i ng ki nd of pe rsonaf i ty t raj ts , L2 anger, rage, those kjnd of thìngs. 1-3 a those reactions are all very observable, are they L4 not? 1-5 A Yes , they are. l-6 a what js it, about less than one percent? t7 A LesS than one percent incjdent ¡k¡! at least in the 1-8 general clinical trials and studjes that have been done with

1-9 the d rug . 20 a rn the circumstances with the lethal ìnjection 2L protocol where the toxic level of 500 mi11ìgrams of midazolam 22 i s admi ni stered to the subj ect, i s j t possi b'le that you s'imp1y 23 sk'ip past the paradoxìca1 reaction point? 24 A r think that's entirely possìble. 25 a rs there a ceilìng effect to mjdazolam? Are you

031 148

1- fami I i ar wi th that? 2 A rt's been discussed. rt's hypothetjcal. At this 3 dose, ro one rea1ly knows if there is a ceifing effect. But, 4 gìven the toxic effects of this drug, r doubt seriously we're 5 goi ng to see that. 6 a why i s that, ât thi s dosage? 7 A Essentia]ly, we're saturatìng receptors that are I responsible for the drug's action jn the amounts that r don't 9 thjnk that we are going to see a reversal. l-0 a rs the effect of midazolam at this dosage, is it l-1 si mi I ar to barbi turates , such as sodi um th'iopental or

L2 pentobarbi tal ? 13 A well, they're different drugs. L4 a RbsolutelY. j 15 A But the effect i s si mi I ar. They' re not dentj cal . L6 a Sure. L7 A But they're similar' 1-8 MR. BTSH9P: May r have one moment' Your Honor?

1-9 THE COURT: YES .

20 BY MR. BISHOP: 2L a Dr. Evans, just a few more questions. 22 rs it possib'le for the subject who's been 23 administered the toxic dose of midazolam to actually 24 experi ence i nvol untary movement? 25 A well, jt is certainly hypothesized that that can

032 L49

1- occur. But if indeed there is involuntary movement, it could 2 well be that the drug is not workìng, has not been injected 3 properly. Or it could be involuntary movement secondary to 4 some respìratory gasp that the jndividual may experience as 5 they go into resPìratory arrest. 6 rt's a little unclear. 7 e Based on your understandìng of the dosage level of 8 thi s drug, woul d any i nvol untary movement or gasp for a'i r, 9 would any pain from that be perceìved by the subject with this 1-0 I evel of mi dazolam? 1-1 A No. L2 MR. BrsHoP: r have no further questions at this

1-3 ti me , You r Hono r . L4 THE COURT: Okay. Ms. Senn? 1-5 MS. SENN: Thank you , You r Honor. 16 CROSS-EXAMINATION

L7 BY MS. SENN: l-8 a Dr. Evans, this is Mara Senn and I am represent'ing 1-9 Mr. Howell. Rnd good morn'ing to everybody. 20 A Good mornìng. 2L a Rnd good morning, Your Honor. 22 So, you testifjed that you have testified before in

23 I ethal 'i n j ect-i on cases . rs that co r rect? 24 A Yes. 25 a Rnd how many have you done?

033 150

1_ A r bel i eve thi s i s the thi rd one.

2 a uaybe the fourth? pardo, Mohammed, and chavez, and

3 now this is the fourth?

4 A Yes. You're correct.

5 a Great. rhank you.

6 Rnd how many of these cases were for the State?

7 A All were for the state.

8 a what did you review today or what did you review in I preparation for your testjmony today?

1_0 A what r revi ewed was the proceedi ngs from the chavez

1_1 case and the supplements prov'ided by your office to the State.

L2 a okay. You are not a medical doctor, are you?

1_3 A No, I am not. L4 a Rnd you've never personally induced anesthesia in a

15 patj ent?

16 A NO.

L7 a Rnd you've never personally used midazolam on a

1_8 patjent therapeutìca11y, have You?

1_9 A NO. 20 a Rnd you've never personally used vecuronium bromide 2L on a pati ent, have you?

22 A NO.

23 a Rnd you cannot, of, your own, evaluate a patient and 24 prescribe medication, can you?

25 A trtot wi thout bei ng i n a col I aborati ve arrangement.

034 151

1_ a Meaning not unless a doctor allows you to do that? 2 n nìght. Exactly. 3 Q Rnd you've never personally done an evaluation of 4 the consciousness of a patient, have you? 5 A No. rf r di d, i t was some ti me ago when r was 6 practìcing internal medicine. 7 a But that woul d have been a whi I e â9o, rì ght? I A Yes. I a Now, you would never use midazolam alone as a 1-0 anesthetjc in a major surgery, would you?

1-1- A No . That ' s not common p racti ce . L2 a Rnd the other drugs so other drugs would always 1-3 be used in a major surgery with midazo'lam, is that correct? L4 A That's true. 15 a Rnd that's basically to make sure that pain does not l-6 di stu rb the pati ent , co r rect? L7 A Wel I , qu'ite f rank'ly, i t's to generate a much more 18 even anesthesi a. 1-9 a so i t has nothi ng to do wi th paì n? 20 A No. 2L a So the fact that you would paìr mjdazolam with an ZZ opjoi d that has pa'in suppressi ng qual j ti es , that has nothì ng 23 to do with itZ 24 A At a therapeutìc 1eve1, I think you would want at ZS therapeutic use of midazolam, you would want something else to

035 L52

l- deal wi th pa'i n. 2 tf we' re tal ki ng about ì nduc'ing a comatose state 3 with this drug, that's not necessary. 4 a Okay. But, in typical practice, you would never use 5 midazolam alone because it doesn't have any paìn-ref ieving 6 properti es, correct? 7 A Not jn theraPeutìc doses, ho. I a Rnd it doesn't have any analgesic or pain-ref ievìng 9 propertìes at any level, does it? 1_0 A Well, in actualjty, there is evidence that would 1-1- suggest that midazolam has been effectively used for jts LZ analgesic properties in lower back paìn. 1-3 But when we start talk'ing about general surg'ica1 L4 procedures, this drug would not be my choice to use by jtself. 1-5 a Now, jn the Chavez testimony you remember that 1-6 you testi fi ed, correct? L7 A Yes. 18 a You testi fi ed i n that case that mi dazol am has 1-9 absolutely no paìn-relievìng properties. Are you changing 20 your testimonY? 2L A wel I , Yês, because r di d have a chance to do a 22 I i ttl e more di gg'i ng. 23 a r'm sorry. r couldn't understand You, sir. 24 A r had a chance to do a little more diggìng jnto some 25 of the I i terature regardi ng thi s.

036 153

L so, r mean, ì t's not obvi ous'ly, i t's not a major 2 analgesic drug. 3 Q so you found one sudden study that sai d maybe 4 sometimes your back paìn will be relieved? 5 A Yes. 6 a Now, it's ìmportant to ensure that you have pure 7 unadulterated midazolam admjnistering it in any setting, js I that correct? 9 A Yes. 1-0 a Rnd it is 'important that the drugs are not exp'i red, 1-1- is that correct? LZ A Yes. L3 a Rnd it is 'important they are mixed and prepared by L4 someone who is trained, correct? 1-5 A Yes. L6 a Rnd do you know how Florida gets its midazolam for t7 executi ons? l-8 A No. 1-9 a Rnd do you know who prepares the midazolam

20 i n j ect'i ons fo r executi ons? 2L A only per protocol. r've read the protocol. 22 a You've read the Protocol? 23 A nìght. 24 a Rnd does the protocol explain how the ìnjections are 25 prepared?

037 L54

L MR. BISHOP: Your Honor, the protocol is jn

2 evidence. rhe protocol speaks for jtself. To have the

3 witness now kind of parrot that part of it is cumulative

4 and improper.

5 Ms. SENN: ln/e11, Your Honor, r think jt's fair game

6 for Mr. Howell to determine what Dr. Evans' opinion of

7 the protocol is. I THE COURT: rrm going to overrule the objection'

9 MS. SENN: thank You.

1_0 BY MS. SENN:

1-1 a So do you remember how the protocol requ'i res the

L2 preparation of the injectìon?

1_3 A Generally, Y€s. L4 a Rnd what's Your recollection? l_5 A My recollection is that jndividuals assìgned by the

L6 warden actually reconstitute the drug.

L7 a Reconsti tute the drug?

L8 A YES.

19 a Rnd do 20 A well, not reconstitute, but pull up the drug. 2L a And do you recall whether those people are requìred 22 to have any trainìng?

23 A f think, from what r reca]1, there is an in-service

24 trai ni ng.

25 a There's an in-service. rn your opinion, is that

038 155

1 suffi cj ent trai ni ng? 2 L For most scenarios in the medical settìng, I would 3 say 'it depends on what thejr background was, what the 4 intensifjcation of the training was, and how technical the 5 procedure was. 6 a so, ìf they had no medical train'ing, that would be 7 something you would consider, js that correct? 8 A Yes. rn an rV environment for clinical uses, jt 9 would take more than an in-servjce. In this case, when we're 10 inducing a toxic effect and we get the right proportions of 1l- the drug jnto the syringe, it's not too complicated. LZ a So, I'm sorry, what was the distinction you were j i-3 mak'i ng between the ì n j ecti on and rv si tuati on? rsn 't th s an t4 rv situation? 1_5 A It is. But it's for the purposes of generating a

1-6 toxi c ef fect , not a the rapeutì c one . L7 a so, in other words j-8 A In other words, we' re not necessaril y too terribl y 1-9 worrjed about thìngs like is this a sterjle procedure. 20 a nìght. So, in other words, jt doesn't really matter 21, if you follow medical protocol, You can do whatever you want? 22 A As long as you are generating the r.ight amount of 23 drug and follow'ing as near perfect as you can to a sterile 24 procedure. 25 a But, basi ca1-ly, you' re say'ing that the standard i s

039 156

1- sìgnificant'ly lower in an execution context than it would in a 2 therapeutìc context? 3 ¡ Yes. 4 a Now, in order to be on a surgical plane of 5 unconscjousness, you would agree that you need to be 6 unconscj ous, 'insensate, and 'immobi 1e, i s that correct? 7 A well, the term I think r have used is "comatose." I a Comatose? 9 A Not "surgìcal plane" because "surg'ical plane" 1-0 'implies someth'ing quite different in this case. 1-L a what's the difference between "comatose" L2 A rhe difference is in a surgìca1 plane we're 1-3 achiev'ing a minimum amount of anesthesia jn order to do an t4 invasive procedure. In this case, we're ìnducing a rather 15 profound coma, which should result in the person not l-6 expe ri encì ng any sensat'i on , pai n i ncl uded . L7 a So let me just rephrase my question then. You would 18 agree that, jn order to be comatose, you would agree that you 1-9 need to be unconscious, insensate, and immobjle, correct? 20 A Yes. 2L a You would agree that general anesthesja is a 22 drug-induced loss of consciousness during whjch the patient is 23 not arousable even to paìnfu1 st'imufi, is that correct? 24 A Yes. uopeful 1y. 25 a so, in a consciousness test, ìt's necessary to

040 L57

1 measure the depth of unconsciousness, that the depth of

2 unconscjousness js sufficient for the subsequent procedure not

3 to arouse the person who is unconscjous, js that correct?

4 A YES.

5 a Rnd the stronger the noxjous stìmulus, the more

6 f ikely a patient is to wake uP, js that correct?

7 A Yes. rf there isn't a true coma induced, r'ight.

8 A so, ìf you hit someone with a penc'il versus a

9 sledgehammer, you would obviously have a very different

1_0 reaction, is that correct? j 1_ 1_ A uaybe not. Aga'in , I th nk what we' re tal ki ng about

L2 we're kind of pick'ing at straws here. surgical plane

1_3 doesn't necessarì1y take the person to the same level of coma

L4 that we're talk'ing about with thjs kind of drug-induced coma

1_5 i n thi s exerci se. L6 a sure. But you would agree that a sledgehammer js a

L7 much h'igher I evel of noxi ous sti mul i -- r_8 A Oh , certai nl Y. Certai nl Y.

1_9 a okay. A person could appear to be under general 20 anesthesia, but unless there was a test that showed they were

2L unconscious enough not to feel a noxious stìmu1us, they could

22 actually feel pain, js that correct?

23 A That's possì bl e. 24 a Rnd if there's enough pa'in, a person mìght become

25 closer to consciousness or actually become conscious because

041 158

L of the sensation of pain, js that correct? 2 A That's true. 3 e So, testing for consciousness should jnclude graded 4 stimulj, is that correct? 5 n Yes. 6 a nnd what is your understanding of what happens in 7 the rlorida consciousness test? I A lt's my understanding that the warden does exercjse 9 a graded evaluation. l-0 a rn what l-1 A rn response to Paì n . LZ a rn what way; do You know? 1-3 A Well, 'it's not expljcit in the protocol , so I really L4 can't be sure. But what I understand, what I've been told is 15 it starts with touch'ing the eye to the poìnt where you either 1-6 begì n to i nduce pa'in wi th grabbi ng muscl e groups and/or the

L7 eye orbi t, whi ch generates a I ot of pa'in ' 1-g a s-i r, r'm sorry. I had a ljttle bjt of diffìculty

1-9 unde rstandì ng you . 20 A sure. 2L a It seems lìke maybe you're close to the phone. Do 22 you mi nd repeati ng that? r apol ogi ze. 23 A I said that from what I understand, what I've been 24 told, because it's not clear in the protocol exactly the steps 25 that are taken, is that it starts with perhaps a touchìng of

042 159

pa'infu1 as 1_ the €yê, the eyelid, and progresses to something as

2 pressjng on the occipital orbit, the eye orbit, or the

3 trapezìus muscle, which is in the shoulder.

4 a Rnd so is 'it your understanding that that person

5 pushes it very hard?

6 A YCS.

7 a Rnd would that be as much paìn as a strong, strong

8 pi nch? -instance, 9 A tf you start usì ng, for the occi p'ital , the

1_0 eye orb'it, i t can be much more pa'infu1 than a pì nch.

11_ a But, in reading the protocol, You can't tell any of t2 that, can you?

1-3 A No, r can't tel I that. L4 a Rnd so under the protocol the warden is not rea11y

1-5 required to do anything, he can just do whatever it is he

1-6 personally thinks would be appropriate, correct?

L7 A well, r'1t not sure about that. one has to assume

1_8 that the protocol would indicate that enough pain would be

1_9 generated. So I'm not I have not witnessed it. I have not

20 read anythi ng speci fi ca1 1 y about i t. 2L a Rnd it's not required by the protocol' correct? 22 A wel l , r don't rìo, the warden the protoco-l does

23 require the warden to assess it. But it doesn't say how. 24 a It doesn't say how. It doesn't talk about level of

25 pai n?

043 160

L A No. 2 Q Rnd jn the 20L3 protocol, consciousness is only 3 evaluated once, correct? 4 A Yes. 5 Q But in a surgery, consciousness is perpetually 6 monjtored, correct? 7 A Yes, because it is a prolonged event. This is not. I a night. But one of the reasons that you monitor in a 9 surgery is because a patient could come out of the surg'ical 1-0 plane, i s that correct? 1-L A nbsol ute1y. L2 a Now, you have testified repeatedly that a high level 1-3 of midazolam will cause a coma, is that correct? L4 A YES. 1-5 a Are you aware of literature that says it js 16 impossible for mjdazolam to reach a level of flatline EEG? L7 A r have heard that testimony, Y€s. L8 a But you d'isagree with it? 1_9 A I think jt is very djfficult to support that, given 20 the fact that the reference that was used for that i s from an 2L intramuscular ìnjectìon at a therapeutic dose, not at a toxic 22 dose. 23 a So have you found any literature out there that, in 24 fact, shows that a coma can be induced by mjdazolam? 25 A Yes. r mean, it is if you were to pull up the

044 161

L FDA warnjngs and all of the information about mìdazolam, you 2 can induce a coma, respiratory arrest, and cardiac arrest wjth 3 thi s drug. 4 a Rnd ìf you're in a coma, you can't move, right? 5 n well, typically not, no. 6 a And, in fact, as you agreed wjth me earlier, you 7 sajd that if you're comatose, one of the very definitjons of 8 comatose means you are ìmmobìle, meaning you do not move,'is 9 that correct? 1-0 A nì ght. Exactl y. 1-1 a Now, let's move on to vecuronium bromide' r'm LZ sorry, vecuronium chloride. or is jt bromide? r think you 1-3 know what r'm ta'lki ng about. L4 A nìght 1-5 a So, vecuronium bromide paral yzes a patient, correct? l-6 A Yes. L7 a and 'if you were conscious, the paralyzing effect of l-8 Vecuronium would cause Severe air hunger, is that correct?

1-9 A rf you' re consci ous , yes . 20 a so, it would feel ljke you need to breathe, but you

2L real 1 y can't do i t? 22 A nìght. 23 a so that's a pretty pa'infu1 sensat'ion, correct? 24 A Our assumption is that it is, yes. 25 a Now, would you agree that vecuronium bromide is also

045 L62

1 known as a neuromuscular block'ing agent?

2 A Yes.

3 a Are you famjliar with rlorida statute 828.058(3)?

4 A r don't know what that i s because

5 MR. BTSHOP: Objection.

6 THE couRT: Sustai ned.

7 MR. BISHOP: You just shouted off a statute number

8

9 THE cOURT: I've al ready sustaj ned the objecti on.

L0 You don't need to say anything else, Mr. eishop.

L1 BY MS. SENN:

L2 a Let me rephrase. Are you familiar with the statute 13 that prevents jn rlorida that prevents the use of a

L4 neuromuscular b'locking agent jn the euthanasia of dogs and

L5 cats?

1_6 MR. BISHoP: objection. Relevance.

L7 THE COURT: Sustained. You don't need to answer.

1_8 THE I^/ITNESS: I'Ve not read the Statute, hO.

19 THE COURT: Dr. Evans, I don't know if you can hear

20 me that well. when r sustain the object'ion, you don't

2L need to answer.

22 THE WITNESS: Thank you. I couldn't hear You, Your

23 Honor.

24 THE COURT: Okay.

25

046 163

1- BY MS. SENN: 2 Q Do you think vecuronium is necessary in order to 3 kill the inmate in this Protocol? 4 MR. BISHOP: objection. Relevance. 5 THE COURT: Sustai ned.

6 BY MS. SENN: 7 a If a patient were conscious and was adminjstered 'is I potass'i um chl ori de, they woul d experi ence searing pai n, 9 that correct? l-0 A rf they were conscious? 1_1- a Yes. L2 A Yes. j-3 a Now, you talked about 81- incjdents of death reìatìng L4 to therapeutic levels of midazolam; is that correct? 15 A We11, I didn't say they were therapeut'ic levels of 1-6 midazolam. I just said there had been 81 deaths reported. L7 a okay. EightY-one deaths. l_8 Now, you' re fami I j ar wj th the t-O50 test, i s that

1-9 co r rect? 20 A Yes. 2t a Rnd you're familiar with the fact that at very, very 22 high doses, much hìgher doses than are in this protocol , on'ly 23 50 percent of the tested animals died, is that correct? 24 A That's the definjtion of 1D50, Y€s. 25 MS. SENN: No further quest-ions' Your Honor.

047 L64

1- THE COURT: okay. Redi rect?

2 REDTRECT EXAMINATION

3 BY MR. BISHOP:

4 a Dr. Evans, what woul d be the depth of

5 unconsciousness at 500 mjllìgrams of midazolam?

6 A rhey would be profoundly comatose.

7 a unconscious and insensate at thjs level?

8 A Yes, by defi ni ti on.

9 a can you say that to a reasonable degree of

10 pharmacol og'ica1 certaj ntY?

1_1 A YCS.

L2 a Rfter the mjdazolam takes effect at that comatose

1_3 level, would the subject feel the effects of the vecuronium

L4 bromide and the potassium chloride?

1_5 A NO. l_6 MR. BTSHOP: No fu rther quest'ions , Your Honor.

L7 THE COURT: Okay. Does he need to remai n avai I abl e

1_8 at all?

1_9 MR. BISHOP: No, Your Honor, not from us.

20 THE COURT: How about from the defendant's

2L pe rspectj ve?

22 MS. SENN: NO, YOUr HOnOr.

23 THE COURT: Thank You, Dr. Evans.

24 THE WITNESS: thank You.

25 THE COURT: OkaY. BYe-bye.

048 165

1 MS. SENN: Your Honor, in ten minutes would it be

2 poss'ible for Dr. t-ubarsky to gìve a rebuttal?

3 THE coURT: So the State's next witness is

4 Dr. oershwitz?

5 MS. MILLSAPS: No, Your Honor. tde're going to

6 present warden cannon.

7 THE COURT: That's right. I MS. MTLLSAPS: Dr. Dershwitz isn't available. He's

9 do'ing cl i n j cal rounds .

1-0 THE couRT: He's the one that we're hearing from at

LL 5 :00?

T2 MS. MILLSAPS: YES.

1_3 THE COURT: So when is Mr. Cannon available?

1,4 MS. MILLSAPS: 1: 30.

1_5 THE COURT: All right. Does the State have any

L6 objection to Dr. Lubarsky go'ing out of order for a

L7 rebuttal ?

1_8 MR. BISHOP: Not out of order, ho, Your Honor.

19 THE couRT: Do you have some other objection?

20 MS. MILLSAPS: I do have one question I just wanted

2L to ask. Are we go'ing to put Dr. tubarsky aga'in, second

22 rebuttal to Dr. oershwitz?

23 THE COURT: Yes, I mean, I'lll not going to let hjm

24 testi fy twj ce. r assume you guys mean he's go'i ng to

25 testi fy now and be done.

049 166

1_ MS. SENN: well, Your Honor, if you would permit

2 Dr. tubarsky to testify in rebuttal after Dr. Dershwìtz,

3 we would wait until then. tnte're just concerned that

4 there may not be tjme and we want to make sure that we

5 have an opportunity. tlle prefer to do it after Dr.

6 De rshwi tz .

7 MR. BISHOP: If I may, Your Honor. tf we just have

8 a disagreement between one expert and the other, r don't

9 know that that's necessarily proper for rebuttal unless

1_0 there's something new that's come out that Dr. tubarsky

1_ 1- didn't get to address in his testimony.

L2 r believe everything we've covered. Now, r think we

1_3 have d'isagreement perhaps between the two experts, but r

L4 think everythjng we've covered has been the same subject

1_5 matter that Dr. tubarsky has covered and nothing new has

1-6 arisen during the testimony of or. Evans. t,rle don't

L7 anti c'ipate anythi ng new ari s'ing durì ng our presentati on

1_8 of or. oershwitz. l_9 MS. SENN: Your Honor, if r may respond.

20 THE COURT: OkaY.

2L MS. sENN: A coupl e of thì ngs. Fi rst of al I , there

22 was new informatjon. There was a new study and a number

23 of new additional information that Dr. Evans introduced.

24 In addjtion, the purpose of rebuttal is to allow an

25 opposi ng wj tness to respond to what thi s wi tness had.

050 L67

L rhis wjtness had the benefit of hearing about

2 Dr. Lubarsky's testimony and, obvjously, Dr. lubarsky djd

3 not have the sjmilar advantage. So that's another reason

4 for rebuttal.

5 THE COURT: A1 1 ri ght. obvi ous'ly, r mean , these

6 same wìtnesses, everybody has heard from them a number of

7 times over the past couple of months, rìght? I MR. BTSHOP: Right.

9 MS. SENN: But, Your Honor, as you recal'l , the State

1_0 vehemently objected to enterìng any of those documents

1"1 into evidence. So that's another reason that we need to

L2

1_3 THE COURT: Vrrhat dOCUmentS?

L4 MS. SENN: Of Prior testjmony. l-5 THE couRT: Al I ri ght. r don't know what you're l_6 talkìng about. I mean, Y'âll can use the documents for

L7 impeachment is what they would normally be avajlable for

1_8 and they are available for that.

1_9 Ms. SENN: Right. what r thought you meant' Your

20 Honor, was that the Court would be relying on prevìous

2L testimony from the same

22 THE COURT: NO, that'S nOt What I meant. I meant

23 there's r don't think there's many surprises for any

24 of the 1awyers here during this hearing.

25 MS. SENN: I mean, there was new evidence.

051 168

1_ THE COURT: okay. what do you want to sâY, Mr.

2 ei shop?

3 MR. BISHOP: The last th'ing I was goìng to sâY, Your

4 Honor, in regards to them sayìng that Dr. Evans had

5 Dr. Lubarsky's testimony from this proceeding available,

6 that's not accurate. They had Dr. lubarsky's affidavjt'

7 but he had the same proceedìngs transcrìpt from the I chavez proceed'ing that both sides have had access to. So

9 Dr. t-ubarsky had access to Dr. Evans' testimony from that

1-0 proceedìng, which is substant'ially the same as it was

1_ 1- today.

L2 THE COURT: OkaY. l_3 MS. SENN: RNd

L4 THE COURT: r don't need to hear anything else. So

1_5 if you want to call Dr. t-ubarsky now just to address that

1_6 new study and anythi ng rel ated to what you know Dr.

L7 Dershwitz is go'ing to sâY, r'll al'low you to call him

18 brìef1y now.

1_9 r'm not go'ing to allow you to call him tonìght after

20 Dr. Dershwitz is done because I assume that's going to be

2L 7230 or 8:00 ton'ight and I have to have an order done by

22 2:00 tomorrow.

23 r'll let you call him brìefly now and he can address

24 that new study that Dr. Evans testi fi ed to. Rnd i f you

25 feel I i ke you need to get i n some evi dence rel ated to

052 169

1_ what Dr. Dershwitz is going to sây, because r believe you

2 know what he's goì ng to say r mean, ì f he says

3 something total'ly dìfferent tonjght, r will reconsider

4 that. But if he says pretty much what you guys think

5 he's going to and what he's been saying in these other

6 hearings, r'm not going to let you recall Nr. lubarsky

7 aga'i n toni ght. I MS. SENN: Thank You, Your Honor.

9 THE coURT: So i f y'a'l I want to cal I hi m now.

1_0 MS. SENN: So, in other words, we'll have an

LL opportunity to move to have Dr. t-ubarsky rebut after Dr.

L2 De rshwitz?

L3 THE COURT: If something tota'lly unexpected comes

L4 up, r'll consider that request if you want to make it.

15 and then, as r mentioned, you can have him do some

1_6 testj mony now i f you I i ke. Do you want to do that?

L7 MS. SENN: Yes. Can we have like a five or ten

1_8 mi nute break?

1_9 THE couRT: Yes. Let me see what time it is.

20 okay. Let' s be back at 1'L: 2 5 .

21, MS. SENN: Thank You, Your Honor.

22 (necess)

23 THE coURT: okay. so do y'al1 want to call

24 Dr. lubarsky?

25 MS. RUDENSTINE: Yes, Your Honor.

053 L70

1 THE couRT: And yourre going to do the examination,

2 Ms. Rudensti ne?

3 MS. RUDENSTINE: Yes. fhank You.

4 THE couRT: come up , Dr. t-ubarsky.

5 You're here on a second day, so r'm go'ing to 90

6 ahead and place you under oath agaìn, if you could raise

7 your rìght hand.

I (wrrruess swoRN) I THE COURT: Please have a seat and remind us of your

1_0 ful I name.

1_ 1_ THE WITNESS: oavid tubarskY.

L2 THE COURT: OkaY. thank You.

1-3 Ms. Rudensti ne.

L4 MS. RUDENSTINE: fhank You, Your Honor' 1-5 tdhereupoh,

1_6 DAVID LUBARSKY

L7 was called as a witness, havìng been first duly sworn, was

1_8 examined and testified as follows:

19 DIRECT EXAMINATION

20 BY MS. RUDENSTÏNE:

2L a Dr. lubarsky, Dl. Evans testjfied that sometjmes

22 midazolam has been used for analgesìc purposes for lower back

23 pain. Are you aware of that use and, if so, is that correct?

24 A that is correct, but it doesn't have analgesìc

25 propert j es per se. The rel i ef of pa'in associ ated wi th back

054 L7L

1 pain that's treated wjth midazolam is due to a change in 2 muscle tension mediated at the CNS level, the central nervous 3 system level . rt's not a di rect analges'ic. 4 a thank you. when you use midazolam in a surgical 5 settì ng and pai r i t wi th an anal gesì c, what's the pri mary 6 purpose for the pairing? 7 A rhe prìmary purpose for the pairing is because I midazolam js not considered to be approprjate as a sole g anesthetjc because it doesn't have analgesic properties and a l-0 pati ent undergoì ng a surgi ca1 procedure m'ight wake up or LL certainly his body would exhjbit a tremendous amount of stress L2 related to the noxious stimuli. 1-3 a Is it pretty sjmple to mix and prepare drugs at the L4 correct dilution? 1-5 A No. That's one of the most common errors in the 1-6 anesthesia field per se. tlrre go to great lengths to both not L7 only teach peop'le how to do jt correctly, but how to go about l-8 triple checkìng themselves, et cetera, so that they don't. 1-9 And, yêt, drug dilution mjstakes remain one of the most 20 frequent errors in the anesthesia field. 2L a So, in your field, the anesthesiologìst is the one 22 who prepares the drugs? 23 A Routinely, Y€s, unless there is sometimes a 24 pharmacist in some departments that will mix up and dilute ZS drugs in very careful-ly controlled situations in order to try

055 L72

1- and reduce further the risk of drug dilution errors, which r 2 mentioned are quìte common. 3 Q So you would not have someone other than a 4 pharmacìst or an anesthesiologist preparìng drugs? 5 n No, that would be considered outside the realm of 6 good practj ce. 7 MS. RUDENSTTNE: rhank you. 8 THE couRT: okay. cross? 9 MR. BISHoP: very brìefly, Your Honor.

1-O CROSS- EXAMINATION

1-1- BY MR. BISHOP: L2 a Dr. Lubarsky, Dr. Evans was not incorrect that there 1-3 was, in fact, a study where midazolam had the effect of L4 rel.ieving jn pain in the lower back? 1-5 A Yes, it does work by reducìng muscular tension. l-6 a But it just doesn't have the propertjes inherent L7 that would nornrally do that? 1-8 A rt doesn't have the abilìty to block noxious i-g stimuli. what it did was it actually addressed the root cause 20 of the pa'in, which was enhanced muscle tension in the lower 2L back. Rnd benzodiazepìnes and other muscle relaxants are 22 routinely used in that regard. 23 a You said that you actually mìx up your own drugs for 24 surgery? 25 A Yes, draw them up from the vials.

056 L73

1 a You don't have a pharmacìst jnvolved at all? Z A we have a pharmac'ist involved when we're for some 3 drugs that are infusions, we wjll have the pharmacìst make 4 them up. But, for most drugs and most preparations in the 5 operating room, the anesthesiologist or the resjdent and/or 6 CRNA, the anesthesi a team, w'i1-l prepare the drugs. 7 a But a lot of anesthesìologists may actually work I very hand-in-hand, collaborat'ive1y, with a pharmacìst and have 9 the pharmacist draw the drugs uP, correct? 1-0 A rhey woul dn't be worki ng hand- j n-hand. rhe i-i- pharmacì st woul d probabl y be off -s j te somewhere and provi d'ing LZ the drugs at the correct dilution. 1-3 a certai nl y. r di dn't mean by hand- j n-hand L4 side-by-side, but collaboratjvely?

1-5 A Yes , of cou rse . 1-6 a okay. Rnd, again, everything that you do with these L7 drugs is in a therapeutìc setting for anesthesiology in a

1-8 med j cal surgery, correct? 1-9 A rhat is correct. ZO a you don't administer these things at toxic levels? 2L A rdonot. 22 MR. BTSHOP: That'S all r have' YOUr Honor. 23 THE couRT: AnY redj rect? 24 Ms. RUDENSTTNE: No, Your Honor. 25 THE couRT: Thanks, Dr. tubarskY.

057 L74

1 okay. So the State's next witness is available at

2 1-: 30 then?

3 MR. EVANS: Actually, we've got him here. I was

4 antjc'ipating thjs stuff takìng much longer, but r do have

5 hjm upstairs. so ìf you want to wedge him in before

6 noon, w€ can do that.

7 r don't anti c'ipate hi m taki ng very l ong . I THE COURT: Okay. I mean, I'll leave it up to you'

9 r'm happy to do it now or wajt.

L0 MS. RUDENSTTNE: we have no objection.

1_ 1- THE COURT: OkaY.

L7 MR. EVANS: r'll step outside.

1_3 THE COURT: Okay. Mr. Cannon, ìf you can come up

L4 near thjs black chair to be placed under oath.

1_5 (wrrrurss st^toRN)

1_6 THE COURT: Okay. Please have a seat and, once

L7 you're comfortably seated, if you could tell us your full

1_8 name and spe1l your last name.

1_9 THE I^IITNESS: Ti mothy Hami I ton Cannon, C-A-N-N-o-N.

20 THE COURT: OkaY. Thank You.

2L Mr. Evans.

22 trrthe reupon ,

23 TIMOTHY HAMILTON CANNON

24 was called as a witness, having been first duly sworn, was

25 exami ned and testi fi ed as fol I ows:

058 L75

1- DIRECT EXAMINATION

2 BY MR. EVANS:

3 a what i s your Profess'ion, si r?

4 A r'm the Deputy Secretary with the Florida oepartment

5 of corrections.

6 a Rnd do you have certain duties and responsibjljties

7 during an execution? I A Yes, sir. For the past seven years almost, I've

9 been charged with being the team leader that is over our

10 execution process here in rlorida. you I 1_ 1- a rn that capac'ity, are fami iar with the current

L2 consciousness test to be used during this execution?

1_3 A Yes, si r. L4 a Rnd have you prevìously used this test before?

1_5 A Yes, sj r.

1_6 a Rnd when do you administer the consciousness test? L7 A rhe consciousness test fjrst of all, when the

1_8 execution starts, the first three syrìnges are administered,

1_9 whi ch i s two syr-inges of mi dazol am and then a syri nge of

20 flush, wh'ich is just a flush to get that on into the body.

2L At the conclusion of that first of all, r'm

22 wearìng a radio. Rnd at the conclusion of those three

23 syringes, the assistant team Ieader wjII calI me on that

24 radio. He's pos'itioned in the back with the executjoners. He

25 wj I I cal I me on that radi o and s'i mp1 y say , syri nge th ree

059 L76

1_ compl ete, Phase one comPl ete.

2 At that time, t will ask hjm to stand by and r will

3 physically then r'm standìng next to the gurney, next to

4 the condemned. r will physical'ly approach the condemned and

5 reach over and do an eye flick of the inmate's eyelashes to

6 see jf there's any kind of reaction to that stimuli. Rnd then

7 r wjll proceed to leaning over the inmate and physically

8 grabb'ing him on each shoulder and shaking vigorously and I shoutìng rnmate So-and-so, rnmate So-and-so.

10 And, as part of that shake-and-shout, I will then

1L reach and grab the trapezoìd (sic) muscle and squeeze that

L2 firmly to see if there's any reaction to that pìnch.

1_3 a nnd each of those processes you just described, the L4 physi ca1 processes of the eye fl i ck and the shake and the l-5 pinch, do you do it with such a degree as to get a response?

1_6 A Yes, si r. L7 a Rnd once that once you've completed that, if

1_8 there are no responses, what do you next do?

1-9 A Once r complete that, if there's no response, then I

20 will key my mike and say into the radio to the assistant team 2L leader that the inmate appears to be unconscjous. jn 22 At that time, the medical professionals who are

23 the back with the assjstant team leader, they have observed me

24 do'ing those checks and looked for any reaction from the j 25 i nmate. They' re actual 1 y 1 ookì ng at the nmate's face on a

060 t77

1- screen. They've ggt a camera trained on the inmate's face.

2 they're look'ing at that monitor and looking at their EKG 3 monitors as well. Rnd if , after look'ing at all that and me 4 administering those physical tests, they agree that the jnmate 5 i s i ndeed unconsci ous, then they wi l l tel l the assi stant team 6 leader, who tells me over the radio that medical confirms the 7 state of unconsci ousness. I a Rnd then the execution would proceed? 9 A At that point, then flê, jn my role as team leader, 1-0 wjll djrect the assistant team leader to proceed then to Phase

II IWO. LZ MR. EVANS: Thank you. No further quest'ions. 1-3 THE couRT: okay. cross? t4 MR. TYE: Good mornìng, Your Honor. r'm Michael Tye

1-5 for Mr. uowel I . 16 CROSS-EXAMINATION

L7 BY MR. TYE: l-8 a cood mornì ng, Mr. Cannon. 1-9 A Good morn'ing. 20 a Mr. cannon, are you a medical doctor? 2L A No, si r. 22 a Do you have any medical train-ing? 23 A No medical trainìng other than the training that r 24 have as a certified correctional officer in reference to cPR 25 and fi rst responder trai nì ng.

061 L78

1 a Do you have any specìfic trainìng to determine 2 any spec'ifì c medi cal trai n'ing to determi ne whether someone i s 3 consci ous? 4 A only that trainìng that you receive in basic life 5 support or cPR, as far as the shake-and-shout and those kjnd 6 of procedures. 7 a Do you have any trainìng to determine whether 8 someone is in a comatose state? 9 A No, sjr. 1-0 a Do you have any traìn'ing to determjne whether 1-1- someone is jn a surgical plane of anesthesia?

L2 A NO. 1-3 a Do you have any trainìng to determine whether L4 someone who is unconscious strike that. Do you have any 1-5 traj n-ing to determi ne whether someone i s unconscious such that 1-6 when a noxious stimuli is applied they won't be aroused? L7 A As far as trainìng, the only training r've had is 1-8 from the medical professionals on the team in what to look for l-9 as those th'ings are applied and then throughout our trainìng 20 jn the actual train'ings where r have practiced those exercises 2L or those stimuli on a conscious person and seen their reactjon 22 to it. Numerous times, r've had that. 23 a Rnd do you rely on any kind of monitor to determjne 24 whether the person is conscious or is it solely the 25 consciousness check you described?

062 L79

1- A As r described to Mr. Evans, the medical 2 professionals in the back, they have the monjtors and they 3 rely on the monjtors in makìng their determination. My 4 determination is made on those noxious stimuli tests that r do 5 and the shake-and-shout. 6 a Rnd what kind of monitors are there? 7 A rhe moni tors they have i n the back? I a Yes.

g A To my knowl edge what they have i s, fi rst of al I , i-0 just a camera that's trained on the face of the inmate where l-1- they can see any reactions to those tests that I do, as well LZ as their EKG monitor that is hooked to the inmate's chest. l-3 a Rnd the EKG monitor measures heart rate, is that L4 your understandìng? 15 A r'm not sure what all ìt measures, but, Y€s, sir, l-6 heart rate for sure. L7 a Are there any monitors to measure brain actjvity? 1-8 A Not to mY knowl edge. 1_g a Are there any monìtors to determine any kind of 20 medical data other than the EKG monitor you mentioned? 2L A Not to my knowl edge, ho, si r. ZZ a Rnd during the executìon, I thìnk you mentioned that 2i it's you specifìca'l1y that performs the consciousness check? 24 A Yes, si r. 25 a rs there anyone else involved in the process?

063 180

i_ A Not in the consciousness check other than those 2 persons I described that's observìng and in the back of the 3 room, jn the back with the executioners, that then confjrms 4 that. 5 Q Rnd r think r mentioned when you did the 6 conscjousness check, YoU stroke the inmate's eyelashes, ìs 7 that correct? 8 A Stroke the i nmate's eye'lashes , j ust depressi ng the 9 jnmate's eyelashes, to see if there's any kind of reaction to

1,0 that eyel i d or eye-lash , Y€s , si r. 1-1- a Rnd how much pressure do you apply? t2 A I can, I guess, show you. I don't know really how 1-3 to describe, but just a little firm touch on the eyelìd. L4 a nnd djd you receive any trajnjng wìth respect to 1-5 what pressure to aPPIY? 16 A Agaìn, only from the medical professionals on the L7 team, as we discussed that and they showed me how to do that j-B and what to look for. Rnd then the actual times of doìng jt L9 many tjmes on a conscious person and see'ing what their 20 reacti on was. 2t a Rnd I think you mentjoned that at some po'int you 22 shake the i nmate? 23 A Yes. 24 a Rnd could you show us what type of pressure you 25 apply when you're shaking the jnmate?

064 181

1 A okay. r just reach over the jnmate and get both

2 shoulders and shake them v-igorously and shout their name.

3 a h/hen you do the consciousness check, do you do 4 anything else than what you've mentioned here today?

5 A Just those three that r described.

6 a So you don't gìve the inmate any smellìng salts?

7 A No, si r, I a Rnd you don't use any kind of clamp or anything like

9 that when you're performing a consciousness check, js that

1_0 co r rect?

1_L A Not a clamp other than my hand and my fingers on the

L2 t rapezo'i d pi nch .

1_3 a Are you familiar with the september 9, 20L3, L4 protocol for executions? l_5 A Yes, si r.

1-6 MR. TYE: Rnd this has previously been admjtted âs,

L7 r believe, Defendant's Exhibit uumber 4. rf r could l_8 approach and provide it to the witness?

1-9 THE couRT: Do you have that, Madam clerk?

20 THE CLERK: I believe Your Honor does.

2L THE COURT: Okay. You're sure that that's the same

22 copy?

23 MR. TYE: It's the same, Y€s.

24 THE COURT: Okay.

25

065 L82

1 BY MR. TYE: 2 Q could you poìnt me to where in the protocol it 3 instructs you how to perform the consciousness check? 4 A rt will take me a second to find where it actual]y 5 talks about jt, but I'll go ahead and tell you before I find 6 it that jt does not talk spec'ifically how jt's performed, jt 7 just says that a consciousness check will be performed and I I will then confer with medical, who will advise of their 9 fi ndi ngs. 10 Do you sti I I need me to fi nd exactl y what i t says? 1-L a Yes, if You could, Please. LZ A on Page 10, Number 4, c4, "At thjs poìnt, the team L3 warden will assess whether the inmate is unconscious. rhe L4 team warden must determine after consultation that the inmate 15 is indeed unconscious. rf the inmate is unconscious and the L6 team warden orders the executioners to continue' the t7 executioner shall proceed to step 6." 1_g a r notice jt didn't mention anything about the eye 1-9 flick or shak-ing the inmate or any of the things you talked 20 about. rs that correct? 2L A Yes, si r. 22 a So none of that stuff is in the written protocol? 23 A No, si r. 24 a How di d you know how to do those thì ngs then i f i t's 25 not in the written Protocol?

066 183

L A when I started bei ng when I was asked to be the

2 team warden over thjs process, r was sent to Terre Haute,

3 rndjana, to train with the Federal Bureau of Prisons and

4 observe thei r trai nì ng and thei r protocol s. Rnd i n doì ng

5 that, they d'id the shake and shout. That's the only

6 consciousness check that they dìd at the time.

7 Rfter coming back from there and conferring with our

8 medical professionals, we made a decision that we add the eye

9 flick to that at that time. Rnd r will stop here and say that

1_0 r can assured'ly tell you that this team is aware of the

11_ evolvìng standards of decency and our object'ive is a d'ignifjed

L2 and humane death. so there are some thìngs that we have

1_3 changed during these seven years to try to ensure that, that

L4 we've kept up wìth technologY, that we've done those kind of

1_5 thì ngs.

1_6 Rnd then later we added the trapezo'id p'inch as a

L7 part of the consciousness check to ensure we were taking every l_8 precaution we possibly could to ensure that the person was, in

1_9 fact, unconsci ous. 20 a Rnd do you recall when you added the trapezoid (sic) 2L pi nch?

22 A rhe trapezo'id p'inch was added before the Muhammad

23 executi on.

24 a gefore the ¡¡uhammad execution? 25 A That's correct.

067 184

1- a why dìd you feel the need to add the trapezoid 2 pi nch? 3 n Aga-in, to make sure that this process was humane and 4 dign'ified. Rnd in read'ing some of the news media reports and 5 see'ing some of the expert testimony in reference to this 6 subject, we just felt like an additional safeguard would be a 7 good th'ing to add to make sure that we were hunane and I di gnì fj ed. 9 a Rnd if jt's not written in the protocol, ìs it at 1-0 your sole discretion how the conscjousness check is performed 11- during each individual execution? LZ A As the team leader, I'm obviously over everything 1-3 associated with that execution. But I wouldn't say my sole L4 discretion because r do confer with the medical professìonals l-5 on the team to make any suggesti ons. 1_6 One that thi ng that's spel l ed out i n the poljcy i s L7 that anyone that's a part of the team, i f they see anythi ng l-8 they feel like could make this process more humane and 1-g dìgn'ified or to keep up w-ith evolvìng standards of decency or 20 technology, then they're able to voice that. Rnd at each 2L debriefing I stress that to the team. And we have changed 22 numerous thìngs, numerous thìngs jn relatjon to that. 23 one of the thìngs that r have dictated js that every 24 team member has to serve in that role as the condemned durìng 25 trainìng at some point. We've changed several aspects of just

068 185

1_ the comfo rt I evel fo r the i nmate whi I e 1 ay'i ng on the gu rney .

2 Maybe we put sponges under the hand or padd'ing under the hands

3 to make it more comfortable, changed the pillow, the angle of

4 thìngs, just things to try to make it a little more

5 comfortable, more humane and d'ign'ified as we move a1ong. Rnd

6 this fell into that same category.

7 a But, u1t'imatel y, you ' re the one responsi bl e for I performìng the consciousness check?

9 A rhat is correct.

1_0 a Rnd if you deviated in any way from what you just

1_ 1_ described, there would be nobody else to halt the execution,

L2 i s that correct? ul ti matel y, i t' s your cal I ?

1_3 A r'm not sure r really understand the question.

1,4 a Ultimately, is there anyone else you have to report 15 to after that or is it your decision that the consciousness

1_6 check has been made and it's sufficjent? rs there anyone else

L7 you need to report to at that po'int? -it's 1_8 A wel I , j ust I i ke the procedu re di ctates . rt' s l_9 my respons'ibiljty to do those first three checks r described

20 and then to confer with medica-I, who is doìng the things that

2L they do before we make that determination that he is, jn fact,

22 unconsci ous.

23 THE couRT: Excuse me just a mjnute. r don't know

24 who you three people are jn the back, but ìf you're going

25 to remain jn here you need to stop smacking gum and

069 186

L sm'i rkìng and making faces. rf you do it, any three of 2 you do it or anyone else in the courtroom does it agaìn, 3 you're going to be asked to immediately leave. 4 Rnd r do mean you, sir, in the tan suit. r know 5 you're maki ng a face I i ke you haven't done anythi ng I i ke 6 that, but you need to stoP. 7 UNIDENTIFIED SPEAKER: I'm sorry. I THE couRT: okay. Go ahead. 9 BY MR. TYE: 1-0 a rhank you, Your Honor. l-1 you mentioned the other medical members of the team. L2 Can you describe for me where, physìca11y, they're located? 1-3 A They're located near the executioners, behind the L4 window in the executioners' room. rhey're watching that l-5 camera r described, that monitor, and the monitors on the EKG. 1-6 rhey would be standìng approxìmately two to three feet from

L7 whe re r 'm standi ng w'i th the condemned . Rnd they ' re watch'i ng 1-8 that process as well. 1-9 a Just so r make sure r have this clear, in the room 20 with the inmate, there's you and there's the inmate. rs there

2L anyone el se i n the room at that tj me? 22 A There's an ìndependent monitor from FDLE that is 23 assigned and statjoned in that room. Rnd then r have one more 24 of my team members in that room that operates the microphone 25 and the window coverìng to the gallery.

070 L87

1 a And then ìn the room where the medical team members 2 are, the peop-le you've described as medical team members, who 3 else is in that room? 4 A rhe assjstant team leader, 5 fun. EVANS: Your Honor, t'm going to object. I 6 thi nk we're getti ng way beyond the scope of di rect at 7 thi s stage. 8 THE coURT: What's your response to that, Mr. rye?

9 MR . TYE : tve ' re desc ri b-i ng he re the consci ousness 1-0 check and we're just trying to get a sense of the room 1-1- and what kind of procedures are taken. L2 rhey went way beyond just a sìmp'le question wjth 1-3 respect to the consciousness check. r mean, w€ don't L4 have a sense of where everybody is standing. l-5 THE couRT: Al I ri ght. r'l I overrul e the objection. 16 why don't you ask h'im again? t7 THE WITNESS: PIeASE.

1.8 BY MR. TYE: 1-9 a Yes, I was just askìng, in the room where the 20 additional team members are, outside the executjon chamber, 2L who is in that room and where are they standing? 22 A okay. First of all, you have the two executioners 23 in that room. one executioner is actually carry'ing out the 24 duties of an executioner for that particular execution. rhe 25 other is on stand-by in case that one is rendered unable to

071 188

1- continue for any reason. 2 you have the assistant team leader. You have three

3 medi cal profess'ional s who are moni tori ng the thi ngs r 4 described to you. You have another ìndependent FDLE monitor. 5 and then r have two more team members that are respons'ib1e for 6 maintainìng the open line to the governor's office and 7 relaying things to the governor's office. 8 a Rnd you mentioned this consciousness check that you 9 perform. rs that the sole conscjousness check that's 1-0 performed or is there any other consciousness check that's 1-1 performed throughout the proceedìng, or throughout the LZ execution? 1-3 A At the end of phase one, before we proceed to phase L4 Two, we perform that consciousness check, as we descrjbed, l-5 both myself and the medical professìonals. 1-6 a But that's the sol e consci ousness check? L7 A rhat i s i t, y€s, si r. l-8 a thank you. you sajd you were told what to look for 19 when the second and third drugs are administered, r believe. 20 A r don't think r said that. 2I a rn terms of the patient or in terms of the inmate. 22 Do you know what the second drug does? 23 A r don't think r said that r was told what to look 24 for when the second and thjrd drugs were administered. r 25 don't remember us talking about that at all. But r do know

072 189

1 what the second drug is and what that does, Y€S, sir. 2 Q okay. 3 a rt's vecuronium bromide and jt's a paralytic. 4 a Rnd you menti oned medi cal professì onal s on the team. 5 Could you name them? 6 A No, sir. 7 MR. EVANS: Your Honor, I'm going to object. rhis 8 does go far beyond the relevance and there's a statute

9 that p rohi bi ts the di scl osu re of thei r i denti ti es . 1-0 MR. TYE: You don't have to name them by name, but LL r'm just tryìng to get a sense of what their L2 qualificatjons are and L3 THE couRT: r 'm go-ing to sustaj n the obj ecti on . So L4 ask him something else. ]-5 BY MR. TYE: 1-6 a so you menti oned thi s consci ousness check you L7 perform. Rnd r guess you've said that the p'inch was just 1-8 added in the ¡¡uhammad executjon, is that correct? 1-9 A rhat is correct. 20 a rhe other pìeces of the consciousness check you 2L mentioned, do you do the same thing in every executjon? 22 A Yes, sj r. 23 a and you mentioned in the other room there's the 24 person who's jn charge of dispensing the chemicals that are 25 ultjmately that ultimately go into the inmate's body?

073 190

l_ A rhe executioner?

2 a n'ight.

3 A YES.

4 a Do you know who's in charge of mixing the chemicals?

5 MR. EVANS: You r Honor, I thì nk th j s i s go'ing way

6 beyond the scope. we limited it to the consciousness

7 test. hte di dn 't say anyth'i ng about the mi xtu re , the I test, and i denti fyi ng any of the peopl e i nvol ved. Agai n,

9 it violates the statute.

1_0 MR. TYE: we're not asking to ìdentify them by name

1_ 1_ or even we're just asking who's in charge of mixing

L2 the chemicals. r mean, this has been at issue throughout

13 this proceedìng. Several wjtnesses have testifjed about

L4 thi s preci se i ssue.

L5 MR. EVANS: Rnd, your Honor, r think it, agaìn, goes

1_6 beyond and if someone would bother to look at the

L7 protocol, r think the protocol indicates who's

1_8 responsi bl e.

1-9 MR. TYE: Your Honor, we know what the protocol

20 says, but we want to know in practice how this js

2L actually done. Rnd there's no other way for us to obtajn

22 thi s i nformation.

23 THE COURT: okay. r'm goìng to overrule, ìf you can j 24 answe r that wi thout d scl os'i ng the i denti ty of anybody ,

25 Mr. Cannon

074 191

1_ THEWITNESS:Wouldyouaskthequestionagain'

2 p1 ease?

3 BY MR. TYE: mi xi ng the chemi cal s? 4 a who's i n charge of that the persons that have to 5 A rhe procedure dictates chemi cal s come f rom two cl asses 6 order, ma-intaì n, and mi x the a doctor, a physician, or a 7 of trained professionals, either I pharmacìst. And we do comply with that procedure'

9 aDoyouknowifit'sadoctororpharmacìstwho

1_0 pe rfo rms l_l_ MR.EVANS:Objection,YourHonor'rhatgoesback t2

1_3 THEcoURT:I'mgoingtosustajntheobjection. t4 BY MR. TYE: l_5 aDoyouknowwherethedrugsareobtainedforthe

l_6 executi on? goi ng to ob j ect. hle L7 MR. EVANS: You r Honor, I'lTl test' rhe i ssue of the 1_8 asked about the consciousness thìs' r di dn't ask anYth'ing 1_9 drugs never have come into

20 about those.

2L THEcoURT:I'mgo.ingtosustajntheobjectìon.

22 rhis jsn't a dePosìtion, MF'TYe'

23 BY MR. TYE:

24 aMovingbackto,Iguess'the2ot3protocol,whichis

25 1n frontofyou,'ifyoucouldlookatPagerbelieveit's3

075 t92

L of the protocol.

2 A Yes s'l r.

3 a Excuse me, Page 4. Rnd that portjon of the protocol

4 mentj ons vari ous traj n'i ng actj vi ti es that are done wi th

5 respect to the executjon, is that correct?

6 A YES.

7 a Rnd if you look sort of a third of the way down the

8 page, I bel j eve i t' s under trlumber C

9 A 4C.

1_0 a 4C, yes. rt mentions that one of the trainìng

1_ 1_ exercises is if the inmate is not rendered unconscious after

L2 the administration of midazolam hydrochloride.

1-3 A Yes, sir. L4 a Have you ever been involved in a trainìng with

15 respect to what to do when an individual is not rendered

1_6 unconscious with respect to mjdazolam?

L7 A Yes, si r. As the pof i cy spe1 1 s out, that's one of js 1_8 our contingenc-ies that we do train for. rhe way our pof icy

1_9 written and what we train for is if, in fact, we've done the

20 consciousness check and the inmate was not unconscious' then

2L my role as team leader would be announce to the gallery that

22 the execution had been temporarìly suspended, close the window

23 coveling to the gal I êrY, and ask for the medi cal profess'ional s

'i 24 to come out , check the n j ecti on si tes , l ook at al I the

25 equipment, and make a determjnatjon of what they felt like

076 193

L caused the inmate to not lose consciousness. j 2 rf , i n thei r dete rm'i natì on , they dec ded the re was

3 something wrong, faulty equìpment, a faulty stick, or whatever

4 the case may be, then we would reevaluate that, move to the

5 alternate sjte, and restart the process, beginning over with

6 Phase one.

7 a Rnd jn that sectjon it mentjons there's a wrjtten I record. rt says there shall be a written record of any

9 t rai n'i ng acti vi t j es . rs a wri tten reco rd kept of such

10 trajning activities?

1- 1_ A Yes, si r. L2 a Do you know where such written record can be

1_3 obtai ned?

L4 MR. EVANS: J udge , r 'm go'i ng to ob j ect agai n .

1_5 THE COURT: Sustained.

1-6 BY MR. TYE:

L7 a Have you ever heard the term "paradoxical reactjon?"

1_8 A No, si r.

1_9 a Have you ever recejved any trainìng on what to do if 20 a patient or an inmate experiences a paradoxical reaction?

2L A No, si r. 22 a were you involved at all in the were you involved 23 at all in the comìng up wìth the 201-3 protocol? t^/ere you

24 involved in the actual putting together of the protocol?

25 MR. EVANS: Your Honor, r'm gojng to object again.

077 L94

1 r asked about the consciousness test, not the putting

2 together of the protoco'l . 3 THE couRT: okay. r'm going to sustain the

4 obj ect'ion . 5 ev N4n. TYE: 6 a Were you involved at all wjth respect to the 7 creation of the consciousness check in the 20L3 protocol? 8 MR. EVANS: Your Honor, r think he indicated 9 THE couRT: Yes , r ' tTl goi ng to ove r rul e any ob j ecti on 1-0 on that. He's al ready sajd he was' You can ask him a LL couple follow-up questìons on that, if you want, Mr. Tye.

L2 BY MR. TYE: 1-3 a ouring your consultatjons in the creation of the L4 protocol, did anyone mentjon paradoxìca1 reactions? 1-5 A No, si r. when you asked that questì on , i nvol v'i ng i n 1-6 a lot of that, I'ln not sure I understand really what you're L7 aski ng. 1-8 a when the protocol was created, djd anyone l-9 spec'if j cal l y consi der whether someone coul d be aroused when 20 they're unconscious by a noxious stimuli? 2t A Not that r'm aware of. 22 a Do you know why rlorida decjded to use the drug

23 mi dazol am? 24 A No, si r. 25 a Going back to the setup of the execution room, is

078 195

1- there ever a sheet over, p'laced over the inmate's body? 2 t rn every executjon, there js a sheet placed over the 3 i nmate' s body. rhat sheet i s spec'ial 1y cut and desi gned to 4 cover the jnmate's feet, legs, and torso; exposes both 5 i nmate's arms and from the neck up. 6 a Rnd is that sheet always placed over the inmate in 7 the same way? I A Yes, si r. 9 MR. TYE: Your Honor, if r can have a couple of l-0 mi nutes to consul t.

1-L THE COURT: Okay . L2 MR. TYE: Thanks. (pnUSe)

1-3 rhank you, Your Honor. tì/e have noth'ing further ' L4 THE COURT: okay. Thank you. l-5 Any di rect?

1-6 REDIRECT EXAMTNATION

L7 BY MR. EVANS: 1-8 a Now, your role is to check for consciousness during 1-9 thi s porti on of the procedu re , j s that correct? 20 A That's correct. 2L a Now, the pressure you apply, the eye flick, is that 22 suffi ci ent to gaì n a response? 23 A rt has always gained a response from a conscious 24 person duri ng the trai nì ngs. 25 MR. TYE: objection, Your Honor. That's beyond the

079 196

L scope of direct, beyond the scope of cross. we weren't 2 allowed to get into that. 3 THE COURT: Overruled.

4 BY MR. EVANS: 5 Q You were asked to give the example of the shakìng. 6 A Yes. 7 a Rnd the shouting. rs that gìven to a degree djd 8 you actually shake the witness stand when you were showìng how 9 you shake 10 A erobab'ly so. certainly the inmate is shaken. r can l-l- tel I you that. L2 a Rnd the pinch pressure po'int, when you do the L3 pì nchì ng, do you do i t suffj cj ent to gai n that woul d L4 jnflict pa'in on a person who was conscious? 1-5 A Rbsol utely. 1-6 a Rnd while you may not know the term paradoxìca1 L7 effect or noxious stimuli, it js your role to do procedures to L8 see whether or not someone is conscious and is aware of pa'in, 1-9 is that correct? 20 A Yes, sj r. 2L MR. EVANS: Thank you. No further questions.

22 THE coURT: Okay. Does he need to remai n avai]ab]e , 23 Mr. Evans? 24 MR. EVANS: No, YOur HOnOr. 25 THE COURT: Mr. rye?

080 L97

L MR. TYE: No, Your Honor.

2 THE COURT: Okay. You're free to 90, Mr. Cannon.

3 thanks.

4 okay. so, 'it's a couple of minutes after 12:00. So

5 y'all don't have your next wjtness is not available

6 unti 1 5:00, j s that ri ght?

7 MS. MILLSAPS: That is rìght, Your Honor. Dr. I Dershwitz is doìng rounds.

9 THE COURT: Okay. nnd r had had counsel for the

1_0 newspaper, Ms. Fugate, oh stand-by for this afternoon.

11 Can r go ahead and tell her that you're releasing the

L2 reporter from the subpoena, MF. ufferman?

1_3 MS. SENN: Can we have a moment, Your Honor?

L4 THE COURT: Okay. You guys can discuss that a

1_5 mi nute.

1_6 (pnuse)

L7 MR. UFFERMAN: Your Honor, that's correct. there

1_8 were actually four reporters and r think the attorney for

1_9 the reporters represents all four. nnd, y€s, they're all

20 four released from the defense.

2L THE coURT: Okay. So I'll go ahead and let

22 Ms. Fugate know that and know that she does not,

23 obviously, need to be available because those subpoenas

24 are bei ng rel eased.

25 Can you guys thi nk of anyth'ing el se that we are

081 198

1_ going to need to address prìor to hearìng from Dr.

2 oe rshwi tz?

3 MR. UFFERMAN: NO, YOUr HOnOr.

4 MR. EVANS: NO.

5 THE CoURT: So why don't we come back at quarter

6 till 5:00, just to make sure in case something comes up.

7 Rnd r'l I pl an on that. rf somethi ng unexpected comes up I before that, r'ln going to be in my office. so if we

9 needed to use the ti me for anyth'ing , we certai nl y coul d.

1_0 r wi I I be around, so p'lease contact me ì f anyth'ing comes

11 up.

L2 otherwjse, if r don't hear from you guys, r'll see r-3 you at quarter till 5:00. okay?

L4 MR. UFFERMAN: tl/e'll be in the same courtroom, Your

L5 Hono r?

1_6 THE COURT: Same, Y€S.

L7 MR. UFFERMAN: Thank You, Your Honor.

L8 THE COURT: Okay. thanks.

L9 (necEss)

20

2L

22

23

24

25

082 199

L CERTIFICATE

2 STATE OF FLORÏDA:

3 COUNTY OF LEON:

4 I, EUGENIA B. LAWRENCE, Registered Professjonal

5 Reporter, do hereby certi fy that the forego'ing proceed'ings

6 were taken before me at the time and place therein designated;

7 that my shorthand notes were thereafter translated under my I Supervi s'ion; and the foregoì ng pages are a true and correct

9 record of the aforesaid proceedìngs.

1_0 I FURTHER CERTIFY that I am not a relative,

L1_ emp'loyee, attorney or counsel of any of the parti es , nor

L2 relative or employee of such attorney or counsel, or

13 fi nanci al l y j nterested i n the forego'ing acti on '

1,4 DATED thi s daY of 20L4. 1-5

1_6 E'.*-r*t^cr*- EUG rA B. LAh/RENCE, RPR L7 OFFICIAL COURT REPORTER LEON COUNTY COURTHOUSE 18 TALLAHASSEE, FLORIDA 32301-

19

20

2L

22

23

24

25

083 IINTTED STATES DISTRTCT COURT MIDI}LE I'ISTruCÎ Otr FIÍ}RIDA JACI(SOTWILLE DIVISION

ETHDRIA V. JACKSON, ) ) Plal¡tilf, ) C¡¡eNo: 3:14-cv-01I49-MMH-JBT ) ) v8. ) IDeatù Peneþ Cmc ) Iqf unctlve Rellef Sought JOEN PALME& tn hl¡ oflicÍ¡l caprcÍúy as ) lhc Wsrdctr of Floridr StNtc Prbotr, ) MICIIABL It. CREITS¿In hb ofñcirl capaelty ) ¡r the Secretary, Floddr llcpartmcnt of ) Corrscflonc, ) ) Defendant¡. ) ) ) I

AFFTDAVTT OT AICTIARD KILEY

t. I am Richard Kiley and I am curcntly emptoycd âs ar asomçy at Capihl Collaterâl

Rcgional Cor¡nscl - Middle Region (CCRGM). I h¡ve bæn an attomey for 27 ycars and

bave been ernploycd ¡t CCRC-M for 13 years.

2, Aspartofmydutiæ, I witrcssdüc exocutionc of Martin G¡oss¡¡ran on February 16,2010,

Darir¡s Mark Kimb¡u¡gh on Træsda¡ Novcmbcr 12,20'!,3,md Ëddie ttrayne Drvis on July

10,2014.

3. For Mr. Kimbrough's cxecution, at 6:00 p.m. tüc cr¡rtain went up. Mr. Kinhrougb uras

lying zupine. I was scatcd in tbs ûont row ofths wiûræs viewiag roorr.

4' fn the room with Mr. Kimbrougb werc ttrroe ottrcr pcople - a man rtcxt to Mr. Kimbrougþ

a man in the comor of the room on my lefr a¡d a woman in the room ûo my right sidc.

I

084 PagelD 492 case 3:14-cv-01149-MMH-JBT Document 14-6 Filed LilaLlL4 Page 3 of 5

5. Mr. Kimbrough was covered from his shoulders to his feet in a white sheet and covered

from his neck to his chin by a white paper bib.

6. The sheet was not draped ovet the body, but instead appeared to be tented over Mr.

Kimbrougþ such that you could not observe any movemcnt of Mr. Kimbrough underneath

the sheet.

7. This was different than the previous execution of Martin Grossman that I had observed

where the sheet was draped normally over him and you could see his chest rise and fall

underneath the sheet.

B. Iür. Kimbrough's bare arms protruded from the sheet and I could see tubes protuding from

his right arrn. Due to the placement of the gumey, I could not see his lefr arm.

9. His rigbt hand appeared to be balled into a físt and was wrapped tightly with ace bandages

so I could not see his hand, nor af,y movements his hand may have been making.

10. At 6:01 p.m, the man next to ì[r. Kimbrouglr asked him if he had any last words' lvfr,

Kimbrough did not offer a final st¿tement'

l l. At 6:05 p.m., the man next to Mr. Kimbrough lifted Mr. Kimbrough's left eyelid twice' I

could observe no reaction from Mr. Kimbrough. The man then lifred Mr. Kimbrough

slightly by the shoulders and let hirn fall back. I could observe no reaction by M¡.

Kimbrough.

12. Due to the tented sheet, I was unablc to observe Mr. Kimbrough's chest rising and falling,

or any other movement he may have been making. Because of the tenting of the sheet, any

movement would have been irnpossible to see.

2

085 Case 3:14-ar-01149-MMH-JBT Document 14-6 FiledL2|OUL4 Page 4 of 5 PagelD 493

13. At 6:77 p.m. the man next to Mr. Ki¡nbrouglr pickcd up the wall phone and said something

into it. A man in a white lab coat and white latex gloves then appeared from bchind a

curtain in the area bchind Mr. Kimbrough's head.

14. He produced a pçn light and checked M¡. Kimbrough's left eye first, then the right. He

tlren rcmoved the white paper bib from Mr. Kimbrough's neck and produced a stethoscope

from the pocket of his lab coat. He procoeded to check both sides of Mr. Kimbrough's

neck and said something to the man next to Mr. Kirnbrough. The man in the white lab coat

then exited ttrougb the same curtain from which he entered.

15. The man next to Mr. Kimbrough then flicked on an intprcom switch and stated that the

sentence was executed at 6:18 p.m.

16. Other than at the beginning when the man asked if t\,fr, Kimbrough had any last words and

the end where he announced that the sentence had been ca¡ried out, the intercom in the

execution chamber was h¡med offand I could not hear anything from the chamber.

17. For the Davis execution, at 6:30 p.m., the rüarden asked if hír. Davis had any last words.

Mr. Davis did not offer a final statement.

18, From 6:30 p.m. to 6:33 p.m., Mr. Davis appeared to be praying. As with the Kimbrough

execution, once the 'Ûfarden tumed off the microphone afte¡ offering the opportunity for

the final stâtement, I could not hear anything going on inside the chamber.

19. From 6:33 p.m. to 6:36 p.m., I obse,rred Davis' head tilt back and his mouth opening and

closing in a tortured grimace.

20. From 6:36 p.m. to 6:40 p.m., there was no movement. A man in a white lab coat carne out

and checked Davis' neck and eyes. He had what appearcd üo be an animated convcrsation

3

086 Case 3:14-cv-01149-MMH-JBT Document 14-6 Filed !2l0LlL4 Page 5 of 5 PagelD 494

with the Warden, which I could not hedr. The Warden then pronounced the time of death

at6:43 p.m. and the curtains were immediately lowered.

21. Unlike in the Kimbrough execution, in Mr. Davis' execution, the Wardcn did not conduct

a conssiousness check at any point during the exccution. He did lean over Mr. Davis at

one point, but the Warden did not touch Mr. Davis, shake him, tap his eyelids, or pinch his

trapezius. Because there is no sound in the charnber, I cannot be certain whether he cslled

his name or not, but I am certain he did not physically touch Mr. Davis at any point during

the execution.

FURTHER AFFIANT SAYETH NAUGHT.

//ê RICIIARD KILEY

SWORN TO AIID SUBSCRIBED TO before me, RICIIARD KILEY, on rhis Ieuv of 4o who is personallyknown to me.

CARLOS RODRIqJE:¿III ømm¡Un*ff 0æ¡17 NOTARY OF FLORIDA Ërú¡¡ ftntltg,2017 loi.l tuf,nY-f ¡ mnt ¡c'¡on

4

087 STATE OF FLORIDA COUNTY OF LEON

COMES NOW THE AFFTANT, NEAL A, DUPREE, WHO, IJNDER THE PENALTY OF PERIURY, HEREBY STI/EARS AND AFFIRMS AS FOLLOWS: ,

I . My name is Neal A. Ðupree, and I have been a licensed Ftorida attomey since 1980. I cunently serve as the Capital Collateral Regional Counsel for South Florida" and I have held that position since August, 1998.

2. During my tenure as Capital Collateral Regional Counsel-South (CCRC-South), my offroe reprcsented Cary Michael Lambrix durÍng his post-conviction appeals. It was in my capacþ as CCRC-South that I witnessed the execution of Mr. Lambrix at Florida State Prison on October 5, 20t7.

3. OnOctober5,20lT,inaccordancewithFloridaDepartmentofCorrections'procedure,Ianived at the administation building ofthe Florida State Prison at 4:00 p.m. I waited in the administration building until approximately 5:30 p.m. During that time I hád my office cellular phone with me and was able to remain in constant contact with the legal team representing Mr, I¡mbrix. As I left the administration building to go ínto the Florida State Prison to witness the execution, I was informed by Florida Department of Corrections personnel that I would not be allowed to take my cellularphone into the prison. From 5:30 p.m. until -9:30 p.m. all witnesses to the execution of Mr. Lambrix, other.than the press, were kept in the chapel of the Florida State Prison. During that four hour period I was unable to contact Mr. Lambrix's legal team.as I had no access to my cellular phone. However, I observed at least one Florida Department of Concctions'employee who was also a witness to the execution using a cellular phone during the time the witnesses were confined to the chapel. It was only after the execution that I had access to my cell.ular phone. I was also denied access to my celtular phone during the executions I witnessed prior to Mr. Lambrix.

4. During my tcnure at CCRC-South I have also witnessed the executions of Angel Diaa lVayne Tompkins, Manuel Valle, and ManuelPardo.

5. The execution of Mr. Diaz occuned on December 13, 2006 using a three drug cockail of Sodium Thiopental, Pancuronium Bromide, and Potassium Chloride: The e¡ecutign of M¡. Tompkins used the same drug cocktail as Mr. Diaz. However, the Florida Department of Corrections used a different initial drug on Mr. Valle and Mr. Pardo, Pentobarbital instead of Sodium Thiopental. The Florida Department of Corrections used yet another initial drug in the execution of Mr, Lambrix, This time Etomidate was used as the initial drug instead of Midazolam. The second and third drugs were also new as of 2017, using Rocuronium Bromide and Potassium Acetate.

6. In addition to changing the types of drugs used in executions since. Mr. Diaz, the Florida Departnent of Conections has also changed the physical location of the defendants in the

088

P520 execution chamber since his execution. This change obsoures the ability of witnesses to the execution to obsorve the execution procedure as clearty as wa¡¡ observed during lhe execution of Mr. Diaz.

7. During the execution of Angel Diaz on December 13, 2006, I was seated in the fronl row of the observation room. I was located approximately 6-7 feet from Mr. Diaz who was laying on a gumey covered by a white sheet perpendicular to my position.

8. I was able to obsprve that Mr, Diaz was smpped to a gurney and his right arm was held in place by a leather strap. Mr. Diaz had some typc of ape or gauz€ holding his right hand in place and an intravenous needle had been placed in his right arm where his elbow would bend.

9. From my positior¡ I had an unobstructed view of Mr. Diazls face, right arm, right side, and part of his right hand. From my vantage point f could also clearly see the inüavenous line attached to his right arm. I could see the tethal drugs flowing through the tubing. I could also see his fingers.

10. On October 5, 2017 ,l was again seated in the front row for the execution of Mr. Lambrix. The cuftains to the execution chamber were opened at approxirirately 9:55 p.m. As opposed to the execution of Mr. Diaa Mr. Lambrix was not placed in the same position as Mr. Diaz. Where Mr. Diaz was perpendicular to my position in the front row giving me an unobstructed view ofhis face; right side of his body, including the insertion site; and right hand, Mr. Lambrix was strapped to the gurney with his feet pointed directly towards me.

I L From the placement of Mr. Lambrix on the gurney I was only able to observe his face and 15- l8 inches of each arm where an intravenous line had been inserted. Because of the dislånce,I could not see the lethal drugs flowing through the tubing. Mr. Lambrix was.covered by a sheet and his hands and fingers were completely covered up to his wrists with what appeared to be a giant mitten making observation of his hands impossible. There was nothing completely covering Mr. Diaz's right hand during his execution leaving his hand partially observable for the witnesses.

12. In addition, instead of being able to observe the fase of Mr. Lambrix from 6-7 feet away as I had with Mr. Diaz, the new placement of Mr. Lambrix in the execution chamber meant I had to observe his face from approximately 13-15 feet away. And, instead of a direct unobstructed view of Mr, Lambrix's face, like I had of Mr. Diaz, I had to look over Mr. Larnbrix's feet and his oovered body in order to see his face.

13. Mr. Lambrix was asked if he had any last words and he said part of The Lord's Prayer. The execution proceduie commenced at about 9:56 p.m. For six minutes afrer the execution procedure began I was able to see Mr. Lambrix breathe heavily. During this time I also observed his lips and chin shudder in a rhythmic pattérn.

14. Aftcr approximately seven minutes I observed Ricky Dixon, Deputy Secretary of Institutions for the Florida Department of Corrections, lean over Mr. Lambrix, brush his left eye, then grasp

2

089

P521 bqth of Mr. Lambrix's shoulders and shake him repeatedly. He also appeared to speak to Mr. Lambrix. The witnesses cannot hear any sounds,coming from the chamber afte¡ the last words are spoken, but I could see Mr. Dixon's lips moving.

15. Mr. Lambrix had no responsé to the actions of Mr. Dixofi. Seven to eight minutes later I oþsprved a person Weering medical garb enter the exesution chamber, Hê placed a stethoscope on lvfr. Lambrix s chest and shined a light into Mi: L¡mbrix's left eye. He then spoke to Mr. Dixon and Mr. Larnbrix was pronounced dead at 10:10 p.m.

NAUGHT

A.

SV/ORN TO Al.{D SUBSCRItsED TO before me this /c& day of Oc(o\-etzr20l7, by Neat A. Dupree, who is personally known to me, or produoed the following identiñcation Ft f,t s O¡Ao - bzt- s.s:- Itç- O

STATE OF FLORIDA My Expires:

laYg)xsmtt¡oil GGi{6r2

J

090 P522 SUBJECT: PAGE OF 19 STATE OF OHIO Execution NUMBER: 01.COM.11

RULE/CODE REFERENCE: SUPERSEDES: oRc 2949.22:2949.25 01-COM-1 1 dated 01/09/1 5

RELATED ACA STANDARDS: EFFECTIVE DATE:

June 29,2015 DEPARTMENT OF REHABILITATION AND CORRECTION APPROVED:

L AUTHORITY

This policy is issued in compliance with Ohio Revised Code 5120.01 which delegates to the Director of the Ohio Department of Rehabilitation and Correction the authority to manage and direct the total operations of the Department and to establish such rules and regulations as the Director prescribes.

II. PURPOSE

The purpose of this policy is to establish guidelines for carrying out a court-ordered sentence of death.

uI. APPLICABILITY

This policy applies to all individuals involved in carrying out a court-ordered death sentence in u.rotáunr. wiih all applicable policies, administrative regulations, and statutes.

IV. DEFII\ITIONS Auxiliarv Tea.m Member - A physician, advanced level provider or registered nurse who has been designated b¡r the Director to provide advice and consultation as described in this policy.

Critical Incident Debriefing Team - A group selected by the Warden, and including the Religious etoassistanypersonsinvolvedintheexecutionprocess.A psychological debriefing process is available via DRC clinical staff and others to recognize stressors associated with executions and to work through them with affected staff as follows:

. Worker's own experiences of the execution including reactions and perceptions. o Review any negative aspects and feelings. o Review añy positive aspects and feelings, o Relationships with workers and/or family. o Empathy (sharing) with others o Disengagement from execution experience. o Integ¡ation of this experience into the profqssional work, role for a positive future contribution to the overall team effort. o Exploring religious cônvictions and feelings.

DRC 1361 091 SUBJECT: Execution PAGE 2 OF 19

Death lþuse - A physical location within the Southern Ohio Correctional Facility (SOCF) used for the execution of a death-sentenced prisoner.

Death Row - (l) A housing area at the Chillicothe Correctional Institution (CCD or Ohio State Penitentiary (OSP) that has been designated by the Director of the Department of Rehabilitation and Correction to house male prisoners who are committed to the Departrnent with a sentence of death; (2) A housing area atthe Ohio Reformatory for Women (ORW) that is similarly designated to house female prisoners committed to the Deparrnent with a sentence of deatb (3) A housing area at the Franklin Medical Center (FMC) that has been designated by the Director of the Department of Rehabilitation and Correction to house male or female prisoners whose medical needs are inconsistent with assignment to CCI, ORIW, or OSP pursuant to Department Policy 68-MED-13, Medical Classification; or such other facility as may be deemed appropriate by the Director. Death Row is also a reference to a housing status for prisoners sentenced to death; it is not a security classification.

Director - As used in the policy, the term "Director" refers to the current Director of the Ohio Department of Rehabilitation and Correction or the Director's designee.

DLIIS Administrator - Any qualified member of the Medical Team who administers any execution drug or witnesses the preparation and administration of any execution drug. A Drug Administrator shall be currently qualified under Ohio Law to administer and prepare drugs for intravenous injections. A Drug Administrator may also establish, or assist in, establishing, or assess, IV connections.

Elgcution Team - A group consisting of no less than twelve (12) members designpted by the Warden of the Southern Ohio Conectional Facility to carry out court-ordered executions. Their dutics also include preparation and testing of equipment, carrying out pre- and post-execution activities, and counseling with the prisoner.

Execution Timeline - A record of events before and during an execution to include the specific information required to be recorded by this policy aird other information at the discretion of the Execution Team.

Medical Team Member - A person who is a member of the Execution Team and who is currently quattfied under Ohio Law to administer and prepare drugs for intravenous injections, or who has at least one year experience âs a certified medical assistant, phlebotomist, EMT, paramedic, or military corpsman, or who is currently. certifïed or licensed within the United States as a registered nurse or nurse practitioner

Relieious Services Administrator (RSAI - The Religious Services Adminisffator is the coordinator and administrator for religious services for the Ohio Department of Rehabilitation and Correction (DRC). The RSA will provide counseling and support services for the offender and others consistent with the provisions of this directive.

Reprieve - The posþonement of an execution.

Stav'- A court-ordered suspension or postponement of a legal execution. Suúooft Sfaff - Support Staff shall mean those individuals who have specified roles in this policy including, but not limited to, medical staff, mental health staft Health Care Administrators (HCAs),

DRC 1362 092 SUBJECT: Execution PAGE 3 OF 19

appointed designees, correction ofücers at DRC institutions, the RSA, SOCF Chief of Security or hislher designee, SOCF Deputy \üarden(s), the Special Assistant designated in this policy, and/or other leneral DRC staff. Support Staff are not members of the Execution Team. Overhead management staff at DRC are not Support Staff, and not members of the Execution Team. As defined above in this section IV, only those individuals designated by the Warden to carry out court-ordered executions shall be Execution Team members. The Director and the Warden(s) are not members of the Execution Team.

Warden - As used in the policy, the term "'Warden" refers to the current'Warden of the Southern Ohio Correctional Facility (SOCF), or his or her current Deputy ÏVarden, or the Director's designee, unless the policy uses language which indicates another Warden of another institution.

V. POLICY

It is the policy of the Ohio Department of Rehabilitation and Correction to carry out the death penalty in a constitutional manner and as directed by Ohio Courts of Law. All execution processes shall be performed in a professional, humane, sensitive, and dignified manner. It is the responsibility of the birector to designate a penal institution where death sentences shall be exêcuted. The Warden of that facility, or Deputy Warden in the absence of the Warden, is responsible for carrying out the death sentence on the date established by the Ohio Supreme Court.

The procedures set forth in this policy are to be strictly followed. Any situation that arises that would make following these policies difficult, impractical, or impossible shall be immediately reported to the Director or the lV'arden. Any variations of a substantial nature must be approved by the Director as described in this policy.

There will be no variations from the following requirements:

t. At least three Medical Team Members, two of whom are authorized to administer drugs under Ohio law, shall be used in the conduct of court-ordered executions.

2. The drugs required by this policy shall be used.

3. Functions required to be performed by medically-qualified persons, as described in this policy, shall be performed by Medical Team Members.

4, All Execution Team functions shall be performed by appropriately trained and qualified members of the Execution Team.

Only the Director can authorize a variation from the procedures stated in this policy but not a 5. 'variation from the four requirements listed immediately above in subsections V.1.2.3. and 4. of this policy.

VI. PROCEDT'RES

A. General Guidelines

1 All prisoners sentenced to death by a court of law shall be transported to a reception center within the Department of Rehabilitation and Conection for initial processing. Upon completion of the reception process, the prisoner shall immediately be transferred

DRC 1362 093 SUBJECT: Execution PAGE 4 OF 19

to the designated institution: CCI or OSP for male prisoners or ORW for female prisoners. The Director may designate FMC or another appropriate DRC institution as necessary.

2 All court-ordered executions shall be carried out at the Southern Ohio Correctional Facility and will be planned to commence at 10:00 a.m. on the scheduled execution date, subj eci to developing circumstances.

J Unless otherwise designated by the Director/designee, the prisoner shall remain on Death Row until transferred to the Death House for scheduled execùtion.

4. The Ohio Supreme Court shall designate the date of execution. Upon receipt of a scheduled execution date, the TVarden of the institution housing the.prisoner shall notiff the Director, the RSA, and the Warden at SOCF.

5 Attendance at the execution is governed by Ohio Revised Code section 2949.25 and includes:

The V/arden or Acting Warden of the institution where the execution is to be a. 'Warden conducted and such number of correction officers or other persons as the or Acting Warden thinks necessary to carry out the death sentence.

b. The sheriff of the county in which the prisoner was tried and convicted.

c. The Director of the Department of Rehabilitation and Correction, or designee, and any other person selected by the Director/designee to ensure that the death sentence is carried out.

d. Any Auxiliary Team Member whose role will be to provide consultation or advice as may be necessary. An Auxiliary Team Member shall attend such number of execution rehearsals as the Warden may consider necessary, but no less than one rehearsal per execution. An Auxiliary Team Member shall attend training sessions on topics identified in subsection VI.B.4.b. of this policy, below. An Auxiliary Team Member shall not.be required to attend an execution, but may, at the discretion of the Warden, attend an exeCution and provide consultation or advice to the Warden, the Director and the Medical Team.

e. The prisoner may select one or two of the fotlowing persons: the RSA, minister-of. record, clergy, rabbi, priest, .imam, or regularly ordained, accredited, or licensed minister of an established and legally cognizable church, denomination or sect, subject to the approval of the Warden.

f. Three persons designated by the prisoner who are not confined in any state institution subject to the approval of the Warden or Acting Warden based on security considerations. The prisoner may also request that one or two attorneys attend the execution.

g. Three persons designated by the immediate family of the victim, subject to the approval of the Warden or Acting Warden based on security consideration, as

DRC 1362 094 SUBJECT: Execution PAGE 5 OF 19

detailed in Department Policy 03-OVS-06, Victim Involvement in the Execution Process.

h. Representatives of the news media who are authorized by the Director, which may include representatives of the following: a newspaper, a television station, and a radio station.

6. Given the gravity of the sentence to be carried out, it is imperative that these procedures be strictly adhered to and all actions by Department personnel in carrying out the sentence be fully documented as required by this poticy. However, due to the difñcult and sometimes r.rnpredictable nature of the tasks to be performed in carrying out the sentence it may noì always be possible to follow these procedures to the letter. Thus, variations from the requirements of the policy directive may sometimes be necessary. Any Support Staff, overhead management staff at DRC, or member of the Execution Toam who determines for any reason it is difTicult, impractical, or impossible to strictly follow the procedures in this policy directive'shall immediately report the same to the Warden or to the Director. The Director may then consult with the Warden and others as appropriate. Only the Director may authorize a variation from the procedures in this policy directive. Any such variation shall be documented as soon as possible.

8.. Execution PreparatÍon - Approximately thirty (30) days prior to the scheduled execution date

1. Notification

The Warden of the institution where the prisoner is housed shall notify the Director of an upcoming scheduled execution date. Notifrcation may also be provided to the supervising Regional Director of SOCF, DRC Chief Counsel, DRC Managing Director of Operations, the Adult Parole Authority (APA), the Ohio State Highway Patrol @ortsmouth and Jackson); and the Office of Victim Services.

2. Execution Drugs

a. The Warden shall determine whether there will be sufficient quantities of the execution drugs available for the scheduled execution and report those findings to the Director.

b. The Warden's assessment of what constitutes a sufficient quantity of execution drugs shall include ensuring a sufficient amount for a contingency against contamination or inadvertent loss.

c. At his discretion, the V/arden may, at any time, direct the Health Care Administrator, the Health Care Adminisfator's designee, or SOCF's responsible pharmacist, to order execution drugs from a licensed pharmacist at the Office of Support Services of the Ohio Departnnent of Mental Health and Addiction Services, from a pharrnacy, manufacturer, supplier or distributor, or from any other licensed pharmacist.

d. All execution drugs delivered to SOCF shall be maintained in a Secured location.

DRC 1362 095 SUBJECT: Execution PAGE 6 .OF 19

e. If compounded execution drugs are to be used, a sample from the batch of those drugs will be analytically tested before they are used. The sample will be tested for identity and potency, pursuant to the applicable USP/Ì'{F monograph. DRC will only use the batch of compounded drugs if its sample is properly identified as the intended drug and its tested potency is within the applicable monograph standard. At the discretion . of the Director, a sample of nor-compounded execution drySs iraV also be tested for identity and potency pursuant to the applicable monograph standard.

3. Assessment of Prisoner

Every possible effort shall be made to anticipate and plan for foreseeable difficulties ^. in establishing and maintaining the intravenous (IV) lines. The prisoner shall .be .evaluated by appropriately trained medical staff approximately twenty-one (21) days prior to the execution to evaluate the prisoner's veins and plan for the insertion of the IV lines. This evaluation shall include a "hands-on" examination as well as a review of the medical chart to establish any unique factors which may impact the manner in which the Execution Team carries out the execution. Potential þroblems shall be noted and discussed, and potential solutions considered, in advance of the execution, Concerns or potential issues shall be communicated to the Warden or designee at SOCF as soon as þossible. None of the fr¡nctions described in this subsection shall be governed by subsection V.3. of this policy, above.

b. Any evaluation that is conducted by medical staff pursuant to subsection VI.B.3.a. of this policy, above shall be noted in the prisoner's medical chart.

c. The prisoner's medical condition shall be assessed in order to identifu any necessary accommodations or contingencies that may arise from the prisoner's medical condition or history. Any medical condition or history that may affect the performance of the execution shall be communicated as soon as possible to the Warden of SOCF, who shall confer with others as necessary to plan such accommodations or contingencies. The fact of the assessment and any conclusions shall be documented in the prisoner's medical chart. None of the functions described in this subsection shall be governed by subsection V.3. of this policy, above.

d. Any concerns for establishing or maintaining tV lines and any concerns or plans for medical açcommodations or contingencies shall be communicated to the Execution Team in order that these things may be discussed and addressed in execution trainings or rehearsals.

e. An appropriate member of the mental health søff shall evaluate the prisoner approximately twenty-one (21) days prior to the execution to evaluate his or her stability and mental health in light of the scheduled execution. Any concems or contingencies affecting the execution process shall be communicated to the Warden of SOCF as soon as possible. The fact of the assessment and any conclusions shall be documented in the prisoner's mental health record. None of the functions described in this subsection shall be govemed by subsection V.3. of this policy, above.

DRC 1362 096 SUBJECT: Execution PAGE 7 OF 19

f. Beginning approximately thirty (30) days prior to the scheduled execution date until the prisoner's transfer from Death Row to SOCF, the prisoner shall be evaluated by mental health staffto determine the prisoner's appropriate observation level, housing status and access to personal property. None of the functions described in this subsection shall be governed by subsection V.3. of this polic¡ above.

4. Training

a. The Execution Team shall begin conducting training sessions no less than once per week until the scheduled date of execution. The training shall address any aocommodations or contingencies that might be anticipated.

b. Training in the following topics shall be provided for every member of the Execution Team, and any Auxiliary Tear.n Member designated by the Director; prior to service and at least once per year thereafter:

The general nature and effects of the execution drugs that are used during the execution process;

ii. Drug administration procedures, includiqg the insertion of the IV needles and administration of inj ections;

iii. Signs or symptoms of problems when administering drugs; and

iv. Any legal developments of significance.

5. Other Preparations

a. The RSA shall make contact with the prisoner to establish counseling and family contact information

b. Prior to commencement of the initial training session, the Warden or the Team Leader shall verify and document the qualifications of the Medical Team members. Medical team members shall provide evidence of certification status at least once per year and upon any change in st¿tus.

c. The Team Leader shall ensure that each member of the Execution Team has received a copy of the current version of this execution policy. Each member of the Execution Team shall sign for its receipt.

C. Execution Preparation - Approximately fourteen (14) days prior to the execution

The \r¡/arden of the institution where the prisoner is housed shall have the Execution lnformation Release (DRC1808) completed by the prisoner. This form will veri$ information on the prisoner, visitors,. witnesses, spiritual advisor, attorney, requested wibress, property, and funeral arrangements.

2 The names of official witnesses/media witnesses shall be supplied to the Warden, as outlined in this policy.

DRC 1362 097 SUBJECT: Execution PAGE 8 OF 19

J The names and relationships of the victim's witnesses shall be supplied to the Warden.

4 The RSA shall provide family information from the prisoner to the rüarden.

5 Approximately fourteen (14) days prior to the execution, the Warden shall determine whether a sufficient quantity of pentobarbital (urder whatever name it may be available from a pharmacy, manufacturèr, supplier, distributor, pharmacist, or compounding pharmacy) or a suffrcient quantity of thiopental sodium (under whatever name it may be available from a pharmacy, manufacturer, supplier, distributor, pharmacist, or compounding pharmacy) is available for use at the scheduled execution.

a. If a suffrcient quantþ of pentobarbiøl or thiopental sodium is available, then the scheduled execution shall proceed with intravenous administration of either pentobarbital or thiopental sodium, as determined by the lVarden, in accordance with the terms of this policy.

b. If a sufficient quantity of pentobarbiøl or thiopental sodium is not available, or if at any time the available pentobarbital or thiopental sodium is deemed unusable by the Medical Team, then the'Warden shall consult with the Director and they shall notiff the Governor.

c; Notice of the Warden's determination, concerning the selection of execution drugs or insuffrcient quantities of such drugs to be used for intravenous administration, shall be provided to the prisoner.

d. If the scheduled execution date is posþoned for any reason, and:

such posþonement is less than ten (10) days, then no later than four (4) days prior to the re-scheduled execution date, the V/arden shall make the determination set forth above in subsection VI.C.S. of this policy.

ii. such posþonement is between ten (10) and thirty (30) days, then no later than seven (7) days prior to the re-scheduled execution date, the Warden shall make the determination set forth above in subsection VI.C.S. of this policy.

iii. suoh posþonement is more than thirty (30) days, then approximately fourtÞen (14) days prior to the re=scheduled execution date, the Warden shall make the determination set forth above in subsection VI.C.5. of this policy.

e. The Warden shall ensure that sufficient quantities of the execution drugs, which have been determined to be used for the scheduled execution, have been delivered to SOCF and stocked within an appropriate secured location and then noti¡/ the Director.

DRC't362 098 SUBJECT: Execution PAGE 9 OF 19

D. 'Execution Preparation - Approximately twenty-four Q4) hours prior to the scheduled execution

1 The prisoner shall be transferred from Death Row and housed in the Death House at SOCF. The prisoner shall be constantly monitored by at least three (3).members of the Execution Team. An Execution Timeline shall be maintained.

2. An Authorized Independently Licensed Mental Health Professional shall interview the prisoner periodically and submit progress reports to the Warden. All prisoner files shall be maintained in the Vy'arden's office at SOCF, unless otherwise directed by the Warden.

3 The V/arden shall establish a line of communication with DRC legal staff and the Attomey General's Office for notice of case status and/or other significant legal changes.

4 The RSA shall provide counseling and spiritual support unless the prisoner requests not to have such contact.

5 Beginning with his/trer arrival at SOCF, the prisoner shall not be forced to meet with non- staff visitors that he or she does not wish to see.

E. Execution Prepaiation - The following events shall take place upon the prisoner's arrival at the Death House

l. Once the prisoner is at SOCF, the Death House shall be restricted to the following:

Director/desi gnee(s) ; Warden; Mernbers of the Execution Team; Managing Directors or Regional Directors; Communications Chief/designee ; Institution Deputy Warden; Administrative Assistant to the Warden; Chaplain; Physician; Independently Licènsed Mental Health Professional; Chief of Security; Maintenance Superintendent; Any other person as deerned necessary by the Warden.

2. The prisoner shall be evaluated by medical staff on the day of arrival at SOCF to evaluate the prisoner's veins and plan for the insertion of the IV lines. This initidl evaluation shall include a "hands-on'? examination as well as a review of the medical chart. At a minimum, a "hands-on" oxamination shall also occur later that evening. Potential problems shall be discussed, and potential solutions considered. The perforrnance of these two evaluations shall be noted in the Execution Timeline. Any relevant portion of the medical file may be kept in the Death House for appropriate reference as needed. None of the functions described in this subsection shall be governed by subsection V.3. of this policy, above.

DRC f362 099 ,OF SUBJECT: Execution PAGE 10 - 19

3 SOCF chaplains shall imake periodic visits to the prisoner, if requested by the prisoner.

4 The Deputy Warden shall assign security personnel to staff entrances, checþoints, and to assist the Ohio State Highway Patrol (OSHP).

5 The Team Leader shall ensure that the prisoner's property is inventoried in front of the prisoner. The prisoner will have previously, pursuant to subsection VI.C.l. of this policy above, specified who is to receive his or her personal effects. The Team Leader shall ensure that the Inmate Property Record Disposition and Release @RC2055), correctly specifies this information, and the Team Leader shall sign it to confirm the review.

6 The prisoner shall, pursuant to subsection VI.C.1. of this policy above, specify in writing his/her request for funeral arrangements, which shall be recorded in the Execution Information Release, (DRC 1 808)

7 The prisoner shall be allowed contact visits with family, friends and/or private clerg¡ as approved by the Warden, between approximately 4:30 p.m. and 7:30 p.m. on the day prior to the scheduled execution. If the prisoner requests an attorney meeting, the prisoner shall be allowed one confidential attorney-client meeting, not to exceed an hour, on the day prior to the execution, following the prisoner's intake at SOCF. This visit will take place in an af,ea where conversation is not audible to DRC staff. The visit will be visually monitored and recorded on video only. Before such meeting, all attomeys shall be subject to a thorough, gender-specific search of their person and property. Cell front visits as approved by the Warden shall be permitted between approximately 6:30 a.m, and 8:00 a.m. on the day of the scheduled execution. The attorney and spiritual advisor may continue to visit with the prisoner until approximately 8:45 a.m. The Warden may modiff the frèquency and duration of the visiting opportunities at his or her discretion.

8. The Team Leader shall ask the prisoner to identiff his or her special meal re{uest. The special meal shall be served the day prior to the scheduled execution at a time to bç determined by the Warden.

9 The Warden shall brief key personnel, to include medical and mental health staff, in order to allow intake information to be obtained.

10. The V/arden shall receive updates from security personnel and the OSHP on crowd conhol, demonstrations, pickets, etc.

11. The Chief of Security or designee shall brief the Warden on the level of tension within the remainder of the prison population.

12. The Warden shall relay any out of the ordinary activity to the Regional Director supervising SOCF.

13. The Execution Team shÊrll continue to prepare as needed.

DRC 1362 100 SUBJECT: Execution PAGE 11 OF 19

F. Execution Preparation - Morning of Execution Day. At any time, as determined by the Team Leader, on the morning of the execution:

1 The prisoner shall be permitted to take a shower and dress in the designated clothing the morning of the execution.

2. Vein Assessment

A "hands-on" examination of the prisoner's veins shall be made by a Medical Te4m Member before the IV is established. If any potential problems are identifïed they shall be discussed between the Mçdical Team, the Warden, the Director, and any Auxiliary Team Member, and potential solutions shall be considered. The performance of this evaluation shall be noted in the Execution Timeline.

3. Possession of Execution Drugs

A Drug Administrator, in the presence of a second Drug Administrator, shall take possession of the execution drugs from the SOCF responsible pharmacist or another appropriately licensed pharmacist at the secured pharmacy storage area, and shall document possession of the drugs by signing form Order for Execution Medications (DRC2001). The Drug Administrator taking possession of the drugs, accompanied by a second Drug Administrator shall deliver the drugs to the Death House. These persons shall complete form Order for Execution medications (DRC2001).

4. Drug.Preparation

a. The drugs shall be prepared for injection by a Drug Administrator. The preparation of the drugs shall be monitored by a second Drug Administrator who shall independently verifu the preparation and dosage of the drugs. Both Drug AdminiStrators shall complete form Order for Execution Medications (DRC2001).

'Warden b. If the determines that a sufficient quantity of pentobarbital is available and . has been selected to be used, then a Drug Administrator shall prepare the execution drugs as follows:

i. Syringes I and 2: Five (5) grams of pentobarbital, 100 ml of a 50mg/ml solution, shall be withdrawn and divided into two syringes labeled "1" and"2".

ii. Syringes 3 and 4: Five (5) additional grams of pentobarbital, 100 ml of a S0mg/ml, solution, qhall be obtained and kept available in the Equipment Room, but need not be withdrawn into syringes unless the primary dose of five grams proves to be insufficient for the procedure. These two additioqal syringes labeled "3" and "4" shall be kept available for contingent uso.

c. If the Warden determines that a sufficient quantity of thiopental sodium is available and has been selected to be used, then a Drug Administrator shall prepare the execution drugs as follows:

DRC 1362 101 SUBJECT: Execution PAGE 12 OF 19

i. Syringes l, 2, 3,4 and 5: Five (5) grams of thiopental sodium, 200 ml of a 2lmglml solution, shall be withdrawn and divided into five separate syringes, labeled "1","2","3",('4" and "5".

ii, Syringes 6,7,8,9 and l0: Five (5) additional grams of thiopental sodium,200 ml of a 25mglml solution, shall be obtained and kept available in the Equipment Room, but need not be withdrawn into syringes unless the primary dose of five grams proves to be insufficient.for the procedure. These five additional syringes labeled "6","7","8","9" and "10" shall be kept available for contingentuse.

d. The drug preparation shall be documented as follows:

i. The Drug Administator who prepared the execution drugs and the Drug Administrator who witnessed the preparation shall complete form Order for Execution Medications (DRC200 1).

ii. A Drug Administrator shall inform the Command Center when the Execution Drugs are prepared, and the Command Centershall record in the Execution Timeline the time that the drugs were prepared.

5 Official witnesses to the execution will report to the institution. The victim's witnesses shall report to the Portsmouth Highway Patrol Post, or other Post or location designated by the Highway Patrol, for escort to the institution by designated SOCF personnel.

6 The prisoner shall be allowed to have visits as described in subsection VI.E.7. of this policy, above.

7 The RSA shall be present to counsel and provide spiritual support to the prisoner and staff.

8 All communication equipment shall be tested, including primary and secondary communication, with both the Governor's Office and the Office of the Attomey General.

a. Primary communications shall be via a telephone line opened directly to the Command Center from the execution chamber. This line shall be tested one (1) hour prior to the scheduled execution. Other than testing, this line shall remain open.

b. Secondary communications shall be via cellular telephone.

c. In the event that both the primary and secondary communications are inoperable, the execution shall be delayed until communications are established.

DRC 1362 102 SUBJECT: Execution PAGE 13 OF 19

G. Execution Preparation - Approximately fifteen (15) minutes prior to the scheduled execution

1. Wiüresses Transported to Death House.

All authorized witness groups shall be escorted to the Death House separately by designated staff. Witnesses shall be escorted to viewing rooms before the death warrant is read.

2. Phone for Prisoner's Counsel

If the prisoner chooses to have his or her counsel as a witness, at all times after counsel enters tle wiuress room, counsel shall have free access to the phone near the entrance door of the Death House.

a. The phone in the Death House foyer will enable counsel to call into the waiting room for prisoner's counsel in the prison compound where another person, whose prosence is arranged by counsel for the prisoner and whose presence satisfres tþe prison's security concerns, and which person is acting on behalf of the prisoner and his or her counsel, will be situated during all times after the death warrant is read.

b. The Warden shall allow this other person to have access to his or her own laptop computer and to a phone that can connect that person to an outside line.

3 Death'Warrant

The V/arden shall read the death wa¡rant to the prisoner.

4 Closed-Circuit Camera Activated

Immediately after the death warrant is read, the closed-circuit camera in the execution chamber shall be turned on so that witnesses in the witness rooms can view the subsequent activities in the execution chamber on the television screen in those rooms.

5. Prisoner Enters Execution Chamber

The rWarden and Execution Team shall escort the prisoner to the execution chamber, assist the prisoner onto the bed and secure the shaps. The team shall roll up the prisoner's sleeves or take other steps to ensure that the anns are ptainly visible to persons in the chamber and to those in the equipment room.

6. Curtain Closed

Once the prisoner is secured to the bed, the curtain shall be closed prior to the insertion of the IV needles. The closed-circuit camera shall remain on to allow the witnesses to view the establishment of IV site(s).

DRC 1362 103 SUBJECT: Execution PAGE 14 OF 19

7 IV Site(s) Preparation & Establishment

a. The Medical Team shall enter the Execution Chamber to prepare IV site(s).

b. The Medical Team shall establish one or two viable IV sites.

i. The ann veins near the joint between the upper and lower arrn shall be utilized as the pieferred site for the IV injection.

ii. In the event that the Medical Team member is unable to establish an [V at a prefened site, thE Medical Team member(s) may establish an IV at altemative site(s) for use by the Drug Administrator when administering execution drugs.

iii. The Execution Team may utilize any non-invasive device such as a light, illuminator or ultrasound device, if desired, to assist in locating a vein.

c. The Medical Team member(s) shall be allowed as much time as is necessary to establish viable tV site(s).

d. If the Medical Team mernber(s) are unable to establish viable IV site(s), the Medical Team members shall consult with the Warden, the Director, and any Auxiliary Team Member for the purpose of determining whether or how long to continue efforts to establish viable IV site(s).

8. Confirming & Recording Establishment of [V Site(s)

A Medical Team member shall test the viability of the IV site with a low-pressure ^. saline drip through IV tubing. If necessary, a heparin lock may be attached to the IV needle as an altemative to the saline drip.

b. The Warden, Team Leader, and a Drug Administrator shall all confirm the visibility of the IV sites.

c. The Medical Team member(s) shall exit the Execution Chamber and shall announce . the number of attempts made to establish viable IV site(s) to the Command Center contact who shall then inform the Command Center, for capture on the Execution Timeline.

d. The Command Center shall record in the Execution Timeline the number of attempts.

9. Curtain Opened

The.curtain shall be opened after fhe establishment of viable IV site(s). The curtain shall remain open during the remainder of the execution until the examination for the pronouncement of death, rlrless the execution is abandoned or halted.

DRC 1362 104 SUBJECT: Execution PAGE 15 OF 19-

10. Last Words

The Warden shall ask the prisoner if he or she has any last words. If the prisoner has a last statement, he or she will be allowed to make it while the witnesses are present in the adjacent viewing rooms, and are able to see him or her and hear him or her via microphone

a. There shall generally be no restriction on the content of the prisoner's statement and no unreasonable restriction on the duration of the prisoner's last statement.

b. The V/arden may impose reasonable restrictions on the length of the statement- The Warden may also terminate a statement that he or she believes is intentionally offensive to the witnesses.

H. Commenceiment of Execution

1. Execution by IV Injection

a. If the Wa¡den has determined, pursuan! to subsection VI.C.S. of this policy above, to proceed with pentobarbital, then upon the Warden's signal, a Drug Administrator shall intravenously adrninister the previously prepared syringes I and 2 of pentobarbital.

b. Alternatively, if the Warden has determined, pursuant to subsection VI.C.5. of this policy above, to proceed with thiopental sodium, then upon the Warden's signal, a Drug Administrator shall intravenously administer the previously prepared syringes l, 2,3,4 and 5 of thiopental sodium.

c. The low-pressure saline drip shall be allowed to flush saline through the line(s) following completion of the IV drug administration.

d. A second Drug Administrator shall be present in the equipment room to observe the administration of the execution drugs. This Drug Administrator shall announce the start and finish times of each injection to the Command Ceirter contact who shall then inform the Command Center foi capture on the Execution Timeline.

e. The Command Center shall record in the Execution Timeline the start and finish times of each injection.

f. Following administration of the IV drugs, a Drug Administrator shall reenter the Fxecution Chamber to inspect the IV site for evidence of incontinence or infiltration and to listen to the prisoner for breathing and heart sounds.

g. If a sufficient time for death to occur has passed brt the prisoner has not died, the Medical Team shall consult with the Warden anif the Director, and any Auxiliary Team Member. The Warden, after consultation with the Director, shall determine whether to proceed with any additional syringes of execution drugs, and may order the Medical Team to prepare such additional syringes, as necessary, and intravenously administer them, in accordance with the terms of this policy, above.

DRC 1362 105 SUBJECT: Execution PAGE 16 OF 19

h. At the completion of the process and after a sufficient time for death to have occurred, the curtain shall be closed and an appropriate medical professional shall evaluate the prisoner to confïrm death, The curtain shall then be re-opened and the Warden shall announce the time of death. kr the event that the appropriate medical professional cannot confirm that death has occurred, the curtain shall be reopened until an appropriate time has passed to reevaluate the prisoner.

2. Using Alternative IV Sites

a. The Team Leader, a Medical Team member, and the Warden shall observe the prisoner dwing the injection process to look for signs of swelling or infiltration at the fV site, blood in the catheter, and leakage from the lines and other unusual signs or symptoms.

b. The Execution Team shall communicate to the Drug Administrators. any problems detected during the adminishation of the execution drugs.

c. The Drug Administrator who is administering the execution drugs shall determine whether it is necessary to use another viable IY site.

d. In the event that the Drug Administrator who is administering the execution drugs detects a problem in the administration of the drugs, the Drug Adrninistrator shall use any other viable IV site. No prior consultation with the Warden or other members of the Execution Team is required.

e. Whenever it is necessary to change fV sites, the Drug Administrator shall administer a full dosage of the execution drug through the alternate, viable IV site using additional syringes, as necessary,.prepared in accordance with the terms of this policy, above.

f. In the event the Drug Administrator changes to another viable IV site, the Dntg Administrator shall inform the Command Center contact, who shall then inform the Command Center for capture on the Execution Timeline. The Command Center shall record in the Execution Timeline any change in IV site(s).

3. Establishing Other IV Sites(s)

a. In the event there is no altemative viable fV site, the Medical Team shall consult with the Warden and Director.

b. The Warden, following consultation with the Director, shall determine whether to proceed with execution by IV injection

c. In the event the Warden determines to proceed ïith execution by IV injection, the Execution Team shall repeat the steps in subsections VI.G.6. - 8. of this policy, above, and continue ri'ith the execution as provided for in subsection VI.H. of this policy, aboüe.

DRC 1362 106 SUBJECT: Execution PAGE___ 17 0F 19

d. The Warden shall ensure the Command Center is informed of his decision. The Command Center shall record the Warden's decision in the Execution Timeline.

I. Post-Execution

1 The Warden, or his designee, shall notify the Director that the execution has been carried out.

2. The Medical Team shall remove the IV equipment and clean the [V sites

3. The RSA or the prisoner's Spiritual Advisor shall anoint the body of the prisoner if requested by the prisoner.

4. The RSA shall coordinate the burial of the prisoner's body with local chaplains if the prisoner's family does not want the body.

5 The Execution Team shall remove the deceased from the execution bed and place him or : her on a gurney.

6 Disposition of the body shall be in accordance with arrangements made prior to the execution at the prisoner's request.

7 The \üarden shall sþ and return the death warrant to the Court, indicating the execution has been carried out.

8. Prepared Execution Drugs

a. A Drug Administrator shall properly dispose of any execution drugs that have been prepared for administration but not been utilized.

b. A Second Drug Administrator shall witness the disposal.

c. Both Drug Administrators shall document the disposal in form Order for Execution Medications (DRC200 I ).

9. Unprepared Execution Drugs

a. A Drug Administrator shall properly return any unprepared execution drugs to the secured pharmacy storage area.

b. A Second Drug Administrator shall witness the return of the unprepared execution drugs.

c. Both Drug Administrators shall document the return of the unprepared execution drugs in form Order for Execution Medications (DRC2001).

DRC 1362 107 SUBJECT: Execution PAGE 18 OF 19

10. Recording Used Execution Drugs

a. A Drug Administrator shall document the name or description, and any expiration date or beyond use date, of the execution drugs used, in fonn Order for Execution medications (DRC200 1).

b. An Execution Team member shall save the packaging of the used execution drugs or take photographs of such packaging. None of the functions described in this subsection shall be governed by subsection V.3. of this policy, above.

11. After-ActionR.eview

Immediately following an execution, the Execution Team and the on-site administrators directly involved in the execution process shall meet to review the process of the execution. Any unique o¡ unusual events shall be discussed, as well as opportunities for improvement and successful procedures. Actions and documentation of the events shall be reviewed to identify any discrepancies. Discrepancies. from the policy directive shall be clearly described and noted in a written record. The record shall be signed and dated by the Warden.

12. Critical Incident Debriefing

a. The 'Warden shall ensure that critical incident debriefings are available for the Execution Team and staff participants immediately following the execution.

b. The Critical Incident Debriefïng team shall conduct interviews in accordance with CIM guidelines.

c. The RSA shall be available for debriefing for the family of the prisoner.

13. Quality Assurance Review The Director shall designate a Special Assistant for Execution Policy and Procedures. The Special Assistant shall evaluate the performance of the Execution Team, review the conduct of .court-ordered executions and report to the Director of the Department. His or her duties will consist of reviewing documentation, training, and professional qualifications, to ensure compliance with the written policy directive. The Special As'sistant may utilize assistants as necessary to compile or assess the information, and may consult with others consistent with the confidentiality of the process. Whenever appropriate, the Special Assistant shall consult with a propgrly trained medical person when reviewing the medical aspects of the execution procedures. The Special Assistant wilt also provide consultation and advice concerning modifications in the written directive. The Special Assistant will prepare a report to the Director following each execution, with any suggestions or recommendations that are appropriate.

DRC 1362 108 SUBJECT: Execution PAGE 19 OF 19

Related Department Forms: Execution Information Release DRCI808 Order for Execution Medications DRC2001 Inmate Property Record Disposition and Release DRC2055

DRC't362 109 ARIZONA CHAPTER: 700 OPR: DEPARTMENT OF OPERATIONAL SECURITY OPS CORRECTIONS

DEPARTMENT ORDER: 710 SUPERSEDES:

DEPARTMENT ORDER MANUAL EXECUTION PROCEDURES DO 710 (10t23t151

EFFECTIVE DATE:

JANUARY 11,2017

REPLACEMENT PAGE REVISION DATE:

N/A

TABLE OF CONTENTS PURPOSE RESPONSIBILITY pROCEDURES PAGE

710.O1 DIRECTOR'S OFFICE RESPONSIBILITIES - NOTICE OF FILED WARRANT OF EXECUTION....2 710.02 COMPLEX AND DIRECTOR',S OFFICE RESPONS|B|L|T|ES...... 2 710.03 EXECUTION TEAM MEMBERS ...... 4 710.O4 COMMUTATION HEARING PROCEEDINGS 9 710.05 DESIGNATION OF WITNESSES BY DIRECTOR 9 710.06 STATE AND LOCAL LAW ENFORCEMENT BRIEF¡NG; SITE CHECKS 10 710.O7 THIRTY-FIVE DAYS PRIOR TO THE DAY OF EXECUTION - COMPLEX 11 710.08 THIRTY-FIVE DAYS PRIOR TO THE DAY OF EXECUTION - CENTRAL OFFICE 12 710.09 TWENTY-ONE DAYS PRIOR TO THE DAY OF EXECUTION - CENTRAL OFFICE 13 710.10 FOURTEEN DAYS PRIOR TO THE DAY OF EXECUTION - CENTRAL OFFICE 14 710.11 TWO DAYS PRIOR TO THE DAY OF EXECUTION 14 710.12 TWENTY-FOUR HOURS PRIOR TO THE DAY OF EXECUTION ...... 14 710.13 TWELVE HOURS PRIOR TO AND THROUGH THE EXECUTION 15 710.14 POST-EXECUTION ...... 18 710.15 PROCEDURES FOR NEWS MEDIA ...... 19 IMPLEMENTATION...... 21

CROSS-REFERENCE INDEX ...... 21 AUTHORITY ...... 21 ATTACHMENTS

EXECUTION PROCEDURES JANUARY 1'I, 2017 71O - PAGE110 i CHAPTER 7OO _ OPERATIONAL SECURITY DEPARTMENT ORDER: 710 - EXECUTION PROCEDURES

PURPOSE

This Department Order establishes procedures for planning and carrying out the execution of a person convicted of a capital offense and sentenced to death. These procedures shall be followed as written, except that the Director of the Arizona Department of Corrections {Director) is allowed to make limited deviations from or adjustments to these procedures when required to address certain unexpected or otherwise unforeseen contingencies, subject to the limitations on the Director's discretion as set forth herein. Except as expressly permitted herein, the Director shall not have any authority to deviate from or make adjustments to any material aspects of the execution process, including, but not limited to, the execution chemicals or dosages, consciousness checks, the access of the press and the inmate's counsel to the execution, and the timeframes established by this Department Order. This Department Order outlines internal procedures and does not create any legally enforceable rights or obligations.

RESPONSIBILITY

The Department ensures the execution of a person sentenced to death under State law by a court of competent authority and jurisdiction is carried out in keeping with statute, case law and professional practices.

The Department shall make every effort in the planning and preparation of an execution to ensure the execution process:

Faithfully adheres to constitutional mandates against cruel and unusual punishment. ls handled in a manner that minimizes its impact on the safety, security and operational integrity of the prison and the community in which it occurs. Accommodates the public's right to obtain certain information concerning the execution. Reasonably addresses the pr¡vacy interests of persons as provided by law. Provides contingency planning to identify and address unforeseen problems. Allows for stays of execution, commutations and other exigencies up to the time that the sentence is imposed. Provides opportunity for citizens to exercise their First Amendment rights to demonstrate for or against in a lawful manner. Ensures there is an appropriate response to unlawful civil disobedience, trespass and other violations of the law by any person attempting to interfere with the execution or the operation of the prison.

The Department shall detain, seek the arrest and encourage prosecution of persons whose conduct includes

I Violating prohibitions against filming, taping, broadcasting or otherwise electronically documenting the execution of the inmate. Trespassing and otherwise entering upon Department property without authorization. Participating in unlawful demonstrations or unlawfully attempting to disrupt, prevent and otherwise interfere with the execution. Unlawfully threatening, intimidating and otherwise attempting to influence authorized persons involved in the execution process. These prohibitions apply to the inmate population as well as department personnel and members of the general public engaging or attempting to engage in disruptive and other prohibited behaviors.

Participating staff shall adhere to the Department's Code of Ethics and Guided Principles, evidencing

Appropriate levels of professionalism, restraint and courtesy when interacting with witnesses, demonstrators, attorneys, news media, state and local law enforcement and any other member of the public directly and indirectly involved with the imposition of the sentence of death. All assigned duties are performed proficiently and professionally.

JANUARY 11. 2017 71O - PAGE 1 EXECUTION PROCEDURES 111 CHAPTER 7OO _ OPERATIONAL SECURITY DEPARTMENT ORDER: 710 - EXECUTION PROCEDURES

Their ability to exercise the opt¡on to withdraw from the process by the prescribed means at any time. Conduct that appropriately reflects the solemnity of the activities in which they elect to engage and the duties they choose to perform. Reserving public comment on any and all facets of the execution except as expressly provided in Department Order #2O1, Legal Services - lnformation Release. Any Department employee who learns of identifying information regarding any person who participates in or performs any function of an execution must keep that information confidential.

IMPORTANT GUIDELINES REGARDING CONFIDENTIALITY AND VOLUNTARINESS OF PARTICIPATION IN AN EXECUTION:

The anonymity of any person, as defined in A.R.S. t 1-215(28) and A.R.S. 5 13-105(30), who participates in or performs any ancillary function(s) in the execution, including the source of the execution chemicals, and any information contained in records that would identify those persons are, as required by statute, to remain confidential and are not subject to disclosure. A.R.S. E 13-757(C). All team members serve on a strictly voluntary basis. At any point before, during or after an execution any team member may decline to participate or participate further without additional notice and explanation or repercussion. The Division Director for Offender Operations shall ensure all team members understand and comply with the provisions contained herein.

PROCEDURES

710.O1 DIRECTOR'S OFFICE RESPONSIBILITIES UPON NOTICE THAT THE STATE HAS FILED A MOTION FOR WARRANT OF EXECUTION

1.1 Upon notice from the Attorney General's Office that it has filed a Motion for Warrant of Execution in the Arizona Supreme Court:

1.1.1 General Counsel shall

1.1.1.1 Notify the Director, Division Director for Offender Operations, the Wardens of ASPC-Florence and ASPC-Eyman or ASPC-Perryville, and the Media Relations Director.

1.1.1.2 Notify the Victim Services Team Leader, who shall contact the victim(s) and inform them that the State is seeking a Warrant of Execution.

1.1.2 The Director shall notify the inmate and the inmate's counsel in writing of the drug protocol that will be used in the event a Warrant of Execution is issued and lethal injection is the method of execution.

710.O2 COMPLEX AND DIRECTOR'S OFFICE RESPONSIBILITIES UPON RECEIPT OF WARRANT OF EXECUTION

1.1 Upon receipt of the Warrant of Execution from the Attorney General's Office

1 .1.1 General Counsel shall:

1.1.1.1 Notify the Director, Division Director for Offender Operations, the Wardens of ASPC-Florence and ASPC-Eyman or ASPC-Perryville, and the Media Relations office.

PBOCEDURES JANUARY 11, 2017 71O . PAGE 2 EXECUTION 112 CHAPTER 7OO _ OPERATIONAL SECURITY DEPARIMENT ORDER: 71O - EXECUTION PROCEDURES

1.1 .1.2 Forward the original Warrant of Execution to the Warden of ASPC- Florence.

1.1.1.3 Forward copies of the original Warrant of Execution to the Warden of ASPC-Eyman or ASPC-Perryville.

1 .1 .1.4 Notify the V¡ctim Services Team Leader, who shall contact the victim(s) and inform them of the court's issuance of the Warrant of Execution.

1.1.2 The Director shall

1.1.2.1 Select the time of execution and provide notice to the Arizona Supreme Court and the parties at least 2O calendar days prior to the execution date. (Arizona Rules of Criminal Procedures, Rule 31 .1 7(c)(3))

1.1.2.2 Notify the inmate that ¡f the offense was committed prior to November 23, 1992, the inmate shall choose in writing using the Method of Execution, Form 71O-1, either lethal injection or lethalgas at least twenty-one days prior to the execution. lf the inmate fails to choose either lethal injection or lethal gas, the penalty of death shall be inflicted by lethal injection (A.R.S. 5 13-757(B)).

1.1.2.3 Have the authority, under exigent circumstances, to change the timeframes established in this Department Order in order to address certain unexpected or otherwise unforeseen contingencies.

1.1 .3 The ASPC-Eyman or ASPC-Perryville Warden shall:

1.1.3.1 Direct the inmate to submit the lnmate Witness and Notification lnformation, Form 71O-2, to the Warden no later than 14 days prior to the scheduled execution date.

1 .1 .3.1 .1 lnform the inmate that two clergy and five other persons may be invited to be present at the execution.

1.1.3.1.2 Notify the inmate that minors are prohibited from witnessing the execution pursuant to A.R.S. 5 13- 758.

1 .1 .3.1 .3 Notify the inmate that requests for Department or contract staff to attend the execution shall be denied.

1.1.3.1.4 Notify the inmate that requests for other inmates to attend the execution shall be denied.

1.1.3.2 Direct the inmate to review and update as necessary the Notification in Case of Accident, Serious lllness or Death and Disposition of Property, Form 71 1-1 . The Warden shall direct the inmate to provide any changes no later than 14 days prior to the execution. lf the inmate provides no instruction, the property and accounts shall be disposed in accordance with Department Order #711, Notification of lnmate Hospitalization or Death.

EXECUTION PROCEDURES JANUARY 11, 2017 71O - PAGE 3 113 CHAPTER 7OO - OPERATIONAL SECURITY DEPARTMENT ORDER: 71O - EXECUTION PBOCEDURES

1 .1 .3.3 Advise the ¡nmate that his/her body shall not be used for organ donation.

1 .1.3.4 Summarize the options ava¡lable with the inmate for release and disposition of their body after the autopsy is performed. The Warden shall direct the inmate to review the previously completed Disposition of Remains, Form 710-3, and update as necessary no later than 14 days prior to the execution. lf the inmate provides no information or the ¡nformation ¡s insufficient or incorrect the deceased shall be disposed in accordance with Depa rtment Order #711, Notification of lnmate Hospitalization or Death.

1 .1 .3.5 Advise the inmate he may request a last meal by completing the Last Meal Request, Form 71O-5, and returning it no later than 14 days prior to the execution. Reasonable effort shall be made to accommodate the request.

710.03 EXECUTION TEAM MEMBERS

1.1 The Division Director for Offender Operations shall

1 .1.1 Establish a training schedule and identify dates for periodic on-site practice by the Housing Unit 9 Section Teams, to include 10 training scenarios within the 12 months preceding the scheduled execution.

1.1.2 Conduct a minimum of two training sessions with multiple scenarios 2 days prior to the scheduled execution. The lV Team members shall participate in at least one training session with multiple scenarios within one day prior to the scheduled execution.

1.1.2.1 All training sessions shall be documented and be included as part of a permanent record created by the ASPC-Florence Warden to be subm¡tted to the Department's General Counsel for archive, post execution.

1.1 .3 Ensure periodic testing of all of the equipment in Housing Unit 9 occurs, affirming electrical, plumbing, heating and air conditioning units are in working order and the gas chamber is maintained.

1.2 The Division Director for Offender Operations provides for the planning and overall direction of all pre-execution, execution and post-execution activities. The Division Director coordinates the activities of the Southern and Northern Regional Operations Directors (SROD and NROD) and the ASPC-Eyman or ASPC-Perryville and ASPC-Florence Wardens who activate the following teams and oversee their activities, specifically:

1.2.1 Command

1.2.',t.1 Consists of a minimum of three team members:

1.2.1.1.1 Commander.

1.2.1.1.2 Recorder.

_ EXECUTION PROCEDURES JANUARY 11,2017 71O PAGE 4 114 CHAPTER 7OO . OPERATIONAL SECURITY DEPARTMENT ORDER: 710 - EXECUÍION PROCEDURES

1.2.1.1 .3 Telephone operator.

1.2.1.1 .4 Others as necessary.

1.2.1.2 Team members are selected by the Division Director for Offender Operations with the documented approval of the Director.

1.2.1.3 Its team leader is selected by the Division Director for Offender Operations.

1.2.1.4 Primary function of Command is the overall coordination of execution procedures.

1.2.2 Housing Unit 9 Section

1.2.2.1 Consists of a section leader and two teams:

1.2.2.1.1 Restra¡ntTeam.

1.2.2.1 .2 Special Operations Team.

1.2.2.2 Team leaders are selected by the Division Director for Offender operations with the documented approval of the Director.

1.2.2.3 The section leader is the ASPC-Florence Warden.

1.2.2.4 Primary function of the section leader is the overall coordination of activities of the Restraint Team and the Special Operations Team to ensure compliance with conditions of confinement and application of approved procedures.

1.2.3 Restraint Team

1.2.3.1 Consists of a minimum of seven team members, including one team leader.

1.2.3.2 Restraint Team members and the team leader are selected by the Division Director for Offender Operations with the documented approval of the Director.

1.2.3.3 Primary function of the Restraint Team is to provide continuous observation of the inmate on the day of the execution and apply appropriate restraint procedures and inmate management prior to, during and after the execution.

1.2.4 Special Operations Team

1.2.4.1 Consists of a minimum of five team members:

1.2.4.1.1 Team Leader

1.2.4.1 .2 Recorder

1-2.4.'l .3 Three additional team members.

EXECI.JTION PROCEDURES JANUARY 11, 2017 7IO - PAGE 5 115 CHAPÏER 7OO _ OPERATIONAL SECURITY DEPARïMENT ORDER: 710 - EXECUTION PROCEDURES

1.2.4.2 Its team members and team leader are selected by the Division Director for Offender Operations with the documented approval of the Director.

1.2.4.3 The Special Operations Team Leader shall designate functions of the other team members, including the selection of a member to observe the procedure and serve as the Recorder.

1.2.4.4 Primary function of the Special Operations Team is to implement the protocols associated with the execution with its primary duty being the administration of the chemicals, and additionally mixing the chemicals under the direct supervision of the lV Team Leader.

1.2.5 lntravenous Team Members (lV Team)

1.2.5.1 The lV Team will consist of any two or more of the following: physician(s), physician assistant(s), nurse(s), emergency medical technician(s) (EMT's), paramedic(s), military corpsman or other cert¡fied or licensed personnel including those trained in the United States Military. All team members shall be currently certified or licensed within the United States to place lV lines.

1.2.5.2 The lV Team members shall be selected by the Director. Selection of any team member shall include a review of the proposed team member's qualifications, training, experience, and/or any professional license(s) and certification(s) they may hold. Licensing and criminal history reviews shall be conducted, by the lnspector General's Office prior to assigning or retaining any lV Team member and upon the issuance of a Warrant of Execut¡on.

1.2.5.3 The Director shall designate the lV Team Leader. The Division Director for Offender Operations shall ensure all team members thoroughly understand all provisions contained herein as written and by practice.

1.2.5.4 The lV Team shall be responsible for inserting either peripheral lV catheters or a central femoral line as determined by the Director acting upon the recommendation of the lV Team Leader. The lV Team Leader shall ensure all lines are functioning properly throughout the procedure, supervise the Special Operations team in the mixing of the chemicals, preparing the syringes, and monitoring the inmate (including the level of consciousness and establishing the time of death). The lV Team Leader shall supervise the administration of the chemicals. A central femoral venous line will not be used unless the person placing the line is currently qualified by experience, tra¡ning, cert¡fication or licensure within the United States to place a central femoral line.

1.2.5.5 lV Team members shall only be required to participate in the training sessions scheduled for one day prior to the actual execution.

1.2.5.6 Documentation of lV Team members' qualifications, including training of the team members, shall be maintained by the Department Director or his designee.

EXECUTION PROCEDURES JANUARY 11, 2017 71O _ PAGE 6 116 CHAPTER 7OO - OPEFAÏIONAL SECURITY DEPARTMËNï ORDER: 71O - EXECUTION PROCEDURES

1.2.6 Maintenance Response Team (MRT)

1.2.6.1 Consists of three team members and a team leader, and reports to Command.

1.2.6.2 Team members are selected by the ASPC-Florence Warden.

1.2.6.3 Primary function of MRT is to test all Housing Unit 9 equipment utilized to impose the sentence of death and to ensure electrical, plumbing, heating and air conditioning units are in working order.

1.2.7 Critical lncident Response Team (CIRT)

1 .2.7.1 Consists of three team members and a team leader, and reports to Command.

1.2.7.2 The leader is the Employee Relations Administrator or designee

1.2.7.3 Team members are CIRT responders and selected by the Employee Relations Administrator.

1.2.7.4 Primary function of CIRT is to educate staff regarding possible psychological responses and effective coping mechanisms to affected staff at all levels in the Department prior to, during and after the execution. CIRT shall provide ongoing follow up contact to staff .

1.2.8 Traffic Control Team

1.2.8.1 Consists of eight team members and a team leader, and reports to Command.

1.2.8.2 Team members and the team leader are selected by the Division Director for Offender Operations.

1.2.8.3 Primary function is to confer with state and local law enforcement agencies, establish check points and parameters for traffic control and formulate inter-agency emergency response strategies. The team also coordinates the ingress/egress for Department and contract staff and other persons whose attendance is necessary at ASPC-Eyman or ASPC-Perryville and ASPC-Florence. The Team's focus is the period of time start¡ng twenty-four hours prior to the execution and concluding when normal activities resume after the execution.

1.2.9 Escort Team

1.2.9.1 Consists of eight team members and a team leader, and reports to Command.

1.2.9.2 Team members and the team leader are selected by the Division Director for Offender Operations.

710 _ PAGE 7 EXECUTION PROCEDURES JANUARY 11. 2017 117 CHAPTER 7OO - OPERATIONAL SECURITY DEPARTMENT ORDER: 710 - EXECUTION PROCEDURES

1.2.9.3 Primary function is to coordinate the movement of all pre-approved witnesses on and off prison grounds and within its perimeter. One Escort Team is assigned to escort and assist pre-approved official, victim, media, and inmate witnesses. Escort team members always remain with witnesses within the established perimeter.

1.2.1O Victim Services Team

1.2.10.1 Consists of two team members and reports to the Escort Team leader.

1.2.1O.2 The team leader is the Victim Services Office Administrator

1.2.10.3 Primary function is to ensure victims of the crime that resulted in the imposition of death are informed of the execution date and the¡r opportunity to witness the execution. The team explains the execution process. lf the victim is interested ¡n attending, the team submits the victim's name{s) for consideration.

1.2.10.4 Day of the Execution - The team leader meets with the victim(s) in a predetermined stag¡ng area and accompanies them throughout the process, including a briefing by the Director. The Team provides support and advocacy as appropriate.

1.2.10.5 lf the v¡ctim(s) is interested ¡n speaking with the media after the execution, the victim(s) is escorted to the Press Room for brief media availability.

1.2.10.6 Post-Execution - The team leader ensures the victim{s) receives follow up phone calls and support.

1 .2.11 Population Assessment

1.2.11.1 Southern Region Operations Director

1.2.11.1.1 ls responsible for the coordination of monitoring and evaluation of inmate act¡vity at ASPC-Eyman and ASPC-Florence.

1 .2.11 .1 .2 Continuously monitors and assesses the ¡nmate population for any activity related to the execution or its impact on the prison's operation at ASPC-Eyman and ASPC-Florence.

1.2.11.2 ASPC-PerryvilleWarden:

1.2.11.2.1 ls responsible for the coordination of monitoring and evaluation of inmate activity at ASPC-Perryville.

1 .2.11 .2.2 Continuously monitors and assesses the inmate population for any activity related to the execution or its impact on the prison's operation.

EXECUTION PFOCEDURES JANUARY I 1, 201 7 71O - PAGE 8 118 CHAPTER 7OO - OPERATIONAL SECURITY DEPARIMENT ORDER: 71O - EXECUTION PROCEDURES

1 .3 Desiqnation of ADC Staff and Others Selected to Assist with the Execution

1 .3.1 The ASPC-Eyman or ASPC-Perryville and ASPC-Florence Wardens shall review the current teams' rosters and recommend retention and replacement of staff and alternates to the Division Director for Offender Operations.

1.3.2 The Division Director for Offender Operations shall evaluate the teams' composition and the Wardens' recommendations and forward final recommendations to the Director.

1.3.3 ln the selection and retent¡on of section leaders and Housing Unit 9 team members, the Division Director for Offender Operations shall consider:

1 .3-3.1 No employee who was suspended or demoted in the past 1 2 months shall be considered. Any staff currently under investigation is also ineligible.

1.3.3.2 Special consideration may be given to staff with pertinent specialized training and qualifications.

1.3.3.3 Staff with less than two years employment with the Department shall not be considered.

1.3.3.4 No staff serving on any team shall be related to the inmate by blood or marriage or have any other legal relationship with the inmate, their family or the crime victim(s).

1.3.4 Staff participation in the execution process is strictly voluntary. No Department employee is required to attend or participate in an execution. Any staff volunteers may withdraw from performing their assigned duties specific to the execut¡on at any time by advising their Team Leader, advising a Team Member or advising their immediate chain of command. All staff part¡cipating in the execution shall be required to sign a Notice of Execution lnvolvement, Form 710-8.

710.O4 COMMUTATION HEARING PROCEEDINGS

1.1 The Arizona Board of Executive Clemency (BOEC) shall advise the Department of its plans to convene a Commutation Hearing and its date and time. Upon receipt of the notice, the ASPC- Eyman or ASPC-Perryville Warden shall arrange for a location in which the Commutation Hearing will be held.

1 .1.1 lf the BOEC Commutation Hearing is held at the prison, the Department shall:

1 .1.1 .1 Require those in attendance to adhere to dress code as outlined in Department Order #91 1, lnmate Visitation.

1.1.1.2 Comply with the open meeting laws as it applies to Board of Executive Clemency hearings pursuant to A.R.S. 5 38-431.08.

710.05 DESIGNATION OF WITNESSES BY DIRECTOR

1 .1 The Director or designee shall be present during the execution

EXECUTION PROCEDURES JANUARY 11. 2017 71O - PAGE 9 119 CHAPTER 7OO _ OPERATIONAL SECUBITY DEPARTMENT ORDER: 710 - EXECUTION PROCEDURES

1.1 .1 The Director shall invite

1.1.1.1 The Arizona Attorney General. A.R.S. 5 13-758

1.1.1.2 Twelve or more reputable citizens, including up to five Arizona- market media.

1.1.1.3 The five official media witnesses selected as representatives, from media-print, television/cable, radio, and the local market where the crime occurred. These official media witnesses shall also agree to serve as pool reporters.

1 .1.1.4 Law Enforcement and prosecutors from the jurisdiction where the crime occurred.

1.1.1.5 Any crime victims and survivors of the crime for which the sentence of death will be imposed, once the Victim Services Team identifies those persons and provides to the Director a list of victim witnesses within 14 days prior to the scheduled execution.

1.1.1.6 ln the event that the inmate wishes to designate one or more of their attorneys or other members of their legal team (not to exceed a cumulative three persons) to witness the execution, then the inmate shall identify these witnesses twenty-one days prior to the execution, and these witnesses shall sign and timely submit an Official Witness Agreement (Form 710-6), whereupon the Director shall invite these witnesses to attend the execution in accordance with section 71O.1O, 1.2.1.1 of this Department Order.

1.1.2 Minors shall not be permitted to witness an execution. A.R.S. 5 13-758

1.1.3 All witnesses are subject to a records check. Selection to participate is contingent upon security clearance and Witness Agreement to adhere to the provisions stipulated in the Official Witness Agreement and Official Witness/Pool Reporters Agreements, Forms 710-6 and71O-7. The Director shall retain full discretion as to the selection of and any changes in the witnesses selected for each scheduled execution.

710.06 STATE AND LOCAL LAW ENFORCEMENT BRIEFING; SITE CHECKS

1.1 The Division Director for Offender Operations shall ensure state and local law enforcement is periodically briefed and adequately prepared for the execution.

1.2 All of the equipment necessary to the administration of the execution shall be available on site and in good working order including:

1 .2.1 Transportation vehicles.

1.2.2 Communication devices with inter-operability capability and restricted frequencies.

1.2.3 Climate control.

1.2.4 Tool control.

EXECUTION PROCEDURES JANUARY 11, 2017 710 - PAGE 1O 120 CHAPTER 7OO _ OPERATIONAL SECURITY DÊPARIMENT ORDER: 710 - EXECUTION PROCEDURES

1.2.5 Safetyequipment.

1.2.6 Audio/visualequipment.

1.2.7 Utilityinfrastructure.

1.2.8 Keycontrol/locking devices.

1.2.9 Medical emergency response capability.

1.3 The Division Director for Offender Operations shall take all necessary steps to timely rectify def iciencies.

710.O7 THIRTY-FIVE DAYS PRIOR TO THE DAY OF EXECUTION - COMPLEX

1.1 The Warden or designee of ASPC-Eyman or ASPC-Perryville shall confirm in writing the following steps were completed:

1 .1.1 Read the Warrant to the inmate.

1.1.2 Outline for the inmate how conditions of confinement will be modified over the next thirty-five days and briefly describe the relevant aspects of the execution process.

1 . 1 .3 Off er the inmate the opportunity to contact their Attorney of Record by phone and to speak with a facility chaplain.

1 .1.4 Obtain the inmate's current weight and provide that information to the Division Director for Offender Operations and the Housing Unit 9 Section Leader.

1.1.5 Transfer the inmate to the single-person cell on Death Row Browning or the Lumley Unit that has been retrofitted expressly for the purpose of holding the inmate.

1.1.5.1 Before transferring the inmate into the cell, the inniate shall be strip searched, screened on the BOSS chair and then issued a new set of clothes and shoes to wear.

1.1.5.2 The single-person cell shall be thoroughly searched prior to placing the inmate in the cell.

1 .1.6 Place the inmate on 24-hour Continuous Observation and post staff to the inmate's cell on an on-going basis to maintain visual contact with the inmate until such time as the inmate is transferred to Housing Unit 9 at ASPC-Florence.

1 .1 .7 Establ¡sh an Observation Record to chronicle staff 's observations of the inmate's activities and behavior until the sentence of death is imposed.

1.2 Conditions of Confinement - The ASPC-Eyman or ASPC-Perryville Warden shall

1.2.1 Ensure none of the inmate's personal property is transferred with the inmate, except as provided in this section.

EXECUTION PROCEDURES JANUARY 11, 2017 71O_PAGE11 121 CHAPIER 7OO _ OPEBATIONAL SECURITY DEPARIMENT ORDER: 710 - EXECUTION PROCEDURES

1.2.2 Have the inmate's personal property inventoried in their presence before the transfer of cells occurs and then have it boxed, sealed and removed from the cell. Store the inmate's property pending receipt of written instruction by the inmate regarding disposition of property or otherwise dispose of the property as outlined in sect¡on 710.O2 of this Department Order.

1.2.3 Ensure all remaining property possessed by the inmate in the cell comply with indigent status items; any exceptions must be pre-approved in writing by the Division Director for Offender Operations.

1.2.4 Allow the inmate to keep in the cell one box each of legal and religious materials, a pencil and paper, and a book or periodical.

1.2.5 lssue the inmate a new mattress, pillow and bedding

1.2.6 Provide the inmate limited hygiene supplies, including a towel and washcloth, and exchange these items on a daily basis.

1.2.7 lssue the inmate a clean set of clothing and bedding daily

1.2.8 Ensure all inmate medications are unit-dosed and, when available issued in liquid form, and none of the inmate's medication including over-the-counter medications be dispensed or maintained by the inmate as Keep-on-Person.

1.2.9 Ensure the inmate has access to a department television set that is secured outside of the cell, and does not have access to any other appliances.

1.2.10 Continue to provide outdoor exercise and showers, non-contact visits and phone calls per the current schedule for other death row inmates in Browning or the Lumley Unit.

710.08 THIRTY-FIVE DAYS PRIOR TO THE DAY OF EXECUTION - CENTRAL OFFICE

1.1 The Division Director for Offender Operations:

1.1.1 ldentifies and assigns team leaders and members, with documented approval by the Director, and upon approval shall activate the teams.

1.1.2 Confirms preventive maintenance in Housing Unit 9 occurs and that an equipment inventory is completed, and appropriate and timely action is taken.

1.1.3 Directs the initiation of the Continuous Observation Log commencing on the 35th day prior to the day of the execution. The log shall follow the inmate from ASPC- Eyman or ASPC-Perryville to Housing Unit 9 at ASPC-Florence and be maintained until the execution occurs or a stay of execution is issued.

1.1.4 Activates the tra¡ning schedule ensuring staff participating in the execution receives adequate training, written instruction and practice, all of which is documented.

_ EXECUTION PROCEDURES JANUARY 11, 2017 71O PAGE 12 122 CHAPIER 7OO _ OPERATIONAL SECURITY DÊPARTMENT ORDER: 71O - EXECUTION PROCEDURES

1 .2 The Assistant Director for Health Services Contract Monitoring Bureau

1.2.1 Directs ADC's Health Services staff or ADC's contracted Health Services provider to conduct a medical records file review to identify any prescribed medication(s) and dosages the inmate is currently or was recently taking. ADC's Health Services staff or ADC's contracted Health Services provider shall modify prescribed medications as may be necessary.

1.2.2 Directs ADC's Health Services staff or ADC's contracted Health Services provider to dispense all inmate medications in unit doses and, when available in liquid form. No medication including over-the-counter medications shall be provided or maintained by the inmate as Keep-on-Person.

1.2.3 Ensures ADC's Health Services staff or ADC's contracted Health Services provider continuously monitors for significant changes in the inmate's medical or mental health and reports findings immediately to the Department's General Counsel.

1.3 The Media Relations Office

1 .3.1 lssues a news advisory announcing the date of the execution

1.3.2 Facilitates up to one non-contact interview with the inmate by phone, per day, with media from the day the Warrant is issued until the day before the sentence of death is imposed excluding weekends and state and federal holidays. The inmate and Attorney of Record may select among these requests that are submitted to the Media Relations Office and recommend the order in which they occur. The inmate may refuse any or all media requests for interviews.

1 .4 The Office of Victim Services - ldentifies and advises victims of the crime for which the inmate has been sentenced to death of the issuance of the Warrant of Execution and the scheduled date and time of the execution.

710.09 TWENTY-ONE DAYS PRIOR TO THE DAY OF EXECUTION - CENTRAL OFFICE

1.1 The Media Relations Office

1.1.1 Forwards media-witness applications to the lnspector General for background investigation. The lnspector General shall advise the Director of any issues arising from such investigations.

1.1.2 Sends media-witness agreement forms (Official Witness Agreement, Form 710-6 and as applicable, Official Witness/Pool Reporter Agreement, Form 710-7) to identified media-witnesses, and establishes a deadline for the return of all such forms.

1.1.3 All witnesses shall sign and timely submit an Official Witness Agreement, Form 710-6, prior to being cleared and added to the witness list.

1.1.3.1 All official witnesses who are also members of media/press and are selected to serve as pool reporters shall also sign and t¡mely return the Official Witness/Pool Reporter Agreement, Form 7"lO-7.

EXECUTION PROCEDURES JANUARY 11, 2017 71O _ PAGE 13 123 CHAPTER 7OO _ OPERATIONAL SECURITY DEPARIMENT ORDER: 71O - EXECUTION PROCEDURES

710.10 FOURTEEN DAYS PRIOR TO THE DAY OF EXECUTION _ CENTRAL OFFICE

1.1 The lnspector General or designee:

1.1.1 Finalizes arrangements with a Medical Examiner Office for the disposition of the body, security for the Medical Examiner's vehicle and the custodial transfer of the body.

1.1.2 Obtain a body bag and tag from the Medical Examiner's Off ice.

1.2 General Counsel

1.2.1 Finalizes a list of all witnesses including official, victim, inmate witnesses and media/pool reporters, through coordination with the Offices of Victim Services and Media Relations, for the Director's review and documented approval.

1.2.1.1 Upon documented approval the Director or designee shall prepare a written invitation to each chosen witness. (see Attachment A)

1.3 The Media Relations Office - lssue a news adviso ry announcing the date and time of the execution.

710.11 TWO DAYS PRIOR TO THE DAY OF EXECUT¡ON

1.1 The Diviqion Director for Offender Operations:

1.1.1 Schedules and conducts on-site scenario training sessions, modifying practices as warranted.

1."r.2 Confirms adequate staffing and vehicles are in place for regular operations and the execution.

1.2 The ASPC-Florence Warden

1.2.1 Confirms staff assigned to the Maintenance Response Team (MRT) is scheduled and will be on-site eight hours prior to the time scheduled for the imposition of sentence.

1.2.2 Restricts access to Hous¡ng Unit 9 to those with expressly assigned duties.

1.2.3 Readies Housing Unit 9 for the transfer of the inmate.

1.2.4 Verifies execution inventory, including the chemicals to be used, and equipment checks are completed and open issues resolved.

710.12 TWENTY-FOUR HOURS PRIOR TO THE DAY OF EXECUTION

1.1 On-site scenario exercises continue.

1.2 Final preparation of Housing Unit 9 is completed. Each room rèceives final evaluation specific to its functions including security, climate control, lighting, sound, sanitation, and that separation screens and appropriate restraints are at the ready.

EXECUTION PROCEDURÊS JANUARY 11, 2017 71O _ PAGÊ 14 124 CHAPTER 7OO _ OPERATIONAL SECURITY DEPARIMENT ORDER: 71O - EXECUTION PROCEDUBES

1.3 Detailed staff briefings are prov¡ded.

1.4 The ASPC-Eyman or ASPC-Perryville Warden shall ensure the inmate receives the last meal by 1900 hours. Every reasonable effort to accommodate the last meal request will have been made. All eating utensils and remaining food and beverage shall be removed upon completion of the meal.

1.5 The ASPC-Eyman or ASPC-Perryville Warden shall ensure non-contact visits and phone calls are concluded by 21OO hours.

1.5.1 The inmate's telephone privileges shall be terminated at 21 00 hours the day prior to the execution, excluding calls from the inmate's Attorney of Record and others as approved by the Division Director for Offender Operations.

1.5.2 The inmate's visitation privileges shall be terminated at 2100 hours the day prior to the execution. The inmate will be permitted two hours of in-person visitation with no more than two Attorneys of Record, concluding one hour prior to the scheduled execution.

1.6 The inmate is prepared for transfer to Housing Unit 9 by the prescribed means

710.13 TWELVE HOURS PRIOR TO AND THROUGH THE EXECUTION

1 .1 Restricting Access to lnstitution Property - During the final twelve hours prior to the execution, access to ASPC-Eyman or ASPC-Perryville and ASPC-Florence is limited to:

1 .1 .1 On-duty personnel.

1.1.2 On-duty contract workers.

1.1.3 Volunteers deemed necessary by the Wardens.

1 .1.4 Approved delivery vehicles.

1 .1 .5 Law enforcement personnel on business-related matters.

1 .1 .6 Restrictions to these facilities shall remain in effect until normal operations resume after the execution or a stay of execution is issued.

1.2 Transfer of the inmate from Browning or Lumley Unit to Housing Unit 9

1.2.1 The inmate shall be secured and transferred by the Execution Restraint Team per the prescribed means the night before the execution.

1.2.2 Housing Unit 9 staff shall take custody of the inmate and the Observation Log. Staff shall assume maintenance of the log until the execution is completed or a stay of execution is issued.

1.2.3 Upon the inmate's arrival, the inmate may be offered a mild sedative

1.2.4 No later than five hours prior to the execution, the inmate shall be offered a light meal. All eating utensils and remaining food shall be removed upon completion of the meal.

EXECUTION PROCEDURES JANUARY 11. 2017 710. PAGE 15 125 CHAPTER 7OO _ OPERATIONAL SECURITY DEPARTMENT ORDER: 71O - EXECUTION PROCEDURES

1.2.5 No later than four hours prior to the execution, the inmate may be offered a mild sedative.

1.2.6 These time frames may be adjusted as necessary in the event of a stay of execution or other exigencies.

1.3 Housinq Unit 9 Conditions of Confinement

1 .3.1 The inmate shall remain on Continuous Watch. Staff shall record observations and make entries in the Observation Record during the final four hours in hours, and minutes.

1.3.2 The inmate shall be issued one pair each of pants, boxer shorts and socks, and a shirt on the morning of the execution.

1.3.3 The cell shall be furnished with a mattress, pillow and pillowcase, one each top and bottom sheet, a blanket, a washcloth and towel, and toilet paper.

1.3.4 The inmate may have a pencil and paper, religious items, a book or periodical and indigent-sized hygiene supplies (liquid soap, toothpaste) and a toothbrush and comb. These items may be made available only for the duration of the use and shall be removed immediately thereafter. Any other requested property shall require approval by the Division Director for Offender Operations, and shall be documented.

1.4 Population Management - ASPC-Eyman or ASPC-Perryville and ASPC-Florence shall go on lockdown status from between two to six hours prior to the time the execution is scheduled to occur at the direction of Command. They shall remain on lock down throughout the execution. After the conclusion of the execution, the prisons shall return to regular operations at the direction of Command.

1.5 Additional Operations Reouirements

1.5.1 Witness Escort Teams shall process, transport and remain with pre-approved official witnesses, inmate witnesses, media witnesses and victim(s) witnesses through the conclusion of the execution and their return to designated staging areas per prescribed means.

1.5.1.1 Teams shall ensure each witness group is separated from the other witness groups at all times.

1.5.1 .2 The Director or designee shall provide a brief overview of the execution for the official witnesses. ïhe Director shall advise witnesses that the curtains in the execution chamber may be drawn prior to the conclusion of the execution in the event of a legitimate penological objective which would merit such closure and then reopened when the execution resumes, and that an lV Team member will enter into the chamber and physically manipulate the ¡nmate to check consciousness.

_ EXECUTION PROCEDURES JANUARY 11, 2017 71O PAGE I6 126 CHAPTER 7OO _ OPERATIONAL SECURITY DEPARTMENT ORDER: 710 - EXECUTION PROCEDURES

1 .5.1 .3 ln the event the inmate has designated one of his attorneys to witness the execution, temporary office space will be provided for the inmate's counsel in the Administration Building during the scheduled day of execution. One attorney and two additional members of the legal team may be permitted to remain in the office space during the execution. The inmate's legal team will be perm¡tted to bring into the temporary office space one mobile phone, one tablet, and one laptop. While the attorney witness is in the witness room, a member of the Witness Escort Team shall hold one mobile phone designated by the attorney, to be made available to the attorney in exigent circumstances. The mobile phone may not be used inside the witness room.

1.5.2 Upon the direction of the Director to proceed:

1.5.2.1 The APSC-Florence Warden shalldirect the Execution Restraint Team to prepare the inmate for escort into the execution chamber.

1.5.2.2 Prior to moving the inmate from the holding cell to the execution table, the Director shall confer with the Attorney General or designee and the Governor or designee to confirm there is no legal impediment to proceeding with the lawful execution.

1.5.2.3 when the inmate is secured on the execution table by the team and readied by qualified medical personnel, the Warden shall advise the Director.

1.5.2.4 The Director shall reconfirm with the Attorney General or designee and the Governor or designee that there is no legal impediment to proceeding. Upon oral confirmation that there is no legal impediment to proceeding with the execution, the Director may order the Warden to proceed with the execution.

1.5.2.4.1 lf there is a legal impediment the Director shall instruct the ASPC-Florence Warden to stop, and to notify the inmate and witnesses that the execution has been stayed or delayed. The Warden shall also notify command to notify the Media Relations staff who shall advise the media in the Press Room.

1.5.2.5 The Warden shall read aloud a summary of the Warrant of Execution. The Warden shall ask the inmate if he wishes to make a last statement. The microphone will remain on during the last statement. lt will be turned off in the event the inmate uses vulgarity or makes intentionally offensive statements.

"t.5.2.6 The Director shall instruct the disbursement of chemicals to begin by the prescribed means,

f .5.3 Pronouncement and Documentation of Death

1 .5.3.1 The Director shall announce death when it has occurred

71O _ PAGE 17 EXECUTION PROCEDURES JANUARY 11, 2017 127 CHAPTER 7OO _ OPERATIONAL SECURITY DEPAHTMENT ORDER: 71O - EXECUTION PROCEDURES

1.5.3.2 The ASPC-Florence Warden shall complete and sign the return of the Death Warrant pursuant to A.R.S. 5 13-759. The Director shall file the document with the sentencing court and the Arizona Supreme Court within 48 hours.

1.5.3.3 A Medical Examiner shall take custody of the body and issue a Certificate of Death.

1.6 Stay of Execution - Upon receipt of notification that the court has issued a Stay of Execution, the Director shall consult with the Attorney General's Office and advise Command.

1.6.1 Upon receipt of notif¡cation, the Housing Unit 9 Section Leader shall:

1.6.1.1 Advise the witnesses a Stay of Execution has been issued.

1.6.1.2 Following consultation with the Director, direct that the catheters be removed, if applicable, and direct the Restraint Team to return the inmate to the holding cell.

1.6.1.3 lnstruct the Special Operations to stand down.

1.6.2 Command shall inform the following teams of the Stay of Execution:

1.6.2.1 Traffic Control Team Leader.

1.6.2.2 Population Assessment.

1.6.2.3 Critical lncident Response Team Leader.

1.6.2.4 Media Relations Director.

1.6.2.5 Victim Services Team Leader.

1.6.2.6 Escort Team leader.

1.6.3 The Traffic Control Team Leader shall not¡fy protestors of the issuance of the Stay of Executíon.

1.6.4 The Escort Team shall commence escorting witness groups from Housing Unit 9 as set forth herein.

1.6.5 Upon Command's instruction, the inmate shall be transported from Housing Unit 9 back to Death Row at Browning or Lumley Unit and their personal possessions returned. Following the transport, the inmate will be permitted to consult with the inmate's attorney(s) upon request.

710.14 POST-EXECUTION

1.1 Removinq Witnesses from Housinq Unit 9

1 .1.1 After the pronouncement of death, witnesses shall be escorted in the prescribed order from the facility.

71O _ PAGE 18 EXECUTION PROCEDURES JANUARY 11. 2017 128 CHAPTER 7OO _ OPERATIONAL SECURITY DEPARTMENT ORDEB: 710 - EXECUIION PROCEDURES

1.1.1.1 Each group of witnesses will continue to be kept separated from the other groups at all times.

1.1.1.2 Official witnesses who are media pool reporters will return to the Press Room to participate in the media briefing.

1.1.1.3 Victim witnesses speaking with the media will be escorted to the Press Room.

1.1 .2 Media may remain on site in a designated location outside the secure perimeter for a limited time to complete live broadcasts.

1.2 Site Clean Up

1.2.1 Under the supervision of a person designated by the ASPC-Florence Warden, Housing Unit 9 shall be cleaned and secured.

1 .2.2 lnstitutional staff trained in infectious diseases preventive practices will utilize appropriate precautions in cleaning Housing Unit 9.

1.3 Normal Operations

1.3.1 Command shall determine when the prisons resume normal operations after receiving assessments from the Wardens of ASPC-Florence and ASPC-Eyman or ASPC-Perryville.

1.3.2 Department personnel shall be deactivated at the direction of Command

1 .4 Execution Documentation

1.4.1 The ASPC-Florence Warden shall be responsible to gather all documents perta¡ning to the execut¡on and forward to the Department's General Counsel for archive.

1.4.2 PursuanttoA.R.S. g 13-759(B),theDirectorshallsendwrittennotif¡cationtothe sentencing court and the Arizona Supreme Court stating the time, mode and manner in which the Warrant was carried out. (see Attachments B and C)

710.15 PROCEDURES FOR NEWS MEDIA

1.1 Reasonable efforts will be made to accommodate representatives of the news media before, during and after a scheduled execution however; the Department reserves the right to regulate media access to ensure the orderly and safe operations of its prisons.

1.2 The Media Relations Office shall coordinate the release of information to news media outlets. All Department and contract staff are expressly prohibited from providing information not readily available in the public domain.

1.3 Update Prior to the Execution - Followin g activat¡on of the Press Room, the Media Relations Director and the Public lnformation Officer shall provide the news media with regular briefings or updates.

1 .4 Media Orientation and Releases - The Media Relations Director shall provide general information regarding the execution and about the inmate

_ EXECUTION PROCEDURES JANUARY 11. 2017 71O PAGE 19 129 CHAPTER 7OO _ OPERATIONAL SECURITY DEPARIMENT ORDER: 71O - EXECUTION PROCEDUBES

1 .4.1 Media Representatives will be informed how the press pool will be establ¡shed and advised that if they are selected as press pool witnesses, they shall be required to complete and sign Media Witness Press Pool Agreement, Form 71O-7, ín addition the Official Witness Agreement, Form 710-6, prior to the execution.

1.4.2 Media Representatives will return to the Press Room after the execution to answer questions of all other media representatives concerning their observations during the execution, prior to filing or reporting their story.

1.5 Press Room Operations

1 .5.1 Media representatives requesting to witness an execution must submit written requests to the Media Relations Office no later than 28 days prior to the execution. Each request must include the name, social security number and birth date of media requesting access. Only those news organizations that have submitted written requests within the stated time frame shall be considered.

1.5.2 The Media Relations Office shall finalize recommendations for selected media to perform official witness/pool reporter functions 14 days prior to the execution.

1 .6 Briefino and Updates

1.6.1 The Media Relations Office shall provide press briefing packets for reporters.

1.6.2 A brief summary of inmate's activities during the finaltwenty-four hours, activities related to the execution and sequence of events, may be provided.

1.7 News Media Selection

1 .7.1 No more than five members of the Arizona media may be selected to witness the execution as official witnesses. Selected media will perform the additional duties of pool reporter:

1 .7.1 .1 Print.

1 .7.1.2 Radio

"l.7.1.3 Television/Cable.

1 .7.1.4 Local media representative in the market where the crime was committed,

1.7.2 Media is held to the same standards for conduct as are all other official witnesses

1.7.3 Command may exclude any media witness at any time if the media witness fails to abide by the provisions of the Official Witness and Pool Reporter Agreements (Forms 710-6 and 710-71.

1.7.4 Media witnesses are not permitted to bring unauthorized items into Housing Unit 9. Unauthorized items include:

1.7.4.1 Electronic or mechanical recording devices

EXECUTION PROCEDURES _ JANUARY 11. 2017 71O PAGE 20 130 CHAPTER 7OO - OPERATIONAL SECURITY DEPARTMENT ORDER: 710 - EXECUTION PROCEDURES

1.7.4.2 Still, moving picture or video tape camera.

1 .7.4.3 Tape recorders or similar devices.

1.7.4.4 Radio/televisionbroadcastingdevices.

1 .7.5 Each pool reporter shall be provided a tablet of paper and a pencil to take notes from the time they complete security screening and board the bus until they are returned to the Press Room after the conclusion of the execution.

1.7.6 Official witnesses who are pool reporters shall attend a pre-execution briefing. IMPLEMENTATION

The ASPC-Florence and ASPC-Perryville Wardens shall maintain Post Order #015, Death Watch Security Officer, delineating post-specific responsibilities. The ASPC-Florence Warden shall also maintain Post Order #015-401, Housing Unit-9 Security Watch.

{Original Signature on File}

Charles L. Ryan Director

ATTACHMENTS Attachment A - Letter of lnvitation to Witness an Execution Attachment B - Return of Warrant Notification - Supreme Court Attachment C - Return of Warrant Notification - Superior Court Attachment D - Preparation and Administration of Chemicals

FORMS LIST 71O-1, Method of Execution 7 1O-2, lnmate Witness lnformation 71O-3, Disposition of Remains 71O-4, Authorized Witnesses for Execution Log (4, B and C) 71O-5, Last Meal Request 710-6, Official Witness Agreement 71O-7, Official Witness/Pool Reporter Agreement 71O-8, Notice of Execution lnvolvement

CROSS.REFERENCE INDEX

Department Order #2O1, þSal Services - lnformation Release Depa rtment Order #2O7, Media Relations Department Order #711, Notification of lnmate Hospitalization or Death Department Order #91 1, lnmate Visitation AUTHORITY

A.R.S. g 13-757 (B), Methods of lnfliction of Sentence of Death

EXECUTION PROCEDURES JANUARY 11. 20'17 710 - PAGE 21 131 CHAPTER 7OO - OPERATIONAL SECURITY DEPARTMENT OBDER: 71O - EXECUTION PROCEDURES

A.R.S. g 13-757 (C), ldentity of Executioners A.R.S. ! l3-758, Persons Present at Execution of Sentence of Death; Limitations A.R.S. E 13-759 (B), Return Upon Death Warrant A.R.S. E 13-4021 through 13-4026,lnsanity or Pregnancy of Persons under Death Sentence Arizona Rules of Criminal Procedure, Rule 31.17(c)(3), Date and Time of Execution; Notification to Supreme Court A.R.S. g 1-215 (28), Definitions A.R.S. 5 13-105 (30), Definitions

EXECUTION PROCEDURES JANUARY 11, 2017 71O - PAGE 22 132 ATTACHMENT A DEPARTMENT ORDER 710

SAMPLE

LETTER OF INVITATION TO WITNESS AN EXECUTION

Date

Name Mailing address Mailing address

Dear

Thank you for expressing interesting in serving as a witness.

Please be advised that you are selected to witness the execution of lnamel lnumberl, on ldatel at [timel subject to the conditions stipulated in this correspondence.

There are three kinds of witnesses. They are 1) Off icial Witnesses including Official Witnesses who are members of the media and will serve as Pool Reporters,2l the lnmate's Witnesses and 3) the Victim(s) Witnesses.

All witnesses are required to complete the Witness Agreemenf form and return it to the Media Relations Office of the Arizona Department of Corrections no later than ldatel by fax, mail, hand delivery or as an e-mail attachment.

Official Witnesses who are members of the media and will be serving as Pool Reporters are also required to complete the Official Witnesses/Pool Reporters Agreement form. This form must be returned as well to the Media Relations Office of the Arizona Department of Corrections no later than the Friday before the scheduled date of the execution, ldatel by the same means

Failure to fully complete and return on time the required forms with receipt by the Department before 5 P.M. on ldatel, will result in your removal from the list of approved witnesses

For additional information and to confirm receipt of your materials, you are welcome to contact the Media Relations Off ice by phone at 602-542-31 33, by fax at 602-542-2859 or e-mail at [email protected].

Sincerely,

Media Relation Director

Applicable Attachments: _Witness Agreement'lorm Official Witnesses/Pool Reporters Agreement lorm

JANUARY 11. 2017

133 ATTACHMENT B DEPARTMENT ORDER 710

SAMPLE

RETURN OF WARRANT NOTIFICATION

Supreme Court

DATE:

The Honorable Chief Justice of the Supreme Court of Arizona 4O2 Arizona State Courts Building 1501 West Washington Street Phoenix, Arizona 85007-3329

RE Return of Warrant of Execution

State vs.

Supreme Court Number:

County Number:

Chief Justice

This is to advise you that in accordance with the Warrant of Execution, Supreme Court Number, and pursuant to A.R.S. 5 13-759(B), the imposition of the sentence of death of was carried out at the Arizona State Prison Complex-Florence on 20 ,at A.M./P.M.

The mode and manner of the death was by lethal

Sincerely,

Charles L. Ryan Director Arizona Department of Corrections

JANUARY 11, 2017 134 ATTACHMENT C DEPARTMENT ORDER 71O

SAMPLE

RETURN OF WARRANT NOTIFICATION

Superior Court

DATE:

The Honorable Presiding Judge Superior Court of Arizona ln County Arizona

RE: Return of Warrant of Execution

State vs.

Supreme Court Number:

County Number:

Judge

This is to advise you that in accordance with the Warrant of Execution, Supreme Court Number, and pursuant to A.R.S. 5 1 3-759(B), the imposition of the sentence of death of was carried out at the Arizona State Prison Complex-Fforence on 20 _,at _ A.M./P.M

The mode and manner of the death was by lethal

Sincerely,

Charles L. Ryan Director Arizona Department of Corrections

JANUARY 11,2017

135 ATTACHMENT D DEPARTMENT ORDER 710 Page I of 1O

PREPARATION AND ADMINISTRATION OF CHEMICALS

A. Obtaining Chemicals and Equipment

1 . Upon receipt of the Warrant of Execution, the Housing Unit 9 Section Leader shall:

l. Confirm the equipment for the procedure and ensure all equipment necessary to properly conduct the procedure is on site, immediately available for use and functioning properly.

ll. Ensure all medical equipment, including an ultrasound machine and a backup electrocardiograph is on site, immediately available for use and functioning properly.

lll. Ensure that complete sets of chemicals are on site, not expired, and immediately available for use.

IV Ensure the chemicals are ordered, arrive as scheduled and are properly stored. The chemicals shall be stored in a secured, locked area that is temperature regulated and monitored to ensure compliance with manufacturer specifications, under the direct control of the Housing Unit 9 Section Leader.

B. Preparation of Chemicals

1 Prior to the preparation of the chemicals, the Director or designee shall verify the chemicals to be used, the quantity and the expiration date.

2 At the appropriate time, the Housing Unit 9 Section Leader shall transfer custody of the chemicals to the Special Operations Team to begin the chemical(s) and syringe preparation in the chemical room, under the direct supervision by the lV Team Leader.

3 The Special Operations Team Leader will assign a team member(s) to assist preparing each chemical and the corresponding syringe. The lV Team Leader will supervise the process. The lV Team Leader, with the assistance of the Special Operations Team members, shall prepare the designated chemical(s) and syringes as follows:

a One-drug protocol - One full set of syringes is used in the implementation of the death sentence (Bank "A") and an additional complete set of the necessary chemicals shall be obtained and kept available in the chemical room, but need not be drawn into syringes unless the primary dosages prove to be insufficient for successful completion of the execution.

¡ Three-drug protocol - One full set of syringes is used in the implementation of the death sentence (Bank "4") and an additional complete set of the necessary chemicals shall be drawn into syringes and kept refrigerated in the chemical room, in the event the backup dosages (Bank "8") are necessary for successful completion of the execution.

4. The lV Team Leader, with the assistance of a Special Operations Team member, shallbe responsible for preparing and labeling the assigned sterile syringes in a distinctive manner identifying the specific chemical contained in each syringe by i) assigned number, ii) chemical name, iii) chemical amount and iv) the designated color, as set forth in the chemical charts below. This information shall be preprinted on a label, with one label affixed to each syringe to ensure the label remains visible.

JANUARY 11, 2017 136 ATTACHMENT D DEPARTMENT ORDER 710 Page 2 of 10

C. Chemical Charts; Choice of Protocol

1 Charts for all chemical protocols follow. The Director shall have the sole discretion as to which drug protocol will be used for the scheduled execution. This decision will be provided to the inmate and their counsel of record in writing at the time the state files a request for Warrant of Execution in the Arizona Supreme Court. lf the inmate's counsel or other third parties acting on behalf of the inmate's counsel are able to obtain from a cert¡fied or licensed pharmacist, pharmacy, compound pharmacy, manufacturer, or supplier and provide to the Department the chemical pentobarbital in sufficient quantity and quality to successfully implement the one-drug protocol with pentobarbital set forth in Chart A, then the Director shall use the one-drug protocol with pentobarbital set forth in Chart A as the drug protocol for execution. lf the inmate's counsel or other third parties acting on behalf of the inmate's counsel are unable to obtain such pentobarbital, but are able to obtain from a certified or licensed pharmacist, pharmacy, compound pharmacy, manufacturer, or supplier and provide to the Department the chemical sodium pentothal in sufficient quantity and quality to successfully implement the one-drug protocol with sodium pentothal set forth in Chart B or the three-drug protocol with sodium pentothal set forth in Chart C, then the Director shall have the sole discretion as to wh¡ch drug protocol (Chart B or Chart C) will be used for the scheduled execution.

2 A qualitative analysis of any compounded or non-compounded chemicalto be used in the execution shall be provided upon request within ten calendar days after the state seeks a Warrant of Execution. The decision to use a compounded or non-compounded chemical will be provided to the inmate and their counsel of record in writing at the time the state files a request for Warrant of Execution in the Arizona Supreme Court.

CHART A: ONE-DRUG PROTOCOL WITH PENTOBARBITAL

Syringe No Label 20mL Sterile Saline Solution, BLACK 2.59m Pentobarbital, GREEN 2.59m Pentobarbital, GREEN t 2OmL Sterile Saline Solution, BLACK

a Syringes 24, and 34, will have a dose of 2.5 grams (gm) of Pentobarbital for a total of 5 grams. Each syringe containing Pentobarbital shall have a GREEN label which contains the name of chemical, chemical amount and the designated syringe number.

a Syringes 14, and 44, each contain 20 milliliters (mL) of a sterile saline solution, and shall have a BLACK label which contains the name of the chemical, chemical amount and the designated syringe number.

JANUARY 'I'I, 2017 137 ATTACHMENT D DEPARTMENT ORDER 710 Page 3 of 1O

CHART B: ONE-DRUG PROTOCOL WITH SODIUM PENTOTHAL

Syringe No. Label 2OmL Sterile Saline Solution, BLACK 1.259m Sodium Pentothal, GREEN 1.259m Sodium Pentothal, GREEN H 1.259m Sodium Pentothal, GREEN 1.259m Sodium Pentothal, GREEN il 20mL Sterile Saline Solution, BLACK

a Syringes 2A, 3A,44, 54, each contain 1.259m/50ml of Sodium Pentothal / 1 in 50mL of sterile water in four 60mL syringes for a total dose of 5 grams of Sodium Pentothal. Each syringe containing Sodium Pentothal shall have a GREEN label which contains the name of chemical, chemical amount and the designated syringe number.

a Syringes 14, and 64, each contain 20mL of a sterile saline solution, and shall have a BLACK label which contains the name of the chemical, chemical amount and the designated syringe number.

CHART C: THREE-DRUG PROTOCOL WITH SODIUM PENTOTHAL. VECURON¡UM BROMIDE/OR ROCURONIUM BROMIDE/OR PANCURONIUM BROMIDE AND POTASSIUM CHLORIDE

Syringe No. Label 20mL Sterile Saline Solution, BLACK 1.259m Sodium Pentothal, GREEN 1.259m Sodium Pentothal, GREEN ffi 1.259m Sodium Pentothal, GREEN 1.259m Sodium Pentothal, GREEN 20mL Sterile Saline Solution, BLACK t SOmg Vecuronium Bromide/or Rocuronium Bromide/or Pancuronium Bromide, BLUE til SOmg Vecuronium Bromide/or Rocuronium Bromide/or Pancuronium Bromide, BLUE 2OmL Sterile Saline Solution, BLACK 12OmEq Potassium Chloride, RED 12OmEq Potassium Chloride, RED H 2OmL Sterile Saline Solution, BLACK

JANUARY 11,2017 138 ATTACHMENT D DEPARTMENT ORDER 710 Page 4 of 1O

a Syringes 2A,3A,44, and 54, each contain 1.259m/50ml of Sodium Pentothal/ 1 in SOmL of sterile water in four 60mL syringes for a total dose of 5 grams of Sodium Pentothal in each set. Each syringe contain¡ng Sodium Pentothal shall have a GREEN label which contains the name of chemical, chemical amount and the designated syringe number.

Syringes 14, 6A, 94, and 124, each contain 20mL of a sterile saline solution, and shall have a BLACK label which contains the name of the chemical, chemical amount and the designated syringe number.

Syringes 74, and 84, each contain 50mg of Vecuronium Bromide/or Rocuronium Bromide/or Pancuronium Bromide for a total of lOOmg. Each syringe containing Vecuronium Bromide/or Rocuronium Bromide/or Pancuronium Bromide shall have a BLUE label which contains the name of the chemical, chemical amount and the designated syringe number.

a Syringes 10A, and 11A, each contain 120mEq of Potassium Chloride for a total of 240mEq of Potassium Chloride per set. Each syringe containing Potassium Chloride shall have a RED label which contains the name of the chemical, chemical amount and the designated syringe number.

3. After the lV Team prepares all required syringes with the proper chemicals and labels as provided in the Chemical Chart, the Special Operations Team, under the supervision of the lV Team, shall attach one complete set of the prepared and labeled syringes to the 2-Gang, 2-Way Manifold in the order in which the chemical(s) are to be administered. The syringes will be attached to the 2-Gang, 2-Way Manifold in a manner to ensure there is no crowding, with each syringe resting in its corresponding place in the shadow board which is labeled with the name of the chemical, color, chemical amount and the designated syringe number.

4. The syringes shall be affixed in such a manner to ensure the syringe labels are clearly visible. Prior to attach¡ng the syringes to the 2-Gang, 2-WaV Manifold, the flow of each gauge on the manifold shall be checked by the lV Team Leader running the sterile saline solution through the line to confirm there is no obstruction.

5 After all syringes are prepared and affixed to the 2-Gang, 2-Way Manifold in proper order, the Special Operations Team Leader shall confirm that all syringes are properly labeled and attached to the manifold in the order in which the chemicals are to be administered as designated by the Chemical Chart. Each chemical shall be administered in the predetermined order in which the syringes are affixed to the manifold.

6 The quantities and types of chemicals prepared and administered may not be changed in any manner without prior documented approval of the Director. The Director's discretion with regard to the quantities and typos of chemicals is limited to what is expressly set forth in this Department Order. lf, after a Warrant of Execution has been issued, the Director determines that it is necessary to change the quantities or types of chemicals to be used in the impending execution, then the Director shall immediately notify the inmate and the inmate's counsel in writing.

7 All prepared chemicals shall be utilized or properly disposed of in a timely manner after the time designated for the execution to occur.

I The chemical amounts as set forth in the Chemical Chart are designated for the execution of persons weighing 5OO pounds or less. The chemical amounts will be reviewed and may be revised as necessary for an inmate exceeding this body weight.

JANUARY 11, 2017 139 ATTACHMENT D DEPARTMENT ORDER 710 Page 5 of 10

I The Special Operations Team Recorder is responsible for completing the Correctional Service Log, Form 105-6. The Recorder shall document on the form the amount of each chemical administered and confirm that it was administered in the order set forth in the Chemical Chart. Any deviation from the written procedure shall be noted and explained on the form.

D. Movement and Monitoring of lnmate

1 Prior to moving the inmate from the holding cell to the execution table, the Director will confer with the Attorney General or designee and the Governor or designee to confirm there is no legal impediment to proceeding with the lawful execution and there are no motions pending before a court which may stay further proceedings.

2 The inmate may be offered a mild sedative based on the inmate's need. The sedative shall be provided to the inmate no later than four hours prior to the execution, unless it is determined medically necessary. The offer of the mild sedative, the inmate's decision, and the administration of the sedative, if chosen, shall be documented in the watch log.

3 At the designated t¡me, the overhead microphone will be turned on and the ¡nmate will be brought into the execution room and secured on the table by the prescribed means with the inmate's arms positioned at an angle away from the inmate's side. Existing closed-circuit monitors will allow witnesses in the designated witness room to observe this process.

4 The inmate will be positioned to enable the lV Team or the Special Operations Team Leader and the Warden to directly observe the inmate and to monitor the inmate's face with the aid of a high resolution color camera and a high resolution color monitor.

5 After the inmate has been secured to the execution table, the Restraint Team Leader shall personally check the restraints which secure the inmate to the table to ensure they are not so restrictive as to impede the ¡nmate's circulation, yet sufficient to prevent the inmate from manipulating the catheter and lV lines.

6 A microphone will be affixed to the inmate's shirt to enable the lV Team or the Special Operations Team Leader to hear any utterances or noises made by the inmate throughout the procedure. The Special Operations Team Leader will confirm the microphone is functioning properly, and that the inmate can be heard in the chemical room.

7 The Restraint Team members will attach the leads from the electrocardiograph to the inmate's chest once the inmate is secured. The lV Team Leader shall confirm that the electrocardiograph is functioning properly and that the proper graph paper is used. A backup electrocardiograph shall be on site and readily available if necessary. Prior to the day of and on the day of the execution both electrocardiograph instruments shall be checked to confirm they are functioning properly.

8 An lV Team member shall be assigned to monitor the EKG, and mark the EKG graph paper at the commencement and completion of the administration of the lethal chemical(s) .

9 Throughout the procedure, the lV Team Leader shall monitor the inmate's level of consciousness and electrocardiograph readings utilizing direct observation, audio equipment, camera and monitor as well as any other medically approved method(s) deemed necessary by the lV Team Leader. The lV Team Leader shall be responsible for monitoring the ¡nmate's level of consciousness.

JANUARY 11, 2017 140 ATTACHMENT D DEPARTMENT ORDER 710 Page 6 of 10

10 Existing closed-circuit monitors will allow witnesses in the designated witness room to observe the lV Team's vein assessment and placement of lV catheters in the inmate. ln addition, the audio feed from the overhead microphone will be turned off following the lV Team's assessment and placement of lV catheters.

11 A camera will be focused on the area in the chemical room in which syringes are injected into the lV line, and existing closed-circuit monitors will allow witnesses in the designated witness room to observe the administration of the lethal injection drug(s), including the administration of add¡tionalor subsequent doses of the drug(s). All cameras and monitors shall be placed in such a manner so as to ensure and preserve at all times the anonymity of all personnel involved in the execution process.

E. lntravenous Lines

1 The Director acting upon the advice of the lV Team Leader shall determine the catheter sites. A femoral central line shall only be used if the person inserting the line is currently qualified by experience, training, certification or licensure w¡thin the Un¡ted States to insert a femoral central line. The lV Team members shall insert a primary lV catheter and a backup lV catheter.

2 The lV Team Leader shall ensure the catheters are properly secured and properly connected to the lV lines and out of reach of the inmate's hands. A flow of sterile saline solution shall be started in each line and administered at a slow rate to keep the l¡nes open.

3 The primary lV catheter will be used to administer the lethal chemical(s) and the backup catheter will be reserved in the event of the failure of the first line. Any failure of a venous access line shall be immediately reported to the Director.

4. The lV catheter in use shall remain visible to the Warden throughout the procedure.

5 The Warden shall physically remain in the room with the inmate throughout the administration of the lethal chemical(s) in a position sufficient to clearly observe the inmate and the primary and backup lV sites for any potential problems and shall immediately notify the lV Team Leader and Director should any issue occur. Upon receipt of such notification, the Director may stop the proceedings and take all steps necessary in consultation with the lV Team Leader prior to proceeding further with the execution.

6 Should the use of the backup lV catheter be determined to be necessary, a set of backup chemicals should be administered in the backup lV.

F. Administration of Chemicals - One-Drug Protocol

At the time the execution is to commence and prior to administering the lethal chemical, the Director will reconfirm with the Attorney General or designee and the Governor or designee that there is no legal impediment to proceeding with the execution. Upon receipt of oral confirmation that there is no legal impediment, the Director will order the administration of the chemical to begin.

2 Upon receipt of the Director's order and under observation of the lV Team Leader, the Special Operations Team Leader will instruct the assigned Special Operations Team member(s) to begin dispensing the chemicals under the chosen drug protocol.

JANUARY 'I'1, 2017 141 ATTACHMENT D DEPARTMENT ORDER 710 Page 7 of 1O

3 Upon direction from the Special Operations Team Leader, the assigned Special Operations Team member will visually and orally confirm the chemical name on the syringe and then administer the first syringe of the sterile saline solution, followed by the full dose of the lethal chemical immediately followed by the sterile saline solution flush.

4. When three minutes has elapsed since commencing the administration of the lethalchemical, the lV Team Leader, dressed in a manner to preserve their anonymity, will enter ¡nto the room where the Warden and inmate are located to physically confirm the inmate is unconscious by using all necessary medically appropriate methods, and verbally advise the Director of the same. The lV Team Leader will also confirm that the lV line remains affixed and functioning properly.

5 lf, after three minutes, the inmate remains conscious, the lV Team shall communicate th¡s information to the Director, along with all lV Team input. The Director will determine how to proceed or, if necessary, to start the procedure over at a later time or stand down. The Director may direct the curtains to the witness viewing room be closed, and, if necessary, for witnesses to be removed from the facility, only in the event of a legitimate penological objective which would merit such closure and/or removal.

6 lf deemed appropriate, the Director may instruct the Special Operations Team to administer an additional dose of the lethal chemical followed by the sterile saline solution flush. This may be administered via the primary or backup lV catheter, as determined following consultation with the lV Team.

7 Upon administering the lethal chemical and sterile saline solution from a backup set, the lV Team shall determine whether the inmate is unconscious by sight and sound, utilizing the audio equipment, camera and monitor. The lV Team Leader will again physically determine whether the inmate ¡s unconscious using proper medical procedures and verbally advise the Director of the same.

8 When all electrical act¡vity of the heart has ceased as shown by the electrocardiograph, the lV Team Leader will confirm the inmate is deceased and the inmate's death shall be announced by the Director.

o The Special Operations Team Recorder shall document on the Correctional Services Log the start and end times of the administration of the lethal chemical.

10 Throughout the entire procedure, the lV Team members, the Special Operations Team members and the Warden shall continually monitor the inmate using all available means to ensure that the inmate remains unconscious and that there are no complications.

G. Administration of Chemicals - Three-Drug Protocol

At the time the execution is to commence and prior to administering the chemicals, the Director will reconfirm with the Attorney General or designee and the Governor or designee that there is no legal impediment to proceeding with the execution. Upon receipt of oral conf irmation that there is no legal impediment, the Director will order the administration of the chemicals to begin.

2 Upon receipt of the Director's order and under observation of the lV Team Leader, the Special Operations Team Leader will instruct the assigned Special Operations Team member(s) to begin dispensing the first chemical.

JANUARY 11, 2017 142 ATTACHMENT D DEPARTMENT ORDER 710 Page I of 1O

3 Upon direction from the Special Operations Team Leader, the assigned Special Operations Team member will visually and orally confirm the chemical name on the syringe and then administer the full dose of Sodium Pentothal immediately followed by the sterile saline flush.

4 When three minutes has elapsed since commencing the administration of the Sodium Pentothal, and before the Spec¡al Operations Team member(s) begin administering the Vecuronium Bromide/or Rocuronium Bromide/or Pancuronium Bromide, the lV Team Leader, dressed in a manner to preserve their anonymity, will enter into the room where the Warden and inmate are located to physically confirm the inmate is unconscious by using all necessary medically appropriate methods, and verbally advise the Director of the same. The lV Team Leader will also confirm that the lV line remains affixed and functioning properly.

5 No further chemicals shall be administered until the lV Team Leader has confirmed the inmate is unconscious, has verbally advised the Director and three minutes have elapsed since commencing the administration of the Sodium Pentothal.

6. ln the unlikely event that the inmate is conscious, the lV Team shall assess the situation to determine why the inmate is conscious. The lV Team Leader shall communicate this information to the Director, along with all lV Team input. The Director will determine how to proceed, limited to the option provided in Attachment D, 5 G(7), or to stand down. lf the Director determines to stand down, then trained medical staff shall make every reasonable effort to revive the inmate. The Director may direct the curtains to the witness viewing room be closed, and, if necessary, for witnesses to be removed from the facility, only in the event of a legitimate penological objective which would merit such closure and/or removal.

7 lf deemed appropriate, following consultation with the lV Team, the Director may instruct the Special Operations Team to administer the Sodium Pentothal from Bank "8", either via the primary access point or through the backup site, followed by the sterile saline flush.

8 Upon administering the Sodium Pentothal and sterile saline solution from a Backup Set, the lV Team shall determine whether the inmate is unconscious by sight and sound, utilizing the audio equipment, camera and monitor. The lV Team Leader will again physically determine whether the inmate is unconscious using proper medical procedures and verbally advise the Director of the same.

I Only after receiving oral confirmation from the lV Team Leader that the inmate is unconscious and three minutes have elapsed since commencing the administration of the Sodium Pentothal and sterile saline solution, will the Director instruct the Special Operations Team Leader to proceed with administering the next chemicals.

10 When instructed, the Special Operations Team Leader will instruct the assigned Special Operations Team members to begin administering the full doses of the remaining chemicals, each followed by a sterile saline flush.

11 When all electrical activity of the heart has ceased as shown by the electrocardiograph, the lV Team Leader will confirm the inmate is deceased and the inmate's death shall be announced by the Director.

12 The Special Operations Team Recorder shall document on the Correctional Services Log the start and end times of each of the three phases of the administration of the chemicals.

JANUARY '11. 2017 143 ATTACHMENT D DEPARTMENT ORDER 710 Page 9 of 1O

13 Throughout the entire procedure, the lV Team members, the Special Operations Team members and the Warden shall continually monitor the inmate using all available means to ensure that the inmate remains unconscious and that there are no complications.

H. Contingency Procedure

An Automated External Defibrillator (AED) will be readily available on site in the event that the inmate goes into cardiac arrest at any time prior to dispensing the chemicals; trained medical staff shall make every effort to revive the inmate should this occur.

2 Trained medical personnel and emergency transportation, neither of which is involved in the execution process, shall be available in proximity to respond to the inmate should any medical emergency arise at any time before the order to proceed with the execution is issued by the Director.

3 lf at any po¡nt any team member determines that any part of the execution process is not going according to procedure, they shall advise the lV Team Leader who shall immediately not¡fy the Director. The Director may consult with persons deemed appropriate and will determine to go forward with the procedure, limited to the option provided in Attachment D, 5 G(7) or 5 F(6), or to stand down. lf the Director determines to stand down, then trained medical staff shall make every reasonable effort to revive the inmate.

4 There shall be no deviation from the procedures as set forth herein, except as expressly allowed herein. There shall be no deviation from the procedures as set forth herein without prior consent from the Director. Although such consent may be verbal or in writing, the Director must memorialize and maintain a written record of having granted any deviations, which record must include a detailed description of the deviation, the bas¡s for the deviation, and the basis for the Director's consent thereto.

L Post Execution Procedures

1 Upon the pronouncement of death, the Director shall notify the Governor or designee and the Attorney General or designee via telephone that the sentence has been carried out and the time that death occurred.

2 An lV Team member will clamp and cut the lV lines leaving them connected to the inmate for examination by a Medical Examiner.

3 A Criminal lnvestigations Unit lnvestigator and a Medical Examiner will take photos of the inmate's body:

a While in restraints prior to being placed in the body bag, a Without restrains prior to being placed in the body bag, a Sealed in the body bag, and a A photo of the seal in place on the bag.

4 The inmate's body will be placed on a Medical Examiner's gurney and released into the custody of a Medical Examiner's Office.

JANUARY 'I'I, 20'17 144 ATTACHMENT D DEPARTMENT ORDER 71O Page 10 of 1O

5 Once the inmate's body is placed in a Medical Examiner's transport vehicle, it will be escorted off the premises. The Examiner's Office will take the inmate's body to the medical examiner's office designated by the county.

J. Documentation of Chemicals and Stay

1 ln the event that a pending stay results in more than a two hour delay, the catheters shall be removed, if applicable, and the inmate shall be returned to the holding cell until further notice.

2 The Correctional Service Logs the list of identifiers and the EKG tape shall be submitted to the Department's General Counsel for review and storage.

K. Debrief and Policy Review

1 The lV and Special Operations Teams will participate in an informal debriefing ¡mmediately upon completion of the event.

2, Upon an assignment to a Team, team members shall review Departm ent Order #71O, Execution Procedures

3. Periodically, and in the d¡scret¡on of the Director, a review of Department Order #710, Execution Procedures along with this attachment may be reviewed to confirm it remains consistent with the law. General Counsel shall advise the Director immediately upon any change that may impact these procedures.

JANUARY 'I'1, 2017 145