in this case i think one of the question is whether you know whether or not the claim of the although it's also a first amendment claim is really the same or different thing the claim of the execution procedure is really nothing beyond the pale as the court may have seen from the new jersey case we cite the court there sent told the state their regulations for governing the execution process were arbitrary and caprici sent the state back to rewrite them they're doing that yet right now in kentucky recently i'm told an injunction issued in some litigation and to settle that litigation in an attempt to settle that litigation the attorney general in kentucky offered to up the dosage of to three grams obviously if you have a sense of what our case is really about that's probably not going to settle the case but the point is that there is nothing sacred about this or that particular execution method it's just prison condition litigation and it be any particular method can be litigated and modified as law and justice require what we have in our district court order unfortunately is no law no evidence and no justice what we have i submit is we have a result in desperate search of a rationale jumping from one rationale in the cooper case which should abandon the legal case while basis to a different rationale in this case the reed case to i submit that cooper does not have to be the jumping off point for this litigation cooper presented rightly or wrongly a completely different equitable mix where the complaint in an exhaustive complaint was filed eight days before the execution and the typically found rightly or wrongly that a purpose of filing when they did was so that to save time so that mr cooper could pursue his various successful remedies in state court federal court wherever that is not manner that offends the constitution  judge question with respect to the other the interest showing that was made here it looks to me like the evidence is pretty similar to what was presented in the cooper case and i'm wondering what well first of all as a preliminary observation the our first amendment claim a certain mr beardsley's person amendment rights was not presented a cooper and does not hinge on the evidentiary showing in cooper or or here really in terms of the evidence that was presented in cooper state court execution logs are common to both cases i think they were given a different slightly different spin in the cooper case i think they emphasize more the notion that  pencil may or may not be enough to properly sedate the inmate they talked about a straight shot versus continuous administration and so on so it's a question of in some sense it's a question of spin and advocacy and also the legal basis that the district court ultimately ruled on all of which we distinguished and showed why it was wrong the district court does not engage either in cooper or in this case with up with the expert testimony with dr heat why they've done nothing and they've done nothing about that their expert testimony assumes proper administration and delivery and they they don't they don't address that there's simply no defense evidence about the efficacy of the of the administration and delivery of the of the fire pencil and then we have just part of my question which what the other part was what what factual matters do you contend that the district court must resolve in order for you to will paralyze mr beardsley prevent him from crying out if he's not properly sedated prevent him from of corman the assembled witnesses of what's happening to him prevent him of forming and informing the world at large from what's happening to him there's really nothing about that claim to resolve the district courts like the incorrect legal standard now this is as i said a prison condition litigation claim and normally those cases are pretty easy for the prison officials to when they assert some security interest peta logical justification some rehabilitative interest and they win these cases most of the time and the defendants despondence have come forward with absolutely no evidence about why the administration of pa penal logical objective they have abandoned what they said in the cooper case there is nothing on this case on the back claim that really needs to be resolved we could file summary judgment papers on it tomorrow practical historically one thing  as you said be rendered unconscious throughout the duration of the execution procedure dr dershowitz assumes proper administration and delivery dr durst which did not analyze the protocol and say that proper administration and delivery is anything like a foregone conclusion he did not say strange people are doing this he did not talk about who was mixing the drugs who was pushing the drugs he did not address the fact that it doesn't matter the that the inmate is all alone in the chamber with a six foot chub running out of his arm nobody monitoring it he didn't eject addressed anything probability was about administration and delivery he didn't address whether or not the people doing the procedure are psychologically apps which was looked at in the web case the connecticut case he didn't it requires more disclosure i think we don't know what to fix because we don't really know what's happening i mean we have perhaps model situations with there i'm informed that there are other states where people are in the room and the tennessee tennessee case that we cite i believe there's a closed circuit cameras trained on the injection sites to make sure the needles don't pop out and stand the in the senate of spills on the floor in the connecticut case they talked about the training of the people to the satisfaction of a physician and psychological psychological suitability so it's hard to know what what's what we have to fix until we know exactly what's broken and why why these what in terms of mr beardsley being able to communicate that something was going wrong in terms of anything then profit in other words if that drug is eliminated presumably if something goes wrong he would be able to of exactly what's going on and when which is currently not clear under the protocol under the protocol right now the inmate is the hooked up to the i v the salient flow is started or the people leave the room and then the sailing flow interval in which to either inform the assembled witnesses or have someone monitor his level of unconsciousness then that could conceivably solve the problem but as things stand right now just reports from kentuckian north carolina south carolina arizona some of which it's clear that the blood was drawn fairly shortly after after the execution had occurred so that's a new mix of evan that was not available to kevin cooper the courts kind of go back and forth the cases that the district court relied on said well we don't care what happens in other states and then of course now the district court reaches out to virginia to say what's that everything's ok in any definitive conclusion what i think both experts agree they are troubling and both experts admit that you would want to know a little more information about the methodology that there are variables but it's conceded that these this kind of data all going to be subject to check to four is that it's not going to come out so we're like you know we're lucky to have what we have but it should be more than enough to satisfy the court on the eighth amendment that there is something troubling going on in executions i think we have a an accident rate looking at the execution logs that is troubling when we speak of not being able to eliminate the risk of accident i think of something like so many fatalities well his his first amendment right to speak predates the administration of the sodium thiopental if with what you say occurs then hopefully then fortunately westley under the circumstances he wanted anything to say and that will circumstances under which he would be motivated to speak just as anyone is motivated to speak under certain circumstances to press their particular issues and viewpoints and the pack your own and bromide prevents mr beardsley from speaking under the urgent circumstances that i'm sorry say any kind of form of first amendment expression a first amendment interest in in displaying his his unconscious chicks i'm not sure about that what i would say is that under the first amendment coalition case the state's desire should prevent assembled witnesses the media the public the decision makers in our government at large from viewing these involuntary takes which might be unpleasant to look at out of the out of the rationale that it would confuse people and upset them that's unacceptable under the first amendment coalition case strictly maybe strictly speaking mr beardsley doesn't have the right to assert that that everyone should see just what happens even in  execution that goes according to hoyle and goes properly because you could still be grossed out in offended by that if you know it's difficult to say but i don't think it's acceptable to say well they can get away with that even though it's clearly unacceptable under the  concerns about the timing of this medication versus the cooper litigation we make the point that our case is different from cooper as i said we're not fighting at the last minute to play games we're not flying at the last minute so donald can you know be around for the super bowl we're doing is we filed a properly exhaustive complaint under the california code of regulations we filed a right credible complaint understood vs work seen as we were yellow belt an execution time of execution case we filed everything correctly under litigation the public has a very strong interest in getting accurate information right executions and in particular accurate information about what is certainly the  most critical piece of information not whether executions are being carried out humanely and that's first hand observation of this process and the reaction of the person affected and that is independent of anyone amendment requires that that not be distorted by by state action and that public interest that was at the heart of the sea fact case is also involved in this case because you're being asked to there's always a connection between although this is a different context than a normal speaker audience context but when one is asserting the right to speak i think it's very relevant to point out the importance of third reason is that the court should be mindful of the possibilities that the information is being distorted that important information is being blocked in considering the eighth amendment claim serve the purpose of masking that pain what i think of critical significance is that under the first amendment the state should be putting forward legitimate state interest in using this drug sufficient it really raises the specter of whether there's an improper motive here in the sea tac litigation in one of the important finding think on this record and in the absence of any evidence justifying the use of this court must take that very seriously that what we're dealing with here is an attempt to sanitize the process and attempt to distort the debate i i think i'm mindful of the way can be the bottom was due to the fact that it worked properly or whether he was in excruciating pain and it was masking that pain we think that that is why on this record not being priced now but it is there it is part of this record and i think that going forward would serve the public interest and the important constitutional rights that are stake you this court's opinion in cooper decided in february of two thousand and four as the point of departure for any analysis of the claims that were presented by mr beardsley and the district court here that the showing that was made in this case when compared to cooper was materially indistinguishable so the at the issue i think appropriately on the eighth amendment claim is whether they can demonstrate that the showman he has made that showing this court in a scooper opinion founded based on the evidence presented in the cooper record all of which is in the record here that within a minute of the ingestion the showing that was made in the cooper case it has to be in the declaration of dr heath the ubiquitous expert who as the court is probably aware has appeared as the plaintiff's defendants the expert for the inmates and pretty much every one of these challenges across the country over the past year or so now in the cooper case dr heath argued that the use of the five grams of sodium pentothal would be insufficient to ensure unconsciousness throughout the process because it was given in a single dose and he argued that it would require continuous infusion of the drug to ensure that the defendant would not suffer pain from the subsequent drugs being being given to him in this case now in the it will be given to him and he will as the court found in cooper almost immediately be rendered unconscious incapable of experiencing pain so the question then becomes according to dr heath and the showing that they've attempted to make here california cases he had looked at the execution logs from prior california executions he says the same thing in this case and says well i've looked at them i've looked at these numbers i think something may have gone wrong he doesn't tell us what he doesn't explain how that in any way suggest that any of witness to the enderson execution he refers to that here too and again without any explanation as to how that demonstrates that in fact the drugs didn't work or there was some breakdown in the procedures in the doctor he perceived gaps in the demonstrate in this case how that implicates any of that how the protocols and the concern that something might go wrong implicates any of the previous ingestion executions in california or to show that any errors actually occurred it is at best speculation and it is indistinguishable from the showing it was made in cooper this court found in cooper that that there was no showing of an unnecessary risk of and it's worth methods i think that the burden is on the petitioner not on the state the burden is on the petitioner to demonstrate that there is a probability that he is going to suffer unconstitutional pain he hasn't made that showing now what does he attempt to add to the showing of cooper to say somehow this is different with respect to the possibility that something will go wrong the only distinguishing factual allegation between the cooper litigation and this case are these autopsy reports not from california but from other states with other showing asked you how the protocols of those dates were identical or sufficiently similar to california to allow us to draw inferences from what execution there's no showing asked as to where they were drawn from how they were drawn how long after the execution the procedures that were used there is not even an explanation in dr heath's a declaration as to why those blood level making this additional information was that showing was made in the litigation in the reed case in virginia we've so we've quoted that in our brief we demick and that was referred to by the district court and the district court of the execution it's important to know that dr rhee excuse me that dr heath was the expert for the plaintiffs in the reed case he made those allegations he has not responded to the findings in the declaration  i believe that the entirety of the publicly available protocol and i don't know if there are any thing more to it than what's been released to the public on the website of the department of corrections and through discovery and at least one hideous corpus case  the central district is that there is anything more the complaint that mr beardsley has with the protocols is that he thinks there are additional questions that we should answer we should fill in some blanks that we should put his mind at ease the heath attempts to draw some significance from by arguing that well a heartbeat went this way or it went up or it went down or whatever that's all of those reports that are completed by the physician who was monitoring the heart during the execution been disclosed that's correct ok stops the breathing and there's been a great deal of criticism about the failure of the state to provide the justification there seems to be the assumption that there's some vacillate involved we haven't been put to the task of explaining or justifying that the defendants have not because  violation of his rights because he will not be rendered unconscious by the by the initial injection of the sodium pentothal and then in fact the whole argument about that and we can move out of the i think of the first amendment argument the suggestion that somehow the use of the the i'm sorry could i'm trying to give you the opportunity to explain your position i don't think that an explanation we know there is one you indicate that you haven't made it because they have the law and after showing that it's unconstitutional to do it in that manner with those drugs in that order that the fed they could plant it was not entitled to obtain an injunction against the execution going forward using obligation to go you know make the showing i think that if there's any deficiency in the record on that ground it's because they failed to make the showing necessary to get to the point of questioning whether the parents are money and is in fact an essential part of the execution that's the state has determined the act it's that combination of drugs which will ensure that the lethal injection execution will go forward in the most efficient and quickest manner to ensure that it's done right consistent to why i'm not in a position to represent on behalf of the defendants all of the reasons why that might be justified because i don't need to do that at this when we have this one i don't know i'm not i'm not prepared to make a representation on behalf of the clients to whom i have not with whom i have not discussed this in any detail because i am not put to that task because they have not been put to that task yet because they haven't satisfied the fact that coming in this late in the day all that they have been if they have not been able to show that there is any chance that using amicus are seeking to vindicate the first amendment right there mr beardsley they're going to rise and fall on the show when the mr varian is made and because he cannot make the showing any more than cooper good that there's any probability that he is going to suffer pain after the imposition of the first drug that there's no independent issue here for the a c l u to be arguing about but if what they're arguing is they seem to be that they have some independent standing some independent interest i think it's a little late in the day for them to be coming in and imposing that  us now we get this grief from them the day before the argument and a week before the execution they certainly know how to litigate these claims that they think that they have a third party interest that will allow them to establish a basis in a lawsuit f that's not appropriate their reason for being here is either to support mr beardsley which they can't do because he can't make that showing or they're too late in the day and if they want to make these arguments let them bring their independent lawsuit they simply do not have an independent basis for coming in now to the extent that they have any interest in the case cannot trump the interest of the state in executing this twenty one year old judgment if they cannot make a opportunity here to explain the use of the drug with some of the states don't use it twenty six of the i believe thirty six states that that use lethal and or authorized lethal injection as a method of execution lethal drugs is unconstitutional no court has stayed an execution based upon a claim that it's inappropriate to use the pass line in combination with the other drugs these claims have been made over and over and over again and none of them have succeeded in any state or federal court i think the problem and i understand your honest concern i appreciate that but the problem is not one of my making the problem is one that the places hav was a claim challenging lethal gas and it also included lethal injection in the original hideous corpus petition and it was effectively abandoned no effort was made to prove it it could have been brought at an earlier time for at least the last year and a half every death do it earlier when he certainly could have done so when he knew that that was an issue in the cooper litigation cooper had not in had not exhausted is a mystery to remedy that's not the reason why is injunction with an i go that's why ultimately the complaint was just missed without prejudice and honor i think the court received how we would characterize the showing that the defendants response made in this litigation it's not one of the facts it's not one of law it is to provide comfort it is comfort and arrogan comfort go along with all the other cases that happen stepped up and result friday was reversed these issues on the merits go along with the cases in texas and arizona and florida in the southern gutfeld and arrogance and saying we don't have to tell you what happened steven anderson we don't have to tell you what we don't concede that there's a possibility of accident in this procedure when we know that there's a possibility of accident in all human endeavor the law the first amendment proposition that they advance was completely devoid of authority they cite no cases for it the district court cites no cases forward it makes no sense as we said in the papers as i said below if you had a prior restraint for the state university against publishing on a controversial sub the chancellor can get up and say well you know i interviewed professor so and so and i don't think the man's going to have anything interesting to say so we don't have a first amendment problem here there's just no law for that proposition it is completely counter intuitive i think some of the g s responses here demonstrate especially on the eighth amendment claim the need for discovery they admit there are things that we don't know that are publicly available if you look at the protocol it's clear that it it intervention there is no really no reason for us to trust them just on the point of how these procedures are adopted i think if if you look at the wharton vasquez's testimony that we cite in the exhibits  it's clear that this is all very very informal there's nothing certainly comparable to kind of an f d a f d a level of testing in scrutiny i watched the other night the doctor mentary mr death about fred leuchter a man  who made a career out of building execution procedures his father was in the tennessee i believe department of corrections he was an engineer and he was asked to work on an electric chair ostensibly to make it more humane and what he said about his whole career was was interesting and he seemed amused by it he said because i built an electric chair they thought i could build lethal injection equipment and because i believe when jackson equipment to the states thought i could build a gallows because i built a gallows here strait thought i could work on a gas chamber and so on there there's just there's just borrowing without much scrutiny that it's consistent with the old style stuff in the in the documentary where people were drawing pictures of each other's electric chair evidence that they have not bothered her about either in cooper or here this distinguishes this case from all the other cases that were initially cited in the district courts that they rely on where there are specially speculative cases no executions have been conducted or maybe one execution have been conducted and there was no available information about any problems here we have for execution last gift steven anderson it's an incredible percentage of procedures that are malfunctioning as far as the first amendment goes  i think it's open and shut i know it's difficult and the court is uncomfortable with perhaps uncomfortable with intervening in an execution process in a chemical matter but there's really no difference between administering the  turning off the light in the gas chamber of drawing a curtain over it or taping mr beardsley's mouse just putting a hood over his head and strapping a spend down so he can't communicate it's the exact same thing unless there is a deaf that is if you're interfering with  chinking that the process of which we know little about based on this record that's a little bit different from saying you have to as a current well as it's i think the process broadly speaking from first amendment suggestion in cooper or here that that removing the chemical from the protocol would have any impact any adverse impact on mr beardsley and render his execution less humane it i