IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

VERNON EVANS, JR.,

*

DOC Number 172357

Maryland Correctional Adjustment Center *

410 East Madison Street

Baltimore, Maryland 21202

*

Plaintiff,

*

\vs.

*

\

MARY A-NN SAAR, Secretary,

*

Department of Public Safety and

Correctional Services

*

300 East Joppa Road

Suite 2000 '

*

Towson, Maryland 21286;

~ C. SIZER, JR., Commissioner,

*

M~land Division of Correction

*

677q Reisterstown Road

Baltimore, Maryland 21215;

*

Civil Action No.

LEHRMAN DOTSON, Vv'ruden,---~- --~~-- ------~--~­

Maryland Correctional Adjustment Center

401 East Madison Street

*

Baltimore, Maryland 21202

*

GARY HORNBAKER, Warden,

Metropolitan Transition Center

*

954 Forrest Street

Baltimore, Maryland 21202

*

and,

*

JOHN DOES,

*

Defendants.

*

******

COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF Vernon Evans, Jr., by and through his undersigned atto~eys, brings the following complaint against defendants, all in their official capacity.

1. Plaintiff Vernon Evans, Jr., is under a sentence of death imposed by the State of

Maryland. The Maryland legislature has chosen lethal mjection as the State's method of execution, and

the Maryland Division of Correction ("DOC") has designed a procedure by ,which lethal injections will
I
be carried out in the State. The DOC procedures purport to induce death only after a condemned

prisoner has been rendered unconscious and unable to experience pain. In reality, however, DOC's

,

!

policies and practices in carrying out lethal injection create a grave and wholly pnnecessary risk that

I
Evans will be conscious during his execution, experiencing wanton pain and suffering, in violation of

the United States Constitution

2. Evans does not herein challenge the fact of his sentence of death~ nor does he challenge

the constitutionality-ef-lethal inje~tien.-Metheds-ef-l~th~injectIDn-that-would~compl¥withthe United .

States Constitution exist and are available for use by Defendants. Evans alleges, however, that the

practices and policies chosen by the DOC to carry out that statute violate his constitutional rights.

3. In particular, Evans brings this action pursuant to 42 U.S.C. § 1983 for violations and

threatened violations of his right to be free from cruel and unusual punishment and arbitrary and

capricious DOC procedures under the Eighth and Fourteenth Amendments to the United States

Constitution. Evans seeks equitable and injunctive relief.

PARTIES

4. Plaintiff Vernon Evans, Jr., is a United States citizen and a resident of the State of

Maryland. He is currently a death-sentenced inmate in the custody of Defendants and under the

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supervision of the DOC. His DOC Number is 172357. He is held at the Maryland Correctional Adjustment Center, 410 East Madison Street, Baltimore, Maryland 21202. On January 9,2006, the Circuit Court for Baltimore County signed a Warrant of Execution, setting Evans's execution for some time in the five-day period beginning February 6,2006.
5. Defendant Mary Ann Saar is the Secretary of the Maryland Department of Public Safety and Correctional Services ("DPSCS"), and is sued in her official capacity.
Defendant Frank C. Sizer, Jr., is the Commissioner of the DOC, and is sued in his official capacity.
7. Defendant Lehrman Dotson is the Warden of Maryland Correctional Adjustment Center where death-row inmates are housed, and is sued in his official capacity.
8. Defendant Gary Hornbaker is the Warden of the Metropolitan Transition Center
I
(formerly the Maryland Penitentiary) in Baltimore where the execution of Evans would occur, and is I
sued in his official capacity. 9. Defendants, John Does, are employed by or under contract with the DOC to make
preparations for, and carry out, Evans's execution. They include, but are not limited to, physicians, EMTs, physician's assistants, the "execution commander," and the "execution team." Their identities are not yet known, and as a matter of policy, Defendants will not reveal the identities of these persons. These persons are sued in their official capacity.
10. Defendants are acting under color of State law in establishing and designing the DOC execution practices and policies and would act under color of State law in selecting and administering to Evans chemicals in amounts, in combinations, and by methods that would unnecessarily risk conscious suffering and pain in the execution of a sentence of death.
3

JURISDICTION AND VENUE

11. This Court has subject-matter jurisdiction over Eyans's federal law claims pursuant to 28

U.S.C. §§ 1331 (federal question) and 1343 (civil rights violations).

12. An actual controversy exists between these parties, thus the COlilrt has the authority to

grant declaratory relief pursuant to the Declaratory Judgment Act, 28 U.S.C. §§ 2201-22.

13. Venue in this Court is proper under 28 U.S.C. § 1391 because all defendants reside and

work in the judicial district, and because a substantial portion Of the events giving rise to this claim have

occurred and will occur within this district as part of the official business of DPSCS.

BACKGROUND FACTS

I

I

14. Plaintiff Evans has been on death row since 1984. Pursuant to *d. Code Ann., Corr.

Servs. § 3-905, the DOC intends to carry out Evans's sentence of death by lethal injection. That statute

requires use of an ultrashort-acting barbiturate ("or similar drug") and a paralytic agent.

15. The procedures employed by the DOC in executing inmates have varied over the years.

Until 1994, Maryland executed inmates with lethal gas. Upon information and belief, since adoption of

lethal injection in 1994 as the State's method of execution, both the chemicals used and the amounts

injected have changed and the procedures employed in lethal injection have been repeatedly amended.

Those procedures were amended twice within the three weeks preceding the June 2004 execution of

Steven Oken. Evans does not know whether those procedures were again amended prior to the

December 2005 execution of Wesley Baker.

16. Evans first sought access to DOC's current execution protocol pursuant to a public

information request sent on March 7, 2005. In an effort to obtain the most up-to-date information, on

December 20, 2005, Evans filed a second public information request with DOC seeking access to the

4

procedures employed in Baker's December 2005 execution. While DOC has never produced a complete

copy of this protocol, Evans nevertheless filed a Request for Administrative Remedy with Warden

Lehrman Dotson on December 9,2005. The Warden denied this request on January 3,2006, and Evans

promptly appealed the Warden's decision to DOC Commissioner Frank Sizer. Coinmissioner Sizer has

yet to address the merits of Evans's appeal.

17. While lethal injection has been asserted to be a peaceful and humane way to induce

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,

death, the chemicals that DOC has chosen to use and the procedures it has chosen to employ in injecting

those drugs into inmates, have the potential to cause recipients, including Evans if he is subject to such

injection, to consciously suffer an excruCiatingly painful death. Indeed, because of this grave risk of

agonizing death, it is unlawful in Maryland to euthanize animals in the manner in which Defendants·
I
int~nd to execute Evans.

18. On information and belief, in devising its current lethal injection procedures, DOC chose

to use (1) the ultrashort-acing barbiturate sodium pentothal, (2) a neuromuscular blocking agent

pancuronium bromide, and (3) potassium chloride, which causes cardiac arrest.

Sodium pentothal

19. On information and belief, the first chemical the DOC would inject in its execution of

Evans will be sodium pentothal, which, unless fully and effectively delivered, may not provide sedative

effect throughout the entire execution procedure. If less than the intended dose of anesthetic is

administered, an inmate could regain consciousness and be sentient when the DOC injects the second

and third chemicals-pancuronium bromide and potassium chloride-which, as described below, stop

respiration and stop the heart, respectively. In other words, there is a risk that inmates executed in

Maryland will awaken after an initial injection of sodium pentothal to experience suffocation induced by

5

pancuronium bromide and the painful sensation of potassium chloride as it burns through their veins,

ultimately causing cardiac arrest.

20. The risk of agonizing pain is further increased by practices and policies of the DOC,

which, on information and belief, were designed by persons with no medical waining and which do not
I
require the involvement of the medical personnel necessary to administer anesthesia properly.

21. Administration of general anesthesia is a complicated task. In Maryland and elsewhere in

the United States, general anesthesia is administered by physicians who have completed residency

training in the specialty of anesthesiology, and by nurses who have undergone the specialized training to

become Certified Registered 'Nurse Anesthetists ("CRNAs"). Physicians and Qurses who have not

tra~~g o~ completed the requisite

to become anesthesiologists CRNAs are noJ permitted to provide

general anesthesia.

22. Particular skill is required to administer sodium pentothal. Because of complications
i
associated with maintaining anesthesia with sodium pentothal, when a surgical plane of anesthesia must

be maintained for more than a matter of moments, drugs other than sodium pentothal are usually

employed. If sodium pentothal is used both to induce and maintain a surgical plane of anesthesia, a

qualified person must be present to assure that the sodium pentothal has been correctly administered and

is maintaining a state of unconsciousness.

23. On information and belief, DOC procedures for lethal injection do not require

participation of anesthesiologists or CRNAs or other similarly qualified persons., In other words,

personnel administering anesthesia during lethal injections would not necessarily be permitted to

administer anesthesia during treatment at the prison hospital. In fact, they might not be allowed to

administer anesthesia in any circumstance other than an execution. On information and belief, the

6

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procedures for lethal injection employed by DOC do not require any person-let alone a qualified person-to monitor the plane of anesthesia achieved by administering sodium pentothal during an execution. Pancuronium bromide
24. On information and belief, the second chemical the DOC would inject in its execution of Evans would be pancuronium bromide. Pancuronium bromide is a derivative of curare that acts as a
neuro~uScUlaf blocking agent. Such drugs are used clinically to induce skeletal muscle relaxation to
facilitate't:acheal intubation and/orto suppress spontaneous respiration. While pancuronium bromide
,
\
paralyzes sk,eletal muscles, including the diaphragm, it has no effect on consciousness' or the perception of pain and suffering, and thus must be administered with great care. Unless consciousness is clinically
I
ass~ssed prior to the administration of pancuronium bromide, the paralysis induced by the drug will pretent anyone---even someone with advanced medical training-from determining whether the patient is conscious and experiencing pain. Incidents of neuromuscular blocking agents immobilizing inadequately anesthetized patients are well documented. Patients undergoing such experiences have provided reports of the terror and torture involved in experiencing extreme pain whil~ imniobilized and unable to signal distress.
25. Pancuronium bromide serves no medical function in an execution. Its use makes a prisoner look serene because the prisoner's muscles cannot move or contract to show pain, suffering, or any emotion.
26. If the barbiturate (sodium pentothal) is administered in insufficient quantity, or if it is administered using procedures that do not deliver the complete dose or allow it to wear off or be neutralized or rendered otherwise ineffectual, the subsequent administration of pancuronium bromide
7

and the neuromuscular paralysis that results will completely mask the fact that an inmate has regained

consciousness and feeling. The inmate will be unable to communicate the fact that he or she is

conscious, and as the potassium chloride is injected into the inmate's body to induce cardiac arrest, the

executioners and witnesses will be unable to observe any signs of awarenes,s or distress. 27. Furthermore, if the sodium pentothal and potassium chloride are administered

insufficiently to sedate and kill the inmate, the paralysis induced by pancuronium bromide will

ultimately cause an intense, painful death by asphyxiation. Desperately straining to draw breath, but

with no corresponding muscle response, an inmate would not be able to signal that he or she is awake

and experiencing the agony of suffocation. Death by asphyxi~tion as a method, of execution has been

vi~~ative ruled unconstitutional as

of the Eighth Amendment.

I

Potassium chloride

28. On information and belief, the third chemical the DOC would in;ect if it executes Evans

would be potassium chloride. While a certain level of potassium chloride is needed for normal cardiac

electrical activity, the quantity of potassium chloride administered in executions causes death by

stopping the heart. Potassium chloride affects the nerve fibers lining the veins, and there is universal

medical agreement that its administration to an inadequately sedated person would be agonizingly

painful. In an inadequately sedated inmate, administration of potassium chloride would cause extreme

and protracted pain and would be torturous.

29. This risk of extreme and protracted pain is entirely unnecessary. The DOC could use a

less-painful heart-stopping drug. The DOC has arbitrarily and needlessly added potassium chloride to

its lethal injection procedure.

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Unwarranted Risk of Maladministration 30. The risk of inflicting severe and unnecessary terror, torture, and pain upon Evans is made
more dire because, on information and belief, the practices and policies DOC has devised for his execution do not include adequate directions for preparation of drugs and training of staff, do not establish necessary safeguards regarding the manner in which the execution is to be carried out, do not require participation of qualified personnel in performing critical tasks in the lethal-injection process, do not prJvide for necessary supervision of personnel, and do not establish appropriate criteria and standards that these personnel must rely upon in exercising their discretion during the lethal injection process.
31.' Defendants have conceded maladministration of at least one lethal injection-that of,
I
Tyr?ne Gilliam in 1998. On its website, DOC declares that its lethal-injection procedure "lasts about sev~n minutes.,,11 The execution of Tyrone Gilliam took 23 minutes. (In fact, on information and belief, only one of the five lethal injections conducted by DOC-that of Flint Gregory Hunt in 1997-has been completed within 7 minutes.) Throughout Gilliam's execution, a primary IV line leaked and liquids pooled on the execution room floor. On information and belief, the same DOC personnel who failed to correctly set up and monitor the intravenous line system in Gilliam's execution will be responsible for designing and carrying out Evans's execution. Unless DOC's protocols and procedures are changed, Evans risks suffering the same botched execution as did Gilliam.
32. Maryland's policies and procedures are specifically deficient in numerous respects. Among other things, administration of intravenous ("IV") anesthesia requires proficiency at achieving
II See http://www.dpscs.state.md.us/publicinfo/capitalpunishment/historical.shtml (last visited January 18, 2006).
9

and maintaining IV access. On information and belief, Defendants are not qualified to create and

maintain IV access. On information and belief, DOC procedure~ directing IV access in lethal injections

are vulnerable to error, and thus risk grossly inadequate anesthesia.

33. Moreover, on information and belief, Defendants intend to carry out the lethal injection

process without taking into consideration any individualized facts that affect appropriate dosage, such as

Evans's body weight and his individual sensitivity to or tolerance to DOC's chemicals of choice.

34. On information and belief, Evans's lethal injection will also be carried out without

adequate preparation for the very real possibility that, due to Evans's previous intravenous drug use,

DOC personnel will not be able to access a peripheral vein. If such peripheral flccess is not obtained,

,

I

Defendants will need to create venous access through a surgical cut-down, wh~rein a vein is exposed by

incision or is catheterized, or through the invasive and painful processes of inserting a percutaneous

central line, which involves tunneling under the skin to reach the subclavaian or central vein. Were

placement of a central venous catheter to be needed, an array of equipment would be necessary, both for

the placement of the catheter and for treating any complications that might occur during the procedure.

Further, it is essential that placement of a central line be performed by an individual with adequate

proficiency and demonstrated licensure and credentialing in an appropriate medical field. Failure by the

DOC to provide staffing and personnel able to perform the placement of a central venous catheter risks

painful and unnecessary consequences that include exsanguinations (severe blood loss), pneumothorax

(collection of air between the lung and the inner chest wall, which if progressive and untreated, results in

an excruciating death by suffocation), pain, unstable cardiac rhythms requiring delivery of electrical

shocks, perforation of the bladder, and multiple other complications. Because cut-downs and insertion

of central venous catheters require much more skill and training and are far more invasive than

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peripheral venous access, they are normally performed in highly equipped emergency rooms or
operating theatres. On information and belief, Defendants are not so equipped.Y
" 35. On information and belief, DOC procedures governing lethal injections risk unnecessary
pain, suffering, and death because, unlike procedures in effect in other States, DOC procedures make no
provision for the possibility that a stay of execution will be received after the lethal injection process has
begun. \36. Several other states execute death-sentenced inmates using lethal injection. On
,
information and belief, correctional officers in many of these States administer lethal injections pursuant
1\
to procedure~ sufferirig the same deficiencies as those used by DOC: failure to provide· adequate
directions for preparation of drugs and training of staff, failure to establish necessary safeguards
reg~dingthe manner in which the execution is to be carried out, failure to require participation of qual~fied personnel in performing critical tasks in the lethal-injection process, failure to provide for
necessary supervision of personnel, and failure to establish appropriate criteria and standards that these
~~-~~-- ~~ -~---~~-~-~~-----------~~ -----~-~-~----~-----
personnel must rely upon in exercising their discretion during the lethal injection process. These
deficiencies have resulted in a startling number of botched lethal injections, including the following:
a. Brian Steckel was executed in Delaware in 2005. Several minutes after
corrections officials began administering the lethal injection, he was still speaking. At one point,
he turned towards the witnesses and said: "Why is it taking so 10ng?"J1
Y Recognizing that it was ill-equipped to gain venous access through a cut-down or percutaneo,us central line, at least one State's corrections agency has formally promised that, in the event that peripheral venous access is not obtained within a reasonable period of time, a lethal injection will be postponed. Another State, recognizing the likelihood of complications and errors where insufficiently credentialed personnel attempt even peripheral venous access, employs a properly credentialed physician to insert a percutaneous central line in all lethal injections.
11

b. Joseph Martinez High was executed in Georgia in 2001. Corrections officials

searched High's arms for 20 minutes for a suitable vein., Ultimately, a medical doctor was called

upon to make an incision and insert a needle into High's chest. A second" needle was inserted m. to h·IS arm.4-/

c. Bennie Demps was executed in Florida in 2000. "While Florida law requires two

injections, corrections officials forewent the second injection after searching for 33 minutes and failing to find a suitable vein. In his final statement, Demps complained of pain and bleeding.~/

d. Joseph Cannon was executed in Texas in 1998. Immediately after his fmal

statement, the lethal injection commenced, but a vein ~ Cannon's arm ~ollapsed and the needle

hiS~. c~me sprung loose of

Cannon closed his eyes and exclaimed: "It's

undone."

Corrections officials drew the curtain between the witnesses and the execution chamber for 15

minutes, then reopened it for a weeping Cannon to give a second final s~atement, and the lethal

injection resumed.§!

e. Tommie Smith was executed in Indiana in 1996. The lethal injection process took

over an hour. Corrections officials were unable to find suitable veins in Smith's arms, so they

called upon a medical doctor to make an incision for insertion of a needle into Smith's chest.

'J/

Randall Chase, Convicted Killer Executed in Delaware, ASSOCIATED PREss, Nov. 4, 2005.

~/

Doug Gross, Lethal Injection Draws Criticism, FLA. TIMES-UNION, Nov. .12, 2001.

Deborah W. Denno, When Legislatures Delegate Death: The Troubling Paradox Behind State Uses ofElectrocution and Lethal Injection and What It Says About Us, 63 OHIO ST. L.J. 63, 141 & Table 9 (2002).

Jane Ellen Dee, Sisters ofDeath Row, HARTFORD COURANT, Apr. 15,2001.

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This process also failed. Eventually, a needle was inserted into an artery in Smith's foot. Smith

remained conscious during each of these incisions. Corrections officials acknowledged that they

had been aware that Smith had unusually small veins before the lethal injection, and that they

were aware his small veins could complicate attempts at venous access?1

f.

Emmitt Foster was executed in Missouri in 1995. More than 30 minutes after

corrections officials expected the lethal injection to be complete, Foster was still alive.

\Corrections officials discovered he was strapped too tightly to the gurney and loosened the straps

so that the chemicals could flow into his veins.W

g. John Wayne Gacy was executed in Illinois in 1994. An "unexplained glitch" in a delivery tube caused the lethal injection to last eighteen minutes.21

h. Ricky Ray Rector was executed in Arkansas in 1992. After nearly an hour, a

team of eight was unable to find a suitable vein for administration of Rector's lethal injection.

Rector eventually assisted corrections officials in finding a vein.101

1.

George "Tiny" Mercer was executed in Missouri in 1990. When corrections

officials were unable to gain peripheral venous access, they had to call on a medical doctor to

perform a "cut-down" into Mercer's groin.ill

11

Darlene Scates, Injection Flap Spurs Review, SOUTH BEND TRIBUNE, Jul. 28, 1996.

'fl.1

Michael Browning, Botched Efforts Scar Capital Punishment Legislature to Consider Lethal

Injection, PALM BEACH POST, Jan. 3, 2000.

21

Jim Ritter, Lethal Injection is Painless, But Only if Done Exactly Right, CHICAGO SUN-TIMES,

Jun. 10, 2001.

101 Denno at 140 & Table 9.

13

J.

Steven McCoy was executed in Texas in 1989. During the execution, McCoy

violently reacted to the drugs-gasping, coughing, and choking during their administration. The

Texas Attorney General stated that McCoy "seemed to have a somewhat stronger reaction," and

noted that "the drugs might have been administered in a heavier or dose or more rapidly," than

intended. 12/

f.

Raymond Landry was executed in Texas in 1988. Mter the flow of lethal

chemicals had begun, a syringe popped out of his vern', spraying the chemicals towards the

witnesses. The execution team had to reinsert the catheter into his vein; the curtain between the

execution chamber and the witnesses was drawn for 14 minutes while venous access was

reestablished. I3/ ..

I

g. James Autry was executed in Texas in 1984. Throughout his lO-minute lethal

injection, he complained of pain. Corrections officials blamed "faulty ~quipment or

.. inexpe!!encedpersonnel."141

---

--

Veterinary Standards of Euthanasia

37. Because of legal, moral, and ethical restrictions on human euthanasia, the best model and

best source of information and humane protocols for extinguishing life is studies of methods for

euthanasia of animals. The American Veterinary Association ("AVMA") has protected animals from

1l! Denno at 139 & Table 9. Kathy Fair, Witness to an Execution, HOUSTON CHRONICLE, May 27, 1989. J.R. Gonzales, A Deadly Distinction, HOUSTON CHRONICLE, Feb. 7, 2001. Bob Hepburn, When the State Kills, TORONTO STAR, Apr. 11, 1987; Denno at 139 & Table 9.

14

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II :"/ .

the tragic mishaps described above by devising a protocol for euthanasia that has a very high tolerance

to error, is simple to administer, and creates very little risk of pain and suffering. Condemned prisoners

deserVe the same protection.

38. The AVMA Panel on Euthanasia continually studies various protocols for the 'euthanasia

of animals to detennine whether they are humane. It periodically issues reports identifying acceptable

and unacceptable protocols for euthanasia.
\~9. Because injection of potassium chloride-a chemical unnecessarily added to Maryland's

.

. .

protocol for the. execution of humans-is so excruciatingly painful, the AVMA prohibits its use as the

sole agent effecting euthanasia. If the chemical is to be used at all, it may only be administered by a

practitioner with the skill and training necessary to assure that the subject to be euthanized has reached
I
and~aintains a surgical plane of anesthesia.

40. The report of the Panel on Euthanasia also explicitly forbids the use of a neuromuscular

blocking agent-such as pancuronium bromide-in combination with a sedative-.such as sodium
----
pentothal-because this protocol is deemed inhumane. Consistent with the Report of the AVMA Panel

on Euthanasia, Maryland and at least nineteen other states have enacted statutes that preclude the use of

a neuromuscular blocking agent in the euthanasia of animals. Ten states have done so explicitly.lSI At

least nine additional states have implicitly banned such practices. 161

151 Fla. Stat. §§ 828.058 and 828.065; Ga. Code Ann. § 4-11-5.1; Me. Rev. Stat. Ann., Tit. 17, § 1044; Md. Code Ann., Criminal Law, § 10-611; Mass. Gen. Laws § 140:151A; N.J.S.A. 4:22-19.3; N.Y. Agric. & Mkts § 374; Okla. Stat., Tit. 4, § 501; Tenn. Code Ann. § 44-17-303; Tex. Health & Safety Code § 821.052(a).
161 Conn. Gen. Stat. § 22-344a; Del. Code Ann., Tit. 3, § 8001; Ky. Rev. Stat. Ann. § 321.181(17) and 201 KAR 16:090, § 5(1); 510 Ill. Compo Stat., ch. 70, § 2.09; Kan. Stat. Ann. § 47-1718(a); La. Rev. Stat. Ann. § 3:2465; 2 Mo. CSR 30-9.020(F)(5); R.I. Gen. Laws § 4-1-34; S.C. Code Ann. § 47-3-420.

15

41. By failing to ensure that anesthesia is administered properly during executions and by

including a neuromuscular blocking agent (pancuronium bromide) as part of the execution protocol, the

DOC has chosen to implement Maryland's statute for execution and chosen a protocol and procedure for

the death of condemned inmate that contravenes the standards in Maryland, fOIl euthanization of animals.

Alternatives to Maryland's Lethal-Injection Scheme

42. The particular cocktail of drugs chosen by DOC in designing its lethal injection
a procedures is not required by statute and unnecessarily makes painful death more likely. Humane

alternatives that would not present the grave risk of conscious paralysis and torture are available and

would be inexpensive to implement. Under the current Maryl~d statute, the DOC could execute

cons~~tutionallY inmates humanely and

by administering an anesthetic (other thb sodium pentothal) that

would maintain unconsciousness while the other chemicals cause death, by administering pain killers,

by using a less painful paralytic agent, by omitting unnecessary neuromuscular:blocking agents, and by

requiring appropriate medical safeguards, including the involvement of qualified medical personnel.

CLAIM FOR RELIEF

43. Evans incorporates and realleges the averments contained in paragraphs 1 through 42 by

reference.

45. Defendants, acting under color of Maryland law, intend to execute Evans in a manner that

will cause unnecessary pain, that do not comport with evolving standards or decency, thereby depriving

Evans of his rights under the Eighth and Fourteenth Amendments to the United States Constitution to be

free from cruel and unusual punishment and arbitrary and capricious procedures, in violation of 42

U.S.C. § 1983.

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PRAYER FOR RELIEF Evans prays that relief be entered against Defendants, granting Evans the following: 1. A permanent injunction barring Defendants from executing him using the practices and procedures currently employed by DOC in lethal injections. 2. Declaratory judgment stating that DOC protocols, policies, practices, and acts and omissions as described herein violate Plaintiffs' rights as guaranteed by the Eighth and Fourteenth Amendments to the Constitution of the United States; 3. Reasonable attorneys' fees pursuant to 42 U.S.C. § 1988, as well as for costs of suit and any further relief that this Court deems just and proper.

(Bar No. 03436) Julie S. ietrich O'TOOLE, ROTHWELL, NASSAU & STEINBACH 1350 Connecticut Avenue, N.W., Suite 200 Washington, D.C. 20036 (202) 775-1550 otoole@otrons.corIl dietrich @otrons.com
A. Stephen Hut, Jr. Todd Zubler Kalea Seitz Clark Anne Harden Tindall
WILMER CUTLER PICKERING HALE AND DORR LLP
2445 M Street, N.W. Washington, D.C. 20037 (202) 663-6000 (phone) (202) 663-6363 (fax) stephen.hut@wilmerhale.com todd.zubler@wilmerhale.com kalea.clark@wilmerhale.com anne.tindall@wilmerhale.com

Dated: January 19,2006

Counselfor Defendant Vernon Evans, Jr.

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 • •

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

VERNON EVANS, JR.,

*

Plaintiff,

*

vs.

*

MARY ANN SAAR, Secretary,

*

Department of Public Safety and

Correctional Services;

*

FRANK C. SIZER, JR., Commissioner,

Maryland Division of Correction;

*

LEHRMAN DOTSON, Warden,

*

Maryland Correctional Adjustment Center;

Civil Action No. 06-CV-00149 BEL

GARY HORNBAKER, Warden,

Metropolitan Transition Center;

*

and,

*

JOHN DOES,

*

Defendants.

*

MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFF'S APPLICATION FOR TEMPORARY RESTRAINING ORDER AND MOTION FOR PRELIMINARY INJUNCTION

A. Stephen Hut., Jr. Todd Zubler Kalea Seitz Clark Anne Harden Tindall
WILMER CUTLER PICKERING HALE AND
DORRLLP 2445 M Street, N.W. Washington, D.C. 20037 (202) 663-6000 (phone) (202) 663-6363 (fax) stephen.hut@wilmerhale.com

Jeffrey O'Toole (Bar No. 03436) Julie S. Dietrich O'TOOLE, ROTHWELL, NASSAU &
STEINBACH
1350 Connecticut Avenue, N.W., Suite 200 Washington, D.C. 20036 (202) 775-1550 otoole@otrons.com dietrich@otrons.com

January 20, 2006

:MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFF'S APPLICATION FOR TEMPORARY RESTRAINING
ORDER AND MOTION FOR PRELIMINARY INJUNCTION Plaintiff Vernon Evans, Jr., who is currently under a warrant for his execution during the week of February 6, 2006, seeks a temporary restraining order and preliminary injunction enjoining Defendants from carrying out his execution using the current practices and procedures of the Maryland Department of Correction (DOC) for lethal injection. Evans does not herein challenge the fact of his sentence of death generally, nor does he challenge the constitutionality of lethal injection. Methods of lethal injection that would comply with the United States Constitution exist and are available for use by Defendants. But, as the declaration of Dr. Mark Heath in support of the application and motion shows, DOC's practices and procedures arbitrarily and unnecessarily create a grave risk that Evans will suffer extreme pain during his execution, thus violating his rights under the Eighth and Fourteenth Amendments to the United States Constitution. Evans will suffer acute and irreparable harm if this Court denies preliminary relief, while the harm, if any, to Defendants stemming from that relief will be minimal. Because the balance of harms tips in Evans's favor, he need only present "grave or serious questions" to justify entry of a preliminary injunction, and he has clearly raised such questions. For these reasons, and because the public interest will be served by judicial consideration of Evans's claims, he is entitled to preliminary relief.
Statement of Facts Plaintiff Evans was convicted of two counts of murder in 1984. On January 9,2006, Baltimore County Circuit Judge John G. Turnbull II signed a Warrant of Execution, setting Evans's execution for
2

the week of February 6, 2006.11 Pursuant to Maryland Code Annotated, Correctional Services § 3-905, Evans would be executed by lethal injection.
Section 3-905 authorizes lethal injection using an "ultrashort-acting barbiturate, or other similar drug" and a "paralytic agent." See Md. Code Ann., Corr. Servs. § 3-905. Evans has attempted to obtain from the DOC its more specific protocol for carrying out executions, but the DOC has not been fully
n cooperative. See Tindall Decl. 2-6 (attached hereto as Exhibit A). Nearly a year ago, on March 7,
2005, Evans first sought access to DOC's current execution protocol and other related documents by making a public information request. [d. <JI 2.2/ DOC provided some documents on April 6, 2005, but it denied significant portions of Evans's request and significantly redacted portions of the documents that it did provide. [d. <JI 4. Evans has been litigating before a state administrative law judge the DOC's refusal to grant full access to the requested materials. [d. <JI 4-6. Based on the documents that DOC did provide and other documents obtained by Evans, it appears that the DOC's protocol has been amended over the years, including two amendments within the three weeks preceding the June 2004 execution of Steven Oken. [d. <JI 4.3-1

1/ A copy of the Warrant of Execution is attached hereto as Tindall Dec!. Exhibit 1.

']j

See Letter from A. Stephen Hut, Jr. to Jean Goodman, dated March 7,2005, and attached hereto

as Tindall Decl. Exhibit 2.

2!

Defendants provided Plaintiff with two heavily redacted Execution Operations Manuals pursuant

to a request under the Maryland Public Information Act. One of these Manuals was dated June 14,

2004, and the other was dated May 26, 2004. See Tindall Decl. Exhibits 3, 4. Defendants executed

Steven Oken on June 17,2004, see Susan Levine, Maryland Executes Oken, WASH. POST, Jun. 18,2004.

In litigation between Defendants and Steven Oken, Defendants produced yet another version of the

Execution Operations Manual, dated April 1, 1994. See Tindall Decl. Exhibit 7.

3

After the execution of Wesley Baker in December 2005, Evans attempted again to obtain the most recent protocol by filing another public information request on December 20, 2005 ...±! As of the time of filing of this Memorandum, DOC had refused to produce a complete copy of the most current execution
protocol. [d. at 16.
Once DOC is subject to compulsory discovery in this litigation, Evans will be able to address in more detail the State's execution procedures. But based on the portions of the execution protocols that Evans has obtained - either directly from the DOC or from other sources - the basic outlines of the State's execution procedure are clear, and the chemicals Defendants have elected and the practices and procedures by which they are administered create a grave and serious risk that Evans will suffer an agonizing death.
DOC has elected to inject condemned inmates with a three-drug cocktail of sodium pentothal, pancuronium bromide, and potassium chloride. See Tindall Decl. Exh. 6. Sodium pentothal is an ultrashort-acting barbiturate, intended to induce general anesthesia. See Heath Decl. at 138 (attached hereto as Exhibit B). Particular skill is required to administer this drug to achieve this. [d. Because of complications associated with maintaining anesthesia with sodium pentothal, when a surgical plane of anesthesia must be maintained for more than a matter of moments, drugs other than sodium pentothal are usually employed for such purpose. [d. If sodium pentothal is used both to induce and maintain a surgical plane of anesthesia, a qualified person must be present to assure that the drug has been correctly administered and is maintaining a state of unconsciousness. [d. As described in more detail below,
'±! See Letter from A. Stephen Hut, Jr. to Frank Sizer, Jr., dated December 20,2005, and attached hereto as Tindall Decl. Exhibit 5.
4

without the proper administration of this anesthesia, the DOC's use of the other two drugs used in the three-drug cocktail would cause excruciating, torturous pain.
Based on the information that the State has provided, however, no qualified person is required to be on hand for lethal injections carried out by Defendants. [d. at <JI<JI 8,24-25. Nor does any person-let alone a qualified person-monitor the plane of anesthesia achieved by administering sodium pentothal during an execution. [d. at <JI 41.
The risk that an inmate subject to lethal injection as conducted by Defendants will be conscious during his or her execution-already significant due to the absence of qualified personnel to ensure that a surgical plane of anesthesia is achieved and maintained throughout the execution-is compounded by Defendant's apparent:
(1) failure to employ persons proficient in achieving intravenous ("IV") access, which requires skill; (2) failure to take into account any individualized facts that affect appropriate dosage, such as Evans's body weight and his individual sensitivity to or tolerance to Defendant's chemicals of choice; and (3) failure to prepare for the very real possibility that, due to Evans's previous intravenous drug use, DOC personnel will not be able to access a peripheral vein, necessitating either a surgical "cut-down," wherein a vein is exposed by incision or is catheterized, or the invasive and painful processes of inserting a percutaneous central line, which involves tunneling under the skin to reach the subc1avaian or central vein.
5

[d. at <J[ <J[ 6, 8. In short, the DOC's practices and procedures create a constitutionally unacceptable risk that Evans will not be properly anesthetized when Defendants inject him with the second and third chemicals in the three-drug cocktail: pancuronium bromide and potassium chloride.
Pancuronium bromide and potassium chloride are both "paralytic agents." [d. at <J[ 9, 18. While the Maryland lethal injection statute requires use of a "paralytic agent," Md. Code Ann., Corr. Servs. § 3-905, pancuronium bromide and postassium chloride create excruciatingly painful sensations when injected into insufficiently anesthetized persons. Heath Decl. <J[ 6,23,43.
Pancuronium bromide serves no medical function in Maryland executions. Its use makes a prisoner look serene because the prisoner's muscles cannot move or contract to show pain, suffering, or any emotion. [d. at <J[ 16. The paralysis induced by pancuronium bromide, however, will ultimately cause an intense, painful death by asphyxiation if the prisoner is not adequately anesthetized. [d. <J[ 17. Desperately straining to draw breath, but with no corresponding muscle response, an inmate would not be able to signal that he or she is awake and experiencing the agony ofsuffocation. [d. Death by asphyxiation as a method of execution has been ruled unconstitutional as violative of the Eighth Amendment.~
The lethal-injection process employed by Defendants dictates that potassium chloride-the third chemical injected during executions-will cause death before asphyxiation caused by pancuronium is complete. [d. at <J[ 9. While a certain level of potassium chloride is needed for normal cardiac electrical activity, the quantity of potassium chloride administered in executions causes death by stopping the heart. !d. at <J[ 11. Potassium chloride affects the nerve fibers lining the veins, and there is universal
See Fierro v. Gomez, 865 F. Supp. 1387, 1415 (N.D. Cal. 1994); Fierro v. Gomez, 77 F.3d 301, 309 (9th Cir. 1996); vacated on other grounds, Gomez v. Fierro, 519 U.S. 918 (1996).
6

medical agreement that its administration to an inadequately sedated person would be agonizingly painful. Id. In an inadequately sedated-yet paralyzed-inmate, administration of potassium chloride
would cause extreme and protracted pain and would be torturous. Id. at en 11-13.
The risk of inflicting severe and unnecessary terror, torture, and pain upon Evans is made more dire because the practices and policies Defendants have devised for his execution do not (1) include adequate directions for preparation of drugs and training of staff, (2) establish necessary safeguards regarding the manner in which the execution is to be carried out, (3) require participation of qualified personnel in performing critical tasks in the lethal-injection process, (4) provide for necessary supervision of personnel, and (5) establish appropriate criteria and standards that these personnel must
rely upon in exercising their discretion during the lethal injection process. Id. at en 6, 8 , 24, 26.
Moreover, Defendants have conceded maladministration of at least one lethal injection-that of Tyrone Gilliam in 1998.Q1 On its website, the Maryland Department of Public Safety and Correctional Services ("DPSCS") declares that its lethal-injection procedure "lasts about seven minutes.,,11 According to newspaper reports, however, Gilliam's execution took 23 minutes.~ (Indeed, only one of the five lethal injections conducted by Defendants since 1994 - that of Flint Gregory Hunt in 1997 - has been completed within 7 minutes.2!) Throughout Gilliam's execution, a primary IV line leaked and liquids pooled on the execution room floor. Tindall Decl. Exhibit 8.
See Oken v. Sizer, 321 F. Supp. 2d 658, 667 n.7 (D. Md. 2004). 11 See http://www.dpscs.state.md.us/publicinfo/capitalpunishmentlhistorical.shtml (last visited January 18, 2006).
Caitlin Francke, Gilliam Executedfor '88 Slaying, BALT. SUN, Nov. 17, 1998. 2! Paul W. Valentine, A LOOK AT . .. Executions, WASH. POST, Jul. 20, 1997 (execution of Flint Gregory Hunt); Julie Bykowicz, In 9 Minutes, Witnesses Watch Death Take Hold, BALT. SUN, Jun. 19, 2004 (execution of Steven Oken); Eric Rich and Daniel de Vise, Maryland Executes Woman's Killer,
7

Argument "The standard for preliminary injunctions is established ... by Blackwelder Furniture Co. v. Seilig Mfg. Co., 550 F.2d 189 (4th Cir. 1977)." Rum Creek Coal Sales, Inc. v. Caperton, 926 F.2d 353, 359 (4th Cir. 1991). Under Blackwelder, a District Court presented with a motion for preliminary injunction must consider: (1) "the likelihood of irreparable harm to the plaintiff' if the motion is denied, (2) "the likelihood of harm to the defendant" if the motion is granted, (3) "the likelihood that the plaintiff will succeed on the merits," and (4) "the public interest." Id. These considerations are not of equal weight. The balance of harms between the plaintiff and defendant is the "more important" consideration. Blackwelder, 550 F.2d at 196. "If that balance is struck in favor of plaintiff, it is enough that grave or serious questions are presented; and plaintiff need not show a likelihood of success." Id. A temporary restraining order is proper to maintain the status quo until the court can hold a hearing on the request for a preliminary injunction. For that reason, the Federal Rules focus the court's inquiry on whether "irreparable injury, loss, or damage will result to the applicant before the adverse party or that party's attorney may be heard in opposition." Fed. R. Civ. P. 65(b).101 Evans satisfies the requirements for both a temporary restraining order and a preliminary injunction. First, in the absence of an injunction, Evans would obviously, and necessarily, suffer the most severe form of irreparable harm-he will be executed pursuant to practices and procedures which create a grave and unnecessary risk that he will suffer excruciating pain during his lethal injection. See
WASH. POST, Dec. 6, 2005 (execution of Wesley Baker); Paul W. Valentine, Execution of Thanos Went "Like Clockwork," WASH. POST, May 18, 1994. 101 See Charles Alan Wright et aI., llA Federal Practice and Procedure § 2951, at 256-57 (1995); see also Univ. of Texas v. Camenisch, 451 U.S. 390, 395 (1981) (court must consider factors in light of purpose of preliminary injunctive relief, which is to preserve status quo until final merits can be considered).
8

Wainwright v. Booker, 473 U.S. 935 n.1 (1985) ("irreparable harm" is "necessarily present in capital cases"). Second, preliminary relief causes minimal-if any-harm to the Defendants. They remain free to execute Evans in compliance with Maryland's lethal-injection statute, Md. Code Ann., Corr. Servs. § 3-905. They must, simply, refrain from executing him in a manner that contravenes the dictates of the Eighth Amendment. Third, because the patent, severe, and irreparable harm that Evans "necessarily" faces outweighs any harm to the Defendants, Evans need only show that "grave or serious questions" are presented in this litigation, Blackwelder, 550 F.2d at 196. The arbitrary and unnecessary risk of an excruciatingly painful execution amounting to cruel and unusual punishment, detailed below, certainly presents such questions. Finally, a preliminary injunction will further the public's interest in insuring that executions carried out in its name comport with the dignity of humankind enshrined in the Eighth Amendment.
I. THE BALANCE OF HARMS FAVORS EVANS. Comparing the likelihood of irreparable harm to Evans if interim relief is not granted to any
harm that interim relief might cause Defendants leads to the inescapable conclusion that the balance of harms weighs heavily in Evans's favor. As the Supreme Court of the United States has recognized, "irreparable harm" is "necessarily present in capital cases." See Wainwright, 473 U.S. at 935 n.l. If preliminary relief is not granted, Evans will be executed and no court will consider the merits of his claims. Furthermore, Evans will be executed pursuant to practices and procedures that pose a substantial risk of causing him excruciating pain and suffering, in violation of the Eighth and Fourteenth Amendments.
Defendants, on the other hand will suffer no meaningful harm. The preliminary injunction Evans seeks does not implicate Defendants' ability to execute Evans in accordance with Maryland's lethal
9

injection statute, Md. Code Ann., Corr. Servs. § 3-905. Practices and procedures for execution, which comply with the Maryland statute and the dictates of the Eighth and Fourteenth Amendments, are inexpensive and are available to Defendants.
II. EVANS PRESENTS "GRAVE OR SERIOUS" QUESTIONS REGARDING THE CONSTITUTIONALITY OF DOC'S EXECUTION PRACTICES AND PROCEDURES. "Because the death penalty is the most severe punishment, the Eighth Amendment applies to it
with special force." Roper v. Simmons, 125 S. Ct. 1183, 1194 (2005). In assessing the Amendment's application, the Supreme Court has recognized that its prohibition on "cruel and unusual punishment" is "not precise" and its "scope is not static." Trap v. Dulles, 356 U.S. 86, 100-01 (1958). Rather, "[t]he Amendment embodies broad and idealistic concepts of dignity, civilized standards, humanity, and decency ... against which [a court] must evaluate penal measures." Estelle v. Gamble, 429 U.S. 97, 102 (1976) (internal quotations and citations omitted). Thus, the Court has "held repugnant to the Eighth Amendment punishments which are incompatible with the evolving standards of decency that mark the progress of a maturing society ... , or which involve the unnecessary and wanton infliction of pain." [d. at 102-03 (internal quotations and citations omitted). In the context of capital punishment, these precepts apply to prohibit "something more than the mere extinguishment of life." Weems v. United States, 217 U.S. 349, 370-71 (1910).
Evans does not herein assert that either the death penalty or lethal injection generally violates "evolving standards of decency that mark the progress of a maturing society." In theory, lethal injection-a pinprick, followed rapidly by unconsciousness and painless death-could comport with the "dignity, civilized standards, humanity, and decency ... against which [a court] must evaluate penal
10

measures." Estelle, 429 U.S. at 102. But Defendants' ability to effect a death without unnecessary and wanton pain is seriously in doubt.
The practices and procedures employed by Defendants in the lethal injection of condemned inmates purport to cause quick and painless death. In reality, however, as the attached declaration of Dr. Mark Heath, an expert in Anesthesiology, clearly shows, the chemicals selected, the haphazard and needlessly complicated procedures employed, the absence of properly credentialed personnel and medically necessary equipment, and the failure to plan for inevitable obstacles in the lethal injection of condemned inmates, among other deficiencies, create a grave-and most importantly, unconstitutional-risk that lethal injections in Maryland will involve agonizing and wholly unnecessary pain. Should Defendants execute Evans pursuant to these practices and procedures, they unnecessarily risk botching his execution-as they botched Gilliam's-and causing an insufficiently anesthetized man to experience the excruciating pain associated with the chemicals they have arbitrarily chosen to effect death. Furthermore, as detailed in the newspaper articles cited in Paragraph 36 of Evans's Complaint in this action, maladministration of lethal injection executions throughout the Nation is not uncommon, and there is no reason to believe, given the Gilliam execution and the insufficient standards described above, that the DOC is more competent than these other States.
Indeed, the drugs selected and practices and procedures employed by DOC in executing deathsentenced inmates do not even comport with prevailing standards for the euthanasia of animals. The American Veterinary Medical Association ("AVMA") Panel on Euthanasia has banned the use of neuromuscular blocking agents - such as pancuronium bromide alongside a general anesthetic, such as sodium pentothal. See Tindall Decl. Ex. 9 at 680. The State of Maryland has legislated its own ban to this effect. Md. Code Ann., Criminal Law, § 10-611. And while the AVMA does permit the use of
11

potassium chloride in animal euthanasia, it is only acceptable when a surgical plane of anesthesia is achieved and maintained by adequately trained personnel. Tindall Decl. Ex. 9 at 680-81. Surely, standards considered inhumane in the lethal injection of animals cannot comport with "evolving standards of decency" for the execution of human beings.
Courts applying the general principles of the Eighth Amendment to the practices a.l1d procedures involved in a particular execution protocol have focused on the amount of pain the inmate suffers and the speed with which unconsciousness is accomplished. See Campbell v. Wood, 18 F.3d 662, 684 (9th Cir. 1994) (execution by hanging constitutional where practices and procedures employed by State were designed such that "unconsciousness will be rapid and death comparatively painless"); Fierro v. Gomez, 77 F.3d 301,308 (9th Cir.) (execution by lethal gas violates Eighth and Fourteenth Amendments where "an inmate probably remains conscious anywhere from 15 seconds to one minute" and suffers "intense, visceral pain, primarily as a result of lack of oxygen to the cells"), vacated on other grounds, Gomez v. Fierro, 519 u.S. 918 (1996). The practices and procedures employed by Defendants create a grave risk that Evans will never be sufficiently anesthetized, or will regain consciousness at some point during his lethal injection, and will thus experience some combination of the fiery sensation of potassium chloride as it travels through his veins, cardiac arrest, and/or the intense, visceral pain associated with asphyxiation. As demonstrated by the execution of Tyrone Gilliam, this experience could last as long as 23 minutes. Paralyzed, Evans would appear serene, but in reality, he would suffer a torturous death. This the Eighth and Fourteenth Amendments do not countenance.
The foregoing establishes a likelihood that Evans will prevail on the merits of his constitutional claims. But Evans need not show even this much. As demonstrated above, the balance of harms associated with preliminary relief tips in Evans's favor. As a result, he need only raise "grave or serious
12

questions." Blackwelder, 550 F.2d at 196. The practices and procedures employed by Defendants in the lethal injection of condemned inmates raise "grave or serious questions," without a doubt. III. THE PUBLIC INTEREST WILL BE FURTHERED BY PRELIMINARY RELIEF.
The DPSCS website advertises a quick and painless death for condemned inmates: "The procedure lasts about seven minutes. The worst physical pain being the prick of a needle."llI Presumably, this advertisement signifies a perceived duty on the part of the Defendants to carry out executions that are not unnecessarily lengthy or painful-in other words, executions that comport with the requirements of the Eighth Amendment. The public has an acute interest in ensuring that Defendants fulfill this duty. That interest will be served by issuance of preliminary relief so that Evans's claims may be adequately tested, and his execution by practices and procedures that unnecessarily and arbitrarily risk agonizing pain prevented.
Conclusion For the foregoing reasons, Plaintiff Vemon Evans's application for a temporary restraining order and motion for preliminary injunction should be granted.
See http://www.dpscs.state.md.us/publicinfo/capitalpunishmentlhistorical.shtml (last visited January 18,2006).
13

•
Dated: January 20,2006

Respectfully submitted,
, oole (Bar No. 03436) J ie letrich O'TOOLE, ROTHWELL, NASSAU & STEINBACH 1350 Connecticut Avenue, N.W., Suite 200 Washington, D.C. 20036 (202) 775-1550 otoole@otrons.com dietrich@otrons.com
A. Stephen Hut., Jf. Todd Zubler Kalea Seitz Clark Anne Harden Tindall
WILMER CUTLER PICKERING HALE AND DORR LLP
2445 M Street, N.W. Washington, D.C. 20037 (202) 663-6000 (phone) (202) 663-6363 (fax) stephen.hut@wilmerhale.com todd.zubler@wilmerhale.com kalea.clark@wilmerhale.com anne.tindall@wilmerhale.com
Counselfor Defendant Vernon Evans, Jr.

14

CERTIFICATE OF SERVICE
I hereby certify that on this 20th day of January 2006, I caused a copy of the foregoing
pleading to be delivered by first-class mail to the Defendants at the following addresses:
MARY ANN SAAR, Secretary Department of Public Safety and Correctional Services 300 East Joppa Road Suite 2000 Towson, Maryland 21286
FRANK C. SIZER, JR., Commissioner Maryland Division of Correction 6776 Reisterstown Road Baltimore, Maryland 21215
LEHRMAN DOTSON, Warden Maryland Correctional Adjustment Center 401 East Madison Street Baltimore, Maryland 21202
GARY HORNBAKER, Warden Metropolitan Transition Center 954 Forrest Street Baltimore, Maryland 21202
and to be served by hand delivery to the following:
J. Joseph Curran, Jr. Attorney General Office of the Attorney General 200 St. Paul Place Baltimore, MD 21202

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

VERNON EVANS, JR.,

*

DOC Number 172357

Maryland Correctional Adjustment Center *

410 East Madison Street

Baltimore, Maryland 21202

*

Plaintiff,

*

v.

*

MARY ANN SAAR, Secretary,

*

Department of Public Safety and

Correctional Services

*

300 East Joppa Road

Suite 2000

*

Towson, Maryland 21286;

*
FRANK C. SIZER, JR., Commissioner,

Maryland Division of Correction

*

6776 Reisterstown Road

Baltimore, Maryland 21215;

*

LEHRMAN DOTSON, Warden,

*

Maryland Correctional Adjustment Center

401 East Madison StreeL_ _~~~~~~

*

Baltimore, Maryland 21202

*
GARY HORNBAKER, Warden,

Metropolitan Transition Center

*

954 Forrest Street

Baltimore, Maryland 21202

*

and,

*

JOHN DOES,

*,

Civil Action No. 06-149

Defendants.

*

******
DECLARATION OF ANNE HARDEN TINDALL

I, Anne Harden Tindall, declare as follows:

1. I am an associate at the law firm of Wilmer Cutler Pickering Hale and Dorr LLP, attorneys of record for Vernon Evans, Jr., in the above-captioned matter. I am licensed to practice law in the State of North Carolina and the District of Columbia. I am familiar with the facts set forth herein, and if called as a witness, I could and would testify to those facts under oath.
2. On March 7, 2005, my colleague, A. Stephen Hut, Jr., a partner at the law firm of Wilmer Culter Pickering Hale and Dorr LLP, sent a letter to Jean Goodman, Secretary of the Maryland Department of Public Safety and Correctional Services ("DPSCS"), requesting access to certain records concerning lethal injection practices and procedures in Maryland pursuant to the Maryland Public Information Act ("MPIA"), State Government Article, §§ 10-611 to 628. Among the records requested were (1) documents describing the past and current procedures of the Maryland Division of Corrections ("DOC") for lethal injection; (2) past and current regulations governing lethal injections; (3) documents reflecting revisions to execution procedures; (4) documents related to the drugs used in lethal injections and their administration; (5) records related to equipment used in lethal injections; and (6) notes, reports, statements, photographs, scientific reports, physical evidence, witness interviews, and other documents prepared in connection with actual executions.
3. Ms. Goodman forwarded Mr. Hut's March 7,2005, letter to Frank Sizer, Jr., Commissioner of DOC, as Commissioner Sizer is the custodian of the requested records.
4. On April 6, 2005, Commissioner Sizer responded to Mr. Hut's letter, granting in part and denying in part Mr. Hut's request for access to records concerning lethal injection. The records released included:
(a) an "Execution Operations Manual," dated June 14,2004, with nine pages redacted from sections of the manual addressing actions taken "Four Days prior to Execution WeeR" through "When the execution is completed";
(b) an "Execution Operations Manual," dated May 26, 2004, with nine pages redacted from sections of the manual addressing actions taken "Four Days prior to Execution Week" through "When the execution is completed";
(c) three "Lethal Injection Execution Logs" from the execution of Mr. Gilliam;
(d) the execution warrant for Mr. Oken;
(e) "Execution Reminders," sent via email, concerning the lethal injection of Mr. Oken;
(e) what appear to be three complete "Lethal Injection Execution Logs" from the execution of Mr. Oken, but the three documents bear different dates;
(f) four draft "New Releases" concerning Mr. Oken's execution;
(g) "IV Injection TraininglPractice Records";

(h) an article printed from the website www.sunspot.netconcerning Governor Ehrlich's lifting of the moratorium on executions imposed by Governor Glendening;
(i) the Warden's report on Mr. Oken's execution;
G) a "Summary Report" from a Technical Assistance visit by Maryland officials to "Oklahoma's execution-related staff' sponsored by the National Institute of Corrections;
(k) Directives concerning the death penalty issued by the Division of Corrections on September 15, 1998;
(1) Directives concerning the death penalty issued by the Division of Corrections on January 25,2000; and,
(m) Directives concerning the death penalty issued by the Division of Corrections on January 20,2004.
4. On May 5, 2005, Mr. Hut sent a letter to Commissioner Sizer requesting administrative review of the Commissioner's complete denial of access to some records and his substantial redactions of the records that were released. By letter dated June 17,2005, Commissioner Sizer delegated the matter to the Maryland Office of Administrative Hearings ("OAH") for an evidentiary hearing. That hearing is currently scheduled for January 24,2006.
5. On December 20,2005, after the execution of Wesley Baker, Mr. Hut sent a supplementary MPIA request to Commissioner Sizer, renewing the March 7, 2005 request as to any such records pertaining to the execution of Wesley Baker and clarifying that the request ________ . included autops)',. toxicology,_audsceneinvestigatiQI1I.ePQrts.uuQn theusameud~y. Mr.Jillt sellt an MPIA request to the Office of the Chief Medical Examiner of Maryland, requesting documents related to lethal injections, including autopsy, toxicology, and scene investigation reports. Neither Commissioner Sizer nor the Office of the Chief Medical Examiner has responded to these requests.
6. To date, DOC has not provided Evans with a complete copy of its Execution Operations Manual, or with other documents related to lethal injections included in Mr. Hut's MPIA requests, and it continues to contest release of those records in the OAH proceedings.
7. Attached as Exhibit 1 to this Declaration is a true and correct copy of the Warrant of Execution signed on January 9,2006, by Baltimore County Circuit Judge John G. Turnbull II setting Evans's execution for the week of February 6, 2006.
8. Attached as Exhibit 2 to this Declaration is a true and correct copy of the letter from A. Stephen Hut, Jr. to Jean Goodman, dated March 7,2005, containing a public information request seeking access to records related to lethal injection.

9. Attached as Exhibit 3 to this Declaration is a true and correct copy of the heavily redacted copy of an Execution Operations Manual, dated June 14,2004, provided to Mr. Hut in response to his public information request.
10. Attached as Exhibit 4 to this Declaration is a true and correct copy of the heavily redacted copy of an Execution Operations Manual, dated May 26, 2004, provided to Mr. Hut in response to his public information request.
11. Attached as Exhibit 5 to this Declaration is a true and correct copy of the letter from A. Stephen Hut, Jr. to Frank Sizer dated December 20,2005, supplementing Mr. Hut's original public information request to include records related to the December 2005 execution of Wesley Baker.
12. Attached as Exhibit 6 to this Declaration is a true and correct copy of a document entitled "Lethal Injection Checklist," identical copies of which were appended to both Execution Operations Manuals supplied to Mr. Hut in response to his public information request.
13. Attached as Exhibit 7 to this Declaration is a true and correct copy of the heavily redacted copy of an Execution Operations Manual, dated April 1, 1994, produced by Defendants in litigation with Steven Oken in the Circuit Court for Baltimore County.
14. Attached as Exhibit 8 to this Declaration is a true and correct copy of the affidavit of Jerome H. Nickerson, produced in litigation between Defendants and Mr. Oken in the Circuit Court for Baltimore County, describing problems encountered in the execution of Tyrone Gilliam and Defendants' response to those problems.
14. Attached as Exhibit 9 to this Declaration is a true and correct copy of the 2000 Report of the American Veterinary Medical Association Panel on Euthanasia.
I declare under penalty of perjury that the foregoing is true and correct.
Executed on January 20,2006.

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.

".

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....... -~-:::~:.;~~*~:~: r.

~".'
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nn:J.ODliCTION·

~ ., . ' .... ~' '.

. '="'-=-='. ,_:~.:..:..:.-': :'-'..•. ~ ; ,~~: ~.:;~:-;.-~'.:. ,'_~.-:-: ....:\~~, -:;~~:~.~:,.,.:..;.~~it~~~~~~.:

'. 'In aycordanee with JlC1).~{1:Q-2{Refe.r '~o .App~d.ix· til this-- ~,:,~,:"" ......

Division of Correction manual,.; shall serve as.9U1de-l1neS'. for·the Commissioner of correetion's:. de~~:gnae,thiWarc1en:·o.f ,'!:lie.' 'Maryland Penitentiary, . and. any o'ther ,perso1Ul.6L assistinv, ·':'tCr.:en.sura~the..· '. ',_~H-;-: :.!:::".

t:>erformance o administerinq

f an of a.

elfeft:1h:ca1ie. nqtaas'nodrsluectcbeaslsful.1njeecxreecioUnti:wonbe-nb

y' :the·' ... Qrdered

to

do to

so' by a court. in the
estahlish procedures

St
fo

a
r

te o 'the

fcMa.raerYalnandd.t.re.a!~t.e. insta.losfo:i.'ri:nuateatn:edsed

sentenced to·suffer dea.th from the~ime a,warraatof execution.ie ,

. receiV'ed: 'thrOugh exe.cution. . :In' add:ie.ion,~·thiS' matiual identifies,'· ::::'.:..~f:/;:.

staff:. respons.lbilities, pur:suant i:.O. prepara.tiou and impJ.em~tation, . ,;:-:":.~::;;;. :

of the. axecu'tion process, including. bu~ not liml.ted to the. . , '~'.' "

operation of the death chamb~r.

.

. .

.

Article· 27. sec~ions 71 - 79 of the. Annotated Cod& of'

MarlLand (ACM) cover ~he requir~ments relate~ to the imposition

.Q.~-.,..-....h..~..D~!i.!=.'D. "_.ena.l't-:-t ,(.R.e_f;e.r .....0.,APPe.l.1.~...: ~••.. k&2.J'....;:'..,....•. .....: .•• ._........ : ..• '...'.;.,._.

. ·In accordance wim Ar1:icle.- 7.7, ,Sec:cion 71 (A.CM) ~ .offenders. :

sentenced. 1::0· suffer death, by a. cou-rt: ,in. the State. of Maryland' ..

shall. suffer: 'death by t:he, adm.1n1.sterillc;: of. l.ethal inj ec.C1on, .'

. Wll:e:ss- that .person. haS'. e-lec::t:ed, . in. wr1.tinq pd.OI: to. May 2:0, 19-94,

to .be executed by lethal gas in' a.<:cordanct~ with Article- 2.7,

Section 627 {ACM}. '

.

. In accordance with Article 211 Section 72 (ACK), the.

Commissioner or COrrection shall provide a'suitable· and efficte~

room or place in which executionS'may be carr1ea.out tha.t is .

enclosed from public view. This room of place sha.:ll have. all the-

necessary appliances for ~he ~roper execution of falons ~v the

adntinistering of a le'thal ·ga.s- or lethal injection.

-.. .

.......... '"

,'.

• 4

••

Revised 4/1/94 ,

......
. '.

, '.

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-- -..- ------.-
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'." '.

-,

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.. '

•., ..;, !', ';-' llEA.'r'.W·BoU82'.. " ~ ,

....':. :

-,... -";.A...;..!'-.....

,

•

.o ••

.. ..... ~

e. :_ . . .

. . The: Commis'sipner of corredtionhas' de.si;inate4 .the Maryland ·-p~i.tent1.a....-y as: ,til.eplace. in' wp.ielI.dL·'eXeoi~ions orde.re.d: by' a: '..
court:: in the Sta:t.e of: Ha..-YUuid are: .;arr~e.c:t out~' T'ne.·- area so' d~s1g,o.ated. shall be mown. as the'Deai::h House .. The. Death .Hous.e. i.s
locat:ee:,CI,t:: '!:he we-st ,enl5., cf;.";:he. second.' £100:- 0:' the M~ryland .
penitentiary Hospital (aef$r to Appendix.*3)~

The- Oe.a;cb: HOUS'a- includes-.' a:: hoUJ;;inq- unit::with .'four' cell's ~. each, g feet:. ~. inches' ,100.q and ,1 feet 6 :!.nches w1de. Each cell-
ba.s ci wi~dow wi'i:h a. heavy. secur:f,€y- screen and· is' ,equipped With: a' .oed.; -toile":: and siilk wi'th hot and cold. =rinninq water. .An officer sta.tLon ane. shower is located. :l..n this area.

!.t u:;-o include~ So se.parata a::e.a known as ~e Deati::: Chambe.r.

The neath Chamher'~S divided into ~wo se~arata execu~ion are~s .
.' orie":- is:- kn.owii-'as the r.e\:bal. '!;nfeciion 'oamoer' area" !t' cons:ts1:$.' (Jf-'-'" ... , '''',,'

a witness r~om, a ~hemical. room~a s~ora~ room·and £ tethal

In.jecti.on roqm. The ·oi:.her is: known as the. Gas ChaJDber are.a. It"

consiS"tS' o.!· a If'itness. :;:OODt, a c$.emica.l x:oom, an ol?~ra..t1on6' room.. :

~ ~Gas' Chamber.

--

"

Revised. 4/1/94
...

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.as/as/2884 12: 27
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,

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PAGE 86

--

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R:E~sm::tr.rn:ls'

.....

'. '.

." , .' : .' .. :.'f.... : ':,:"-:, " '-.: ,'. ':-' ." ::.~>' :~:-;7,~~:?~J/-:::,,·:~;ili~:

A: ", ~'Tn,e': !cOimt1ss1oner-o'r-CO~~ctf6il:~8:l:1;i"1i€'respoiisi:bt'&~afr:"-":':"'''"':::':;;:~' , designating a person to supervise the executioll. The' ' , . , .";'....

the COllllltissioner's desil.;rnee shall be 1cn0Wll as- ·t:he Execution'
··o.:.tn1I1an.der•. He. sb.a~l be ass-isted by. , warden·, ~a.-rylend psnltentiary.' The EX&cut'ion cciiamandet:"sha:ll:: be- responsible'
for the overall operaei~ qf ~h1s procedure.

.
':- ~';::-,--:'r:­

'!'h~ Assistant'Wax:dent Ka.ryj;and·'Pen±'Centicu:-f· is responsible f~r all a.d:ininistt'ative, ac;:ti.vi.t'ie.s and ot:h~l:' assiqnments

de1.egated-eo him/her ,i~; ~e...:~Ve:n't:_of-· a. scheduled exec:ut1oo..~

•••

.....

....

-

•

;. <

- ..... '

_.

•

•

.....

c. The se.curity -C"nie.i 'is- ill· charge:: of- the:· Death:; wa~ch. 1'eai and-

.. :--- ".

is' responsible for the:' security of the condeilned ilUllat.e and

security operAtions related to this procedure. .

n. The ASsistant i.i~i:dell, .Hc.ryl~d. Correctional Adjustment
~ . 'Ceut;er (KCAC) 1.S ·responswle-:for al~ inst:itutional . . .~ .,,' .OEecatio,JlS. dw:::inq, 'the·· .t1lll(~: an: execut:ion..iS' in, proqress:..~ and.~".
'will act 'as Officer in Charge-' (OIe) of the.· command.! Operations -Ce.nter.

£.. :. 'l'1ie- ASsistant Co~.i:ssion~~ I Field. Se.rvices', is responsible.
for tra.ining, audi.'Cs< and. insPE!<:t.ions; re-la;ted'to cha' .oeaeh .

: ..

'HOuse and itS' operaC:::ion.

-- -

Execution Team .eabars are ·res~nS'ible. for all operations,

e.quip'ment and sanitatioll rela.ted to- the· Death· House.. one.

member of' the Execution Team sbould' be- 'designated:. as' ',arc:-by

the Exectttion Commander. . . . .

'.,

-' . ,.."...-

G. The correctional Maintenance Team. shall be reSPOnsibie- for·
all maLTJ.tenance and repairs/and will assist iD: a11~ .

traini.nq,

au:.d. it's....

a

nd . ,.

i

n

spe

c

t

i O l. ..i...s..

related

to

'the Death H.o. u.se..

Revised. 4/t/94-

".
/ . ., . . .'
;; .

. ;

.,85/85/2884

"-" ,-_ .., .... - ...- - .. "'- .--.-.-----""~ ~ ....... - .~- - . - . - - - - - . - . - ~.*,-.-, " ~'-'-. -"-.--.~ ' - ' - -

12:27

PUELIC DEf"EMJ.l:R.

PAGE 07

.'
• - '! •
. '

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......

.
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PRE:-EXBct1'.nON PROCEDtrRES

.. - .f"'''''''- .-

...

...

~..

A. nec'tltion· dates are' se·t.1n accordance wit:b. t.he provis'ions

Artic.le 2.7, 5ect"i:on 1.S tACM).. once the date'· is .set the

Execution commander will conduct activities as listed in

this' Manual-In addition, specific activit:ie.s as li,sced

below·' shal~ be!nitia.t:ed~.

3.

upo- n:-R' ec..e....l, .'. pt ..o..f a" W~ ar.r-a-.n' t of .h. ecu1;iOll the Warnen' Shall:'·' , -:i

of 1.

"Initiate a' log in 'a bound'ledger for the purpose' of '..
loqginq all activities and act-ions related to the.

warrant .execution. and the implementation of the

d.eath penalty.
.

2.....:.-.,....::.T.he;- receipt

9f

the.

wc...n::a.n't:.:.

sha:l:1.,.•b
'.-

e

log,qed - immediatel.y. '.

"
3 •., The' warr&n'C shall be haud-ca.i-ti.ed· to the records

depa.rt'.lllent supeX'Visor .by- a member Qf~he, Warden.' s.

.. - Staff.

. .

a. The. records supe...rvisor ili"'arl prepare· a letter of acknowledqement to the· Governor's. Office for the. Warden's signature (Refer to Appendix. #4) •.

a. 'Copies of the letter of ackriowledge1llent shall he- .
sent to parties named in Den 110~2, Se~t1on VI B 2 h.

. ... -......
..... ".

. 4. 1:.f no stay. aceompan.ie.d the' warrant; the warden shall. personally nQtifYth~ inmat~ ~ha~ the'warrant~r execution' bas, been. received;. this~ shalL be.· done: at' a::. private mee.ting'in the presence o"t' at least one witnes.s (Refer to ~ppendix 14(a).

j.l c.

.I. n. 'l'he.-.B.'.V.eJ;l.t That

a: sea.y.-· o£ EXeeuttion:

: . . . .,:

.. ..... ~

is.

Not
'.. ........

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Revised 4/!/94-

' "

It;

..05/B5/2004 12:27 410-59B-2012

.. . . . . .. ,.......-- ••• - . - . - •• * •• --, -"

. . -, ----.~

PUBLIC riE:J:'E:NocR

PAGE: 89

"" . '\ -

. "'h~' exa.ct: date of the execution shall, be. Set by the

Executio,n ,Coupnander, in consultation' wi1;h the' .

collllllJ,.~sioner. rt shall be within the week -des1fJIlated iIi.:

the warrant, ' . ,

'.

.

:::,.: "

.' "" . :
2. -'!'he,. 't:iIle~ ofthe~'execut:'iQn shail'be- det:ermi.n.ed~.bT: the:' :-::.. :.:,~.~,. r··.·

'heCU1:-ion conuuander. . No announc9Il1en-e' of the- date.· or::' .'~~'::;-:~'~~':'-'

hour of'~ecution shall be Inade~ except: to' those· ' .

indivi.,d.uials jlerm.. ..i.t...t:e.d.'_ t: o"'.b...e. .

p

r

e. -

sen
. ~..

t

.

at

the"-execution',

.
)-::<

.,-~,.',:

D. .. ~ourteenDaYs l?1:'i:or, to Execut:i.on: week.

"

f ...

• .

. . ..

_.

•

.

- ...,

._

,

• 1.' The.:,Assf.s. .tanc."cO."..'.t.t~ris* sion':~ '''i'', ',J : ;1·!O'ield: Se&... icesI·sha_'I . .~.. -~,' :.-..:-:.__,. ~=:.::. ":~.-

• !' ~. ,_ ,- ..,.,-"i..,.. -:.-..."-.- :inspec.~,t:h.Q-.peathi Rou:ie?"":tn±1:'1:11:t"C'e':' t:ra-intIig:i·... t:ests- ·an'd:~·~~"

drU.J.;s and ensure "that persoD.Qe1.'" p:rocedu~es: and

'

.

'equip~eut are prepared for~he ex~cut1cin (Refer to

. . ~ "

Appendix' '5) '. ~ The, Assistant Commissioner 'shall,as~~st thE:: wardell t SA ~ecesS'at:Y1 . to' ensure- these::proC9dlir~sY ..

are- carried Ott\:':,

- ..

~ ,

The ASsistant: Warden, Harvl.and penitentiaryr shall be
responsible for obt:aining-~e.quired,peimits trom the.

Marvland Pepartment ot ~he· snvironment(Re.fer to ,

APpendix;l6) :' - .: :'-: ~':" ":: . -,... . ".. .:' .':'" .::.

.: ...

3. The;Ass1stant warde~,' MCACshall·dev~lov plans

associated with a command/operations center and contact

those necessary to staff that center. Each wil~ b~

required to develop speciaL'operating procedures for

their area of responsibil.ii:Y alld subnl1t them. to the

.,' .

ASsistant Col1Ul!i~sio!!er.l~ Fi~9.,-AA~1.c.e~ and the- ,W:~den/,

.' " -- - -:=-•.. fo:'::- review and' approval (Re'fe~ to" Appeildix~1). ,,- . '

4. The desisnated public tnformation of~icers.wiiLmeet

, wi-th. the, Governor' s: PraDs. secretary. to develop· media

procedures (Refer to sp~cial- .operating:- procedures, Uildel;

, Appendix ~8).

-~--

'

E. Sevei:l. Days PriQr to Bxecuti-on Week: 1. Non-contact visiting lIlilY b~ s,c~e~li!sd' ..Gln' a ,daily b~S'j,s~' .* • :..

a. A maxilll~ of two visits will be allowed p~~ ~ay,

not to exceed one hour each visit.

.

b . Regu.l~ :visits: wiD., be.- held between the h.ours of

. -l:O(}. p.ll'. and'T;Oo. p.m-" '.'

.

'.!

--:....;....... -;:-.

c. Attorney and clergy Visits shall be unlimitedl

-.

howeverI these: vi.sits shouId take. place between

. "

th~ hours: of- 9t~oo:.. a!. Dt"_ and:- 8:: 00· P ..It:. 'ttltleBS' ~

.: '"

, . ;-., .'. '417. '.' ,-,.' , "- approved;,a,s:,' a res~t; at:. spec1.a::I. r~est;·

~

~

. "

.Revised '!/1./9"4

.. -..
. ,

'.

.......

85/8512£184 12:27
•• ,..

418-508-2812

PAGE 89

2. ,All outgoing or i.ncoming .telep~on~ . c.all·i¢h~{l.l be' .

to . .: . -approve<l.. by Ule"Warden~ o~ his- d.es1c;p;t$.~ pt:ov~ded all . "/-~,,,~,
partie:;,. consent to rec.e.ipe 'Or the 'C;:a.ll ... Ail. parties· ~ ;~.

the: conversations shall be :i,nformed thatthilse calls ., .:' :-:'.'

lal\Y'ba subject to moni:tol:.:inq· and~recordiilr~t. ex~apt

:"--:':~;"":..

ca.lls t fl.\onitor

o or ed·• .

·:·f~:r·o·:.m..:.

.~e··inmate.t's
...:. " ." '.-.'"":,:::--"

a

t..t.o.-r.n~

ey will '''::,--

· ~

..n~o..t:-b::e:

::-..~':_",':L:-.'..:.:.;.;:;...:..~:._:.~,.;,..,.

F"... F-ive'. Days Prior t,o' EXecution.::Week.

.' 1.

The,. EXe~ll.tion. Team will. be se.lected by the· Executiott"~.

..~~~- ..
.' :-,,:'-":: ..

COJllJlander. This. squad' shall include: . :

. ' . ..,'.,:s,...

..~ ~.' . ~ ~.4'· . • . . . .

"".:.. :-:".. ...... .. .... ." -"..~:'" ..... :4.0: . '.~=-:. :~! .;::-~';_~~i.

.! :,:':": : ..., -:-~:.:.-:":. -8.,,!~ ~ J Th~' Assfsta.ntfiW<ri;de~;:..,-Maql:an!li~tenti.a~"':';t~~;'::"':-'; ~.

monitor the tei:ep.honelf' :1..11: the Dea.th House anc.t:to:,:" '.-" '. ;:.: .....

. a.ssist: in: the execut,1on process. :

.

.' . -,-wo (2.) :desic;jne:ted::·:6:a-ined o£fi-C&rs':-to o~rcite:: the-

;- .',

.Gas Chamber ARll Two ( i) designat'eQ tra.i.llec:l:

officers to -operate the LethaLInj'ection chamber.

TWo III alternates .ay be designateaat the

.discre~ion cf ens Warden.

_. .~
~

.

. -

:

..........0 ..

,

.

one' (1.)' desiqnateo: tira:1:ned: o££icer toconduet . '.; , '; .....;;i--:=:;.

recol:ci keeping.. and key- contl:O~ activities durinq:-··. : ~

the execution. .

.,- . .:::~_-::.

d. A three (3) officer escort team assigned to' escort
'!;he in.tnate. from. M. c:.A •.C'. Co the· Death House-, t:o:

conduc~ dea~kwat:ch activities, awi to move the

area,' condelUl.ed...inmat-e from the. Dea.th House·'hou$ing area

"'Co the ippr6priaeEi= e,xecutl.oD.·

depefufin~f'on:' . '.~,.

the met:hod oE .executiou..· :A£t:er the..· execution they will taka custody of the body from th~ Executibn . Team and eseorr i t to itsappropriate.des~ination.

-.':' ...
A two (2) officer tea.m~ -under the direction of ·the

.. .'~ .

Assistant: Warden,. M.C'.A,C" will be assigned 'to

.- ....

escort offie.1al w.1tnesses.

.

f. '!'he· warden., Maryl~d,peniten~i~, will des'ignate- :" . .-.;~~'?~"

any other suppo~t: staff deemed necessary by the· .

EXecution collU1tancier.

.

2.
:i.
'. .

Medical support staff for·the execution shall be designated by the Executioa Commande~.

bY"'. The JrKG'machine to be-:~ed dUriIiq.- the eXecution

• ...r . . . '4- \II ~

r,

....... ,

lethalqas' shall be inspected and calibrated.

.' .

'.

.- "

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.~ .

..95/05/2004 12:27 410-588-2912

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PAGE 10

. ,.5.' 7.

-Equipment t:~sts shallb~,coriduct:ed,~to .in~lude

eme~ency, qerier~~9rfphdnes:;'-and·;ariy~othe~ ~equiPll1ent to'

be utilized in theaccQmplisliiaent' <:jfth'e'e.xeClltion'

process."

. ' ....." ,;'" " ....

" , :'

The warden' shail.l flrie~ d::L sh:lft ~~luaiili~ts': and

_-,:. '"

depart:nleUe heads regaiding: ;he, eXeeu~1on: ::'only 'the :. :-:".' ::;;:-':-.

information necessarY for:t:he-safe'~ .·efficte.nt ,onera'tioti. .

of the institution 'shall.. be, 'shareCt Witb them.,' Under: no

c:;rcumstances sh'all 1:he. date; or'.t.U1e or any details of

execut:.ion he communicated to, thetn (Refer to Appendix ~

~9) •
Theiwarderi:

's~l~ r

i~~tt~~~n~ti:.n..b.-~aPi~~~~o~' t'har:

,~,

'.
'';~':;;-;~!o-

,shall be on dUty during'the period of execution ~d '

,

instruct this individu.a:1 of the duties of this position

(Refer' t:a .Ap~~nd1x ~10) ~ .....

: . ~,... :

The Assistant commis's±pnerl "Field Services, shall

conductar.'"l inspec'tion' of·tqe Death· aouse. housing unit,

witness area ~d chamber 'area.

.

8. , The- 'collUllissioner shall' idettt:.ffY6-. co 12 public .' wi;;jiesses. 'Peot:'llethat'-shoulCf"'be considered--for· .. selection may' be.' (Refer. to ~ppend.ii. ~ll): .

.... ...:..

a. ,publ'ic officials

b. Victim- family members c. Elected officiils

:-- -- .... - _." J'";. ~ __ ...
.

d. Any other-respectable citizen-of M~-yland in qood

s-.:andinq, ,that. has made,.~ _~eque-s,t;; ..in wri.t,ill9',

Media- rep~eseIIta~ve.s·

,.

.

G. Four Pays. rrior to Execution"Week.

The: Execution. commander shall. con~ct ~ meeting wi.th

all individuals who have sup€~1sory responsibilities

for activities assoCia.ted with -the execu:tion, including

those rela.ted to crowd control strategy.

.

.

.... .

....

~ .........

Z.' 'the Assistant Warde-n, Maryland Pe.tiiteutiary,. sball
check ,all outside telephone. tines in th~area.. Any

• deficiencies shall be reported for-immediate '

correctioJl.

3.

A notification list wilL be, established by tha

'

: ASSistant: Warden.z in.dividuals to be

Maryl:a.nd:.. notif'ied'

pe in

niten
tbe

tia
ev

ry-I
ent

. to or

'
s

ide ign

ntify ifican

t

~

.."."'...~

, ...............~.-:.

....
..

-~

lega~ chan- ge. T, he list shall. includ.e, at minimU1l:

.... ".

(a:)' qove1;:Dorf s:. office:

,.', '". ,'_

6/'t '{bJ -Secre~a.x:y ~f. P.:uhlie. 5afa~ and C$ectional.
Rarlsed. 4/1/94

k.-": •.

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PAGE 11

of' se~~ces,... . . " '
.' lei' .Coin.Di.1ss1one;r: ccrre<:tibtt"

Jd) ~arden .·of ·Marlle.ri4'pen~tentia'ry

;Cel Attorr}sy Generid·,r(:bf£;ce .....

. ......
·h . The:-.'·inalate. will' b~ ,re~~1ited' to1iipecify' fUneral.

'- .. ~." .l." ..

··a.rrarigemellt*~~·;:':' This'· Wilx.' be.~: o}Jt1l1~ed' ,by(:tlie-o-as~..:r9r,,-eci" .. - :. _"..i--:-- .

ChaplUn;'and submitted t:o.,th.e.'Wardeu,.s 'Office in

,,'"

: writ'ing- (Refer. to .A,ppenc:ti:x:'" t.t2:) ."

..

.. ~;~ ;

........ .('

..

.. ~.-

.. : t.' .. "'~"::" ... d,

5 . ,'J.'he EXecut1otl'l'.eam. shalt: ~Qnduct .a,;drlll 'in accordance.

.with ~J)eratinq pt'ocedures:iA Appendix :1.3, to ' .

. ..

. .. . . ... :...,. demons1:I:a:ce:;: their .readiness; to the:: Exeriution Commandez:•. -:-::--.. :;.::,_.,

- -:'<r''''':r1;'': ~~.-;~ 'l'ae:.-·ar±l;I~:sha1i:... inC'ltide-~l'J:~mpr. :i::Ir-'tba=.:e.xeC:urion,:, .•:,::"'::':";-; ::-':f..-i-.;~

... process· ',ea.ch. '

e'n,d''d,em" onStrat.e,

the

time

it:.

takes

to

com- ol.ete.·

..'.'

".-

~

.. 6._: .- '1!1:Ie: Ass.istant commis-sioner.~:~ fi~d S~rV!ce$ t. •shal~

inspect the command/operations center/as w~ll as the

'Death Sous~ honsing wiit, witness area arid cham,bE!r

area.

. ,

, .

'

E, Three Days prior to EXecution Week.

. 1.. Th~sxecution.commande~·shal~·des~gnate a custoay

supervisor to handca.rry a se~ledaI!.velope. marked

or. 'execution' pe·rsonal. and confldentia.~ couta:i.ning: ..iuform.ati,on. as. t:.o... ,

-::ha-' da-ce and time-'

io': . ". -' .: .... - '. -

........ -.

. '

.

a. The Governor's' office ..

•i::.. .'l'he- SecretL.-y. of Public.: safaty and Correct:.i.onal

',set'Vice.s

c. . The- Commis~ioner of Corre81!ion

2.. 'The: Execution. Commander sha11. inspect ·the- Death House
. houSing unit!, witne.sS! ~ea: and ~e-c:u.tion Ue!.S I and
ad.vise- the- Commissione:r 'of:' h. is fi' ndi. ngs'.. '.

.3. official witnesses shall be notified of their .selection

and will be required. to c;oQtplete <i. witn~sS'a91='eeinent

(Refer to Appendix 115) .....

' ,

. .,
4:,.' .' w,1.tness:- aP2~1cants not: 'ss'lected: 'wil:l De- notified '.' "

.:'. ;p......" ..... ~~ z·

accordingly (Refer' to- APP~d.iX . 1:'16) : . , .'

:- ..
'.'
'Revised 4/1:/94..
"
.' . ... ,;':.--. "-.. . ~ " -:.:.--.
~~!' ~~.. "--~ •• -

~ - . .. . .. .'.:':. ~

,
"..

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..

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.

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- ---- _ --~ ..... ..

........ ---~---.-.-...............

. . .. -'-~" ~-

'

PiJaLIC ~

PN£. 12

I. Two Days pri.or to. Execution. WeelC

.- ""f. ~ •

. -

1. A tra.ininq e5c~~cis~ldrll1will'be conduc·te.d.':· inClud~h~'" ~ - ., "

a Orillof' the eltecu.tion, and all related operational '.

proc·edure.s : . . . .

.

. - ..

-. .' . oversee-the:"t.t:a.fnin:q·:: •

• '

<

• •

:

".

: -

' •••

~:

•

, •

~

•

••

'.

.~.

-,-··!··2~~·· :T1i~-Exe'cutlou Coilma,nder'shill~

~ ' ! - '..

• . '. :-:-

.. '. "...•.• -

~ :. ... ..' ~ ....:..:(.. ..~~.~~.- ..
:'-':.7Z~:6': '':'!.~~'.~ ,::.:_.~-:.:.

. . - exercise/dr!l~ .~d ~spe.C1:. th~ ~Death ·~tJ.se .housing. 1.1Ilit, '~.: :. _. '-;-....::

wi.tness. a.rea. i;!.n",.exe,c:m'tion ·.areas: and: .advis~ th~: commi.ssI6iier.:: :-.;..,~.. ,. ::

of. his'. findings. ., ...'.

. ~ ,.'-

- . .' . . i·· ....· ,. : ....:,.

•. ........ : .,' - ., ....- '.;

. 3. Th~ ASsi~t~~~a~d~ri:>~iaticL l!enitenti~ri, ~sh~i ·~~st::..~:~~~:'.

.

. all telephones ·1n~the·-!)ei:·th:Ho1ise::.-:.~··.~·.:~· !-::,~••::.-:s.'~" ;--=::::.-:-'>:-.-'..-:-::~·::7.·.'..71~.·

•'"::-::":' 4.L."~."!':.:::"'''''. ~ •:.:-".~\~7~~:t.,:"-:f~"';'''·~: -~ ..,.-=~;.~.:~>·~.::,·~--:::t';'~'~#~~=:'::~",:~··~:.7"- ~~.::.:. v , -. tr~;~.

'. 4;', . Equipment' tests s)J.a!l be conducted. i

-. .

....

,"

5. The' Warden- s~a11 ne'· br(~£ed:'af" the' rasultj:;:of;: Items !1,

. "3,-'and 4;' t.n order t:haf::a:ll: defici.enci-eS"" rOmia::' can: ·be"

corrected immediately\',

.. ~ . : .:'

;;. one Day Prior to ~cl,1tion. .

1. The Warden·siiall personally cast. ail telep~one$.l.n the

Death House and' bri'ef 'the- Execution COQUllander:.

I ~

•

..

..

•

z. An inspection will be 'conducted of.ali ~afety .

e.qUipJllent.

....".t

The witness st:.a~f!.ng.area:·will. be. identified by "the

tin fa: tocated'.: Asais~ant Comn1ssione~i, Field serv-ices •.

...

: .

........... .'.

• ~ ~ '4'.: .... 'Th~' witness ~ ~d sr. 'a~~a:;' ~h±ch.

'. . au,' the: ·~irst·

fl.oor of· .the. Maryland: Peni.tentiar-f Hospital, shall De .

set.. up·by·t;he Assis.tant warden, M.e.A.C.

.

.to 5. Parsonnel .as.s·i9l1ed.· th~ execution. team; sba-ll inspec'C: and,1:2st all lIledical related-eq1l1pmeJl1: and sublllit; a.' report of the1.r £ind.in.gs to the Execution cOmmande~.

6.- FUneral orbody'disposLtion arrangement~ are: confi~ed

'by the Assistant: Warden, Maryland.' ?eni'tentiary (ltefer

to A.,opendix 1'17).

. .

.-

.

1. ~he Execution Co~ander may conduct separate s~CUrity ..

hriefings, to include th~'Exeeution Team, all.support

. Peraonnel/d~si9hated. Division. of. Cor;x:~tion.. .

.tfeadqtia.ct.er.' s.. personI\el:',.--a.t1d'. any: other,personnel deeilled~: ....;:, ..~..~.:.: '

n¢cessary (Refer to ~Appendl.lt ·*t9'). .

.

...

'.~

.. -......

....

.- ..

- - 0 . . . . . . ;
... -:....... ....

. '. "

r ,... : "_

. ' 0,..
. -.......... "..

85/65/20e4 ·12:27
."

418-588-2812

PlJ6lIC DEFENDER

PAGE 13

.8',

.1he Ass'ist
estah~ish

an:t W'ardt!n 4 M c:oinmuntcattc:m

artland lines

'

, Pen witb

iten
the

tiary. Gover

s n6

h r:

al ' S

l

Office' and· sUbti;it: a:,W"ritt:enbr1erinq \:0 t'.he Warden

(Refer: to Appe.tidilc:· il a ) .

. :'9'::-';-- . -.Th~'·-E~~~tf~~;:-~6uande~':-shitii ~'cond~e't"-an::'inspec:ti~n ~~-"':~:~ ,':,~; :';".

. " 'If ••

, .the De~th ,House ~ou.sing- unit:; 'witness areal and chatuber

. ;. area. a. O

.

:

•

•

;..~ 0" _ . ; - . :..

...

..r •

-. : ••:...... : .'

10. .All; of the inmat&'.5': personal. proper.ty, fii.th. the, '-.

. ,

elC(:!apt:ion o,f legal. lIiataria:l, shall he:· inventoried. by'

'.

• - _.' :,,;. ", . s1::.rl1;' 1.n.. the·p.resen<:e, of' '1:11e- .inma:t:e:;:=' 't'he.:.:inml!l:te··shalI.: -:.,.. ::,..#~:,,:.:.

me _., " ........ '1 :"~_:-~:~":"~~;" :"=±dedgna.:1:'&/-,:,hr wrt.t:tng';--wtIar:d±SpaS'±tr±OiIi-±~;heelnade.C-~':":==:-:-~~~:,

.

' of this' property..:' 'Propercy shall' be.-.-seal"ed· in'

':9rege~Ce of·the inma1:e and stored 'in the designat:ed

.. :.:. .....
'K.

. ' area unt:il.d.ispos1tion is made. .' .' '. .

" . '," ". -" ......

.. _. ....; ".. ," :~...:..'. '''. : ....... :~ .~ ...: ..~ ......:- ... '-" .... =..::;:......: ...'"~:~ .... ~ ..

,Eiqht·

!lours-

Priot'·

to
.)

.the:D~.4i. J11ated-.

Exec:ut:ion:

T~e

.

.... " ".l.:

J"

.- 00:" '".

.,,,~

1. '!!h.e Execution cOlll1lander shall me..1;:s an inspec:::1on of the Dea'tA Eou.se. housin~ a~e2., wi1::nes!' C!l"'aa and chamber area.

cne 2.. ' Tha: ASS.t,s."i:.an.t:.,war.den:,. MCAC., shall ;s~1.ish, a. COIUliald/

Opera~ion~ center'to be located at

Maryland: '

Penitentiary Eospital in the adminis~rative area

located on :::he east. end of the se(:!ond floor. 'The

Cen1;:er shall be 'equipped with telephones ana

.

institutional tadiosin order tha~ p~ope= c~mmunica~ion

.. . - - can be m.ai.."'lt.ained._ The Comm.and/ope!."ation.s Can':e::- shall _.:- -":- ...... ,-be. staf~ed, :!.n' ac:c:ot-di.u:c-ti with 'Appendix '~7 ~ . .. "

.

,

This command cet!.ter shall be responsible :for the'

operatio~,and no~i~orinq ~~,th& ins~itut:ion d~~~ th~

pe::('iQd, ~ ~ecUt1oU'. an4.,foi: coo1:'d.ina:d.on. Wi.th.: :the-

~~cll'tion Commander, W~den ana"" supervisors .in the

Death Housa.

. .. !.~
'. _.:,
. '" ~ ....
"

rnstitutional ?Graonnel in the Command/ope~ation~

Center- sha:ll respond- to' ehe needs' of the. insti~tioII.

Non~instit~:::ional personneL $ay be requested to perfo~

support services. if needed, in appropriate ar.eas of

expertise.

-

......

~... ::.-

"

_;.:. . . . 3.' _'rt1e: only s'ta:ff.. permitted i.n. the Death.. Kouse, hou.::.-iil.g, . .. ,,'bareea.:.;' wi'tho. ut ap.p. rov:al". ,of. 't:h,e:.'...!:xecuti'on. :.. c.omaande.t::" "-.'sb'.-a:l.'l.

, ~~4:~:
,

a. ·commissioner of COrr&ct1on

aerts.~'~~~/~' "~J~'" . . b _. .··Wat:den" ,Maryland::' peniten.tiary -: .. ,'.' . , .' e-:, 'ASsistant Wardet;:, Maql.and: P~t~ary' .. . •

"

, ,..........-
'-

'. _ ,', l -.

...

..' " ~

.

, ~_~~ _

" ••~; .. '''~::;"_•• ,_.

. ;"
: • ..,11 . . . .

. 05/6512004 12: 27
.-'

41£1-508-2912

PUBLIC .llEFENl':ER

pA(t: 14
...

I ............. -: ~ ... .....
- ,; . .... .

_ d. c;b.,ief ~f sec::ud.ty, Mariland Penitent:i~

e. Chapra,in'

.

,'.

Qeath wa~ch'S~pervis~

g. 9f-fic'ers assigned' 1:.0 "Dost _ ~.

.,

.. ".

n . .r..ssist'aJ1t CcUissioner t Field serVic.es' ~. ' . '-: ;-'~. -.":.. ";':'"

. ,-_'. L _: , Desi.gnated:ll1autenancQ. ·t)etsolineL":'':''rl..;.;;t?;~ -:~ ::..;.~~~-:: ....;~ ,.::-.:::.;~ -:-.

..T' :mtI~t'.e to's-- Al:tornay

- .' . .•. .: .. --,.....,.--.- ' ..:' - . ,.-...:... -'~.~~".I'~ -~"-. - •••.._ ...~",:Ir:'~" :-:'-.:'":~'.1--,~:d.;-:-J--

Desigriated medical... versorinel ..... - . . .

. .-., .

. . n:> .._ . I:. . -- . . Execution' Tea.- ..:-' - -.-', . . ._ .'~~~l

~

~

-.~,:~~~ 4.~~ ~"'''''~!@!iJ.:~-''!!'''f::''

Six Sours- Prior' ~'clle' D~±-gnato:rd':

,"-"'~'~"'-:'

1.

2. The. Psycnologi.st:, Chaplain and mea.ical personnelsh.all

respond upon. request·.

.

.

'!'he· Zxecu:t:1on ?ecorrler's ¢'::':-!c1al record-.snall be.. .1nt~ia'Cad_· .....-..~.. ~. ". .. :........._:~. }:' .. ,.... :-....."'.~: ..: - ~ .-.~':.. "".-'~ ..-:": .:~"~": . "':r.:·: .-- •

.-

1.. ~ .1.'he 1issl.S'CaD.t wardenl !t.C-.A.C; I ~h&ll ~~n~ac~' ,all .' ~
official:- witnssses,. ins1:ruct:~ -chell 1:'0- l:ep'drt: to Q;:',' .'

de£iqnat:e~ loca'Cion at, a specific time, where t:hey will

'be scre.ened and aSS.lgned, special passes for. adlllission

·to. the Maryland. Psn1t.ent:iLpY.

, ..

At"a 'time: 'direct=!d: by 'th& !!!x~cution C9-an&~, .the.
witness Esco~t·Te.an shall proceed'to the witness, st:aqinq location and transport ~e witnesses'~~ tha
wai.ting area at .the Maryland Eeniten.tiuy·

shal~ !'lcc::om.Pal1Y' this'

•

remain' de.ta.::U. andes-cart. t:h.e- witnesses:- on: behalf: .of:- t:he-
.. Divi!p..oll'::'of.: Qu:rec:tlon;~ .'l'he-. wi.ti:u~ssem-:· s:ttan:.

.
in: '.

:: the: ~i.tness:£Waiti.D:g:.: a-rsa(untll 'thE!!:-.~o:t: executilXl·•.. '-

ReVise.a 4/i/9~·

-,

.'.

.- -.....; ..".:.".

,.... '-r

"

..05/05/200412:27

416-508-2012

..
PAGE 15

3'~' . 'l'h~ 'des£91l~ted ,s'Witchboa.i.:d op~rator' shall ~report for

duty. ,and remain oadu~ ·untiLorderedrelleved. This

·illdividual. 'sha-ll take.:, speciai' care·to :.a's'sure'th.at a11

__ . .. '. ' • .; '::;.; o. ".' -:. c~l~_are·~·rec~i.vet.i: and screened ,in a~~9tdJ4t¢e: !'1~b p.re~·

t.::

<" -.--: -~ .. , ' : - ,,: es~abI1~bed::-iiJ.struct1-ons. (Re~er. 'to~ell~iX:: 11C1)

--:-'~:-::::"',

,. '~~ ,:-.. '1"190, ~'~si,lief~';ib:e:. 'Destgn,ted- tx6~t.1O~~'!rbae~:"'~::"- '., , .. " :;:.,

. :' '. ,:' '1'••. oihe,·~eCutio~,~~~ ~il1"re~tt to, ih~~':~'~~~ions;',

.. ':.,

and .inspe.ct the... eqtt1pme:n.t

advise, 1:be., Ex~"ctiti¢n.' .

',:

: ',_ ::,. co~deJ;'..when:·, they :a.-re. prepared.: tq:-.pegftr,::l;ne":·::,,, '': -,: ,;';-" . ::::..::,;.¥.~~

'. :~..s::-~-:t;:~ :;"-c'I:=;;"eXe(::ution-~~"'l'lief ~ec:Qt:1:Qg Coinlrana~L7~~t1i~·",:,:,:,,",:,,~'

, ,.'

: . ~e.c.tit'ion proc..e. .ss

fu' accQrdance with ,..

Appendix

~.13.• '.

.

. ,:

' .

one:: •"

_~

I

•

:2.. "~.

-.

,Ae'xic.e:.ie'dt::im.~dh~os.uirgnpa:tCeido.rb-,yt-Q-t·heeX.e<xiXu18:e:LUo.nt",i.:oDth. ec.oEaxaencdu'eCr'.io,Dn

o

t:
.

to.

.,'

,'collt1ltand.er'shall. go T;.O'.the .De-atb:; House :houS"ing Unit:- and:.

inform the irunat:e of che executioll.

3. The. as.igned· chaplain lIlay re.m.ain 'in this area if requeste,d by t:he. inmate..

• WoO

- ; . . ..

.. ... '

..

•

The. iDlltate: sha:ll not be- allowed to. make, or receive
. calls unle~s. authorized by the wa~den.

" .

. ;.

.. '.....

-. . .,..,. .: .
Re.vi,sed. 4:/1/9'"

.......
~-l~ /" " .

.'. .... .... ;.

..~ jlf...

, '" , .' .. ~.' I

.

.. , - ...

_ - - - - - - - - - - - - - - - - - - - '" .........,..·....i:-..~ ._......... ~...~..~..i~;.:~....:.....·.._...:.~: ~

. . . . . . . . . . ~. -:

... _ .. ' ..........-

............ ".

o~ .. 0
.. .. -coo; •

~,,~

.......

_

---_._.._._--_.. _- .._--_.. _-_...._----._----------------_._--_._.._---------------- - - - -

...65/85/2664 12:27 4113-5138-2912

PUBLIC~.
.'

PAGE 16

anq ){aiutenenc:e

~Bexre~ctfuo~no.n ~Pf'io~.dtewd.t.t,re:sr.i.::';..'~:~'~.:~.:'~.'~;,~er' ':,.<. ',"-,.:::::.:,;.

A.

. . .

S.tate'

()f;' Marty~d"

. "': :~.

-

,~;~.

,.:'

.. ' .':' ,:' "." .'~ .

.

'~.:!"••:.,

. , ,....,.-.

.-

-

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.•.·fTohlel. <elcwiu=t·P~t

ll ,

t"m.~t,,'

m"a'-1":"""~.ria;l--G: .,'a,z,i;d::-'rc..:~"h"~,;,~•.~,$,,,-"fr.'r.r"¥::"~"~'.~~~'."''"~'s,....-

..~:....,,;.,~.'O~";'.""'/.-~:~~"

.'

,'.

SOc{j,UDl.pe~tathol:·50a ~q.,

",
W/d:llUe!le.··(c.r-:l:

15

Pavu!on, 10' mq. ampules {c.r.}

. 1=

Potassium Chloride, -'. ampul,es: (C~:t~}

LQ mj,;J.e<tuiv •.

...; :

.......... . ..

10

Syrinqe-, 60 Cc

~':"''''7 ~' •
. ... ......
~--.. -.~-..

10

Needle, 18 ga. straight

- - - - " "-"0:::-:' 'a" , ...... Ang1Qcach, 20 guage/ "l: l/Z"

IS

Anqiocath, la guaqe, 1 1/4-

, ' .:. '. :- : -.-:-;- ...',,;.' ;, .-:.r '_.

._-- ~giocath, L& guaga,:~ l/Z •.

. "

8,

Angio<?ath, 15gUaq&, 1 1/2".

10

4-

.' . Iiact'ated Ringers, IV' Bag., 1.,-000 cc

-.

"
-. '. :.. \," "''\:

.- - ....

. . . . '"1. . . .
':--. "'. ~ . ~-

.....

6

IV administration sets

. . ~ ... ..:. .....
Pressure 1IliusiOlt' bags;

&.. 6. -.

. 3-leadIV.extension sets

". ....

.~ -:- '..

.r.Y:!. ne~die,. lOCks: ..

w'

~"'_'. . . :*...

_ ..

." . ...,
. ....

"
.:;~:av:_e<..l.~:.,_:~.i:. ~.::.L::~> ....~j.-;:2~~.

l..oo..J;:.:...,.. ~·~.;..·r. ", .. -,,,,,, __~ _

....... .. . : :-..-

• W.'''_ ".. "'.~

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.... '".
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.. : .....

65/05/2064 12=27 418-5eS-2012

PUiLIC ~'
"

PAEE 17

-Mi.l:rl.mu1!l iUIIOJmt Hatetialg - -

1 .-' .-- .-~: 1.. .-

_. , SteIlo~cope· . ..... -......... . Bl~d-'·~rQssure. cuff

,;....

1

Alcohol
-'

prap.s-~ - box

. 1 :.. '. 4 .X. 4' qauze: .pads ,box.

-. . /Ac.t.uaI

--. .

.-
.

.
. ~

.

.

..
....

. ,

. 4--

~

-.. l'
1
1 so

" .. ·t.·

- "'f" ..... _:

•

4.
. - .." - 1.

Tourniquet..
.' ,
I.V, <:!Ut down set, Sterile Gloves, r4, box sue sUla!l Gloves, P2.. bO!C size medi.um. Gloves t P2. box size large . SUrqi,cal mask.s (2: box.)

Eye protectorSf

'Trainihq ar.aw:lth attachmeats

(see.. inventory)

. _ _.

I.V. poles

r..-" .-
..

- - - - ."-...-..

--

:. ...

.... _---

Mayo instrument. s.tands-

1

Small sharps, Disposal Box

1

Large Sharps 0 isposal Box

. ' ,

B. Suggested perso~tU. for Operations

:

1. .crh& cemm:is ioner' s'hall: designate 'a-: persoDtO' be the

... -: ..

t j . "Sxe.C'I11:UioIr
o£ a.l.l aeti.

cojman vi.tiu

de re

l :I t' l.a

who
tea:

t

w o'

ill b
the-

eex...~... ~ciomomua.n·d.

. ~

iJ.'h~ Warden" .- Maryland;.., Penl.tetn:i:ary. 'shall he:.. - ~ .

tJxe;.·asststant:' 1:0; the. ~J:' -of ·the . . :... :..t..

4 . .4 . . . .

. . . .- ..

exeCution: proCess-.

. . . .'

"-

'.23O''...J~:!~,.

.. -I

".:" -.,- ..

.. ~ ...~:- ....... ,J _~... • "'::A •

..e5/e5l2ee~ 12:27

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PUBLIC~

PAEE. . 18

2. ·1 'l'4re~.persons shall he d:etailedas-: :piimaryOpEn:at:orS";of: .' :"-.;- '.

'ot ..'_. the Lethal Injection .Ch~er~ ...on;f!t; .shall': be ."detail,e<i:. as: ". : .- .
the ,Ole of. chao InjectiQ:il.·T9a.l!l,:uIiq.e~.thec:fi.rection
t:.he ExeeutioncOJamande.r. TheOrcs}iould::handle.' thE:\-. -. '. :-. ':' .
:..orderi'nq of' all eqtlipmen1:', dr'a.gs-.a.tl.q. $upplies'I-.~&.w~ii~_~~..;:"_~

. as' the preparation.. of" a~l' sYt"inqes-'as~iieces"sary.:·t:O:::i=.:::: :;:=:.:._::-.~.;,.

cury-. out the. .execu'tion by lethdin.jec.tlon.. .....___.... .:' " ..::... .

,. •

. .. ~.-:: .. -.... - ~ ......;::-_"::-:::::v:-::::..~,..:~ .. "":'::= - - - ...:..~. -....:;;;...:.;..... .

s- . .. . .: -: ;._. . .. The .OIC;. or::·.h:ts- desigri~~,' sh~lr prel'a·tii:th~m;··s~~:..~~,·.-.:::;::"7~;
insert the anqi'ocath into. the.: vein: of: .the- iD.JItat&i

. riqh~ and:· left ans. and. initiate. the. rlOW:·qf~..lac.tat.e~.·._:..:.. _~~~-::

. -lt:h"ei:n::qEexres;c.uatitb'·na::·;:.s'Cl.bomwm:-arnadt&ar'.'!.(:"t'o;:·.·.k-e"~-"~,:-:':•~. '"~,.... l. ~;:.;.c;;i-S:iE;Y~'~·c..tre.c. :r-..,*..i....~..:.:=:.•;-:~:~..,:··~··~·-.~..:;t;:.,...

... • ..

.... ~ .

:.

~ .. "' ••""'._- -=-.. ';'".

.. '~~"~";:""::' ... 1It

" Tlie. &xecutto·u:ccimmaude.r·sha.ll. des1~te. which memi,er ~f

the. :rD.ject:ion 'raUl wi.ll ·a.i:imilIis't~r·the; l&thal.·dose.cf

sodimr Pett1:Othal·,.the:· vavulon.:.attd;:;the:- Potassium::-" .:':'" .....: ~

Chloride; w clampSj and

hich 'member- Will which member wi

a ll

cctoivmamteu:ntihcea.t..e.

flowwith

c;ontrol.
~he

S'xecution' cotllmander usiIig predetermin,ed signals.

3 •.

. onti ac:id.itional officer shaul.d be.d.esi9'1lateti as the
chC!lllber Recorder". 'I'his:'Qffice:r'sh'alr'record' all. .
acti:v1ties conducts.d dw:ui ;:he. -pra. an,d.. pose-ex:ec!lti.on I

.

- . . ~' ';". ......

as well as the e:reeution' itself. :fa. shalL also

function :.s tile !<e.y Control Officer for 'all Death

..

ChaJllbEI.t' keys.

o!,. one· Assi.stan.t Commander, who shall, conc.llc~ all.

. '.. ·!n.sDect:ions;<i: .testiS. and drills· arid may. act: as' the

..

co_and-e±- . . - "ExeCution

dui:'i'n<i. 't:liev eXe~:ti:on: proce·ss-:'. .

- - ..... ..... """",.....#.':'..

as The.. Exec.ut1on COtmnander w.1ll. ins.'truct the witnesses:

~o the.proce~d1ngs and will direct the. warden to escort

then. 1D.to ·And out of the.. Wi.tness rooUl.:.· " ' -

.

5. one AsGi~tant warden t wil~ m~ttor th~. ~el~~hone~ and.
advise the Execution commander concerning. any last

minute change.s in the le-qat authority to conduct the.·

execution... .

"'._

•

...t ••",.

• _ ~, . . . .

6. One Security Chief and t"lIfo·'Death. Watch: Office.rs will

monitor the inmate from the time of placeaent in tha

wDeial.lthbHeoUreSsepounn.stiiblln~lafcoerm-ePnhty· sinicatlheplaD.ceeamthe

chaJDber. nt of the

They.

inmate- in: the Dea~ chamber' and for disposit:l,on. of the

: ~body: after it: is. _removed~:. " ; . , .

. .. ',. '.

, ..

":.

:

7 •. one. Medical Doctor who will. be. responsible for il

. ..

exam1naeioQ;,. of. the :i.ruaat:e.£or. the purpose. of. "

- p'ron~rmcing:' death: 'a£ter: the- execution and: inforiD.ing·· the.

. E:x£:c. :utfO. ll' COlll1Jl'ander..·..

..
:

··

..:~....';~...: ':':-""

.....
.,; ... ~:

,:.-~...~.;......:

.

.
.

.

.
:

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,... ~..:.:'fi:..;.::~ J~. _j.~~. W:i~; :...... :~ ~". -::-~-:_

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-.... . . ....... .

...... : .. - ......

. '.
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65/05/2804 12:27 418-568-2012

PAGE 19

-

. s. . TWo M~ntt;n~nee O~iicers- wiil. stand by for the· purpose

. o.fmd.lnq any ~a.$tlainut:e.' repa:lrs or. adjustments to

equipmen1: ()r~t"aciiitie..s.relatedto·the execution

procesS'.:, :'",; :;~..;. '

",

'

-. '

• •"

. ":'" .~: 4 :~••",::.::. .-'",!=_~_~~; ....

'.

..~.~: . . _... !. " ' .

~ : . __ .....

, prepar.at~Qn:, fox; 'opera:t1ons::of: 'the ~th~ J:nj.ec.tl:on:-.C1:i.aDlber-· .---:::::::::..

:. 1:.: FOur"(~)"' ~Y$ p7;iOl: t:o~,an1:f~'iP~~ci'Us~'ai:~ie::~Mcyt1on: .' ..

.

.

J:nyentott

attd

-

E

. g

i

I

i

p
'

m

e

g

s

'Check

a. . Metabe~' (if the' inj ection

wlll..~ conducted-,_

. '
teu

shalL: eotidu~'t:

an

.

. '~: . -. . ...: equipm.ent; chedt.of: al.\. l1a~!.a-l-~n~~e.S'saI:'$.·. to.~ ....:.:..:.. '''::: '"

r:iS:. • 7·-';'"!~":":"':';:':'

7.:"-:'~-.:·;..:.=pet:..£.. <?m;~ex..e..<...:..u..ti.on..;·-~_.. ..

;-:-::l.~.:~:::

.' ....

.-

:~:~~ .':.:,:,,:~,,:::~~,.~.~~.~,

The.inven~oryshall·be oonducted'not ~ore than

. "

- - . ' .- . .ni. n.e...".'t..Y..."'~L~

(96)
..

h

o

u .

rs ..

.'Or_i..o. -t..:.:.....t.. o.....t.h...e...:......e..x..

e
~

c

ut
..

io
..

n

.

.

.

c.··· An·.inventorY' ~b.~~k i:i.~t. s:hsii'~-;;~~p.l;t;adi- dated,

and init1alad by .the ,injec:i~n tea. (A copy of the

checklist .is atta.ch~d. rtyS', marked "CII" in t.he

checx column shall b.e carried i~ by the !~jec~ion

,-team on the ,6ay 'of the ~ecution.)
,

.' d.

Quantities of i-eeUliS' in lock·ad. injection room shall

b~ at least ~gse'indicatad in ·the l~ft column ot

the checkl.ist. .

. .

.......- . ~ ..

.. e·. ~ . ExpJ.ration and/or sterilization: dates -of' all

, applicable items shall be cheeked on ea.ch

. 1ndi.vidual ite!ll. .";.. ' ...:......... . ....:. :~.. -:- . :,,:.:. :"'::'7.-:::~ . .." -' ....._.

. ...~ . - ......_...... .. ~-;--:... .~." 4.:.=... -.-i.- ~ ...:.-. '.: ':_': .

1) " Outdated' i t~s ..c'.i: e ., tactatad, d.nge.r:s baqs)

. 'shall be replaced inm\edi.ately.

:..... -

..

,

,

-.

.

.
.

.

;-.";0'"..:

2) On: th~ day of the execution:; ·m.en\1;lers. of· 'the

injection. team sha-Y.-.£Ult:6r the; injection rooar

at least two (2) hours prior to the, scheduled

tiae of.' the- execution. 'rhe.y sha-ll

.... illlJltediataly- re-invent:.ory· th~; s.upplies..· arui..
eqUiplIent to' ensure· chat alL i,s. i.n~ ", '.. ~'.-.'

. _......-
... !. ..
~~."'oIL_

~ead1ness.

.

#

,... "
...... :", ..

Not less than twentY-four, {24} hours priQr anticipated

use the naces:sary drugs·.shall be ob~aine.d. ' .
.

.

a.

,

sDcuhreindg1:I: ltehaedaa·fttee-ronoroann.:

immediately: proceedinq..1;he.
execution by lathal.. :" . . :" ,

/: L.·· '. ,

inj action., a. member of the inj ectioa team' shall

obtain. the: necessary agents (drug'S). .

. ........ " ' .

- .. '. .-' .....-. . .....

.. _..

~'''' .. -:...;.,;. ... --

. ... . ~ .... :" ........:;~. ............... . ...., :...~ ....

....... ;...
.."" :.. . ~

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05/85/2804 12:27

PUBLIC DEFENDER

PtG.:. 26

.... .., .....

b. when, the drugs have beEm issued, and quant:ities

,"-

vl'!ri.ft.4~ .' t:nel" ,shall' he placed. in. thJ!Iia1:bal." . ;... :. :.

-_<.,' . :'. , Injec'I!ioti DrUg :.80X, ,and t:he box sealed. wi1:h a non- ".: " .
. reusab~e/'seqUentially tiumber~q, lOckinq-:-tYPe s.eal '" ..

and cC;~dl.O~k:..~ ,

.~.. :::..: __~"_~...:".~~~'. ~",~;;, ......-;;~:~~~~.

c', . A':IIlei!UJe..t' of 'tlie. injection,. t:eall" shall. maintain '. ".. '" .::.... : :

persc:inall phys1.cal CuEtt:od.y-:of."the::sealed:: drtiq.··il~x~·-·!:=~::

un.t:1~ ·suc):l. ..t:i1Iie asc.:Lt:- 1.s. opened: :fo:t;"·__u.fi~C!.lldlQJ:7 for' '~;'i:._..it:"~".

retu1:.tt·:l£ .1'loe:.used. .

. ' ..;~ "':' ':::.' " ~ ·_·3:;-=:::.1!:::-

,. . .-_..- "'=_:: .' .n..~~;.::;~c~ ,~~:~~=~.;j~}~~::~:~. ... _',' a.. At. ·lea$t-. nine.ty (90) ·minut:as.:pr:ror to the . ' ......,.~....... ".... ~

scheduled sxe.CUt:!Oll, tile injec~ion taam shall· be po~it:ioned. in the Ls·t:hal ~jec;:ion Cb.atnb~t:· roe. .
. .

.h. The·atc:.

~j shall complete a 9ra-~ecut:icn L~v~ntor! anc
~~ipment ch~ck; an6

2 ). prc!para the- IV. sat:-up'-': ....._. .. . ' '-'.. c. Th~ .1 /'000. ml' baq- of.' ,::i.actat:acl. r~qer-s- :sO'ltu:.-i~~ w:1.1~
.be opeiled ~d ·inspe<ct:ad.. The ~dm.in.ist.r!.t:icn sat:

.
... ':.-:..;'

will be opened and ~he flow eQnt:ral valve moved Co

the· top-and' crosed of::_ The: 'spike' or·the .:... . ...... .

ot adm1nist::;:,ac:t.on se-c ifillbE! 'tllacad; in th.e·~ort

''' ..

:"f. ' ..

. . . 'the' .IV baq anti sacur~d Wi;h-'io! 't,t*s:t ..~ . Fill. the. . . ". _: ..~...,. ~.:;~ .
. '.~~;. -:~... :.. ,'.:~ tirti:t·-chaJdler to.'haIf.:-':ftilr.:bY: a1:pieezinq::·the-· . "':' .,:...'

~e:t'. .

.

:: ...... '. ' .

.a..ttach. th.a needle. lock deV:i;ce::' tao -the. tot), JIlOSt. tt y...

sit:e:: (c-losest to. th.e: J..;T bag) a.ud ·sacu.ra~ " A't:t:~ch&d:

.:-:'.

the- tlu'ee (3) lead ext:9'S'iQn. to' th.. needle. lock: .

.'

and secure. Attach the·zo n ~~t:.nsion set: to the

e.nd of the. administration set and tape' the

connection.

.

.. '~': ".1-::" ••

.' ."~""f":~:';~

s. .S,tart th~ flow of' rv fluid un:cil- all the air is aut of- the- set-up. ?lace 1:he :ur pressur~ infUSer

avet' the IV baq and iafli.t5 un-:il the qrs:~n !in~

is' observed.

. ..

.

f .. ' .Mark 1:he three., ports-' of. :th~ th~ee- lead. eXtw!qn..

····as follows; Port 1"1;.' .Port" t2" and:- Port 1:-3. close

all three flow clamps on the thre.e lead extension.

. '-

-.

The set-up is rea.dy to use.

... ,.

- ........ .. 0..... "

.".- ;.

"'.

.. .: . ~ : " :.......-:-"' .... ......

-- ....
' .... .

- ~.

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Revised 4/~/!H

... . \.,--

-.' .. . -;..

.

;.

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..

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..
.. ...... ..', ",: ...

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05/85/2804 12:27.
g.
, h_

PUBLIC DE:FENJ::ffi
,.

PAGE; 21 .. ~
i

i .

S~eps one. (l) through four (4:) shall berepeate.d ' .for ,tl:1e ~econd set-up.

The syrinqescontaininq the drU"9'6 shall ·be

pr~par.e.d

and ,loade. d

in

the

f

o

l

l

o

w.....i..

n....q

o

r
.

d

e
.'

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. -

......

1.) .l:l& s'!xty (60)-CC 's.yr1ngu, "each conta!ninq .'. one hundred (lOa) Heq~ o~ ~otassiua Chlo~ide . .i!>-.fif:CY (50) -cc. !isbel these "KIm '3" •

. 2) • ~ siXty (60)-<=c syr1n~esl:~ea~h ·cont:.aininq

:-

. :".: . - :;;;'01le:='hundred (lOOl Dl.g"·Clf':.Pavttlon--iIr."f1fty.-::;.-.:· :.' ...!;..::....:.~" ••

(SO r-cc·;.. Label these ~MED 12".

..

3) ll!2. s1.xriy (60) -Cc syrinqe cOllti1n111q :2.0.
grams of Sodium Pentotha+' (cont:ents c£ fOUl: (4-}£1ve-hunclrea '( 500) mg' 'vials dissolved in the least amount of diluent possible te' att:ain. complete, clear suspension)"

The Sodium Pellt~thal, being a federally con~rolled dl:uq, : shall be prepared last, .'}(hen·"·~t appearsit.
;qil~ be used.. Label this syrinqe -MBD 11"_

NO'.fE: Three syrinqes of Pavulon and:. three. .syt":lnqe.s of Potassium Chloride are prepared; even tnQ~qn the injactic~ proceaura cnly calls for two of

'.

... "bey-asc"h',•'.inT:h-tehee:''..etv..e.an.1s;.·yorin!elq-oesf

is ar~
tlie:

prepa.r
'ot:heri

e

d

as "s~311d-
dropped' in

,_ .. _- ..---

handling during the inject!~n ~rocedure.

".

4-. Injection ~rocedure

a. The: 8:nqioc~th' will be ~en:ed into the vein of·

the left ~ and secured in place. The flow of

a Lactated Rinqers shall be s~arted and administered
at slow rate (20ce/ho~r).

.. -.

.-b. Prepare the left a:na for the intraveneous line by placinqa constricting hand one inch above the anticubital fossa. selsct ~he vein to be Carulula-caQ,

c. clean the x.v. site- with an alcohol prep.. Start
at insertion site and·make circles,getting larger each time until a four inch a;-.ea is clean.

d',

ppen. an anqiocath of' appropri.ate s1ze~

"-
and stretch

. ,the:- skin. at the insereion' site... 6' With, a: b~ve1. Upj ..

. 40 de.gre.e, ang'le of attack',' p.lace··ih~ an-q1ocath 1ri

~lwised 4-/1/94

27 1.·-.

I -
. I

, . ..; ...... - ... ~ .: - .. ~
_ .... --e:= -~ •

J:~ -.~

-...--! .......... -

85/85/2804 12: 27. 418-508-2012

PUBLIC I£FENDER

PM£. 22

toe vein. Advance "the ca.theter over' the ·stylett.a. until the hub is ~t the level of th~ skin.
e. ~HOVE THE CONSTlUCTING BANll.

'" :
"

or Obf;lerve the I. V. $itefor Sweilling:.

:" ,

'. - _.

.dis-coloration. confir;n 'that t:~...~.-Y-;~ 1s:= fiOWinq:,.-:~'i-;'/'" .:y

... . . -- .

. . . ~ ~ - . ·:-~~~-:~~::-:O:::~~--==--':':::'!:!&-~:'~:·a"'~~:':'~"

h. Sac'Ure the. r.~.V. catheter with 1::ape.

;

....~, Slow th,e ::t. v: to XtIO. 20 t'o 30 ail/hr ~ ,

in j.

stat) one is .repeated' for che r:Lgn-c atill.: 'This '1 Lne sheil be held. 'rese~.re a,~' a contingtillCY in casa

of 'malfunction or blockage in ~h&'£irst, line.

NOTE: At this painc, ene admtnistraticn sets shal~
be running aC' a .slow rate offldW~; and:t:'$ar!? :01:-
de inset"tian of the. syringes c:on;r;aining the i..!ij ect:ion ag:encs. abSeI"'Tat!.cn of both, set:.-tips 'to .ensura thac -:he rate of ilow ~s uninterr'..l'pt:d
shall be maintained.

. NO FttRTmR AC7lQN shall· be. takan. until the
prearran9ad siqna.l to start the injec'tion of lethal agents is given by the ExeC1ltion.
coitJllander.

k. ,Wi~sses 1:0 the. ~xecuti.on.: shall..: be 'brought in

only after Ue r.actated:~qers I.v' s. 'have b4en

started and are running' prol?erly.

'

1. Total anonymity of the injectio~ te~members in the illj'ection: room· shall be 'ma.in.tained ~.- At D.Q. ~ shall they; be addressed by'pnaae, or asked
anyth1n,9' that would require a verbal re~~se.

The tip of sY1='inqe'- "'MED i1'" (Sodium ?~ntotha.l)

n- shall'be, insert;ed. into tue 3. lead extension'- port
lIlarked "Port: ,loW'. Open-, the. flow' clamp to. pore'-

. "

and the injec:tion shall commence. A steady even

flow of tha injection shall be maintained with ~
only a minimum amount of force appl~ed ~o' ~he

)~yringe. plunqer:..·-

: .

n. "HBD i~" will be reJrlQved. .fro._··Port I ito and the

Revised, 4/1/94 '

,

28
.,

/./:-...i

i'

..-

"
:"

*.. - ....

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.'

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.·"85/8512884 . 12: 27 4Hl-58S-2812

PAGE 23

," -: ................ ".

'.

.fif<~;rw.t

c:!lall'Dclosed. en second's td

The J:v.will.i:.le. flush thel,. ine ..

rv.n

wide

o~e!l

o. ~ttach the first sh~~qe, o'f:"~.·t~.. "tc)'ftport #2" j
open the flow Clattlp.toport.~2 ~d:inject t h e ·
total 'cQnt:ents ot.'Cbe sYringe.; ".When tile ;first"-'
'S'Y7inq& is esnpty,· close the f~ow <:lail1' to port: ~Z I
sWltch to the second syringe of -u:rmt2ft I if
n.ecessaryi open -ehe flow clatllp and: inject th$
sac9nd .syringe., elosit the flow claJllp. to 9<>rt· i2 .

to ~'.. " .Open the. flow.· control va.!:'!e and· run::: the: -IV wide' .
• •&. ~~. :~..; open-'"for ten:: ~econds-: :rlt1Sr.the:.:r:-ll'ne:;~-:;.·"·~·· .w..... . .... .~

At.t.,ac!l the'first s~inqe of. -KED #3 rt to "Por;: ~3"'. open ~h"e fle~ clamp to ji)Ol:t. ~3:i!lld.. injsct: 'Che conteui;S· of .the- syririqe- •. Clos~ t:h~. flow c1amp ';:0 port'~3, swi~ch ;:~ the second -~ g3- syrinqe, ~= necessa~II open ·the·=low ~lsmp and i~jcc;: ~hE co~tents of the syrinqe. clese ;:he flow clamp ~e pcr~ 43.
r.· Upon: l;omplscicn o:t 'the iilject:i.ons. or a1: s:uc!J. "
u.rl.·ieI: \:!..31e as ma.y he ~pprepr:..a.t~,c.h.e pitys:"~:"an sha.ll -examine t!le .inmate to"pronounce d.e!!:~!l.
ll.f'tcr the wi'C..'"lesses !lav~ ::ae!1. ::-smc';ed., ::cC~:::,:iT
lines shall be removed from. the veins and .the tubinq $hal~ be passed throuqh the. opening into che ~acu~~on ~~amb~r .
.tL t:quiPaent an~f lethal ar-,.lI;1S. shall "!le 'qatherac: 1.1'P" ~y
the Ole following the executi.on.

1) Th.e o!e' shall be rs'silons,1b1e for· ene disposa':' of the·.1Re.dic.al aqui:pmmi:c Used for lathal 1!l.ject.!.on. It wil:"l:4::te treat.ed wit:.h st2.!lde~d
iIIedioal ?rocedures-.

2.) -The· designee- shul mail1t:ain s1icuri.ty·· 0:: t;he druqs until such time·ii.$ 'theyafi ill-med ever" to the warden.

3) . Th~ druqs shall be secured for a minimum ot ten (10) days '. fo.!lowi!i.q .the- '<!xecut.io!l:

At least ten. (10) days- after thEa. execution,

and at'the direction of th&Warden, a .

designated s'taff member shall dispose of the

drug'S used for lethal inj.ection in. accordance

with State and: Federal laWs _ .

. "

... -....

'.
"" ....

--" _.

.......

- ........--: .......

. . -~.-'"

..85/85/2884 12:27

4HI-588-.2i in. 2'

PAGE 24
-.

:. ........
Revised 4/1/'4

- .- _....
.'-
-._. ~ -"'"-,.
.. .. --...~ -- ...~

85/85/2004 12:27

41B-588-2812
.'

PAGE 25

.,

·.Section VI

.' . nEAm wATCH: nAM

. -"'~"'-'<

to .' !"ord~tailed.. retillil:"'elllen.t:s rafe-r' JI..ppe!ldix ~19}

.'
'rh.e Oeat..lt Watch Team. shall. maintain a: log of til act:1vi.<;i.~s
rel:ated t?'.the inmate.

hou~inq ~sa' by -Ch~ .,neath Wa':cb Team.

...'-

. .~,

. !..Ll.e: .......-:.... _ ... _&-::.-..,

s:cus's '.-- -.'

c. 'O'PCn' oraers, t:~m .the :=xsc:ut:ion' commander·, t:b.~ neath ?ic..t:c~ ~iam sha~ apylyraseiaints.to ~th~.inm~t. and assis~, if
uectSsary I l.n t:he. !.ppli~a-ci,:t!, ; f ':.he :;:r;G l.sads e.nd./or :;!:.tl. catiletus ;:~. ~Zl.e inDulte ~

0.

-- Upon crd9:s'i=:m ~he !xacU~l~n commands~, c= ~he C~i=~

saCUl:it;t and ci<.e. Dea1:h w;;.~::;'~ -r~&m shall :!sc~r1:': the' :':l!.iJ.a;:.a
the Dea~h C!l!.1!lber. The .:assiqned. Chaplai.;J, may es:::.::::z:-::: t:h.e

'--

inmat:s as far aS~9 Chamber' ~oom'door, if so ~s~~astGc b~

the inmat:s, T~ersaft~=, the ~~apla~~ 5~al~ a~~~'t~e.=~a~h

nOUS~ and r~a~~ ~ the c::::mmanc!CFera~~:~s =~~ar ~~~~

complecion of the,L~cu~ion.

~hs Dea~ "etch ~eam: under c~~ c!=ac~icn o~ ~be C~;~ C~ Sscurii:Y,. .ihal.l sei:-...u:~ CE inmiit:.· i:l. -:he-. ch~1.r---:li: ··~ll:- ';;-as ' ...... " cliamear or o~ ~e ~-nay anc r~cv$ the handc~=is andl=g i=ons.

the .. _The.. d.esiqna.ted i'ersonnal shall at:;;ach a.ll'ulonit.:ll:i.nq

equipment ·to ~he 'inmate, to he moA~tored bv.

medical

oersonnel, The Chief of SE~U!'!t!', and Esc;rt T'a!.m.sha.ll

~~!t the death chamher~

--,!'! Ths-,cb:a3lber' and Chamica,l O£Eics-rS' shall. elose. the: Gas
Cha1l!ber or 'Lethal !njection Cl::.amber -deor;' assure th.at it is
progerty s:a~ed, ~d no~ify the Execution Commander of same.

The Chief of secur:ity and the· !leath Watch. Tee.m. shail retu...1:1

to the housing .area of the Death Sousa and 5't:anc! !:;)v for
iur.t:her. instr.uc:tions. The &lea i cal personnel shall~ r~ltain in '" : ,
the Execution: chamber are-a: to monttOl='" the inmate and report .

t

h.

e "

'findinqs

to

the SXecution coa.unana.er.

t .•: .'\t the- time: of. the execution, t:he onlv- cerso:a:.a ·e;UthO'ri4Eld. to

. be- in:; th& 'execution: Chamber area; tte:,": - --'

~

~

"

: .,~

05/05/2004 12:27

PUBLIC. DE:FE:HOCR

PAGE 26

1. Execu·t:"ion C~lIUJtander

.

2. 3.

~arc:ien~. Hartland .PenitentiarY'
ExecutIon TeaJD. Meia.bers'. .

-4. Re(!orderJ~ey Control Officer .

J.

- S. Medical, Doctoi .., ..

Onea th~

Gas

..
cham

b

e

-
r

.dec, ontamina~ion'

'proces~'

i's

complete,

...',

~.'bthodey. C,' hrealtl¢oevre-aanldl·'·Cchoenmtiacmali.noaftefid.

cers, shall clothing,

remove the. photograph

1l1l1late.t s the' body

~a,nfdiPtOusr1ntiiont,ionve~rc'ctoordthaeD.cDa eWatih.t.Wh'aptrceh-dTeasUi9tDwahtoe.ds'.hpraolclehdeu:rnedsl9•'

iteath~oi1..lilo~"j~a1.io~$~~~~taJi';iJ.me..,,,.i~: ::.·:;:;"":0. '

.'acnadthteutrenr's·'iftroomv'eUr tet·o; :btohd~y:,D. eraetmho'vWe~:Utclhc'1l'.~Qi8tih,iwnh(qf~

pho1,:oqraph shall' place

the it

body.. in.a..

.

pbroodcyebdauqreasn. d handle c.ltQPositioI!. in acc' orda_ nce with ',pre-designated.

and t. The oeath Watch shall clean'

secure t!le 'Death. ROUSe

housing' araaarid. will remairi. on dutyuntl.l relieved by i:he
Ward~n.

. .. ... .~::

.' .
., '
·i·~·
32/:~
.:......

- ~ ..
I !. : " ._ .. . _"".;::
- .......
""'.-" .

..85/85/2884 12:27

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PUBLIC DEFENDER

PAGE 27

"
f
.'
,Se6tion ,VI:I

. .. ..... . ...
'3.
c.

.

~.

At- '~i time' p~i~~ .~~. cii~: S~ecUtion 'Coaimande~ directin~' th~t' .---

"

the· executi
Governor'"s

oanf.f·lb.ecge'i'no,radnedri::ngu~pao'ttl

receiving a: call.. from: the..' ast minute stay or revocat

i

.. on

,

''' _ _. • ' ..•

..of, tbe' Warrant. of Execution,' Peirltehtiary, shall stop- the.

t-hexeecAustisoinstparnotceWeda~rqd"eSn',.

Mb~a,ryland

, ~•.

' shouting. the- desi.gnc';\ted code- word.

'. ',' " ",:" .'

.' ....-;,:;,::

=_ .... ... ".;._.. ...:e':'
"wfinesses O

n

,~.,;..t>,;..:-'::':;":.
ce the procee

v
d

:
i

.... ~-
tlqs"

..~-
"ar

u
e

sto~ed, '-the . .:: :.:"..... .:.••• h:' ••

~:

::;..;:~;- ::.._~:.:.

:-"4:,ii ::';ji-::;,•

-will" be --'." -:..,. ..-;-' ':.

rweaiafto:vtneqd,' af~reoma. the 'Death ,Cham:be~ and, raturJ1ed to the wi.::ness

The..'EXeCi,11:.10n, Conm" i2md~1"
from ~~e c~vernor.

sh"aliperson2il1i. con£iJ:'!ll

the

ordsr

D.,

Oi nnmc ea tce ~cnof!bne1eree,~tohveed~"f"reoCUm't:t!h.oen

~::inunander sha Death Chaaber

lal nodr cw.~elrl

:l:.e. '

pers()nal~y. ·s.<iv.isa the wi.tIiesses" of t~e; Ci:u,.tse of. 'act:ion.

i:. FUrther procaedinq$'will be d!,;:-ect:ed by the order ana/ct; the warrant of Z:<ecutioll.

-.....--

- .. '" .-~ "

-, Revised ff/I/'94

.... .

-,,-.

'.
,
~(~ 33/ ~ ...... t :

-: : "
.:. ..
-.,

..85/B5/2804 12:27

PUBLIC DEFENDER

PAGE .28

Section VIXI

POS'rEXtCJ3.nON paOCEDURES',

from ......! .
A. Of£icial,~itnes'ses· sh8.i~ J:)e' escorted

the:~td.~ess area

to the Witness ~a~ting floOUt. to: b~:' .nS'I:.. by' 'Ch~·We.rdell,., '

" ' B. The Execution comm~der Will' c~l the commandjOpe~ations

Center, the COmmissioQer of correction andiinecessary, the

- ... .;,
~- ~

"

G()"ernor. and: DPScs. off1cials~' and repO:a:t :~he"results of

. axecut10Jl:._. ..

'=-," _.-:; .. , " :. ':,:" . . . . . ., '~

.... . . : . , " ...; .':, .;.: ..~ ":. "-:-;-'.•~-"'~."';;"...~~- ..:-:...,.;,.....

the' ..w· ••• ;;'•. . . . , • -,... - :-.....!.: ..~~~.:.~.

C. The-designated medical Bersonne! shall sigp the Ca~ifica~e
of Death {aef~r to APpendiX ~21}_

n. . Officia:i wi"t.nesses shdi s:1.gn ·t...i.e Certi£i~~te' of :Exe~uti'on'

.'

~at verifies that t~e ~~ecution has be~n accomplished

(~efer to.APpendix ~221.

to z. 'rhe.Wit!less,:::sccrt: TeUl shall,cranspor: aiiicial wit!lessas

back ,the designated loca~ion.

','

-.... The Assis~ant~araen,"Harylana ?~i~entiary w~ll ~ak~ char.qe r 'of the decontc.mination process' Refer to Apgendi;-c. ~l.3).

G. Tb& Execution ~eam shall be qirected to return·ta theDe~th

chamber ~o. re!llove· t;he body. In' the case of' a-x.ecut:ion. by . lethal qas r whent'· the :iecon't:aJllinacion' procesS" is: complete, , the- boar of': tlle-i"IllJla1:a-' shall ·he :::uovad~frOllt· the- Gas--:'

.t !
.,,' ,Ir" ,'

Chamber, stripped of .til contaminated. clothing, photographed

and turned'over to ~he Deat:~ watCh ~eam for removal to the

designated location co await pre-arranqedpick up by the

designated party .. In the caS'a.of executioIl, by' lethal injectiou, the execution team wil~emov. all catheters. .

-....'...~

str~ it .of all clothinq, photograph it and turn. it over tD

the Oeath Watch Team for placement in a body baq and removal

to th~ designated location to await pre-~anqed pick uP'bY.

the:- desi.gnated party.

.:', . ,

'

H. The DeatlJ, Chamber shall then 'be thoroughl'y" cleaned and left
in the state of readiness as described in instructions governinq the care of the Oe~th Chamber.

4. As. soan: as, practical after any press- conference" the.' .
':.::., hecution: Commander shall conduct a. critique of· the- eD.ti:Ce
axec~t~on process.
s. No later than twe.nty-f9Ul:"' (24) hours after the: c.Q1llPletion of
- the: execution. the: Warden.. .shall: submi.t to. the· ~xecuti."oD. ..' .
'co_andert~ a detailed:. collfiden~iil' .~e~tt or ~e- execution.'

.. -..
. "

, 34·{,fi.A,.J!"' '

...

-~:

--:- v .....

".05/85/2804. 12:27

......

..

i
410.;..508-2812

e" .'

.. . . '

'."

' : " ' .'.:

, q ,~ ..............,:....... .:;...~ ...·.~:v.J:,·.;A·_...e

This report''shall include: '

..

. .

..

Adr.a~t·C:over·letter·from the, Execut:ioli.CQlIUl\anae-r. t~

'.

the., ~ominissione.r announcing- completton of execution.

: ',~ .. '-'2..; Seriou~ Illcideut 'Repor-t;.' FO~ - , .-~

..

._..,.....~

-
":

:-
':.

..

"3',·

List

o

f.
.

..a. .l-

l

,

staff.

involved

and. their

roles .

. -4. List ~f all, 'of£icia~wi!=nesses ~

.. .

... ::. '.::, ~ : " "'

..... -

. 5.. LisJ:- of" all:" nOc persoiulel. preS'&~~~.... ::,~".~.~: :'.!::•.~:.~ ':" _ :.:-" . :*::.~ .!!.'

. ;. .·:...:::...-·... _ .. ~ ," : ... -.~:-" .:;;..:-r.~:- :r:~'';=~'':..J:-;t~:;.;~,",,-:~ !.- :- .';~: .. ' .. ·:...1:..... ;!'·;~~·t~~~ ~:

~;,.·1:."9:c:.~~:;

, XXCXP'I' "l'HAT"NAHES' OF ALI. HEHBE:as' OF ,TB:£:, XDCtJT:tON '.t'EAH, '

sBAt.L :sgsZAI..mJDl A SEPARATE ~LOPE A'1""l"ACSED To TaB
... REPORT AND' WlL'L. ONLY BE OPENED,· BY' ORDER, OF' 'rlm, .co~ •. .. .... .: ...

'6. List' of all staff: ,from other' aqencies' involvsd, and

their roles.

'

7 . Officia.!,record of e..,(9cu'tion as recorded by ~he official Recorder, or copy of same.

8. Cert:.ificat:e of Oea'th .. or copy o-f same.

9", Car-:::.£icata" of :::~ecution, or copy of same.

110. Any other'document and/or reports requir~d by ene

Commissiotte~ of Cer=ection, sec=e~~ of ?ublic safe~!,

"and correc.t:.ional
·Ka.rY!and~~"~-".:··':

Se.r.vice.s,'' 'o'r.C:-o- v-e-rn.o...r.,- o..f... "t:h.e

S,t:a.ta, of

." ..! ....

K. ~e Execution'commander ahall prepare a report, summariZing

the. exscution:.. , 'Phe. enll1!liss!oner shall distribute: this repol:t to th.e Governor.',· secretarf of. Public S'afe~y "and:
'correctional services, Public !niurmation atfics, etc.

.

( 'f' • oj;-

Revised 4/1/94 .... :.. .. , .

..

..

~ "

05/85/2804 12:27
•• . 't- I

RJBlIC IE='ENDER

.........

, 'The attached Lethal Injectioti completed ·indet:a!l at the·,the of.

,.I
Execution Log shU1
an.."exec.ution.by the:

lbetehal:.-=..";'..~..:2:':.:..:.:. ;:,~:·..;.·:_:2•:~:~::.'

:Lnjac:::tion.. The actual tiBe will. be entered, occurred, 'problems that were· 'encountered, et

ca.n, ywmilolv'ebm~e:nrteptOhia:tted..'.::-.:-

. .:, .._

.

soin(!teh.ains df/oorrm.a·~' diItf:iaoanadlitisohn.eaelt.sspasa.cen·ecises.. sn·eaerdye.d'·;.oUn~se&

~thhee

'reverse form is

.

.~.

cQmpleted,.it will be turned irito the Executiou·.COIlI.1Ilander, ..." ..

i1Wnediat.ely.

. .

..•.

.

:. :':':.' . ;: :.' .

..-:.-...•.:.~ .. : :.... '. .......:.,. ~.... - --..;.:..-:....:.~-..::::.:-<F.,f ..:.;. '. ,.-=:::- ''::.' '. ,..:.;.:--;,;::

"
Revised 4/1/94

- .. . . ;~ .

._'" .---.-

"

.' .

.'

" ~8.. 5/05/2004 12:27

4HI-50e-2e112

PUBLIC DEFENDER

PAGE 31

LAaKLIm
;~;

,,- ."
.. ' .:.: coNTENTS'

".~-Q~., ..... "" ....

.

' .1

.. sodiUJlt. Pent.othal, Z. 0 Ga..

. .2syriil.ge .

(four son mg vials ~issQlved in

t.ha least· amount of diluent possible

to '

a...t

-t

a

in ~

.

.com. p-l-ete,

clearsuspens!on)..

• ~.

.. ..

-.

* ••" • .

•

..:..

~

•• .-l- M:..~.pa.vUioD;:;:.s~.1Dq·per -5.0-C"c~..~:- -;":~:1:..;~z.:syr1nges~~-'::,. ',.....:;;...2.:-..-':..

.

(five 10ce aJIlj,n1les of 10 mq each .

.

~n each sY1"~ge). ".

- MED #3·

p01:ass:ium.·chlcu:ide:i. 5·Q. milequ:i.v.:.- ~2syrinqes (five. 10 ce. ampules- of 10' ailequiv. each in each syringe;-,

.

..'

To-cal injec:tioni lOOec/100 milequiv ••

or two syrinqes. One extramadi!' up

as stand-by-. .

.. ' '. -

- "','"

............

'.,
".
'.

.... 05/05/2004 12:27 ~

410-588-2812

PUBLIC'IUDIDER

PAGE 32

'Appendix 13-A '"

, "
Le~al ~ject~oil ProcedureS. Check'Sheet:
:, ...~ ::.~;..:: ~.,.w ...
Date Set --------~____I 19- ~

.,-

.... t .....

•

~ • • -~!..~. . . . . .

.. "*.~-;#." \~ ::'.".:;.J::.~::r:.: "-~.

A •
. '

Requir~ Staff

1. "Sxecuti:OII' commander:' :

2. ,~si$tant Rxecut~onco.mande~1

.. Warden

'

(

. .

. ,.-.

3. Primary operators, Lethal Injection .( J
Chamber, (3)

a. ore

( }

b. Operator 2

( )

c. Operator 3

)

4. Ch~er Recorder. Key control Officer

S. Ass.istant warden, communications

6. Secu.ri:ty Chief

".

7. Death Watch.Officer .(.1)

'., a·. DQath: Watch OffiCet::'(Z)

9, Medical Doctor

10. Maintenance- officer (1.),

11. Maintenance officer (2)

(. )
C )
( )
( L
( ) ( )
( .. )

(

._ ..- . .-_....

--.-- .~

.

........... ~-"'-

.

.(

)

( .

( " , .

{

}

. {

}

( .)
( .)

- " ..

(

)

(

)

(.

.---- )

, ,

.•! ."-.....~.,~.

( .)

.' .
ReVised 4:/1/94
..
o·
'" ~ .. :;

... " ..

, '.

..........

3l

--.. . ......

- ... . ~

., ...

, ,,,.85/05/26e4 12:27

418-588-2812

•

<

PAGE 33

Appendix:' 13-A

2.

pi:eparatiQ~s- ~~<~?p~~a~~q~so'f
.-.:..".............:........... -... ...

the,
",-"'"

~t. ha:ltnj~tion

Chamber' "..... -.. "'.~.:..

. 1. The Executiofn: 'raaa ~ill' e~nduct- an, {}

(. )

-. inventory- 0 -necessary materials

. _.. _..

'(not. more: ·than 9-6 .hourS' 'prior: 1::.0«

execution) .. i

-

2~ .. The~..eJcecu~ion,TeD.will. i:e.;.,.invento~ , ( l '

~.- -'':':.'; -····-"'!·n~esB~Bi&t~~.a.t·l'east::.::two...._·:·~~·,:.::":,·.
hours:' prior- t() exedltiotl' .

! .'

to 3.

Not: less1:han: e}tsctitioll:.' the:

a2g4e' mho:su-ras.rep:roiobrta. .inetdhe

( <)

(

4. Drugs arf! issu'ed, checked, and placed ( ). in 1:.he ~ethal !D..j action drug box

(

S. Tna lethal injectiondrUq box is sealed

(

6. rnject~on Team member.ustmaintain
personal control of drug box <

7. The' orc. of the :rnj ection 'ream.. shall

ensure that the qas ehamber drape !!\lid

the Witne.ss ROOll( ,drape are in the

closed POsition.

( . )

{

(

)

NAHX:.-...____.....______________________

.-

.' .., ".-..

1'- ••

" ....Jl.
Revised 4/1/94
. ..

85/85/2884 12:27
0'

418-588-2812

PAGE 34

c. I~V. Set-trp-Procedure

1~90.Dilifutespri()r . toex~c:utiQn. tb;e

- Inj ection TeClJQ is in 'Cbe Lethal

:rnjec~ionChaJ!lber ROQm.·

. ;

~
a 2.: The- OI:C ~hall' prapare 'tll.e: 'necessary ·equipmen.t, complete pre.-axe~tioti inyento:ry and,equ1pJlient'check .

Appendix 13-A

(

)

)

(

)

{a.} -Prep-table: ., ,

6 60 c.c syrin~es '.

C: )

z' I.V •. Bags . . .

( )

2. Administration ~ets

( l

Z Needle locks

.( )

2. 3 4ead', extensions

( )

2 Extensions

( )

6 18 gauge 1 1/2 straight

needles

{ )

2. Pressure infusion haqs

( )

'1 (b) Instramen.1: Stand

(

)

(

)

(

)

(

)

(

)

(

)

( {

6 Alcohol prep pads.

-( )

3 Anglocath 20 qauge

( )

:3 Angiocath 18 gauge

( )

3 Anqiocath 16 gauge

( )

"1

Constricting~and

( )

1 Roll tape

( )

2 4 x 4 pads

( )

'2 ec) :tnstrum.ellt Stand

--=---

.1 Pair gloves

( )

3 Pair eye protectors

( )

3 surgical. masks

( 1

3. EXecution commander notified set.-up equipment has been prepared

, (

)

{

}

{

1 •

(

)

{

} .

(

)

(

1

(

)

(

)

(

).

a. Execution Commander approves

s~t.-up'~quipment

( .)

b. Execution commander itrstructs OIC to begin set-up process
4. The !.V'. bag will be: opened and.
- inspected

( )
( .1 ( l· L', l-, ( " }

Revised 4/1/'4

.

<,

.'

~~ . \....,..I

-05/85/2884 12:27

4HI-50a-2812

PlII3LIC DEFENDER

PAGE 35

Appendix 13-A

6ndTheeadihd:fliecnI-at;<iClnvae1iei:BoUpened

to the top and. clos,ad

'

6w£SPilteFtl1l:, ih~.dbag .8htblBeclihaltith a way'

) (
(). ( )

) ( .J.
)

fi\oSl\tt!][~hstlte. 'aiuidlecilvek to the top

{ 1 ( 'l

{

a.' Attach the 3 lead e.xt,ension. to the' ( ) ( )

(

(

n~edle lock and, ,secure

9. Attach the 2.0 n ' extension set 'to ,the ( ) ( ). admuistration set and,'tape

)( )

iQi~starpurqedflow'of ry flUid tintii ~ll ( ) ( )

(

}

11. place the pressure infuser,,over, the ( ()

)

I.V. ba~ and iuflate to green line

12. Mark ,the ports'of the 3 lead

( ')

~tension; i l , t 2 , ~3 or use color

code markinqs

(

}

13. Repeat steps 4 thru 11 {for the

( }

}

second line}

14. Execution commander is notified that

set-u~ is ~omp~ete

(,)

a. Execution Commander approves set-UP

lS.Execution conuil.ander instructs OLe

to prepare medication

( )

(

1

16. Warden tests red/green liqhts in

Lethal Injection~oom and chamber

Lights- to be' in off Posit,ion -

( )

)

,D. Me.dication preparation

1. "Prepare 1;WO syringes 60cc',

( )

Potassium Chloride, loomeq each.

Label Hed #3 or use color code

2. Prepare two syringes 60cc

( )

"Pavulon, 100 mq each. Label

KED- t2 or usa color.code

3. Prepa:r;e two syringe 60cc

( r

)

Revised 4.Jl/9~

:

. 05/9512904 12:27 41B-saS-2e12

PUBLIC DEFENDER

PAGt 36

SQdiwa, .pentathol, i·~OQOmg. Label
MED 111 or us~ color 'code

AJlPend1.x 1.3-A

4. OICnoti.fi.es EXe<!tttion co1llnlande~ HEDS are·pt~pared

(':r'

E ~ placement of inmate. in: h~cut.i~ Chamber

1. Executi.on COuu.andel; directs Warden

to ascort the i.J:uItate to the Letha1

Inject£Oll:: Chantber. arid· place: hila. on

the gurney:

•.

2.·Warden.direc-ts Death Watch Team to

... prepare ;the

i

n.

m
"

a

t

e

for

the

exe. cution.

'. ()

a. Dea~h Watch Team places inmate

on. the quJ,:Dey in the. Lethal

Injection·Cbatnber a.nd straps

him down .

( )

1
(

b. Death watch Team exits Lethal

in Injection Chamber. closes door
and staiIds by the Death

aouse housing'sras

( )

.(

F. Injection procedure

L plac~ a constrictinqbanaon the.left ( ) ( ) arm, one, inch abOVe the anticubital. fossa. select a vein.

{

} ,

2. Cl.ean the 1:.V. site wita alcohol.

{ 1 (J

)( )

3. Open an anqiocath of appropriate
size.

{" 1 (

)( )

4. stretch the skin at the site and insert the anqiocath, bevel up.

{J { } (

( )

5. Advance the catheter over the stylette. .
6. F.EMOV'E 'l'KS CONSTRICTING BAND
7. Apply pressure to the 'dis~al end o£ the catheter and remove the style.tte. .

(

'{

{ l

1. ( )
l (1

« .,. . ) ( .... )-

(

) ( ) ..,.

.~""

.....

Revised 4/1/94

.....<... L.-.------'
;.;/..../

05/85/2004 12:27
',}'t" ,'.

418-508-2012

PAGE 37

Appendix 13-A

8. A-r;tach the· I.v . tub3.ng and start

(-}

( .

) (

) ,

the.·flow-of fluid.

9. 'Observe for s~ellinq ~r discolorati~n () ()

) (

Confirm flow of I.V.

10. Secure the I.V. ~i't.h tape.

( r .( ,,) (

)' C- 1

11. Slow-the I.V., to ICVO, 20-30 ml/hr

;.(
:'c:-

).........

f
_..

).'
-":.':'.- ...

( . :: .,

) ..

(

1

12. All. an9ioeatb will De' $~curedin: the. ( ) (~ (

) . { 'J

right: a..rtn, £ollowinq steps 1 thru 11

. . 13-. Ole verifies- mat: the- execution
process is ready tobein and .

( ). ( )

) ( ')

~otifies,the EXecution 'Commander

14: Lights. are t.urned down in the Lethal {} () (

(

In1 ec't.ion Room and the Witnes.s Room

G. BSCQrl: of llit::11esses to Wi.tness Area.

1. Execution Commander escorts

L)

witnesses, to Witness Roo.

2. Witnesses in place in witness area

(

3: ExecUtion Commander opens drapes to ( )

{

witness' area

H. EXecution Procedure
At any tilae the Executiolr -eommander# w~en or axe, find: it necessary to stop the, execUtion process; the~ shall
light, .the. red li9ht and tuol· off the qreen light. ·If.
open·, the il1.t:.n.ess Roo., drapes will ber immediately: closed until the- cause· is' detendned'•. W1tneS'seS" will be notified as. appropriate by the Bxecnl1:ion. Comaander ..

1. Signal. to commence the execution is ( )

(

given by the EXecution commander by

lighting the,green light in the

Lethal. Injection Roo.

.

a •. Tbe- warden will light the qreen ()
light in the EXecution Chamber illdic-.ting MEl) ..t~ is. being
adlainistered

Revised 4/1/94

. .135/05/2004 12:27
.,. u'

4113-5138-2012

PAEE ·38

2. KED #1 is inserted into Port J1, the flow clamp opened. arid tbe ~ medication adJainistered to the· left arm: of t:heil:imate-·· .

Append.ix 13-A (

3. HED-#I removed, flow clamp closed,

) .

(

1:.V. run. wide' open for ten: secondS

a) The warden will ·turn o£f the

(

green light in. the L&tha~,

, I:njec:ti.on... ChaJRbel';'I -indicat~n,g­

MED itl has· been· lldministered

( "

~ _ MEn 12 is inserted. ilito Port,2,

( )

(

the flow- clamp' opened and the: '

medication. administered

a. The green light is turned on

)

)

indicating MED :2 is being

administered

5. MED ,2 (second s.yringe) is
- administered in Po~ 12

{

(

)

6. MAD· #2 removed, flow clamp closed
:t.v. rans·wide open for ten seconds

a. Turn off qreea. l1qht to

(

indicate MED't.2 has· been

adlUinisterea

7. HKD 13 is. tnserted into Port t3,

( }

1

the flow clamp opened and the

medication administered

_.__-

a. TUrn on green light to indicate C·}

(

MED i3 is· being administered

,8. MED #3 (second syringe) is
administered in Port 13

(l'!' )

(

a. TUrn off green li9'ht -.to indicate MED 13 has been administered·

( )

(

l

...

9. Close the flow clamp to Port 1t3

( )

. (

10. When it appears to' the. Medical Doctor (. )

(

observing the inma·te:. frtlJlt. 'the Lethal __,-

Injection Room that death has ...

Revised 4/1/94

05/85/2804 12:27
41. i t ,

418-588-2812

puBLIC DEFEHDER

PAGE 39

-
Ap~iendix . 1.3-A

occu~red# he shall advise the oIel
Wa~de.n·"

a. The. oct/warden shall

( l

. continuoufJly turn the green·

li9h't..on/offin· a· blinking-:

manner

. - . , ...,.. ".., .....
"

11. 'Opon observing.. 'Che blinking green. ()

{, )

liqht; the Exeeut.1on. COUIJlander will. ' " :: .

c.lose.... the.: W1tness,.'Room·. drape., 1:Urn: '~"'~:'~:~':::~-"~-:''':''''

of£ 'the gre'en, light:~ in: tne Lethal

"

Injection ROODl and SUmMon the Medical .

Doctor to con£iradeata

.

12. Medical Doctor will' c(lnfini death· .. .( '.)

(

)

13. The Warden will prepare a cei't.l£~cat;e ( ) of Execut.ion and present it to .the '... Execution Commander. All persons'will ex~t the Lethal Injection Chamber' ~d, stand by. '

(

}

14. Execution Commander reads the

( )

Certificat.e of Execution to the

wit.nesses and directs them back

to the Witness Waiting Area

lS~ Witnesses are esco~ted out of the Injection Ch~er Room

(""r-~ :.

, C' . )

"

a. wit.ness ROom door is closed

{ )

and locked.

_..:....,,--

16. I.V. will be rellloved and passed into ( ) .the injection %:001l

}

(

)

17. Ole collects all equipment

( )

, (

18. Unused drugs are secured, placed , in the secure Lethal Inj ection Drug Box, and held for ten,d~ys
,19. ixecut10n Tea. removes all clothing frour the inmate'
20. Bo~y is photoqrap.hed by the Execution Tea..
21. Inmate, clothing is- disposed of in .
B.e~ised '4:/1/94:
38

( .) .
) ( )
..
( ).

.' .( ' )'

(

)

(

)

, .
...

.' '

; 05/05/2004 12:27 418-508-2812

RJa..IC.~

PAGE 40

t.he disposal bag
22. Boay i.s pli-\~e:d:Ui· body·ba'qbY th~ . Death W.atchTeuf and.:d1sposed of
per pre-determined·arrangemettts',

Appendix 13-1\ 1

'23. warden designates ,st.aff· member to

{ }

dispose Q~ dl;'Ugs ,

24. proqs· ~e disposed

( )

(

)

:I. "!he Execution .CCHlUiuulder .wi11 .coitduct, a;' crit:lque of the execution process iDimediately· ·followiIlg the clean-Up process

Revised 4/1/94

-:;...- ....
. ..

IN THE CIRCUIT COURT FOR BALTIMORE CITY, MARYLAND STEVEN HOWARD OKEN, Plaintiff,
v.
Frank C. Sizer, Jr., CommissiOner Maryland Division of COrrection, William Williams, Warden Maryland Correctional Adjustment Center .Baltimore, Maryland Gary Hornbaker, Warden MetropolitanTransition Center and UNKNOWN EXECUTIONERS, Defendants.
AFFIDAVIT OF JEROME H. NICKERSON JR. ESQ.
After being duly sworn by me a Notary Public for the state ofMatyland, Jerome H.
Nickerson Jr., Esq. did state as follows:
1. My name is Jerome H. Nickerson, Jr. and I reside at 1104 William Street, Baltimore. Maryland.
2. I am an attorney and member in good standing of the Maryland Court ofAppeals. For
fifteen years my practice has consisted almost exclusively ofstate and federal post-conviction representation ofdeath sentenced inmates in Florida, Maryland, Pennsylvania and South Carolina.
I

3. In 1994, I was appointed by the Federal District Court for the District ofMaryland to represent Mr. Tyrone X. Gilliam in federal habeas corpus proceedings challenging Mr. Gilliam's convictions and sentence ofdeath in the CircuitCourt for Baltimore County, Maryland. For four
years I represented Mr. Gilliam before the District Court, the United States Court of Appeals for
the Fourth Circuit and the United States Supreme Court. 4.. Ultimately, all ofMr. Gilliam's challenges were rejflCf;ed by the federal courts and the
Governor ofMaryland, the Hon. Paris Glendening, denied Mr. Gilliam's request for executive
clemency.
5. On the evening ofNovember 16, 1998, I was present in the death house ofthe
Maryland Penitentiary when the sentence ofdeath imposed by the Circuit Court for Baltimore County was carried out. Other individuals present in the death house who I lecogni~ included Mr. Gilliam's spiritual adviser, Sister Ashida Kalil and two media witnesses selected by the
Maryland Department of Corrections, Ms. Caitland Franke ofthe Baltimore Sun and Mr. Greg
Toppo ofthe Associated Press. 6. After I was escorted to the death house the curtain to the widow separating the death
chamber from with witness gallery was retracted. I was standing directly in front of the widow of
the lethal execution chamber when the curtain was pulled back.
7. At that time I observed Mr. Gilliam lying on the execution gurney with his arms
outstretched. From this vantage point I could see that IV lines had already been established by the execution team in both of his arms. From my position I could see the IV lines stretched
from Mr. Gilliam's arms back to an opening in a wall ofthe lethal ~ection chamber.
2

8~ hnmediately, when the execution began, I observed fluid running down the exterior surface of the IV line closest to the witness gallery. I watched as this fluid followed the path of - the IV line from the opening in the wall into the execution chamber to where the line arced upwards towards Mr. Gilliam's aim. At the lowest point ofthe IV line drops of fluid began to fall and collect on the floor ofthe lethal injection chamber. This dripping continued throughout Mr. Gilliam's execution.
9. The dripping began immediately after the IV line jerked or twitched for the first time.
By this I mean that I observed the IV line closest to me sway back and forth and jump as ifit bad
been infused with pressure. I viewed the IV line jerk three times iIi this fashion. After each of
these three jerks I noticed the volume ofliquid traveling down the exterior ofthe IV line increase and a corresponding increaseJn the rate of fluid dripping. After each jerking motion the volume . of dripping fluid would increase and would theQ slow until the line jerked again when the rate of dripping would again increase.
10. After I ob.served the flfStjerk in the IV line I noted fluid continuously drip from this
line onto the floor ofthe execution chamber. By the time Mr. Gilliam was pronounced dead a
puddle of liquid had fomied on the floor of l~ injection chamber immediately below where the IV line was located. This puddle had an irregular circumference of five to seven inches across.
11. As we were escorted from the death house I wasjofued by Ms. Franke ofthe _BaltUnore Sun and Mr. Toppo ofthe Associated Press. We were taken to a room close to the front entrance ofthe Maryland Penitentiary where we were instructed to wait before being taken to the Reception and Classification Center where the Department of Corrections was to hold a
3

,
press conference regarding Mr. Gilliam's execution. While in this room I recall Ms. Franke asking a Department ofCorrections official regarding the fluid seen dripping during Mr. Gilliam's execution. I recall this official's answer to Ms. Franke's inquiry was that dripping fluid during a lethal injection execution was "normal" and the execution team encountered no problems during Mr. Gilliam's execution. When I attempted to enter the press conference at the Reception and Classification Center I was advised by a Department ofCorrections officials I would not be pennitted to attend and a guard was instructed to escort me off Department of Corrections property.
12. This affidavit dQeS not exhaust my knowledge regarding lethal injection executions in gen~> the 1994 Execution Procedures adopted by the Maryland Department of Corrections .or other practices ofthe Maryland DepartIilent of Corrections with respect to lethal injection executions from the period 1994 to the presen
"(
,. '..

Signed before me, a NotaIy Public for e State of Maryland, at Harford County,

Maryland this 14th day of May 2004.

~~~.
NotaIy Public for the State of Mary d

My Commission Expires:

SHARON A. SQ\NI
NOTARY PU8UC STATE Of MARYlAND My CoollniuiQn Expire$Jonoory 15,2005

Page40.f 4

 
 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

VERNON EVANS, JR.,

*

Plaintiff,

*

v.

*

Civil Action No. 06-CV-00149 BEL

MARY ANN SAAR, Secretary,

*

Department of Public Safety and

Correctional Services;

*

*
FRANK C. SIZER, JR., Commissioner,

Maryland Division of Correction;

*

LEHRMAN DOTSON, Warden,

*

Maryland Correctional Adjustment Center;

*
GARY HORNBAKER, Warden,

Metropolitan Transition Center;

*

and,

*

JOHN DOES,

*

Defendants.

*

******
PLAINTIFF'S REPLY TO DEFENDANT'S MEMORANDUM IN OPPOSITION TO PLAINTIFF'S MOTION FOR TEMPORARY INJUNCTION

On January 19, 2006, Plaintiff Vernon Evans, Jr. filed a Complaint in this Court, pursuant

to 42 U.S.C. § 1983, alleging that Defendants' current practices and procedures for carrying out

lethal injections create a grave risk that Evans will be executed in violation of the United States'

Constitution's ban on cruel and unusual punishment. On January 20,2006, Evans moved in this

Court for a Temporary Restraining Order and Preliminary Injunction, pending resolution of his

constitutional claims. In support of these motions, Evans showed that the balance of harms in

this case tips decisively toward the Plaintiff, that he has raised "grave or serious questions" in his Complaint, and that the public interest will be served by resolution of this case on the merits, thus entitling Evans to preliminary relief. Blackwelder Furniture Co. v. Seilig Mfg. Co., 550 F.2d 189, 196 (4th Cir. 1977).
Defendants' response to Evans's motions, filed on January 26,2006, misconceives the nature of Evans's Complaint and fails to rebut Evans's showing in support of preliminary relief. Accordingly, Evans requests that this Court issue the preliminary relief sought and proceed to consideration of the merits of Evans's claim.
Argument 1. Defendants' first argument - waiver - misunderstands what Evans is challenging. The State's argument is that Evans waived any objection to the practices and procedures employed by Defendants in performing lethal injections by failing to elect a particular method of execution prior to May 24, 1994. Defendant's Memorandum in Opposition at 10 (hereinafter "Def. Opp."); see Def. Opp. Exh. A (directing Evans to choose between two "method[s] of execution," namely, "lethal gas" and "lethal injection"). But Evans has not challenged lethal injection as a method of execution, see Complaint at ~ 2; he challenges the practices and procedures by which Defendants have chosen to carry out lethal injections. The Supreme Court's opinion in LaGrand v. Stewart, 526 U.S. 115 (1999) (Opp. at 10), is therefore inapposite. See id. at 119 (where petitioner elected to be executed by lethal gas he would be held to have waived objection to that particular "method of execution"). Moreover, even if Plaintiff had been notified in 1994 of the particular practices and procedures Defendants intended to employ in carrying out lethal injections-which he was not,
2

see Def. Mem. Exh. A-those practices and procedures have changed substantially in the intervening yearsY Plaintiff cannot be deemed to have waived in 1994 his right to challenge practices and procedures for execution that were not put into place for another decade or more.
2. Nor are Defendants on any sounder ground when they argue that Plaintiffs request for preliminary relief should be denied because he has unduly delayed in bringing this challenge to Defendants' lethal injection procedures. According to Defendants, Evans could have brought this claim as soon as the Maryland legislature selected lethal injection as a method of execution. Def. Opp. at 11. Once again, however, Defendants have confused Evans's challenge to the particular practices and procedures employed in lethal injection with one attacking any lethal injection as unconstitutional.
In fact, there are substantial reasons why Evans brought this action when he did: a. First, Defendants practices and procedures in lethal injection were a
moving target, and any challenge to those procedures at a date far-removed from his own execution were likely to have been soon mooted by a change in procedures. Counsel for Defendants himself conceded in a status hearing in this Court that the practices and procedures that Defendants seek to use in executing Evans differ from those they used to execute Steven Oken in 2004. While counsel insisted that "not much" has changed since the Oken execution, and that the procedures would be "essentially" the same as those used in the Oken procedure, Evans has reasonable cause to question these bare assertions: counsel for Defendants made the

II

For example, compare Plaintiffs Memorandum of Law ("PI. Mem.") at Exh. A3, 6114/04

Execution Operations Manual, "Contents of Syringes," with id. at Exh. A7, 411/94 Execution

Operations Manual, "Contents of Syringes."

3

same assertions before Judge Messitte in Oken v. Sizer, 321 F. Supp. 2d 658 (D. Md. 2004), in justifying the State's refusal to tum over any information about an amended "Execution Protocol," see id. at 663 ("Defendants insist the Amended Execution Protocol made no substantive changes in the old" protocol), while in fact, for example, the quantities of drugs used had changed substantially from the "Execution Protocol" produced to Oken and that in place on May 26, 2004.Y
b. Second, on the basis of these substantial changes that preceded the Oken execution, Evans could not assume that any change would reduce the risk that the State's processes would inflict on him grave pain, and, accordingly, he has been assiduously seeking documents that would inform him about the procedure for over 10 months. Thus, on March 7, 2005, Evans began seeking information about Defendants' lethal-injection execution practices and procedures through a public information request, see PI. Mem. Exh. A2. He updated that request on December 20,2005, to include any changes made for the execution of Wesley Baker, see PI. Mem. Exh. A5. An evidentiary hearing concerning Evans's March 7, 2005, publicinformation request took place on January 24,2006, and the record for that hearing will not close until January 27,2006. Evans still does not have all the information to which he is entitled.
c. Third, substantial impediments to bringing this action earlier inhere in the law: (i) The processes for administrative exhaustion, discussed in paragraph 4(a) below, appear
Compare PI. Mem. at Exh. 3,6/14/04 Execution Operations Manual, "Contents of Syringes," with id. at Exh. 7,4/1/94 Execution Operations Manual, "Contents of Syringes.") And on the day Judge Messitte issued his opinion, Defendants again amended their lethal injection procedures. See Oken, 321 F. Supp. 2d at 658 (opinion issued June 14,2004); PI. Mem. Exh. A3 ("Execution Operations Manual" dated June 14,2004).
4

to require that such efforts commence no earlier than 30 days before the complained-of-incident

- presumably the issuance of the warrant, ifnot the execution itself. (ii) Moreover, ripeness

limitations on federal court jurisdiction and principles of constitutional-issue avoidance, see, e.g.,

Ashwander v. TVA, 297 U.S. 288,341 (1936) (Brandeis, J., concurring), made it seem unlikely

that a federal court would hear the claims, with a number of meritorious legal challenges still

pending, until no earlier than the issuance of an execution warrant.

d. Fourth, nonetheless, on December 9,2005, weeks before the warrant

issued, Evans began exhausting his administrative remedies. He did so having seen the

prominence that the issue of "delay" played in the Baker litigation raising similar, though

distinguishable, claims in this Court, and having read news reports that State's Attorneys' for

Baltimore County might soon seek a warrant for his execution, and, despite doubts about the

ripeness of his complaint and his ability to begin administrative exhaustion more than 30 days

beyond the complained-of incident. Still, as of this date, those efforts to exhaust, addressed in

more detail below, awaits action on Defendants' counsel's desk. Under the circumstances,

Evans cut short the exhaustion efforts as futile or completed.

e. Fifth, the Supreme Court just stayed execution of Florida inmate Clarence

Hill and agreed to hear his Section 1983 lethal-injection claim despite the fact that the petitioner

there brought the action five weeks after the death warrant issued and just three days before the

scheduled execution, and was strapped to a gurney for his execution when the stay issued.

f.

Finally, Nelson v. Campbell, 541 U.S. 637 (2005), on which Defendants

rely heavily in arguing that Evans has "abusive[ly] delay[ed]," (Opp. at 12), does not help them.

To be sure, the Nelson Court observed that delay would be relevant to a court considering a

5

challenge to practices and procedures involved in lethal injections - in that case, the means of gaining venous access, id. at 649-50. Presumably, the Nelson District Court on remand, see Nelson v. Campbell, 377 F.3d 1162, 1163 (9th Cir. 2004) (remanding case to district court), heeded this explicit direction from the Supreme Court. Yet Nelson remains on Alabama's death row 20 months later.11 Indeed, the district court has referred consideration of his constitutional claim regarding venous access to a Special Master. See Nelson v. Campbell, Civil Action No. 2:03CVlO08-T, (M.D. Ala. Jun. 16,2005). While there is no published opinion from the district court on remand in the Nelson case, it is reasonable to assume that filing his complaint "three days before his scheduled execution," Nelson, 541 U.S. at 639, did not lead inexorably to dismissal of his Section 1983 action.
g. It is clear, therefore, that, even if this Court were to determine that Evans had engaged in some delay in filing his claim - which we dispute - such a finding would not, as Defendants' contend, require dismissal of Evans's complaint. It is an equitable remedy that Evans seeks, and even if delay were relevant to the Court's consideration, it is not conclusive. "Grave or serious" questions about the practices and procedures involved in executions as carried out by Defendants may- and do -justify the issuance ofpreliminary relief.
2. Turning to the Blackwelder standard, which governs issuance of preliminary relief in this Court, Defendants wholly fail to rebut the clear showing of irreparable harm, weighing heavily in Evans's favor, that we demonstrated in our opening motion papers.
11 See "Alabama Inmates Currently on Death Row," http://www.doc.state.al.us/deathrow.asp (last visited January 26,2006).
6

a. The Supreme Court has emphasized the obvious proposition that "irreparable harm" is "necessarily present in capital cases." Wainwright v. Booker, 473 U.S. 935 n.l (1985). Here, the irreparable harm necessarily present - imposition of the death penalty prior to vindication of one's constitutional rights - is even more severe, given Evans's claim that the execution he would endure would be excruciatingly, and unnecessarily, painful. To this, Defendants say (1) that the possibility of "negligence" in the execution of Evans does not weigh in the balance, and (2) that Oken v. State, 851 A,2d 538 (Md. 2004), establishes that Defendants' practices and procedures in lethal injection are not violative of the Eighth Amendment. Neither response is persuasive.
b. Evans has alleged far more than "negligence" in the execution. While it is true that, in the performance of a lethal injection, a member of the "Execution Team" might fumble with the IV or take unduly long with their insertion and thus prolong an inmate's dread or anxiety, or even cause some physical pain, Evans concedes that such facts do not amount to violation of his Eight Amendment rights. But his rights are violated where practices and procedures for anesthesia that are impermissible outside the legal-injection context will be used to inj~ct drugs intoEvans that are banned fortheir cruelty ill: the euthanasia of animals.
c. Defendants' assertion that the Maryland Court of Appeals' "review" of similar claims in Oken v. State, 851 A.2d 538 (Md. 2004), definitively establishes that the State's protocols are not cruel and unusual under the federal constitution, and thus cannot generate "irreparable harm," is untenable. First, this Court owes no deference to a State court's analysis of rights guaranteed by the federal constitution. Second, there is no analysis in Oken to which this Court could defer: the opinion states simply that ''the method of execution intended to be
7

implemented by the Division of Correction does not ... constitute cruel or unusual punishment." Id. at 538. In Oken v. Sizer, supra, Judge Messitte refused to accord res judicata effect to that decision in considering the very same claims. According to Judge Messitte, "there are substantial reasons to doubt the quality, extensiveness, or fairness of procedures used in the state court." Oken, 321 F. Supp. 2d at 663.
d. The assessment of "irreparable harm" by Judge Quarles of this Court in denying preliminary relief on a similar claim to Wesley Baker is unpersuasive for the same reasons. Judge Quarles failed to undertake any analysis of the balance of harms, stating simply that Baker's showing of harm was "[i]nextricably linked" to his showing of a "likelihood of success on the merits." Baker v. Saar, 402 F. Supp. 2d 606, 607 (D. Md. 2005). This conclusion misconstrues the law of this Circuit. Blackwelder clearly holds that the balance of harms is the "more important" consideration, and that "[i]f that balance is struck in favor of plaintiff, it is enough that grave or serious questions are presented; and plaintiff need not show a likelihood of success." Blackwelder Furniture Co. v. Seilig MJg. Co., 550 F.2d 189,196 (4th Cir. 1977). And in concluding that Baker had not shown a likelihood of success, the only authority Judge Quarles cited was Oken v. State, supra. See Baker, 402 F. Supp. 2d at 608 - adopting the Maryland Court of Appeals' conclusory analysis of theJederaI constitutional claims at issue, and undertaking no independent analysis of the claims raised.1/
This Court should also be aware of a material difference between the claims in the case before it and those brought by Wesley Baker and Steven Oken: neither Baker nor Oken raised the substantial question concerning Defendants' ability to obtain sufficient venous access that. Evans raises here and discusses in detail below, nor did either Baker or Oken engage in the attempts at administrative exhaustion demonstrated by Evans.
8

3. The cases on which Defendants rely in asserting harm that preliminary relief would cause them are distinguishable:
a. Defendants quote liberally from Calderon v. Thompson, 523 U.S. 538 (1998), but the "finality" interest at stake in Calderon was of an entirely different sort than that alleged here. In Calderon, the Supreme Court addressed the "extraordinary costs associated with a federal court of appeals' recall of its mandate denying federal habeas relief' one year after a habeas petitioner's request for rehearing en bane, 53 days after issuance of the mandate denying relief, and two days before the petitioner's scheduled execution. Id. at 556. In such a case, the Court held, a habeas petitioner's interest in having a federal appeals court consider the merits of his constitutional claims a second time, and de novo, were outweighed by a State's interest in carrying out its judgment.
b. Reid v. Johnson, 333 F. Supp. 2d 543 (B.D. Va. 2004), addresses a claim similar to Evans's, but distinct in a dramatic and highly material way. Important to that court's consideration of "irreparable harm" was the fact that a "cut-down" procedure or significant difficulty in locating a vein was not at issue. Id. at 550-51. Despite Defendants' assertion to the contrary, extreme difficulty in finding a vein, the invasive medical procedures necessary where peripheral venous access is unavailable, and the myriad catastrophic - and extraordinarily painful - events that can result from such procedures (even when performed by qualified medical personnel, let alone the staff employed by Defendants) are very much at issue in this case. That is the conclusion of an eminent expert, Dr. Thomas M. Scalea, physician-in-chief at University of Maryland Shock Trauma Center in Baltimore. See Declaration of Dr. Thomas M. Scalea ("Scalea Decl''') at ~~ 7-10 (Attachment A hereto). Dr. Scalea performed a 20-minute
9

exam, which included extensive examination of Evans's upper- and lower-body peripheral veins and use of a sonogram. A Certified Nurse's Assistant ("CNA") in the Defendants' employ cursorily examined Evans and concluded that, despite an intravenous drug habit spanning several decades, his veins were not compromised, see Declaration ofVemon Evans, Jr. ("Evans Decl.") at ,-r,-r 1-7 (Attachment B hereto); Report of CNA (Attachment C hereto). Dr. Scalea concluded otherwise. According to Dr. Scalea, not only would peripheral venous access not be possible, but even the invasive "cut-down" procedure likely would not establish sufficient access to Evans's blood stream. Id. at,-r 10. Dr. Scalea also concluded that the state of Evans's veins not only suggested extreme difficulty in obtaining venous access, but also raised grave doubts that the Department of Corrections has staff or equipment capable of performing the complicated procedure necessary to assure reliable IV access. Id. Reid, therefore, does not impact the "irreparable hann" analysis before the Court in this case.
4. Because Evans has shown that the balance of harms tips in his favor, he need show only that "grave or serious" questions are raised in his request for relief. Blackwelder, 550 F.2d at 196. He has surely done this, and much more.
a. Evans can succeed even though his efforts to exhaust are not concluded. Evans has been seeking access to records necessary to litigate this matter responsibly for nearly a year. What is more, Evans began exhausting his administrative remedies by filing an Administrative Remedy Request on December 9,2005 - before a warrant for his execution
10

issued, and before it was at all clear that such an administrative remedy would be available or ripe.~
It is telling that Defendants focus their argument as to exhaustion of administrative remedies on the procedures of the Inmate Grievance Office ("100"). Before Evans could file a grievance with the 100, he was required to file an Administrative Remedy Procedure ("ARP") . request with Warden Dotson of the Maryland Correctional Adjustment Center. And when that ARP request was denied, he was required to appeal the Warden's decision to Division of Correction Commissioner Sizer. Only after receiving a response from the Commissioner could Evans file a grievance with the 100. Evans filed an ARP request with Warden Dotson, alleging that Defendants' practices and procedures in carrying out lethal injection would violate his rights under the Eighth and Fourteenth Amendments. Warden Dotson denied relief, and Evans appealed that Decision to Commissioner Sizer. Division of Correction personnel have informed counsel for Evans that it is Mr. Oakley who currently is considering that appeal. While Mr. Oakley told the Court his views that the claims in Evans's ARP request have no merit, as of this time the Department has not formally denied the ARP, and thus Evans cannot yet even file a .grievance with the 100. Evans should not face the "Catch-22" situation where the State prevents him from concluding efforts to exhaust at the same time as it seeks to block federal-court access
See PI. Mem. Exh. Al (warrant signed January 9,2006); Code MD. CODE REGS. 12.01.01.06(A) (stating that Administrative Remedy Procedure may only be invoked within 30 days of the occurrence complained of); see also Beardslee v. Woodford, 395 F.3d 1064, 1069 (9th Cir. 2005) (holding there was no delay or failure to exhaust where an inmate, "[0]nce an execution was imminent, ... acted promptly," the availability of administrative exhaustion prior to that point was unclear, and, where procedures used in lethal injection were subject to change up until the time of execution, the question of when such a claim becomes ripe is unclear).
11

to him for failing to have exhausted. Either Evans has exhausted administrative remedies sufficient to comply with 42 U.S.C. § 19977e(a), or any attempt at further exhaustion would be pointless. See, e.g., Johnson v. True, 125 F. Supp. 2d 186 (W.D. Va. 2000) (Dismissal of claims brought pursuant to 42 U.S.C. §1983 "would be inappropriate" where such attempts "would be futile"); Washington v. Proffit, No. 704CV00671, 2005 WL 1176587 (W.D. Va. May 17, 2005) ("Where defendants have thwarted the plaintiffs ability to exhaust their administrative remedies, the plaintiff is not required to do so."); O'Connor v. Featherston, No. 01 Civ. 3251, 2002 WL 818085, at *2 (S.D.N.Y. Apr. 29,2002) (exhaustion requirement may be satisfied "where ... an inmate makes a 'reasonable attempt' to exhaust his administrative remedies, especially where ... corrections officers ... impeded or prevented his efforts"); Griffith v. Selsky, 325 F. Supp. 2d 247, 250 (W.D.N.Y. 2004) ("[T]here are circumstances in which an inmate plaintiffs failure to exhaust his remedies may be excused") (internal quotation marks and citation omitted).
b. Nor is the claim defective, as the States charges, for any failure to "allege that, because there are alternative methods of execution, the challenged protocol is wholly unnecessary to proceeding with the execution," Opp. at 23 (quoting Aldrich v. Johnson, 388 F.3d 159, 161 (5th Cir. 2004)). As an initial matter, Evans has alleged that alternative methods of execution, which comply with both the Maryland lethal injection statute and the federal constitution, are available for Defendants' use. Complaint ~~ 2,42. Under the law of the Fourth Circuit, a complaint containing such an allegation is cognizable under 42 U.S.C. § 1983. Reid v. Johnson, 105 Fed. Appx. 500, 503 (4th Cir. 2004). Moreover, the State of Florida is raising the
12

very same defense in Hill v. Crosby, No. 05-8794, and the Court should therefore issue the requested injunction at least until a decision in that case.
5. The Defendants' assertion that Evans has not raised "grave or serious questions" in support of preliminary relief is grounded in a fundamental misunderstanding about Evans's allegations. Both Defendants in this Opposition and their expert, Dr. Mark Dershwitz, focus
almost exclusively on whether, ifproperly administered, three grams of sodium pentothal would
be sufficient to establish and maintain anesthesia. Dr. Dershwitz views "the time course of a drug's effect" as the "primary medical and scientific issue raised in this complaint," Declaration of Dr. Mark Dershwitz ("Dershwitz Decl.") ~ 16, and he dedicates the first 11 pages of 17-page affidavit to discussion of this topic - a topic on which he apparently has some expertise. See Dershwitz Decl. ~~ 2-20. But Dr. Dershwitz misreads Evans's Complaint. Evans does not raise any issue to which this discussion of "pharmacodynamics" or "pharmacokinetics" is relevant.
a. Dr. Dershwitz fails, moreover, to rebut the substantial questions raised by Dr. Heath and Dr. Scalea (the doctor who actually examined Evans) about the ability of Defendants actually to administer a full dose of sodium pentothal and maintain anesthesia throughout the execution. As one example, Dr. Dershwitz takes issue with Dr. Heath's concern over leaking IV lines, and he suggests that the leaking IV lines documented in Defendants' execution of Tyrone Gilliam are no longer a concern because Defendants now use "Luer Locks." Dershwitz Decl. ~ 20(b). Luer locks, however, even in trained hands, are no assurance against leaking IVs or improper administration of anesthesia.Q/
See Katherine Holmes, More Problems With Luer Lock Connections, 61 ANAESTHESIA 73 (2006) (noting increasing reports of improperly assembled Luer locks and the concern these
13

b. Dr. Dershwitz also errs when he disputes the concerns raised by Dr. Heath about administration of anesthesia by taking apparent comfort from the participation of Certified Nursing Assistants ("CNAs") in the process. Dershwitz Decl. at ~ 21 (c). Of course, it is just such a CNA - according to counsel for Defendants, the very CNA who will attempt venous access during Evans's execution - who cursorily examined Evans's arms for 50 seconds, rubbing them slightly, and then determined that they would support peripheral venous access. Her conclusion, of course, is rejected by Dr. Scalea - a leading shock trauma surgeon with years of experience attempting venous access on current and former intravenous drug users, Scalea Decl. ~ 3 - who came to a dramatically different conclusion. Scalea Decl. ~~ 7-10. Dr. Dershwitz's unsupported assertion that this CNA (who he does not claim to know personally)or for that matter, any other person involved in lethal injections carried out by Defendants - is "well trained and highly skilled for their specialized tasks" is rendered utterly indefensible by Dr. Scalea's extensive examination of Evans. Dr. Dershwitz's dependent conclusion that "a rapid, painless, and humane execution can be accomplished by trained and experienced non-medical personnel," Dershwitz Decl. ~ 21 (c), is, concomitantly, just as specious.1!
c. Dr. Heath expresses concern that the "excessive pressure" involved in administering lethal injection, as planned by Defendants, could cause "tearing, rupture, or

incidents raise in the context of intravenous anesthesia, given "increasing public knowledge and fear of awareness under anesthesia").

1!

Dr. Dershwitz's assurances that personnel in Defendants' employ will also adequately

secure a catheter and check that arm straps are not acting as tourniquets, Dershwitz Decl. at ~

21(e), (f), are similarly weakened by his apparently misplaced faith in the training and skill of

Defendants' personnel.

14

leakage of the vein." Id. ~ 2I(d). Dr. Dershwitz takes issue on this point too, but his opinion is undercut by his silent assumption that the state of Evans's veins has no bearing on this conclusion. As described by Dr. Scalea, Evans's veins have been severely compromised by years of intravenous drug use, making them particularly susceptible to rupture, a fact that is only compounded by the Defendants' use of "pressure infusion bags" for intravenous injection. Scalea DecI. ~ 8.
d. Notably, Dr. Dershwitz takes no issue whatsoever with Dr. Heath's concerns about "incorrect insertion ofthe catheter," "migration ofthe catheter," or "perforation or rupture" of the vein caused during insertion of the IV. PI. Mem. Exh. B ("Heath Decl.") ~ 26(f),(g),(h). These serious and uncontested potential errors are only compounded by the participation of potentially undertrained staff in lethal injections. In essence, Dr. Dershwitz, and Defendants' Opposition in reliance on him, utterly fail to rebut the very serious concerns raised Dr. Heath, and now, Dr. Scalea about Defendants' ability to ensure that a sufficient dosage of anesthetic is actually delivered.
e. Finally, both Defendants and Dr. Dershwitz defend procedures for lethal injection - banned for use in animals by the American Veterinary Medical Association ("AVMA") and by the State of Maryland through its criminal law because of their cruelty-on the ground that they save execution witnesses from lengthy or unpleasant viewing experiences. Def. Opp. at 33; Dershwitz DecI. ~ 19. Evans's right to be free from cruel and unusual punishment may not be subordinated to the interest of an execution witness in viewing a speedy and deceptively peaceful lethal injection without upset.
15

f. Defendants have failed to rebut Evans's demonstration that the practices and procedures employed by Defendants in carrying out executions create a grave risk that he will suffer wanton and unnecessary pain ifhe is subjected to these procedures, and they have not even attempted to rebut the rather modest contention that evolving standards of decency do not permit the killing of human beings in a manner deemed inhumane for animals. It is plain, therefore, that Defendants' have not sufficiently contested the existence of "grave or serious questions" justifying Evans's request for preliminary relief.
S. The Defendants' treatment of the "public interest" component of the Blackwelder analysis would render this third consideration a mere redundancy. "The public interest is the State's interest," say Defendants. Def. Opp. at 37. Accordingly, they have merely repeated verbatim - typos included - their argument as to Defendant's interest discussed under "irreparable harm." See Def. Opp. 37-38,20-21. But the public, most certainly, has an interest distinct from the Defendants' in ensuring that the most solemn act of execution, carried out in its name, and shrouded by Defendants' in secrecy, is performed humanely, in accordance with "the evolving standards of decency that mark the progress of a maturing society" and without "the unnecessary and wanton infliction of pain." Estelle v. Gamble, 429 U.S. 97, 102 (1976). This interest would clearly be served by preliminary relief allowing the merits of Evans's complaint to be considered.
Conclusion For reasons set forth above and in our opening motion papers, Evans has shown that he will suffer irreparable harm in the absence of temporary relief, that the balance of harms tips in his favor, and that "grave or serious" questions are raised in this case. Accordingly, this Court
16

should order Defendants Temporarily Restrained and Preliminarily Enjoined from performing any execution using their current practices and procedures for lethal injection.

Respectfully submitted,

Jeffrey O'Toole (Bar No. 03436)

Julie S. Dietrich

O'TOOLE, ROTIlWELL, NASSAU &

STEINBACH

1350 Connecticut Avenue, N.W., Suite 200

Washington, D.C. 20036

(202) 775-1550

otoole@otrons.com

dietrich@otrons.com

()J4rtild1

A StepI1en Hut;, Jr.

. !

Todd Zubler

Kalea Seitz Clark

Anne Harden Tindall

WILMER CUTLER PICKERING HALE AND

DORRLLP

2445 M Street, N.W.

Washington, D.C. 20037

(202) 663-6000 (phone)

(202) 663-6363 (fax)

. stephen.hut@wilmerhale.com

todd.zubler@wilmerhale.com

kalea.clark@wilmerhale.com

anne. tindall@wilmerhale.com

Dated: January 26,2006

Counsel for Defendant Vernon Evans, Jr.

17

.' I
CERTIFICATE OF SERVICE
I hereby certify that on this 26th day of January 2006, I caused a copy of the foregoing
motion to be sent via electronic filing to:
Scott S. Oakley Assistant Attorney General Department of Public Safety & Correctional Services 6776 Reisterstown Road, Suite 313 Baltimore, Maryland 21215 E-mail: soakley@dpscs.state.md.us

01/26/2006 10:38 FAX 2026836383
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IN THE lTNITED STATES DIRTIUCT COURT FOR THE OlSTRICT OF MARYLhN'D

VERNON EVANS, .lR.• POCNumber In~57;

Plaintiff,
v;s.

..
+ Civil Action No, 06.-cV-OOl49 BEL

M..A.RY ANN SAAR. Sa:r~.

Department nfPublic SMelt,. and

Coneotional Services

+

FRANK C_ SIZER, JR., COmInis~ioDer,

Maryland DivisiQn of Cort'eotion

+

LEHR.lVIAN DOTSON, Warden, MOtyland CorrecI.ional Adjustment C<:nter
•
GARY HORNBAKER, Warden,
Metropolitan Transition Center

JOHN DOES,

+

Defendants.

DECLARA..n.ON OF 1J!OMAS M. SCALEA. 4D., F.A.C,Y.C.C,M, I. Dr, Thomas M, Soalea, declare as fQllows: 1. I am C'I.l:trently the Physicia.n-in-Chief of the R. Adams CO'W]ey Shock Trauma Centl:r at the T)l)i-versity cfMaryland Sohool ofMfldioine, BaltitnOte. I also t\'lach as the:: Francis X. lidlly/MBNA Professor ofl'r/lurrta ~urgery, and am the Direator of the Univln"lIity of :Baltimor~ School of Medieine's Progtam in Ttauma.

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2. 1 obtain~d my Bachelor of Art$ dogrw from Unlversity afVirginio. in 1972, where I gracit1(1t.ed with di61:inction, an4 teceiv~d my medical degrel;' in 1978 ftOIIl the Medk"l Colloge Qf Virginia. 1l'\h;., completed a Fellowship jn Crldcal Care/Trauma e.t New YQJ."k Medical College in 1984. A copy of roy [;urrc:nt Cw:ric\lhun Vitae i9 attached 8.'1 Exhibit A
to this Declaration. 3. My .::urren.t pradice is devoted :almOst excln...iycly to performing $wgery on pw.tients who
have suffered severe tr.mma.. 1 nequently deal with the issue of finding Vcllu in tbc;5e
P£ltiP.llts, And often encounter patients woo are Clrrrent o;r fonnar intraV!;IDOUS druS users. I
am thetefo1'1!l quite familiar with the diffioulties that can arise with findine ""d m,wntairdng IV gcC',ess with current IIIld former drug Useti. 4. On January 24, 2006, 1 evaluflte:d Vernon Ev~, Jr. for ap~roximately 20 minutes in the Maryland Co=.;.tional Aqh151l1l~nt Center in Baltimore, "i. Mr. EVIIl13 told mil that lIe had.a mor~ th;JD. thirty year history ofnear~daily intravenou"1 drug use· The elxtent of his previous drug habit has rav~ his p~np1'1otal vein:s.
n. J understand that:Mr. Evans is scheduled to be e.-.c:cuted by lethal inJcctloll during the week of February 6, 2006. I have reviewed Cl Lethal Injeotion ~klist lUl.ri an Affidavit of Dr. Marli: Hr:l'Itn dated JanuE!tY 19,2006, which were: pmvidcd to me by one of Mr. Evans'lil
attorneys. 7. In order for the execution to take place reUably. he wonld have: to h!l.ve two ''free flowing"
intravenQus lines. NeIther QfMr. Eyan~'5 Mn1:!1 nor his lowor eJ>..1.1'enlity, however, WI:luld
2

01/28/2008 10:38 FAX 2028836363 Ot/?6/7e06 11:34

WCPHMlDD DIRECTOR

I4J 004/005
FA<'E 84

be 5\.litable for pmQtming a lethal injl:'~i(jn. Mx. EVIUl5 has nQ useful veim: in his ri~:t
upper ex.1n::mify. The small. numOeI ofv~ir\$ that he has on his right hand me not :mitable for placement of a reliable IV lln"'_ He: docs have several veins tbat are somewhat W&E:f in
his. lett tmnrl. larn concerned, bowaver, that, Biven hitt drug 1\"1"=. t.he USI: of thud andlor
mc:diolluon delivered by this raute may not bt; trMl3portQd qui"kly through his vei.now system. S. The concel1l Qbo~tt utilizing the small "V(';\lll5 in. Mr. E'V811s'sleft hand results from the rapid injection oftbe sodium p.:;ntt'lthtU, plUlouronium, at1d1o~ .'po~s:lum chknidt'l. I understand that the State of Maryland ex.ecutLcn p:rQlQcol calls for the:: Ulj<;: of pn::::r.JW"e in;fu$ion bags to ac(;ornplish a more Tapid injection of W!.l3 than an ordinary IV line, which compoWlds the p>OhlQm. lfthe d.rug!l W'e injected qu.lcl:.ly, the vein wa1T~ (',ould rupture;. and tho drug3 will be only partially absorbed ;mrl hi:': (rT'Jly p!U'tially effective, pOssibly leading to horrific con.o;;cqucuces. Among other problems, Mr, Evans ~ould be inadequately ~erlate:d when the panQwonhtlllilUd potassium chloride an: iqir;cted. Tbls would have hltn experiencing cardiac arrr:~t. l'lncl/or suffocating awake. Became of the pancUronium. he would be unable to move or breath" but wouh! still be a'Wakl:'..
9. J ."lDtine4 M.-. Evans ':\ lees 83 ~ll. tuld I do not believe Mr. Evans has U$a.ble veins in his
lowe. extremity either. 10. One alt~tlve Tn peripheral venous aCCC!l3 i~ II. "~ut-down" procedure. Be<:ause of the
~eriOl.l~ly compromised nature of'Mr. EVMs's veins, hCJWi!lVf~r,.it {s not clel1l' that even thi:,
tl'l.Ore invasive pIQcedur~ wmlld be 5ufficient to obtain '\f1IJnOIlllIWOl.'S5: for purposes of lethal
3

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injection 01' that tlu= Maryland Division ofCOTTectio~ hM the proper staifO[ I:lq.uipment for ensuTing I't'liable IV access.
I r1,eda.rc under pl!lnalty of perjury the.t the foregoing il' true lID.1'I. cnrroct. ExeQl.lted on this:
25th day ofJlmuary 2006.
~.,.~~L~
Thomas M. Scalea, M.D., F,A.C.S., F.e.C.M.

4

 
 .

Department of Public Safety and Correctional Services
Office of the Secretary
300 E. JOPPA ROAD· SUITE 1000 • TOWSON, MARYLAND 21286-3020 (410) 339-5000· FAX (410) 339-4240· TOLL FREE (877) 379-8636· VITTY (800) 735-2258· www.dpscs.state.md.us

STATE OF MARYLAND
ROBERT L. EHRLICH, JR. GOVERNOR
MICHAEL S. STEELE LT. GOVERNOR
MARY ANN SAAR SECRETARY
G. LAWRENCE FRANKLIN DEPUTY SECRETARY
MARY L. LNERS, PH.D. DEPUTY SECRETARY

June 27,2006

DIVISION OF CORRECTION
DIVISION OF PAROLE AND PROBATION
DIVISION OF PRETRIAL DETENTION AND SERVICES
PATUXENT INSTITUTION
MARYLAND COMMISSION ON CORRECTIONAL STANDARDs
CORRECTIONAL TRAINING COMMISSION
POLICE TRAINING COMMISSION
MARYLAND PAROLE COMMISSION
CRIMINAL INJURIES COMPENSATION BOARD
EMERGENCY NUMBER SYSTEMS BOARD
SUNDRY CLAIMS BOARD
INMATE GRIEVANCE OFFICE

Mr. Vernon Evans #172357 Maryland Correctional Adjustment Center 401 East Madison Street Baltimore, Maryland 21202
RE: IGO Case No. 20060555 Dear Mr. Evans:
Enclosed is a copy of the Order resulting from the hearing of your complaint by the Office of Administrative Hearings.
Mary Ann Saar Secretary

Enclosure c: Commissioner Frank C. Sizer, Jr.
Inmate Grievance Office Warden Lehrman Dotson Assistant Attorney General Scott Oakley Stephen Hut, Jr., Esq., WilmerHale Anne Harden Tindall, Esq., WilmerHale Anne H. Geraghty, Esq., WilmerHale

~:

- : .. '" .

:. ,

VERNON EVANS. # 17').357 GRlEVANT v.
MARYLAND DIVISION OF CORRECTION

'" BEFORE DENISE OAKES SHAFFER,
* AN ADMINISTRATIVE LAW JUDGE * OF THE MARYLAND OFFICE
* OF ADMINISTRATIVE HBARlNGS
* OAHNO.: DPSC-IGO-OO2-06-19279 * 100 NO.: 20060555

*

*

'"

'"

*

=10

>Ie

*

=10

*

PROPOSED RULING' ON CROSS MOTIONS FOR SUM:MARY DECISION

STATEMENT OF THE CASE
ISSUES
SUMMARy oF, ~ EVIDENCE
I?ISCUSSION
CONCLUSION'S OF LAW
PROPOSED ORDER

STATEMENT OF THE CASE

On March 14,2006, Vernon Evans, #172357, filed a grievance with the InIbate

Grievance Office ("100"). The grievance is ,an appeal ota denial of a Request for

Administrative Remedy filed ort December 9,2005. The Warden at Maryland Correctional
Adjustment Center ("MCAC") denied the Request on January 3,2006. Mr. Evans appealed to

the Commissioner of Correction. The Assistant Commissioner of Correction denied the appeal

on February 27,2006.

After the 100 denied a request by the Division of Correction ("DOC") to stay the

hearing. the grievance was forwaided to the Office of Administrative Hearings ("OAH"). On

April 7, 2006. the DOC filed a Motion for Summary Pecision. Mr. Evans responded to that

Motion and filed his own Motion for Summary Decision on Apri124. 2006. The DOC

responded on May 9, 2006. Scott Oakley, Assistant Attorney General~ represented the DOC. A. , r

"

Stephen Hut. Jr., Anne Harden Tindall and Anne H. Geraghty of the law firm of Wilmerliale

represented Mr. Evans. I conducted a hearing on the Motions on May 15,2006 at the.OAR in

Hunt Valley, Maryland. Md. Code Ann., Corr. Servo § 10-207(c) (1999).

The contested case provisions of the Administrative Procedure Act, the IOO's general

regulations and the OAH's Rules of Procedure govern procedure in this case. Md. Code Ann.,

State Gov't §§ 10-201 through 10-226 (2004 & Supp. 2005); Code of Maryland Regulations

("COMAR") 12.07.01.08 and .09; and COMAR 28.02.01.

ISSUES The Motions for Summary Decision raise these issues:

1. Db the procedures by which the DOC intends to execute Mr. Evans vi9hlte

section 3~905 of the Correctional Services Article, the Maryland Declaration of Rights and the .

U.S. Constitution?

2. Do the execution protocols constitute regulations that must be adopted in

compliance with the Administrative Procedure Act ("APA")?

3.

Will the e~ecution protocols, as applied to Mr. Evans, result in a cruel and

unusual punishment?

Exhibits

SUMMARY OF THE EVIDENCE

An exhibit list is attached to this decision.

DISCUSSION In a grievance concerning an institutional administrativ~ decision, the grievant bears the

burden of proving, by a preponderance of the evidence, that the action taken was arbitrary and

2

, .

· .1·

capricious, or in violation of the law. COMAR 12.07.01.09A; COMAR 12.07.01.09C(1). COMAR 28.02.01.16D sets forth the OAH procedural rule on summary decision:
D. Motion for Summary Decision. (1) A party may move for sununary decision on any appropriate issue in the case. (2) A judge may grant a proposed or :qnal summary decision if the judge finds
that:
(a) There is no genuine issue of material fact; and
'(b) A party is entitled to Prevail as 8. matter of law.
This regulation is substantially similar to both Maryland Rule of Proce4ure ("Md. Rule") 2;-501
and Rule 56 of the Federal Rules of Civil Procedure ("Fed. R. Civ. P.'~).
I find that there are no material facts in dispute with regard to the question of whether the
execution protocols are regulations required to be adopted in compliance with the APA. Because
I find that portions of the execution protocols are regulations, Mr. Evans is entitled to prevall ai a .
matter of law on this point. 1 I find that there are no material facts in dispute with regard to the question of whether the execution protocols violate section 3-905 of the Correctional Services Article, the U.S. Constitution or ~e Maryland Declaration of Rights. Because I find that the
answer to that question is compelled by the Court of Appeals decision in Oken v. State. 81 Md.
580, 851 A.2d 538 (2004), the DOC is entitled to prevail as a matter of law on this point. I find
that there are material facts in dispute concerning whether the state of Mr. Evans' veins will render the execution protocols, as applied to him, violativ~ of the Eighth A~endment prohibition
on cruel and unusual punishment. Therefore, an evidep.tiary hearing would be required on this
point.

1 Ordinarily a decision on this question would end further inquiry. Because this is a. proposed decision. however. and for reasons of efficiency, I will address all of the arguments raised by the parties.
3

Portions of the execu~ion pr9tocols are re~lations that have not been

adopted as required by MarvIand's APA and are therefore ineffective.

,

'

Mr. Evans argues that the e](;ecution protocols found in the Execution Operations Manual

(DOC Ex. D) and as described by James V. Peguese, the Execution Commander, in two

affidavits (DOC Ex. A & K) are regulations that were not adopted in compliance with the APA.

The DOC argues that the protocols are not regUlations because (1) they do not have general

application; (2) they concern only internal management of the DOC and do not directly affect the

rights of the public; (3) there is no specific statutory direction to p.romulgate regulations; and (4)

portions of the protocols have been detennined to be confidential because they implicate security

concerns.
The definition of regulation is found in section 10-101 (g) 0) of the State Government

Article:

n(1) "Regulation" means a statement or an amendment or repeal of a statement that:

(i) has general application;

(ii) has future effect;,

(iii) is adopted by a unit to:

1. detail or carry out a law that the unit administers; 2. govern organization of the unit; 3. govem the procedure of the unit; or 4. govern practice before the unit; and

(iv) is in any fonn, including:

1. a guideline; 2. a rule; 3. a standard;
4. a statement of interpretation; or
5. a statement of policy.

(2) "Regulation" does not include:
4

(i) a statement that: 1. concerns only internal manageinent of the unit; and 2. does not affect direCtly the rights of the public or tbe
procedures available to the public; (ii) a response of the unit to a petition for adoption of a regulation, under § 10-123 of this subtitle; or
(iii) a declaratory ruling of the unit as to a regulation, order, or statute. under Subtitle 3 of this title. (3) "Regulation," as used in §§ 10-110 and 10-111.1. means all or any portion ofa regulation.
The DOC points to specific steps in the execution process ~d argues that each step is not
signifjcant enough to warrant codification in a regulation. The procedures governing the execution of an inmate are not mere "routine management guidelines." Rather, they detaii the
minute steps and delicate procedures that a successful ex.ecution requires. While many of the
individual steps are small, none are insignificant, and, as the DOC argued, executions in Maryland are rare, rendering any execution something other than routine. The culminatio~ of these discreet steps is an execution that satisfies the high s'tandards stemming from the U.S. Constitution's and the Maryland Declaration of Rights' mandate for a hUmane death. ' Thus, it is misleading to look at each step in the process individually and to argue that each seemingly inconspicuous step does not rise to level of a guideline, rule or standard. Instead, each step is
carefully and precisely linked to the surrounding steps requiring that the execution protocols be
consider~d as a whole when assessing whether compliance with the APA is required.
When the steps in the execution protocols are considered together, it is clear that they embody a guideline or rule that has general application and future effect. The DOC argued that
the protocols do not have general application because they apply only to those few inmates under
5

.•...

a sentence of death. This argument is unpersll,asive. The protocols apply to all inmates under a

sentence of de~th. If there were hundreds under that sentence, the same protocols would apply.

This is not the case where a rule applies randomly to a single person or entity as in Dep't of

Health. and Mental Hygiene v. Chimes, 343 Md. 36, 681 A.2d 484 (1996). Rather these .

procedures apply to every similarly-situated inmate. The fact that the relative number of inmates

under a sentence of death is small is iirelevant. See I?elmarva v. Power & Li~t Co., 370 Md. 1,

26, 803 A.2d 460. 474 (2002) (rules dealing with narrow subject matter are nonetheless

regulations); Deplt ofPubL Safety and COlT. Servs. v. Demby, 390 Md. 580, 606-607, 890 A.2d

310, 325-326 (2006) (rule is regulation where it "substantively affected the rights of a specific
group of inmates. "). It is also clear, and the DOC does not dispute. that the protocols have future

effect. In fact, ~he DOC represents that the protocols will be used in Mr. Evans' case as well as

in any executions that fo1l6w. Finally, the DOC has adopted the protocols to carry out the Death

PenaltyStatute, a law it is responsible for administering. Thus, the protocols clearly meet the
definition Of regulation found in section 10-101 (g)(l) of the State Government Article.

Similarly, the protocols are not excepted from the definition by subsection (2) of section

IO-IOI(g). As previously discussed, the protocols, when viewed as a coherent whole, address far

.

.

more than the internal management of the DOC. They address how the DOC will accomplish

the awesome task of carrying out a sentence of death. The DOC is charged Wi~ accomplishing

this task without offending the Eighth Amendment of the U.S. Constitution or Article 25 of the

Maryland Declaratioll of Rights. Ensuring that the State complies with the Constitution is an

interest in which all Maryland citizens have a stake, not just those under a sentence of death.

The recent COllIt of Appeals decision addressing the issueof whether the DOC was

tequired to promulgate regulations governing the discipline of inmates in the DOC system

.6

supports this analysis. Massey v. SecretarY. Department of Public Safety and Correctional Services. 389 Md. 496,886 A.2d 585 (2005). First, the Court reviewed the history of the directives governing disciplinary proceedings within the DOC. Originally. the DOC was sued in federal court and agreed to several federal court orders requiriIig certain procedures to ensure
.. that the inma~es subject to the rules were afforded 'their due process rights. See Bundy. v. Cannon, 453 F.Supp. 856 (D~ Md. 1978) and ;6undy v. Cannon. 538 F.Supp. 410 (D. Md, 1982). The fundamental public right was an inmate's liberty interest protected by the Fourteenth Amendment. Massey, 389 Md. at 514, 886 A.2d at 595. The consent orders eventually expired and evolved into the directives which governed disciplinary proceedin~s prior to the Massey
decision.;! The Court concluded that because the directives "proceeded ~m and were designed to implement, a basic Federal due process requiremeI1t" there ~as "powerful evidence that they
were not merely guidelines for routine, or even non-routine; internal management. subject to
change at the whim of the Secretary or Commissioner." Massey, 389 Md. at 516, 886 A.2d at 597.
A similar situation exists here. The execution protocols developed by the DOC are designed to protect the pubHc's and the inmate's Eighth Amendment interest in a humane death that is neither cruel nor unusual.3 The protocols should not be subject to change at the whim of the Secretary or the Commissioner. The protocols affect constitutionally-derived fundamental rights and do not merely order the transaction of the agency's business. Massey, 389 Md. at 518, 886 A.2d at 598.

2 The DOC has since promulgated emergency regulations governing inmate disciplinary proceedings. COM:AR

12.02.07 (33 Md. Reg. 1 (March 31, 2006».

.

3 The Court of Appeals e~pressly acknowledged that the general public has a right to ~ concerOed. about

humanitarian and civil rights issues. MasseX. 389 Md. at 522, 886 A.2d at 600,

7

As was the case in Massey, references to cases from other jurisdictions are not persuasive. For example, the DOC relies upon Abdur!rahman v. Bredesen, 181 S.W.3d 292 (Tenn. 2005) for the principle that the lethal injection protocol is not a "rule" required to be adopted in compliance with Tennessee's Administrative Procedure Act. The Tennessee APA, however, contains a specific exemption for "statements concerning inmates of a correctional or detention facility." Tenn. Code Ann. §4-5-102(1O)(G). The Maryland APA contains no such exemption. In fact, the DOC has proposed that this exemption be adopted as part of Mw.]'land's APA and that legislation has not passed. See BE 432 (2006 Session).
Moreover, the fact that,there is no specific statutory direction to promulgate regulations in the Death Penalty Procedure Statute is not controlling. There is a gener-a1 direction in section 2-109 of the Correctional Services Article:
(c) Correctional facilities.- (1) Except as provided in paragraph (2) of this subsection, the Secretary shall adopt regulations to govern the poIici,es and management of correctional facilities in the Division of Correction in accordance with Title 10, Subtitle 1 of the State Government Article. (2) Paragraph (1) of this subsection does npt apply to a guideline pertaining to the routine internal management of correctional facilities in the Division of Correction. Md. Code Ann.~ Corr. Servo §2-109 (1999 & Supp. 2005). This directive applies to the Secretary in this context. There is no need for the General Assembly to repeat it each time it passes legislation concerning correctional facilities. Finally, the DOC argues that some portions of the execution protocols are confidential because they implicate security issues immediately preceding an execution. I agree that some details, specifically how and where the inmate is moved in the days leading up to the execution, should not be the subject of regulation. As the redacted Execution Operations Manual and the
8

· '
Affidavits of Mr. Peguese demonstrate, however. the majority of the pJ:"ocedures in the protocols
are not confidential and should be codified in regulations.
As the protocols clearly meet the defmition of ~egulation and are not excluded from the
definition, i~ follows that the protocols should have been adopted in compliance with the APA. Because the protocols were not so adopted, they are legally ineffective.
The decision of the Court of Appeals in Oken v. State, 381 Md. -580, 851 A.2d 538 (2004) requires a rejection ofMr. Evans' clabn ibat the execution protocols
fail to comply with Section 3·905 of the Correctional Services Article. Mr. Evans argues that the portions of the execution protocols found'in the Execution Operations Manual (DOC Ex. D) and described in the Affidavit ofJames V. Peguese (DOC Ex~
are A), invalid for the additional reason that they conflict with the language of the Death Penal':;y
Procedure Statute. Md. Code Ann., Corr. Servs. §§ 3-901 - 09., The specific conflicts alleged are: (1) that the Statute requires the administration of (a) "a lethal quantity of an ultra shortacting barbiturate or other similar drugs" followed by (b) "a chemical ~aralytic agent" while the protocols require three drugs to be administered; (2) that the Statute requires "continuous intravenous adrninis~ation of' these drugs while the protocols require administration of the drugs in separate bursts; and (3) that the Statute requires the execution to be perfonned by persons trained to administer the lethal injection while the protocols require the hiring of "trained" persons without defining the word "trained." Md.. Code Ann. §§ 3-905(a) & 3906(c)(1); (DOC Ex. D).
In Oken v. State, 81 Md. 580, 580-1,851 A.2d538, 538 (2004) the Court of Appeals held:
[TJhe method of execution intended to be implementedby the Division of Correction does not violate the provision of Maryland
9

Code §3-905 of the Correctional Services Article or constitute a cruel and unusual punishment.
Judge Bell's di~sent makes it clear that Mr. OIren raised the same argume~ts that:Mr. Evans

raises here. Specifically, Judge Bell argued that the method of execution conflicts w.ith the

statute based on the number of chugs used - three rather than two and on the method of their

" administration - in burSts rather than a continuous flow. Oken, 381 Md. at 581-2,851 A.2d at

539 (Bell, CJ., dissenting). The Execution Operations Manual has not been revised sinc~ Mr.

Oken's execution. According to ¢e DOC, the same procedure used to execute Mr. Oken in Ju~e

of 2004'will be used to execute Mr. Evans (DOC Ex. K,Affldavit of James Peguese).
Mr. Evans argued that the ~ decision is less persuasive becaus~ it was a short, p€!r
He curium opinion. also argued that he has aSked the Court of Appeals to reconsiru,f the Dken

decision in his case cuaently pending in the Court of Appeals. I am unpersuaded by Mr. Evans'

arguments that I am not bound by the precedent in the Oken decision. Even if I agreed with
I
Judge Bell, I am not free to disregard the majority opinion. Moreover, if the Court of Appeals

does reverse its decision in Oken, and holds in Mr. Evans' case that the execution protocols and

resulting method of execution is invalid, then that decision would·render this decision moot.

, ..

'Consequently, I find that the DOC is entitled to prevail as a matter of law on this issue. I propose

that the DOC's Motion for Summary Decision on the issue of whether the execution procedures

conllict with the statute or constitute generally a cruel and unusual punishment be granted.

There is a dispute about a material fact, namely, whefher Mr. Evansl veins can withstand the method of ~u:tiQn. Thus, au evide~tial"Y hearing is required
before the f'mder of fact can'determine whetheJ.' the method of execution, as applied to lli. Ev~s, would constitute Q cruel and unusuai punishment
in violation of the Eighth Amendment to the U.S. Constitution and Article 25 of the Maryland Declaration of Rights. '

10

..
"
his Mr. Evans has alleged that decades of heroin U$e has compromised veins in slich a
way that intra-venous ("IV") access to his body cannot reliably be achieved through his arms.
He argues that the thre8 drug injections and the bursts used by the DOC t6 admiriister the drugs
will not effectively deliver the drugs and that he will suffer an inhumane death as a result. The
DO~ argues that Mr. Evans' veins can withstand the methOd of exetution it intends to empl?y.
Each party has supported its argument with affidavits from medicai personnel who
inspected Mr. Evans' veins. Dr. Thomas Scalia examined Mr. Evans'veins and concluded to a
reasonable degree of medical certainty that Mr. Evans has "~o usable veins in his upper right "
extremity" and no "usable veins in his lower exfJ:emity." (Evans' Ex. 5 at pp. 7.,.9). He stated that
though it may be possible to establish an IV in Mr. Evans' left arm even though those veins are
also compromised. the rapid nature of the adininistration of the drugs create a risk that the veins
will. "rupture and the drugs will be ... only partly effective." (Evans' Ex. 5 at p. 8). Dr. Scalia suggested that a 'centralline is the only reliable means of venous access for Mr. Evans. In MarYland, only a physician may insen a cenr:raJ.line.
The DOC submitted the affidavits of a Certified Nurse Assistant and two Emergency Medical Technicians who also examined Mr, Evans. Each asserted that Mr. Evans' veins "seemed healthy enough, by sight and by touch, in our individual and collective opinions, to support an N catheter and fluid administration. II (DOC Exs. F, 0 & H at p. 2).
Clearly. there is a dispute about a material fact, namely, whether Mr. Evans' veins can
withstand the method of execution proposed by the DOC. While many of the facto~ relevant to " the issue of credibility, including relative qualifications and iength of examination of Mr. Evans.
·can be detennined based upon the affidavits, many other factors including demeanor and
response to cross-examination, can only be determined after an eviden~ary hearing. Thus, with
il

regard to whether the state of~. Evans' veins rende~ the e~ecution protocols unconstitutional as applied to h.im, summary decision is not appropriate.
. I propose that if the Secretary disagrees with and reverses the proposed decision on the
APA issue, that the case be remanded to the OAH for an evidentiary hearing.
CONCLUSIONS OF LAW Having considered the evidence and arguments presented. I conclude that Mr. Evans' Motion for Summary Decision on the issue of whether the e~ecution protocols are regulations should be granted. I conclude that the DOC's Motion for SUlIllilai'y Decision oil the issue of whether the execution protocols viC?late section 3-905 of the Correctional Services Article, the Maryland Declaration of Rights and the U.S. Constitution should be granted. OkeD v. State. 81 Md. 580, 851 A.2d 538 (2004). I also conclude that Summary Decision is inappropriate on the issue of whether Mr. Evans' veins can withstand the method of execution.
PROPOSED ORDER I PROPOSE that the Mr. Evans' Motion for Summary Decision be GRANTED in part. In the event that the Secretary affmns this decision no further order is needed. I PROPOSE that the DOC's Motion for Summary Decision be GRANTED in part.
"
I.PROPOSE that, if the Secretary reverses the decision granting in part Mr. Evans' Motion for Summary Decision, that the case be REMANDED to the OAH for an evidentiary hearing.

June 2, 2006 Date
Dosljc #81522

Denise Oakes Shaffer Administrative Law Judge

12

"

Vernon Evans #172357

-13-

IGO #20060555

DEPARTMENT OF
PUBLIC SAFETY AND CORRECTIONAL SERVICES
ORDER OF THE SECRETARY

In this matter, Vernon Evans, #172357, the Grievant, filed a grievance with the Inmate Grievance Office on March 14, 2006. The grievance was ultimately forwarded to the Office of Administrative Hearings (OAH), and motions for summary decision were filed both by the Division of Correction (DOC) and the Grievant. On May 15, 2006, a hearing was conducted on the motions at OAH.
The issues raised by the motions for summary decision are as follows:
Do the execution protocols established by DOC constitute regulations that must be adopted in compliance with the Maryland Administrative Procedure Act (APA), Md. Code Ann., State Government Article, Section 10-101?
Do the procedures by which the DOC intends to execute the Grievant violate Md. Code Ann., Correctional Services Article, Section 3-905, the Maryland Declaration of Rights and the U.S. Constitution?
Will the executive procedures, as applied to the Grievant, constitute cruel and unusual punishment in violation of the U.S. Constitution?
In a proposed ruling on the cross motions for summary decision, the Administrative Law Judge (ALJ) ruled as follows:
The execution protocols established by DOC are regulations which should have been adopted in compliance with the APA.
As the Court of Appeals held in Oken v. State, 81 Md. 580,851 A.2d. 538 {2004), the execution procedures do not violate the Correctional Services Article, Section 3-925, the Maryland Declaration of Rights or the U.s. Constitution.
Inasmuch as there is a dispute about the material fact; i.e., whether the Grievant's veins can withstand Maryland's method of execution, there must be an evidentiary hearing to determine whether an execution of the Grievant would amount to cruel and unusual punishment.
By way of background, it is important to note that the Grievant currently has cases pending in both state and federal court. Both the first and second issues raised by the Grievant were argued before the Court of Appeals in May 2006 and are currently awaiting decisions. The third issue is scheduled for trial in the United States District Court for the District of Maryland in September 2006. Therefore, it is likely that the decisions in these cases will be dispositive of the issues in this grievance.

Vernon Evans #172357

-14 -

IGO #20060555

I. The DOC has prepared an Execution Operations Manual (EOM or Manual) which provides details such as what staff will be involved in the execution process, what steps will be taken to prepare for an execution starting two weeks prior to the execution, postexecution procedures, who shall be present in the command center, and the lethal injection checklist. At issue is whether this Manual amounts to a regulation under the definition of "regulation" in the Md. Code, State Government Article, Section 10-101(g).

The definition of "regulation" from the above-cited statute is as follows:

(g) Regulation. -- (1) "Regulation" means a statement or an amendment or repeal of a statement that:

(i) has general application;

(ii) has future effect;

(iii) is adopted by a unit to:

1. detail or carry out a law that the unit administers;

2. govern organization of the unit;

3. govern the procedure of the unit; or

4. govern practice before the unit; and

(iv) is in any form, including:

1. a guideline;

2. a rule;

3. a standard;

4. a statement of interpretation; ot

5. a statement of policy.

(2) "Regulation" does not include:

(i) a statement that:

1. concerns only internal management of the unit; and

2. does not affect directly the rights of the public or the

procedures available to the public;

(ii) a response of the unit to a petition for adoption of a regulation,

under

.

§ 10-123 of this subtitle; or

(iii) a declaratory ruling of the unit as to a regulation, order, or statute,

under Subtitle 3 of this title.

(3) "Regulation", as used in §§ 10-110 and 10.111.1, means all or any portion of

a regulation.

While there is certainly a widespread interest in Maryland and throughout the nation, regarding the death penalty, the actual procedures involved in the execution of an individual concern only a very limited number of persons. Thus is raised the question whether the EOM truly has general application.

As the Court of Appeals held in Dep't. of Health & Mental Hygiene v. Chimes. Inc., 343 Md. 336, 681 A.2d 484 (1996), where a "growth cap" designed to limit reimbursements to private providers applied only to a limited number of providers in a particular program, then the rule in question was not one of "widespread application." Id. at 346.

Vernon Evans #172357

- 15-

IGO #20060555

The same can be said in this situation where the EOM, like the "rate cap" in the Chimes case, is certainly of interest to many people, it still is of very limited application. The test for determining whether a governmental procedure or guideline is a regulation is not simply whether it is a matter of public concern, but truly whether it has broad application to more than just a handful of persons. Moreover, the Division of Correction procedures "did not formulate new rules of widespread application, change existing law, or apply new standards retroactively to the detriment of an entity that had relied on the agency's past pronouncements. Id. at 346; Maryland Ass'n. of Health Maintenance Organizations v. Health Services, 356 Md. 581,601,741 A.2d 483 (1999).

Additionally, the Administrative Procedure Act (APA) rule-making requirements do not apply to "a statement that concerns only internal management of the court" and "does not affect directly the rights of the public or the procedures available to the public." State Government Article, § 10-101 (g)(2). As described above, the vast majority of the EOM deals with internal DOC procedures, such as who shall be on an execution team, what steps need to be taken in the days and then hours leading up to an execution, what . steps shall be taken post-execution, and what visits, mail, property, etc. an inmate may have before an execution. All of this is purely internal and does not affect the rights of the public or involve procedures available to the public.

The ALJ relies heavily on the Court of Appeals decision in Massey v. Secretary, DPSCS, 389 Md. 496, 886 A.2d 585 (2005) in which the Court ruled that the DOC, Division of Pretrial Detention and Services, and Patuxent Institution had to adopt their rules regarding inmate discipline through the APA rule-making process. However, a Significant difference between this case and Massey is that there was a specific statute authorizing the Commissioner of Correction to adopt regulations for the operation and maintenance of units in the DOC and requiring such regulations to provide for the discipline and conduct of inmates. Correctional Services Article, § 3-205. There is no analogous requirement in the statutes establishing Maryland's death penalty procedures. Correctional Services Article, §§ 3-901 - 3-909.

Moreover, the Court in Massey acknowledged that the "myriad of rules governing the details of prison life," including "rules governing security" do not constitute regulations under the definition in State Government Article, § 10-101(g). Massey, 389 Md. at 524. Of course, there are constitutional ramifications to many conditions of confinement, including rules pertaining to sanitation, hygiene, phone calls, mail, visits, etc.; despite this, the Court of Appeals has not considered these rules to require adoption under the APA.

Therefore, it is my conclusion that the EOM is not a regulation requiring adoption pursuant to the APA rule-making provisions. Thus, I reverse this portion of the ALJ's proposed decision.
II. In Oken v. State, 381 Md. 5809, 851 A.2d 538 (2004), the Court of Appeals held that the method of execution utilized in Maryland does not violate the Correctional Services Article, § 3-905 or constitute cruel and unusual punishment. Because the issues in this regard raised by the Grievant are the same as those raised in the Oken case, the holding in Oken is dispositive and requires affirmance of this portion of the ALJ's proposed decision.

Vernon Evans #172357

- 16 -

IGO #20060555

III. The Grievant asserts that his veins are compromised in such a way that intravenous (IV) access to his body cannot be obtained through his arms. He further argues that the method used by DOC to perform executions will cause him to .suffer an inhumane death. The Grievant supported his motion for summary decision on this point with affidavits from medical personnel. The DOC argued that it could perform the introduction of the drugs through IV access through his arms without resort to the need for a central line. This position also was supported by affidavits from medical personnel who examined the Grievant.

In her proposed decision, the ALJ concluded that there were material facts in dispute and that she could not make a final determination without an evidentiary hearing. As a backdrop to this is the fact that the federal court in Baltimore has scheduled a trial on these same issues for the week of September 18, 2006. I have no doubt that, absent some extraordinary circumstances, no matter the result in federal court, the matter will be appealed to the United States Court of Appeals for the Fourth Circuit and the Supreme Court.

In light of the fact that the same issues are being litigated in federal court and in the administrative arena and to avoid an additional appeal to court from an administrative agency decision, it is my determination that a stay should be issued regarding any evidentiary hearing at OAH until such time as the United States District Court for the District of Maryland renders its decision in the Evans case. It is wellestablished by the Court of Appeals that in a proper case a court may stay proceedings pending the determination of another proceeding that may affect the issues raised.
Coppage v. orlove, 262 Md. 665, 278 A.2d 587 (1971). This will obviate the need for
the parties to present the same evidence in two different fora perhaps only weeks apart and also serve the interest of judicial economy.

CONCLUSION For these reasons, the proposed decision of the ALJ concerning the applicability of the APA rule-making process to the EOM shall be REVERSED. The portion of the proposed decision relating to Maryland's method of execution not being violative of state law or the U.S. Constitution is AFFIRMED. The part of the proposed decision requiring an evidentiary hearing shall be MODIFIED to the extent that the need for a hearing shall be stayed until the United States District Court for the District of Maryland renders its decision on the constitutionality of the execution procedures as applied to the Grievant.

1 SO ORDERED this ~

day of June, 2006.

REVIEW RIGHTS
You are entitled to file a petition for judicial review with the circuit court for the county in which· the institution you are confined is located within 30 days of the mailing of the decision. Md. Code Ann., Corr. Servo § 10-210(b). Md. Rules § 7-201 through 7-210. This decision may only be reversed or modified on appeal if any substantial right may have been prejudiced because a finding, conclusion, or decision of the agency: (1) is unconstitutional; (2) exceeds the statutory authority or jurisdiction of the agency; (3) results from an unlawful procedure; (4) is affected by any other error of law; (5) is unsupported by competent, material, and sUbstantial evidence in light of the entire record as submitted; or (6) is arbitrary or capricIous. The circuit court does not accept additional evidence or reassess the credibility of witnesses who have previously testified. Md. Code Ann., State Gov't. § 10-222(h).

VERNON BVANS, # 172357 GRIEVANT
Y.
VLARYLAND DIVISION OF CORRECTION

* BEFORE DENISE OAKES SF..AFFER,
* AN ADI\.1JNISTRATIVELAW JUDGE
* OF THE MARYLAND OFFICE
* OF ADMlNISTRATIVE HEA..TUNGS
* OAHNO.: DPSC-lGO-002-06-19279
* IGO NO.: 20060555

* *

*

*

;/<

*

*

*

FILE EXHIBIT LIST

*

*

>I<

IGO Exhibits:

# 1 December 9, 2005 Request for Adnrinistrative Remedy

# 2 January 3,2006 Warden's Decision on Request for Administrative Remedy

#3 February 27, 2006 Ass't Commissioner's denial of Appeal

# 4 Transmittal to OAR

DOC Exhibits:

A January 25, 2006 affidavit of James V. Peguese

B

March S, 1994 Letter and Testimony of Commissioner Lanham

C May 6, 1994 Article from Baltimore Sun

D Redacted Execution Operations Manual as Supplemented on May 22, 2006

E

January 23,2006 affidavit of Mark Dershwitz, M.D., Ph.D.

P

January 3 f, 2006 affidavit of Certified Nurse Assistant

G January 31,2006 affidavit of Emergency Medical Technician 1

H January 31, 2006 affidavit of Emergency Medical Technician 2

I

February 1, 2006 transcript of Motions hearing in U.S. District Court

J

January27, 2006 transcript of Motions hearing in U.S. District Court

Grievant's Exhibits:

# 1 March 13, 2006 DOC Ariswer filed in U.S. District Court case number L-:06-CV-

·0149

.

# 2 January 19, 2006 Mr. Evans' Complaint in U.S. District Court

# 3 January 19, 2006 declaration of Mark J. S. H~th, M.D.

# 4 January 25,2006 declaration of Denrus R ..Geise;r, DVM

# 5 January 25,2006 declaration of Thomas M. Scalia, M.D.

# 6 House Bi11498 (1994) Floor Report

# 7 January 17. 2006 memorandum

#: 8 January 25,2006 declaration ofVemon Evans, Jr.

# 9 Morales v. Hickman. U.S. District Court, Northern District of C!:Uifomia, February 14. 2006

# 10 Brown v. B.eck, U.S. District Court, Eastern District of North Carolina. April 7,
2006

# IIA January 24,2006 transcript of Motions hearing, U.S. District Court

# lIB January 27,2006 transcript of Motions hearing, U.S. District Court

# 11C February 1, 2006 transcript of Motions hearing. U.S. District Court

 
 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

VERNON EVANS, JR. Plaintiff,
v.
MARY ANN SAAR, et al. Defendants.

: : : : : : :

Civil No. L-06-149

MEMORANDUM

I. Introduction

Now pending are Vernon Evans Jr.’s motion for a temporary restraining order and

motion for a preliminary injunction. For the reasons stated herein, the Court will DENY

both motions.

II. Maryland’s Lethal Injection Protocol

On January 9, 2006, a Maryland judge signed a warrant for the execution of

Vernon Evans, Jr. The warrant directs the State to carry out the execution during a five-

day span beginning February 6th and ending February 10, 2006.

On January 19th, Evans filed the instant suit under 42 U.S.C. § 1983, claiming

that Maryland’s Lethal Injection Protocol exposes him to a grave and unnecessary risk of

cruel and unusual punishment in violation of the Eighth Amendment to the federal Constitution.1 The following day, Evans moved for a temporary restraining order and a

preliminary injunction to halt his execution until the merits of his suit can be tested

through discovery and trial.

1

The Eighth Amendment provides, “Excessive bail shall not be required, nor

excessive fines imposed, nor cruel and unusual punishments inflicted.”

Evans, who was convicted of two first degree murders in 1984, does not challenge in this suit Maryland’s right to execute him. Nor does he challenge the constitutionality per se of lethal injection as a method of execution. Instead, his suit attacks the Lethal Injection Protocol (“the protocol”) under which Maryland’s Department of Public Safety and Correctional Services carries out executions.
Under the protocol, three successive chemicals are injected intravenously through an I.V. hook-up. First, a massive dose (3 grams) of sodium pentothal, an ultrashortacting barbiturate (also called thiopental), is injected to induce unconsciousness. The parties agree that this dosage, if successfully administered, is enough to drive any human being into deep unconsciousness for hours. The barbiturate is followed by an injection of 50 milligrams of pancuronium bromide (or Pavulon), an agent that paralyzes all voluntary muscles. Although the agent causes paralysis, and in high dosages stops respiration, it has no effect whatsoever on a person’s awareness or sensation. Finally, the inmate is injected with a huge dose (50 millequivalents) of potassium chloride, which causes cardiac arrest and death. Apart from its lethality, potassium chloride is an extraordinarily painful chemical that scours the nerve fibers lining a person’s veins.
Evans concedes that this protocol, if successfully implemented, will result in a swift, painless, and humane death. He argues, however, that flaws in the protocol create a high risk that the sodium pentothal will not render him completely unconscious. If so, he would suffer excruciating pain from the powerful effects of the other two drugs but be unable to alert anyone to his plight because of the paralyzing effect of the pancuronium bromide.
2

The State concedes that if an inmate is not adequately anesthetized he will suffer an inhumane death. Defendants emphatically assert, however, that sodium pentothal, when administered by trained personnel in the prodigious quantity specified by the protocol, will unfailingly render anyone, Evans included, unconscious.
III. Evans’s Challenges to the Protocol In support of his claim, Evans raises a number of perceived problems with
Maryland’s protocol as applied to him. Most importantly, Evans disagrees with the State’s plan to access his peripheral veins. He argues that the damage done to these veins by years of chronic intravenous drug abuse have left them frail, clotted, and unsuitable as conduits.
Evans urges other deficiencies, including the following: i.) The standard of care requires the presence of a trained anesthesiologist, sitting elbow to elbow with the inmate throughout the procedure. ii.) The protocol fails to require a doctor or other demonstrably qualified person to mix the sodium pentothal.
iii.) The I.V. lines are too long, creating the prospect of a leak.2 iv.) Pancuronium bromide serves no useful purpose and should not be used in
the protocol. In support of this proposition, Evans points out that the American Veterinary Medical Association prohibits the use of

2

During the lethal injection, the inmate is in the Execution Room, while the person

who administers the injection is in an adjoining room, the Lethal Injection Room. The

I.V. line must be long enough to extend through a portal connecting the two rooms. The

components of the I.V. line are connected by Luer Locks.

3

neuromuscular paralytic agents, such as pancuronium bromide, in animal euthanasia. v.) A recently executed Maryland inmate, Steven Oken, may not have had enough sodium pentothal in his blood (per the post-mortem blood toxicology report) to keep him unconscious. vi.) The protocol fails to account for all of the variables that might complicate the preparation and administration of the drugs. IV. Progress of the Lawsuit As stated, Evans filed suit only two weeks before the start of his five-day execution window. Although last-minute death penalty filings impose extraordinary time pressures, a Court cannot issue a stay merely to give itself more time. An inmate is entitled to a stay only if he can satisfy the rigorous requirements for obtaining a temporary restraining order. Moreover, unless the inmate can point to a compelling reason for filing his suit at the eleventh hour, his delay counts against him in the Blackwelder calculus.3 Despite the shortness of time, the Court is satisfied that its decision is based on an adequate record. The factors that buttress this conclusion include the following: i.) Attorneys for both sides have been involved in prior method-of-execution cases. They were able to file comprehensive briefs in a matter of days. ii.) There is a substantial body of cases involving eleventh hour, Eighth Amendment challenges to the three-drug protocol.

3

Blackwelder Furniture Co. v. Seilig Manufacturing Co., 550 F.2d 189 (4th Cir.

1977), provides the standard with which the Fourth Circuit judges applications for

preliminary injunctive relief.

4

iii.) Thirty-eight states impose the death penalty. Of these, thirty-seven use lethal injection as the means of execution. Thirty-five of those states use the same three-drug protocol as Maryland. Circuit after Circuit (including the Fourth) has ruled that the protocol does not run afoul of the Eighth Amendment.
iv.) Since 2004, Maryland has executed two inmates (Steven Oken and Wesley Baker)4 by lethal injection. Both inmates filed a § 1983 suit challenging the constitutionality of the protocol. In each case, the inmate’s motion for a temporary restraining order was ultimately denied and the executions were carried out.
v.) In the litigation that preceded Oken’s execution, the Maryland Court of Appeals ruled, albeit in a per curiam opinion, that the three-drug protocol violated neither the Maryland death penalty statute nor the Maryland Constitution. The Court, which is Maryland’s highest, specifically decided that “the method of execution intended to be implemented by the Division of Correction does not violate the provisions of the Maryland Code . . . or constitute a cruel or unusual punishment as argued by petitioner.”5
vi.) This Court ordered expedited discovery and reviewed in camera the voluminous execution notebooks that the State compiled for Maryland’s last

4

Steven Oken was executed in June, 2004, and Wesley Baker was executed in

December, 2005.

5

Oken v. State, 381 Md. 580, 580-81 (2004) (internal citation omitted).

5

three executions.6 The Court culled the pages pertinent to the protocol and produced them (slightly redacted) to Evans’s counsel. vii.) The Court signed an order requiring the Office of the Chief Medical Examiner to produce post-mortem reports prepared following the Gilliam, Oken, and Baker executions. viii.) The Court conducted hearings on three different days. The hearings included live testimony from Evans’s medical expert, Dr. Mark Heath, a board certified anesthesiologist who is a national authority on the three-drug protocol. Evans also called a trauma specialist, Dr. Thomas Scalea, who examined Evans’s veins.7 The State submitted a lengthy affidavit from Dr. Mark Dershwitz, a board certified anesthesiologist, who is also a national authority on the threedrug protocol.8 The factual record is, therefore, adequate. The legal standards are also well developed. Section 1983 does not empower this Court to “micromanage” Maryland’s execution procedures. What might be done to improve the three-drug protocol is not the appropriate inquiry.9 A federal court must pay deference to the judgment of the state

6

Terrence Gilliam (executed November, 1998), Steven Oken, and Wesley Baker.

7

Dr. Scalea is Physician-in-Chief at the R. Adams Cowley Shock Trauma Center at

the University of Maryland School of Medicine, Baltimore.

8

Evans also submitted the affidavit of Dennis R. Geiser, D.V.M., Chief of Service

in large animal anesthesiology at the College of Veterinary Medicine, University of

Tennessee.

9

See Abdur’rhaman v. Bredesen, No. M2003-01767-SC-R11-CV, 2005 WL

2615801, at *6 (Tenn., Oct. 17, 2005).

6

government, which, in the words of the Supreme Court, is presumed to have acted in “a careful and humane manner.” 10
V. Test for Injunctive Relief Evans bears an added burden because he seeks emergency injunctive relief. In the
context of a stay of execution, “last minute stays on the part of federal courts represent an interference with the orderly process of justice which should be avoided in all but the most extraordinary circumstances.”11 Furthermore, “the court may consider the last minute nature of an application to stay execution in deciding whether to grant equitable relief.”12
Preliminary injunctions are extraordinary remedies to be granted when the moving party has demonstrated a need to preserve the status quo and prevent irreparable harm during the pendency of litigation.13 To earn a stay, Evans must satisfy the test articulated in Blackwelder and succeeding cases. Under Blackwelder, a court considers (i) the harm to the plaintiff if the injunction is denied; (ii) the harm to the defendant if the injunction is granted; (iii) the plaintiff’s likelihood of success on the merits, and (iv) the public interest.14 The Fourth Circuit does not, however, weigh these factors equally.15

10 Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 462, 464 (1947).

11 Stockton v. Angelone, 70 F.3d 12, 13 (4th Cir. 1995).

12 Cooper v. Rimmer, 379 F.3d 1029, 1031 (9th Cir. 2004) (citing Gomez v. United States District Court for the Northern District of California, 503 U.S. 653, 653-654 (1992)).

13 See In re Microsoft Corp. Antitrust Litigation, 333 F.3d 517, 525-26 (4th Cir. 2003).

14

550 F.2d at 194-96.

7

“The irreparable harm to the plaintiff and the harm to the defendant are the two most important factors.”16
In the context of method-of-execution cases, both sides agree that the Ninth Circuit Court of Appeals has appropriately distilled the Blackwelder test into a single inquiry. A court must inquire whether an inmate facing execution has shown “that he is subject to an unnecessary risk of unconstitutional pain or suffering such that his execution by lethal injection [using the three-drug protocol] must be restrained.”17 Inherent in this formulation is the requirement that the risk must be substantial.
VI. Applying the Test for Injunctive Relief When applying this standard, Evans’s claims must be separated into two categories: first, his challenge to the protocol in general; second, the application of the protocol to him.
A. Evans’s Challenge to the Protocol in General With regard to the first question, his challenge fails. Evans has not shown that there are substantial and unnecessary risks intrinsic to the procedure. His overarching concern is that he will not be anesthetized properly. His medical expert, Dr. Heath, explained that during a surgical procedure, the patient must be maintained in a narrow surgical plane of anesthesia. If the plane is too shallow, the patient will regain consciousness. If too deep, the patient may die. A fully trained and licensed anesthesiologist is needed to maintain the delicate balance.
15 See Oken v. Sizer, 321 F. Supp. 2d 658, 666 (D. Md. 2004). 16 Rum Creek Coal Sales, Inc. v. Caperton, 926 F.2d 353, 359 (4th Cir. 2001). 17 Cooper, 379 F.3d at 1033.
8

An execution requires no such balance. The only concern is that the plane must not be too shallow. As Dr. Heath acknowledged, three grams of sodium pentothal, which is multiples of the surgical dose, will drive any individual into deep unconsciousness. Evans has failed to demonstrate that an anesthesiologist is required to administer this massive dose.18
Evans also expresses concern that the members of the Execution Team may not be adequately trained. He would require the State to name the members of the Team and demonstrate their qualifications. Evans is not entitled to this information, however. Because of the controversy surrounding executions, the State reasonably withholds the names of the Execution Team members except for the Warden, who serves as Execution Commander.
The qualifications of the team also appear adequate. On the day of the execution, a certified nursing assistant examines the inmate, establishes the I.V., and determines that saline solution is flowing properly through the line. To preserve her anonymity, the nurse is not physically next to the inmate when the injection itself is being administered. She is, however, in an adjoining room, monitoring the procedure through a window.
During the injection, the Warden and a Religious Advisor stand near the inmate. Although they are not medically trained, these observers can determine whether there are any major problems such as a leak in the I.V. line. A doctor is present throughout the execution.
18 Furthermore, the protocol has a built-in “back-up” procedure: extra syringes of all the drugs are prepared, and intravenous lines are placed in both the inmate’s arms in case one line does not work.
9

In the weeks leading up to the execution, the team performs frequent drills, rehearsing the entire procedure. Two of the three chemicals come pre-prepared from the manufacturer. The third, sodium pentothal, requires mixing a powder with a diluent, but the procedure is straightforward.
Moreover, there is no probative evidence that the team failed to carry out the protocol successfully in past executions. The best evidence on this point comes from the blood toxicology reports, which show the post-mortem levels of sodium pentothal for Gilliam (24mg/liter), Oken (10mg/liter), and Baker (44mg/liter). Based on the doseresponse graph for sodium pentothal, Dr. Heath testified that both Gilliam and Baker should have been deeply unconscious during their executions. He assigned a 5% probability, however, that Oken was not fully anesthetized.
After reviewing this evidence, the Court concludes that Evans “has done no more than raise the possibility that [Maryland’s ] lethal injection protocol risks an unconstitutional level of pain and suffering.”19 His showing as to the protocol in general, therefore, is insufficient to warrant injunctive relief staying the execution.
B. Evans’s Challenge to the Protocol as Applied to Him (Compromised Veins)
Evans also raises concerns about the execution protocol as applied to him. Evans was an intravenous drug abuser for many years. The well-qualified doctor, Thomas Scalea, who examined Evans on January 24th, testified that Evans has ravaged most of his peripheral veins. Dr. Scalea stated that “neither of Mr. Evans’s arms nor his lower extremity . . . would be suitable for performing a lethal injection.” While Evans may have usable veins in his left hand, Dr. Scalea expressed concern that “given his drug use,
19 See Cooper, 379 F.3d at 1031.
10

the use of fluid and/or medication delivered by this route may not be transported quickly through his veinous [sic] system.”
During a hearing, Dr. Scalea testified that it might be possible to access one of Evans’s peripheral veins. He strongly recommended, however, the use of a “central line,” meaning that the I.V. would tap one of the body’s three central veins. Two of these (the internal jugular and the subclavian) are in the neck and chest, and the third (the femoral) is in the groin. Dr. Scalea stated that a central line is “as reliable a line as we have.” Dr. Heath agreed, testifying that the installation of a central line would virtually guarantee an adequate delivery of the three drugs into Evans’s blood stream.
On January 10th, the certified nursing assistant on the Execution Team examined Evans. She reported that the veins in his arms are adequate. After hearing Dr. Scalea’s report, however, the State agreed to have Evans re-examined. Meanwhile, at the Court’s request, Evans’s counsel asked him whether he would prefer a central line. Evans stated that he would. Before Evans was re-examined, the State said that it would use a central line if medically necessary. To avoid complexity, however, the State also expressed a strong preference to access a peripheral vein.
The final hearing was held on February 1st. The State had arranged for three medical para-professionals to examine Evans the day before. Although not medical doctors, all three, a certified nursing assistant and two paramedics, have extensive experience inserting and monitoring I.V.s. The nursing assistant is especially well qualified. She works at a large, metropolitan hospital in critical care phlebotomy and I.V. insertion. Her affidavit states that, “I also serve as a hospital-wide resource for IV insertion on difficult patients.”
11

The three para-professionals jointly examined Evans by touch and by sight. They jointly concluded that many of his peripheral veins are “visible to the naked eye, all were palpable, soft, and pliable, and all seemed healthy enough…to support an IV catheter and fluid administration.”
The major concern is that Evans’s vein might rupture under pressure, causing the drugs to infiltrate the surrounding tissue instead of his vein. The protocol minimizes this risk, however. The completed Lethal Injection Checklist for the recent execution of Wesley Baker (the same checklist will be used for Evans) is instructive. I.V.s were inserted into Baker’s left arm and then his right arm (one was a back-up), and the flow of saline solution was verified. The flow was then monitored for ten minutes. The saline solution was not under high pressure. Nevertheless, the suitability of Baker’s veins to receive fluids over time was confirmed.
According to the Baker checklist, the medical attendants then passed the I.V. bags through a portal connecting the execution area (where the inmate lies on a table) with the adjoining lethal injection room. The bags were placed on stands. The attendants then confirmed the operability of the I.V., left Baker’s side, and went into the lethal injection room.
A member of the Execution Team then injected consecutively two syringes of sodium pentothal into the I.V. line under high pressure. He then allowed the I.V. to run wide open with saline solution for ten seconds to flush the line.
Only afterward were the lethal drugs (pancuronium bromide and potassium chloride, respectively) injected into the I.V. line, also under high pressure. Only one minute elapsed from the pancuromium bromide injection to a “flat line” EKG reading.
12

Applying the protocol to Evans’s case, the first of the lethal chemicals will not be injected until after Evans’s I.V. line has been subjected to at least ten minutes of lowpressure I.V. flow, two high pressure injections, and a ten-second wide open saline flow. His vein must remain continent only for another few minutes for the execution to be complete. Under the protocol, the medical personnel are responsible for reporting problems to the Execution Commander. At the final hearing, one of the paramedics who examined Evans, and who is also a back-up member of the Execution Team, testified concerning this responsibility. He expressed confidence that the medical personnel would be able to spot any problems with Evans’s I.V. He also expressed confidence that the Execution Commander would, if necessary, halt the execution.
It might be preferable for medical personnel to be present at Evans’s side throughout the execution, especially during the last few minutes so that they could closely inspect the insertion area. Because Evans’s death will be witnessed, however, the State has a legitimate interest in preserving the confidentiality of the participating medical personnel. The protocol accomplishes this by having them monitor Evans from behind a window. This logistical compromise does not implicate the Eighth Amendment. This Court respects the opinions of Drs. Heath and Scalea. It would be an exercise in speculation, however, to find that Evans faces a substantial and unnecessary risk of unconstitutional pain and suffering.
Using a central line would eliminate any concern over the suitability of Evans’s peripheral veins, but it is not this Court’s prerogative to dictate a set of best practices for each execution. The State has broad discretion in this matter. This Court will not restrict
13

the State’s discretion because Evans has failed to demonstrate that the protocol, as applied to him, is likely to fail.
VII. Procedural Issues Because of the shortness of time, this opinion has been necessarily brief. The
case presented a host of procedural issues that merit mentioning, as follows. A. Waiver
The State argues that because Evans did not challenge execution by lethal injection when the state enacted its lethal injection statutes in 1994, he has waived all right to challenge the protocol. The Court rejects this argument because Evans did not receive the protocol itself in 1994. Waivers must be knowing and voluntary.
B. Pleading with Particularity The State argues that Evans’s claim is barred because he did not “allege or show that there is any alternative to the protocol that the State proposes to use in his execution.”20 This argument fails because the Fourth Circuit Court of Appeals has not adopted this heightened pleading requirement.21 Moreover, Evans's detailed objections to the protocol adequately specify his concerns.
C. Administrative Exhaustion The State argues that Evans’s claim is barred because he did not exhaust his administrative remedies, as required by the Prison Litigation Reform Act of 1995 (PLRA).22 On December 9, 2005, Evans filed a Request for Administrative Remedy with
20 Aldrich v. Johnson, 388 F.3d 159, 161 (5th Cir. 2004). 21 See Reid v. Johnson, 105 Fed. Appx. 500, 503 (4th Cir. 2004). 22 See 42 U.S.C. § 1997e(a).
14

the Department of Correction.23 The Warden denied his request, and Evans is still waiting for the Commissioner to rule on his appeal. Even after the Commissioner rules, there are additional steps in the administrative review process that remain open.
Exhaustion of administrative remedies is not a jurisdictional requirement under the PLRA.24 Rather, exhaustion is an affirmative defense to be pled by the State.25 Given the shortness of time, this Court is unprepared to decide whether Evans’s failure to exhaust is attributable to his delay in filing his administrative claim or the State’s delay in deciding it. Given this uncertainty, the Court concludes that the State has not met its burden. Evans’s claim is, therefore, not procedurally barred.
D. Evans’s Delay in Bringing this Lawsuit The State criticizes the eleventh-hour filing of Evans’s complaint, contending it was brought for the purpose of manipulating the legal process. Indeed, Evans has known

23 Department of Correction Directive (DCD) 185-100 provides that an inmate initiates the Administrative Remedy Procedure by filing a Request for Administrative Remedy. Each complaint is processed and investigated. If the Warden denies the complaint, the inmate can appeal the Warden’s denial to the Commissioner. A final decision by the Commissioner exhausts the Department of Correction’s (DOC) Administrative Remedy Procedure (ARP). After exhausting the DOC’s ARP, an inmate may submit a complaint to the Inmate Grievance Office (IGO). See CS § 10-207(b). The IGO is a unit within the Department of Public Safety and Correctional Services (DPSCS). The IGO Executive Director may either dismiss the complaint or refer it to a hearing before an Administrative Law Judge (ALJ). See CS § 10-208. Once the complaint is dismissed or the ALJ issues an order, the inmate can appeal the ALJ’s decision through the state court system. The State argues that the grievance process is not complete until the inmate has completed this entire process and proceeded through the state court system.

24 See Anderson v. XYZ Correctional Health Services, Inc., 407 F.3d 674, 677 (4th Cir. 2005).

25

Id. at 681.

15

the basic method of execution since 1994, when the State first enacted its lethal injection statutes. In Nelson v. Campbell, the Supreme Court instructs the lower courts to consider “the extent to which the inmate has delayed unnecessarily in bringing the claim” when deciding whether to grant preliminary injunctive relief.26 Evans's counsel counters that they did not file earlier because of concerns that the case was not ripe (they did not know whether they had the final protocol) and because Evans's administrative complaint had not been exhausted. The Court accepts the representations of counsel. Accordingly, the Court decided not to count delay against Evans when applying the Blackwelder test.
E. The Supreme Court’s Grant of Certiorari in Hill v. Crosby On January 25, 2006, in Hill v. Crosby, 05-8794, the Supreme Court granted certiorari and a stay of execution to a Florida inmate (Clarence E. Hill) who had challenged Florida’s lethal injection protocol under 42 U.S.C. § 1983. 27 Hill is set for argument on April 26, 2006. Since granting certiorari in Hill, the Supreme Court has stayed the execution of a second Florida inmate,28 but the Court vacated the Seventh Circuit’s stay of execution of an inmate in Indiana.29
26 541 U.S. 637, 649-50 (2004). 27 The Supreme Court granted certiorari on the following two questions:
(1) Whether the complaint brought under 42 U.S.C. § 1983 by a deathsentenced state prisoner, who seeks to stay his execution in order to pursue a challenge to the chemicals utilized for carrying out the execution, is properly recharacterized as a habeas corpus petition under 28 U.S.C. § 2254.
(2) Whether under [the Supreme] Court’s decision in Nelson, a challenge to a particular protocol the State plans to use during the execution process constitutes a cognizable claim under 42 U.S.C. § 1983.
28 Rutherford v. Crosby, 05-8795.
16

Evans argues that the Supreme Court’s grant of certiorari in Hill supports his request for a stay of execution because the Supreme Court will likely clarify legal issues relevant to his case. The State argues that Hill should have no impact on Evans’s request for a stay because the Supreme Court is likely to consider only whether an inmate need allege alternative methods of execution when bringing a section 1983 challenge.
The Supreme Court's grant of certiorari in Hill does not warrant a stay. The Supreme Court appears to have taken up the case to clarify procedural issues, all of which this Court has decided in Evans's favor. Staying the execution until after the Supreme Court has issued an opinion is unlikely to benefit Evans.
VIII. Conclusion For the forgoing reasons, the Court will, by separate order, DENY the motion for
a temporary restraining order and DENY the motion for a preliminary injunction.

It is so ORDERED this 1st day of February, 2006.

_______/s/_________ Benson

Everett Legg Chief Judge

29 Donahue v. Bieghler, 05-684. 17

 
 Document 1

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

FILED February 3, 2006

No. 06-1 1:06-cv-00149-BEL
VERNON LEE EVANS, JR.
Plaintiff - Appellant
v.
MARY ANN SAAR, Secretary, Department of Public Safety and Correctional Services; FRANK C. SIZER, JR., Commissioner, Maryland Division of Correction; LEHRMAN DOTSON, Warden, Maryland Correctional Adjustment Center; GARY HORNBAKER, Warden, Metropolitan Transition Center
Defendants - Appellees

0 R DE R
Appellant has filed an emergency motion for injunction pending appeal, and appellees filed a response in opposition to the motion.
The Court denies the motion for injunction pending appeal. Entered at the direction of Judge Wilkinson, with the concurrence of Chief Judge Wilkins and Judge Williams.

For the Court,
Is/ Patricia S. Connor CLERK

 
 Document 1

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

FILED February 15, 2006

No. 06-1 1:06-cv-00149-BEL

VERNON LEE EVANS, JR. Plaintiff - Appellant

v.
MARY ANN SAAR, Secretary, Department of Public Safety and Correctional Services; FRANK C. SIZER, JR., Commissioner, Maryland Division of Correction; LEHRMAN DOTSON, Warden, Maryland Correctional Adjustment Center; GARY HORNBAKER, Warden, Metropolitan Transition Center
Defendants - Appellees

_________ O R D E R _________
Appellant has filed an unopposed motion to dismiss. The Court dismisses this appeal pursuant to Rule 42(b) of the Federal Rules of Appellate Procedure. The Clerk of this Court will issue a certified copy of this order to the Clerk of the District Court as and for the mandate. Entered at the direction of Judge Wilkinson, with the concurrence of Chief Judge Wilkins and Judge Williams.
For the Court,
/s/ Patricia S. Connor _________________________
CLERK

 
 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

VERNON EVANS, JR.,

*

Plaintiff

*

vs.

* Civil Action No. L-06-149

MARY ANN SAAR, Secretary,

*

Department of Public Safety and

Correctional Services, et al.

*

Defendants

*

CONSENT MOTION FOR APPROPRIATE RELIEF

Now Comes Gary Maynard, Secretary, Department of Public Safety and

Correctional Services, by and through his attorneys, Douglas F. Gansler, Attorney

General of Maryland, and Laura Mullally and Phillip M. Pickus, Assistant Attorneys

General, and request that this Court amend its order of December 7, 2006, and permit the

Defendants to delay their compliance with the order for the following reasons:

1. On December 1, 2006 this Court issued an order reopening the record in

the above entitled case in order to explore the potential availability of surgeons,

anesthesiologists, and certified registered nurse anesthetists to assist in the execution of

Vernon Evans, Jr.

2. On December 7, 2006 the Court ordered the Defendants to submit a

written plan describing the parameters of a proposed search. That plan is to be filed with

the Court on February 28, 2007. The Plaintiff will review the plan and register any

objections. The Court will hold a hearing on March 12, 2007 to discuss the Plaintiff’s

objections to the plan.

1

3. On December 19, 2006 the Maryland Court of Appeals decided Evans v. Saar, No. 107, 122, 123, 124, Sept. Term 2005, 2006 WL 3716363 (Md. Dec. 19, 2006). Evans invalidated the Maryland execution protocols until such time as the protocols are properly adopted under the Maryland Administrative Procedure Act, Md. Code Ann., State Gov’t §10-201 et seq., or exempted from that requirement by an act of the Maryland General Assembly. Until that time, the Defendants are enjoined from utilizing its current lethal injection protocol and checklist, and cannot move forward with the Plaintiff’s execution.
4. On January 29, 2007 Senate Bill 239 (Attachment 1) was introduced in the Maryland General Assembly and assigned to committee. S. 239, 2007 Leg. 423rd Sess. (Md. 2007). If adopted, Senate Bill 239 would exempt death penalty protocols from the requirements of the Maryland Administrative Procedure Act. Upon passage Senate Bill 239 would take effect June 1, 2007.
5. Secretary Gary D. Maynard of the Maryland Department of Public Safety and Correctional Services1 does not plan to submit the Maryland Execution Protocol or Lethal Injection Checklist for publication and consideration by the appropriate legislative committee, as required by the Maryland Administrative Procedure Act, until Senate Bill 239 is addressed by the General Assembly.
6. On January 29, 2007 House Bill 225 (Attachment 2) was introduced in the Maryland General Assembly and assigned to committee. H.D. 225, 2007 Leg. 423rd Sess. (Md. 2007). If adopted, House Bill 225 would repeal the death penalty in Maryland. If enacted, House Bill 225 would take effect October 1, 2007.
1 Secretary Maynard replaced Mary Ann Saar in January, 2007.
2

7. Secretary Gary Maynard of the Maryland Department of Public Safety and Correctional Services does not plan to submit the Maryland Execution Protocol or Lethal Injection Checklist for publication and consideration by the appropriate legislative committee, as required by the Maryland Administrative Procedure Act, until House Bill 225 is addressed by the General Assembly.
8. On January 17, 2007 Maryland Governor Martin J. O’Malley was inaugurated. Governor O’Malley has stated that he will sign a bill which repeals the death penalty if the Maryland General Assembly adopts one. Jennifer Skalka, Death Penalty Repeal Sought, Balt. Sun, January 26, 2007.
9. Given the recent and rapid changes in Maryland death penalty law and state administration, and, in light of the bills introduced during the legislative session, the Defendants request that their compliance with the Court’s order be suspended until the resolution of Senate Bill 239 and House Bill 225.
10. Scott D. Shellenberger, Baltimore County State’s Attorney, has agreed not to seek a warrant of execution from the Baltimore County Circuit Court until after a final order is entered by the Court in the instant litigation, Evans v. Saar, civil action L-06149.
11. The Plaintiff Vernon Evans Jr. agrees to the delay proposed by the Defendants through this motion.
12. The granting of this motion may prevent the needless expenditure of judicial resources.
13. Plaintiff will suffer no prejudice as a result of the granting of this motion.
3

WHEREFORE, the Respondents request that this Court’s order of December 7,
2006 be stayed.
Respectfully submitted,
DOUGLAS F. GANSLER ATTORNEY GENERAL OF MARYLAND
/s/
____________________________________ LAURA MULLALLY ASSISTANT ATTORNEY GENERAL Bar No. 28145 Department of Public Safety and Correctional Services 6776 Reisterstown Road, Suite 313 Baltimore, MD 21215 (410) 585-3449 fax: (410) 764-5366 lmullally@dpscs.state.md.us
/s/ ___________________________________ PHILLIP M. PICKUS ASSISTANT ATTORNEY GENERAL Bar no. 22814 Correctional Litigation Unit 200 St. Paul Place Baltimore, MD 21202 (410) 576-6449 fax: (410) 576-6880 ppickus@oag.state.md.us
4

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

VERNON EVANS, JR.,

*

Plaintiff

*

vs.

* Civil Action No. L-06-149

MARY ANN SAAR, Secretary,

*

Department of Public Safety and

Correctional Services, et al.

*

Defendants

*

ORDER

Upon consideration of Defendants’ Consent Motion for Appropriate Relief, and

any response thereto, it is this _____ day of _______________, 2007, ORDERED that

the case is stayed until a date determined by the Court.

______________________________________ CHIEF JUDGE BENSON EVERETT LEGG

5

 
 Case 1:06-cv-00149-BEL Document 199 Filed 03/14/12 Page 1 of 2
(410) 585-3449
March 14, 2011 The Honorable Benson Everett Legg, Chief Judge United States District Court for the District of Maryland 101 West Lombard Street Baltimore, MD 21201
Re: Joint Status Report - Evans v. Maynard, et al., Civil No. L-06-149 Dear Judge Legg:
Please accept this letter as a joint status report from the parties in the above entitled case, pursuant to the Court’s order of February 22, 2007.
On November 19, 2010, the Secretary of the Department of Public Safety and Correctional Services published proposed death penalty regulations in the Maryland Register as required by the Maryland Administrative Procedure Act (“APA”), Md. Code Ann. State Gov’t §10-101, et seq. See Evans v. State, 396 Md. 256 (2006). In February, 2011, the Secretary withdrew the proposed regulations for further review. All executions in Maryland are stayed until the administrative regulations governing the death penalty process are properly adopted.
The Governor continues to evaluate Maryland death penalty practice and procedure, and wishes to postpone the formulation of the advertising plan ordered by the Court on December 7, 2006. The Governor would like to report back to the Court in

Case 1:06-cv-00149-BEL Document 199 Filed 03/14/12 Page 2 of 2 another ninety days. Accordingly, the defendants seek a postponement in this matter for an additional ninety days.
The plaintiff does not object to the defendants’ request for a ninety-day extension.
Thank you for your consideration of the defendants’ request.

c: Secretary Gary D. Maynard

Very truly yours,
/s/
Laura Mullally Assistant Attorney General

 
 Case 1:06-cv-00149-BEL Document 49 Filed 02/02/06 Page 1 of 1

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

VERNON EVANS, JR. Plaintiff,
v.
MARY ANN SAAR, et al. Defendants.

:

:

:

:

Civil No. L-06-149

:

:

:

ORDER
On February 1, 2006, the Court denied Vernon Evans Jr.’s motion for a temporary restraining order and motion for preliminary injunction. Mr. Evans has filed a notice of appeal, and this Court has denied his motion for injunction pending the appeal.
If and when the State of Maryland executes Mr. Evans, it must file with the Court and provide Evans’s counsel with the following documents:
(i) The completed Lethal Injection Checklist for Evans; (ii) The EKG report for Evans; and (iii) Any post-mortem reports for Evans, such as the post-mortem blood
toxicology report prepared by the Office of the Chief Medical Examiner. The State may redact these documents in conformity with the practices in this case so far, e.g., names and security details.

Dated this 2nd day of February, 2006.
_____/s/ ________ Benson Everett Legg Chief Judge

 
 Case 1:06-cv-00149-BEL Document 130 Filed 09/15/06 Page 1 of 1

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

VERNON EVANS, JR. Plaintiff,
v.
MARY ANN SAAR, et al. Defendants.

: : : : : : : : ORDER

CIVIL NO. L-06-149

Now pending is Defendants’ Motion to Dismiss. For the reasons stated in the

Memorandum of even date, the Court hereby:

(i) REOPENS the Motion to Dismiss and

(ii) DENIES the Motion to Dismiss. (Docket No. 63).

It is so ORDERED this 14th day of September, 2006.

/s/ Benson Everett Legg Chief Judge

 
 Case 1:06-cv-00149-BEL Document 131 Filed 09/15/06 Page 1 of 4

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

VERNON EVANS, JR. Plaintiff,
v.
MARY ANN SAAR, et al. Defendants.

:

:

:

:

Civil No. L-06-149

:

:

:

ORDER
Now pending are (i) defendants’ Motion in Limine to Bar Plaintiff’s Use at Trial of Deposition Testimony in Plaintiff’s Case in Chief, and (ii) Vernon Evans’s (“Evans”) request for leave to amend his Complaint. For the following reasons, the Court GRANTS the motion in limine in part, DENIES it in part, and DENIES the request for leave to amend. I. Motion in Limine
In the proposed pretrial order, Evans indicated that he would present the videotaped depositions of the following individuals at trial: Commissioner Frank Sizer, Contractual Team A, Contractual Team B, Contractual Team F, Execution Commander, Execution Team Commander, Injection Team A, Injection Team C, Injection Team E, Past Team Member M, and Past Team Member Z. The defense then filed a motion in limine asking the Court to bar the deposition testimony of nine1 of these witnesses,
1 The State did not object to the use of the deposition testimony of Commissioner Sizer and Past Team Member M. Commissioner Sizer’s deposition testimony is allowed under Rule 32(a)(2) because he is named as a party in the Complaint, and Past Team Member M’s deposition testimony is allowed because he or she lives and works over 100 miles from Baltimore and therefore is unavailable under Rule 32(a)(3). Def.’s Mot. In Limine 4-5.

Case 1:06-cv-00149-BEL Document 131 Filed 09/15/06 Page 2 of 4
arguing that because these witnesses are non-parties who are available to testify, Federal Rule of Civil Procedure 32 limits the use of their deposition testimony. Evans responded that the witnesses are John Doe defendants and that their deposition testimony is, therefore, admissible for any purpose under Rule 32(a)(2).2
At the pretrial conference on September 12th, defense counsel stipulated that the witness known as Execution Team Commander is identified by name as a party in the Complaint. The Court mooted the motion as to the eight remaining witnesses because defense counsel agreed to secure their presence at trial, thereby eliminating the need for deposition testimony. On September 13th, however, Evans re-asserted that, despite the availability of the eight witnesses to testify at trial, he still wished to introduce the depositions and that he is entitled to do so because the witnesses are in fact parties to the case.
The Court finds that Evans has failed to establish that these individuals are indeed parties for the purposes of Rule 32. They are not listed by name in the Complaint. The Complaint merely describes a number of John Doe defendants as follows: “Defendants, John Does, are employed by or under contract with the DOC to make preparations for, and carry out, Evans’s execution. They include, but are not limited to, physicians, EMTs, physician’s assistants, the ‘execution commander,’ and the ‘execution team.’ Their identities are not yet known, and as a matter of policy, Defendants will not reveal the identities of these persons. These persons are sued in their official capacity.” Pl.’s Complaint ¶ 9.3
2 “The deposition of a party . . . may be used by an adverse party for any purpose.” Fed. R. Civ. P. 32(a)(2). 3 Notably, Past Team Member Z does not fall into this description of the John Does because, as a past team member, he or she presumably will not “make preparations for and carry out” Evans’s execution.
2

Case 1:06-cv-00149-BEL Document 131 Filed 09/15/06 Page 3 of 4

The Complaint was filed on January 19, 2006. Today, nearly eight months later

and only a few business days before trial is to begin, Evans has not amended the

Complaint to identify the John Doe defendants or to assert specific claims against them.

Although the Complaint names jobs held by the John Doe defendants (e.g. “physicians”

and the “execution team”), he has cited no authority for the proposition that mention of

broadly-described positions in the Complaint is sufficient to treat the persons holding

those positions as parties to the case. Moreover, the John Doe defendants have not

participated in the litigation as parties, and no counsel has entered an appearance

specifically on their behalf. Accordingly, the Court hereby (i) DENIES the motion as to

the Execution Team Commander, and (ii) GRANTS the motion as to the eight other

witnesses.

II. Leave to Amend the Complaint

Evans has also requested leave to amend the Complaint to name the John Doe defendants individually.4 Although Evans has known the identities of the John Doe

defendants for four months, he waited until one week before trial to request leave to

amend. This request is untimely, and the Court will deny it.

III. Conclusions

The Court hereby:

(i)

DENIES the defense’s Motion in Limine with respect to the

Execution Team Commander;

(ii)

GRANTS the defense’s Motion in Limine with respect to

Contractual Team A, Contractual Team B, Contractual Team F,

Execution Commander, Injection Team A, Injection Team C,

Injection Team E, and Past Member Z; and

4 Pl.’s Opp. Defs.’ Motion in Limine 7.
3

Case 1:06-cv-00149-BEL Document 131 Filed 09/15/06 Page 4 of 4

(iii)

DENIES Evans’s request for leave to amend.

It is so ORDERED this 14th day of September, 2006.

____ /s/___ ____ Benson Everett Legg Chief Judge

4

 
 Case 1:06-cv-00149-BEL Document 129 Filed 09/15/06 Page 1 of 7

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

VERNON EVANS, JR.

:

Plaintiff,

:

:

v.

:

:

MARY ANN SAAR, et al.

:

Defendants.

:

:

MEMORANDUM

I. Introduction

CIVIL NO. L-06-149

The State moved to dismiss Vernon Evans’s (“Evans”) § 1983 complaint, arguing that he

failed to exhaust his administrative remedies before filing suit as required by the Prison

Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e(a).1 In a separate order, the Court will

deny the motion.

It would make no legal or practical sense to dismiss Evans’s suit at this juncture. As will

be discussed, exhaustion is not a jurisdictional requisite for a § 1983 suit.2 Evans has now

exhausted his administrative remedies, discovery is complete, and the case is scheduled for trial

in less than one week. Moreover, were the Court to dismiss the suit, Evans, having now

exhausted, could immediately refile it and the case would proceed to the scheduled trial date.

So, securing a dismissal would be a fruitless victory for the State. Hence, the case will not be

dismissed.

1

“No action shall be brought with respect to prison conditions under section [1983]

. . . by a prisoner confined in any jail, prison, or other correctional facility until such

administrative remedies as are available are exhausted.”

2 See Anderson v. XYZ Correctional Health Services, Inc., 407 F.3d 674, 677 (4th Cir. 2005).

Case 1:06-cv-00149-BEL Document 129 Filed 09/15/06 Page 2 of 7
II. Background In 1984, Evans was sentenced to death in the State of Maryland for the contract murders
of two witnesses in a drug prosecution case. He appealed his conviction, which was affirmed by the Court of Appeals in 1985. The Supreme Court denied certiorari in 1986. Evans filed a state habeas petition in 1991. The Circuit Court of Worcester County vacated his sentence (but not the underlying convictions) in 1992. A jury sentenced Evans to death a second time in 1992. His direct appeal was denied, and the Supreme Court denied certiorari in 1994. In 1995, Evans filed a state habeas petition, which the Circuit Court for Baltimore County denied in 1997. Evans then filed for federal habeas relief, which the United States District Court for the District of Maryland denied in 1999. Since 1999, Evans has attempted several times to reopen his state and federal post-conviction cases based on a number of arguments. He currently has claims pending before the Maryland Court of Appeals.3
In 1994, the State of Maryland adopted lethal injection as a method of execution. On June 9, 2004, the Maryland Court of Appeals found that the lethal injection protocol does not violate the Maryland Code or constitute cruel and unusual punishment.4 Maryland’s most recent Execution Manual, which contains the Lethal Injection Protocol, was made final on November 21, 2005.
On December 9, 2005, Evans filed a Request for Administrative Remedy (“Request”), claiming that the existing lethal injection procedures violate his rights under the Eighth and

3

For more detail regarding the pending State claims, see “Summary of Procedural

History in Evans v. State since June 1999" filed by the State on January 26, 2006 (Docket 28).

4

Oken v. State, 851 A.2d 538 (Md. App. 2004).

2

Case 1:06-cv-00149-BEL Document 129 Filed 09/15/06 Page 3 of 7

Fourteenth Amendments of the United States Constitution and Articles 16, 24, and 25 of the Maryland Declaration of Rights, and requesting that new lethal injection procedures be issued.5 Such a request must be filed within 15 days “from the date on which the incident or complaint occurred” or “the date the inmate first gained knowledge of the incident.” DCD 185-101. On January 3, 2006, the Warden timely denied the Request.6 Evans timely filed an appeal to the Commissioner on January 9, 2006. That same day, Judge John G. Turnbull signed a warrant of execution. Under the warrant, the State was required to execute Evans at some point during a five-day period beginning on February 6, 2006.
On January 19, 2006, Evans filed this § 1983 suit. After three days of hearings, the Court denied Evans’s motion for a temporary restraining order and preliminary injunction on February 1, 2006. The Court found that Evans could not show the likelihood of success on the merits required for a stay. Because the execution was imminent, and because exhaustion is not jurisdictional, the Court declined to find that Evans’s claims were procedurally barred due to failure to exhaust. Evans v. Saar, et al., 412 F. Supp. 2d 519 (D. Md. 2006).
On February 6, 2006, the Maryland Court of Appeals stayed Evans’s execution to hear oral argument on four Evans-related cases. Evans’s federal case could, therefore, proceed on a measured, albeit expedited, timeline.7 The Court held a discovery conference and set a trial

5

See Request for Administrative Remedy, Defs.’ Mot. Dismiss at Ex. A, Allen Aff.,

at Ex. 3, Docket No. 63. This Request was filed pursuant to the Department of Correction’s

(“DOC”) Administrative Remedy Procedure for challenging “institutional policies and

procedures.” Division of Correction Directive (“DCD”) 185-002.

6

Under DCD 185-101, the Warden has 30 days to respond to the Request.

7

Evans had appealed this Court’s ruling to the United States Court of Appeals for

the Fourth Circuit. When the State Court stayed the execution, Evans moved to dismiss his

appeal in the federal appellate court.

3

Case 1:06-cv-00149-BEL Document 129 Filed 09/15/06 Page 4 of 7

according to the best thinking of counsel that the Court of Appeals would likely deliver its rulings in the late summer or early fall of 2006.8 The trial was set for September 18th, to allow the case to be resolved on the merits before a new warrant of execution issued.
So that discovery would not be delayed, the Court ordered that any threshold motion to dismiss would not be heard until the close of discovery. The Court instructed the State to file an answer, noting any grounds for dismissal under Federal Rule of Civil Procedure 12(b). The State moved to dismiss on the ground that Evans had failed to exhaust his administrative remedies before filing suit, as required by the PLRA. The Court administratively closed the motion until after discovery was over.
While this case was proceeding, Evans continued to pursue his administrative remedies. As already stated, Evans filed a Request for Administrative Remedy on December 9, 2005. On January 3, 2006, the Warden denied the Request, stating that Evans was not entitled to bring a grievance based on the State’s Execution Protocol, and that the Protocol did not constitute cruel and unusual punishment.9 Nowhere did the Warden say that Evans’s Request was time-barred because it was filed beyond the 15-day limitations period.10

8

The Maryland Court of Appeals has not yet made its rulings.

9

Request for Administrative Remedy, Defs.’ Mot. Dismiss at Ex. A, Allen Aff., at

Ex. 3, Docket No. 63.

10 During the injunction proceedings, the State took the position that Evans waited until the last minute to initiate administrative proceedings and to file suit. Evans’s objective, the State contended, was to use time pressure as a tool to force the Court to delay the execution. This argument has been overtaken by the stay, which afforded the time needed for Evans to exhaust and for the parties to fully litigate the case.
Moreover, the State nowhere maintains that Evans forfeited his right to pursue an administrative remedy–and hence this suit–by failing to file an administrative complaint within 15 days of the triggering event, as required by DCD 185-101. In the normal context of a prisoner’s § 1983 suit, the plaintiff is complaining of some event that has already occurred. It is,

4

Case 1:06-cv-00149-BEL Document 129 Filed 09/15/06 Page 5 of 7
Evans filed an appeal to the Commissioner, Patricia Allen. On February 27, 2006, the
Commissioner responded, saying, “Your appeal has been reviewed and is hereby dismissed. The
warden conducted a proper investigation into your complaint. You have provided nothing to
refute the response.”11 Commissioner Allen also did not suggest that Evans’s Request was time-
barred.
Under the Code of Maryland Regulations, the next step in the administrative process was
for Evans to file an appeal to the Inmate Grievance Office (“IGO”).12 Evans filed his appeal
with the IGO on March 14, 2006. The DOC requested that the IGO stay a hearing before an
Administrative Law Judge (“ALJ”) pending the outcome of the pending state and federal cases.13
therefore, a simple matter to determine the “triggering” date that begins the 15-day period during which the prisoner must file his administrative complaint. A death penalty case is unusual in that the § 1983 suit seeks to prevent a future event, in this case an execution under the lethal injection protocol. Selecting the triggering date after which Evans should have promptly initiated administrative proceedings is not a straightforward task. Evans’s Request noted that “in recent days, the state’s attorneys for Baltimore County [] issued statements to the press indicating they plan to seek warrants of execution in the very near future.” Request for Administrative Remedy, Defs.’ Mot. Dismiss at Ex. A, Allen Aff., at Ex. 3, Docket No. 63. At the hearings in January, the State and Evans offered several dates that could have triggered the 15-day period. It could have been when Evans was convicted, when the conviction became final, when he exhausted his state habeas claims, when he exhausted his federal habeas claims, when Maryland enacted its lethal injection statute, when the MDPSCS finalized the Execution Manual, or when the warrant of execution issued. The Court need not grapple with that question here, because the State does not contend that Evans missed the 15-day window.
11 Appeal of Administrative Remedy Response, Defs.’ Mot. Dismiss at Ex. A, Allen Aff., at Ex. 3, Docket No. 63. Under DCD 185-101, the Commissioner has 30 calendar days to respond to the appeal. Accordingly, the Commissioner was supposed to respond by February 8, 2006.
12 Md. Code Regs. 12.07.01.06(B)(2005). A complaint or appeal with the IGO triggers a whole new tier of administrative process, described in detail in the State’s Motion to Dismiss at pages 5-8. (Docket No. 63).
13 Letter from Scott A. Oakley, Assistant Attorney General, to Marvin Robbins, Executive Director, Inmate Grievance Office (March 20, 2006), Pl.’s Opp. at Ex. E, Docket No.
5

Case 1:06-cv-00149-BEL Document 129 Filed 09/15/06 Page 6 of 7
The IGO denied the request. On June 2, 2006, the ALJ issued a “Proposed Ruling on Cross Motions for Summary Judgment,” finding a genuine issue of material fact as to whether Maryland’s Lethal Injection Protocol would subject Evans to cruel and unusual punishment. The ALJ recommended to Secretary Saar that the Office of Administrative Hearings hold an evidentiary hearing.14
On June 27, 2006, Secretary Saar ordered that the Proposed Ruling of the ALJ recommending an evidentiary hearing be stayed “until the United States District Court for the District of Maryland renders its decision on the constitutionality of the execution procedures as applied to [Evans].”15 The State agrees that Evans has now met the exhaustion requirement.16 III. Conclusion
Discovery in this case is complete and trial is set to begin in less than a week. Evans has
114. 14 Proposed Ruling on Cross Motions for Summary Judgment, Pl.’s Opp. at Ex. A,
Docket No. 114. 15 Department of Public Safety and Correctional Services Order of the Secretary,
Pl’s Opp. at Ex. B, Docket No. 114. 16 It is unclear whether he exhausted on March 14th (when he filed with the IGO), on
June 2nd (when the IGO’s ALJ gave her report and recommendations to Secretary Saar), or on June 27th (when Secretary Saar stayed the matter). “The exhaustion requirement under the PLRA has been interpreted to require prisoners to pursue administrative grievances until they receive a final denial of their claim, appealing through all available stages in the administrative process.” Chase v. Peay, 286 F. Supp. 2d 523, 530 (D. Md. 2003). The State interprets this to mean that an inmate must “pursue an administrative grievance until he receives a final decision of the Secretary,”(Def’s Mot. Dismiss, Docket No. 63 at 9), which here is effectively June 27th.
6

Case 1:06-cv-00149-BEL Document 129 Filed 09/15/06 Page 7 of 7
exhausted his administrative remedies. Accordingly, the Court will REOPEN and DENY the State’s Motion to Dismiss.

Dated this 14th day of September, 2006.

/s/ Benson Everett Legg Chief Judge

7

 
 Case 1:06-cv-00149-BEL Document 139 Filed 09/19/06 Page 1 of 1 UNITED STATES DISTRICT COURT DISTRICT OF MARYLAND

BENSON EVERETT LEGG Chief Judge

101 West Lombard Street Baltimore, Maryland 21201
410-962-0723

September 18, 2006

MEMORANDUM RE:

Evans v. Saar, Civil No. L-06-149

Dear Members of the Press:

The Court has received inquiries as to whether members of the press and the public will have access to the testimony in this case.

The courtroom will be open to the public on Tuesday, September 19th and Friday, September 22nd. It will be sealed on Wednesday, September 20th until approximately 3:30 p.m. and Thursday, September 21st until approximately the middle of the day. During those times, a
live feed of the proceedings will be available in Courtroom 7B.

Trial will resume the week of October 10th. The Court will post a schedule for that week’s live feed at that time.

Despite the informal nature of this memorandum, it shall constitute an Order of the Court and the Clerk is directed to docket it accordingly.

Very truly yours,

/s/ Benson Everett Legg

c: Court file

 
 Case 1:06-cv-00149-BEL Document 153 Filed 02/22/07 Page 1 of 1 UNITED STATES DISTRICT COURT DISTRICT OF MARYLAND

Chambers of BENSON EVERETT LEGG
Chief Judge

101 West Lombard Street Baltimore, Maryland 21201
(410) 962-0723

February 22, 2007

MEMORANDUM TO COUNSEL RE:

Evans v. Saar, et al., Civil No. L-06-149

Dear Counsel:

The parties have filed a joint motion requesting that the case be stayed until legislation now pending in the Maryland General Assembly has been resolved. The motion is hereby GRANTED. The parties shall file a status report every 90 days.

Despite the informal nature of this memorandum, it shall constitute an Order of the Court and the Clerk is directed to docket it accordingly.

Sincerely, /s/ Benson Everett Legg

c: Court file

 
 Case 1:06-cv-00149-BEL Document 205 Filed 08/16/12 Page 1 of 1

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

VERNON EVANS, JR.
v.
MARY ANN SAAR

Civil #L-06-149

ORDER The Court has been advised by counsel in a letter dated August 16, 2012 that counsel agree that this case can be administratively closed. ACCORDINGLY, it is this 16th day of August, 2012, ORDERED that this action is hereby ADMINISTRATIVELY CLOSED . Any party may move to reopen this action for good cause shown. IT IS FURTHER ORDERED that the Clerk of Court shall mail or electronically tran smit copies of this Order to counsel of record.
}:..~.fv~if 1~1-
District Judge

 
 .

IN THE CIRCUIT COURT FOR BALTIMORE CITY, MARYLAND

NATIONAL ASSOCIATION FOR THE )

ADVANCEMENT OF COLORED

)

PEOPLE

)

4805 Mount Hope Drive

)

Baltimore, Maryland 21215

)

)

AMERICAN CIVIL LIBERTIES

)

UNION FOUNDATION OF

)

MARYLAND;

)

3600 Clipper Mill Road, Suite 350

)

Baltimore, Maryland 21211

)

)

MARYLAND CITIZENS

)

AGAINST STATE EXECUTIONS;

)

PO Box 39205

)

Baltimore, Maryland 21212

)

)

and

)

)

VERNON EVANS, JR.;

)

Division of Corrections No. 172357

)

Maryland Correctional Adjustment Center )

410 East Madison Street

)

Baltimore, Maryland 21202

)

)

Plaintiffs,

)

)

vs.

)

)

MARY ANN SAAR, Secretary,

)

Department of Public Safety and

)

Correctional Services

)

300 East Joppa Road

)

Suite 2000

)

Towson, Maryland 21286;

)

)

FRANK C. SIZER, JR., Commissioner, )

Maryland Division of Correction;

)

6776 Reisterstown Road

)

Baltimore, Maryland 21215;

)

)

Defendants.

)

Civil Action No.

COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF Plaintiffs, National Association for the Advancement of Colored People ("NAACP"), American Civil Liberties Union Foundation of Maryland ("ACLU"), Maryland Citizens Against State Executions ("CASE"), and Vernon Evans, Jr., by and through their undersigned attorneys, bring the following complaint against Defendants Mary Ann Saar, Secretary, Department of Public Safety and Correctional Services; and Frank C. Sizer, Jr., Commissioner, Maryland Division of Corrections, in their official capacities.
Introduction 1. The Maryland legislature has enacted legislation that governs executions. Md. Code Ann., Corr. Servs. §§ 3-905 - 3-909 (West 2005) ("Death Penalty Procedures Statute" or "DPPS"). Death sentences are to be carried out by lethal injection, and the Commissioner of the Maryland Department of Public Safety and Correctional Services, Division of Corrections (DOC) is responsible for administering and overseeing the execution process. !d. §§ 3-905, 3-906. 2. The DPPS contains explicit instructions for carrying out lethal injections, delineating the types of drugs to be used, id. § 3-905 ("Method of Execution"), and setting forth an itemized list of the Commissioner's various duties and oversight functions, id. §§ 3-906-3-909 (requiring that the Commissioner choose a suitable place for the execution, provide all of the necessary materials, and select and train execution staff).
2

3. The Division of Corrections has promulgated regulations that purport to implement Maryland's Death Penalty Procedures Statute. Upon information and belief, these regulations are set forth in the DOC's Executions Operations Manual, the most recent version of which was adopted in 2004. Department of Public Safety and Correctional Services, Division of Correction, Execution Operations Manual (June 14, 2004) (sometimes hereinafter "Manual"). 4. Plaintiffs challenge the validity of these regulations on multiple grounds.
a. First, several of the regulations conflict with the DPPS. Specifically, they are at odds with the statute's directives regarding the type of drugs to be used, the procedures for administering those drugs, and the training of staff. As such, these specific regulations are invalid. b. Second, several of the regulations conflict with the specific directives laid out in the Warrant of Execution filed in the case of Plaintiff Vernon Evans, Jr. c. Third, the DOC unilaterally adopted the regulations set forth in the Execution Operations Manual in disregard of Maryland's Administrative Procedure Act ("APA"), Md. Code Ann., State Gov't §§ 10-101 - 10-139, failing, for example, to submit it to the Attorney General for approval, or to publish it for public comment in the Maryland Register. Id. This failure to follow the APA's requirements is grounds for invalidating and declaring null and void of an the regulations the Manual. 5. Defendants' failure to follow Maryland law in adopting its execution protocol deprives the State's citizens the opportunity to ensure that executions that are carried out
3

in the name of the people of Maryland are performed properly and humanely. This failure significantly increases the risk that those currently on Maryland's death row will suffer unnecessarily during their executions. 6. Defendant's failure to follow Maryland law in designing its execution protocol further deprives the public of its right to comment on regulations, and it undermines the Attorney General's and the General Assembly's oversight of agency action, which are the central goals of the APA. 7. The purpose of the present complaint is not to challenge any particular death sentence or the validity of the death penalty itself, but only to ensure that the procedures adopted by the Division of Corrections comply with Maryland law, including section 3905 and the State's Administrative Procedure Act. 8. Plaintiffs therefore seek a declaration that the Division of Correction's Executions Manual is invalid because it: (1) ignores the statutory mandates of § 3-905, as well as the directives laid out in the Warrant of Execution in Plaintiff Evans's case; and (2) it was enacted in violation of the Administrative Procedure Act. Such a declaration is authorized by law. Md. Code Ann., State Gov't § 10-125. 9. Plaintiffs further request a temporary restraining order and preliminary and permanent injunctions barring the Defendants from performing any executions in the State of Maryland until the Division of Corrections has corne into compliance with its legal responsibilities.
4

PARTIES 10. Plaintiff National Association for the Advancement of Colored People ("NAACP") works to eliminate racial prejudice and to remove aU barriers of racial discrimination through the democratic process. The NAACP has long opposed the death penalty, and, in particular, opposes the disproportionate impact of the death penalty on African-American criminal defendants. 11. Plaintiff American Civil Liberties Union Foundation of Maryland ("ACLU") is a non-partisan organization which works to ensure that all people in the State of Maryland are free to think and speak as they choose and are able to lead lives free from discrimination and unwarranted government intrusion. The ACLU is guided in its work by the United States Bill of Rights and the Maryland Declaration of Rights. It has over 12,000 members in the State of Maryland. Capital punishment is a dire, and irreversible, threat to the rights of an individual. Although the Supreme Court in 1976 decided in Gregg v. Georgia to reinstate the death penalty in the United States. However, the ACLU continues to oppose capital punishment on moral, practical, and constitutional grounds. 12. Plaintiff Maryland Citizens Against State Executions ("CASE") is a coalition of groups and individuals united to end the death penalty in Maryland through education, grassroots action, and public demonstration. 13. Plaintiff Vernon Evans, Jr. is a United States citizen and a resident of the State of Maryland. He is currently a death-sentenced inmate in the custody of Defendants and under the supervision of the DOC. His DOC Number is 172357. He is held at the Maryland Correctional Adjustment Center, 410 East Madison Street, Baltimore,
5

Maryland 21202. On January 9, 2006, the Circuit Court for Baltimore County signed a Warrant of Execution, setting Evans's execution for some time in the five-day period beginning February 6, 2006. 14. All four of the Plaintiffs are affected by the Defendants' unlawful actions in this case. Plaintiffs have an interest in seeing that State officials operate within the boundaries of the law, and all four have an interest in ensuring that executions are not carried out in Maryland in violation of the Constitution or the Maryland Declaration of Rights. In particular, the execution of Plaintiff Evans is scheduled to take place during the week of February 6, 2006, and all Plaintiffs, especially Mr. Evans, wish to make sure that he is not subject to excruciating pain during that procedure. 15. Defendant Mary Ann Saar is the Secretary of the Maryland Department of Public Safety and Correctional Services ("DPSCS"), and is sued in her official capacity. 16. Defendant Frank C. Sizer, Jr., is the Commissioner of the DOC, and is sued in his official capacity.
JURISDICTION AND VENUE 17. This Court has jurisdiction over the subject matter of this action pursuant to Md. Code Ann., State Gov't § 10-125, and Md. Code Ann., Cts. & Jud. Proc. §§ 3-403,3-406, and 3-409. 18. Venue in this Court is proper under Md. Code Ann., State Gov't § 1O-125(a)(2), which provides that "[a] petition under this section shall be filed with the circuit court for the county where the petitioner resides or has a principal place of business." Three of the
6

four Plaintiffs maintain their principal places of business in Baltimore City; thus, Baltimore City is the proper venue for this action.
BACKGROUND FACTS 19. As noted above, Maryland's Death Penalty Procedures Statute contains explicit instructions as to the proper method for administering lethal injections. Md. Code Ann., Corr. Servs. §§ 3-901 - 3-909. These instructions are unambiguous in their language, and mandatory in nature. 20. The Division of Corrections (DOC), a division of the State Department of Safety and Correctional Services (DPSCS), is responsible for carrying out lethal injections. [d. 21. The DOC has prepared a detailed Execution Operations Manual designed to implement the Death Penalty Procedures Statute. It sets forth the procedures to be used in the administration of Maryland's death penalty, governing every step of the execution process, from the drugs to be used, to the types of witnesses that will be allowed to view the execution. 22. The Division of Corrections has refused to release a complete copy of the Execution Operations Manual to the public, citing security concerns. It can be amended at the will of the Division of Corrections, with virtually no public oversight. 23. The procedures were amended twice within the three weeks preceding the June 2004 execution of Steven Oken. Plaintiffs do not know whether they were amended again prior to the December 2005 execution of Wesley Baker.
Compliance with Maryland's Death Penalty Procedures Statute
7

24. Maryland's Death Penalty Procedures Statute specifies the types of drugs to be used during the lethal injection process, the method of administering those drugs, and the training of personnel who will be involved carrying out executions. These instructions are mandatory, and not open to interpretation: "[t]he manner of inflicting the punishment of death shall be the continuous intravenous administration of' (a) "a lethal quantity of an ultrashort-acting barbiturate or other similar drug;" along with (b) "a chemical paralytic agent." Md. Code Ann., Corr. Servs. § 3-905 (a) (emphasis added). These drugs are to be administered "until a licensed physician pronounces death." Id. Furthermore, the execution is to be performed by persons who have been "trained to administer the lethal injection." Id. at § 3-906 (c)(1). Notwithstanding the clarity of these instructions, the Execution Operations Manual diverges from the statute in three critical respects. 25. First, although § 3-905 expressly calls for the injection of two-and only twodrugs, the regulations set forth in the Execution Operations Manual add a third drug to the mix of chemicals. The DPPS requires the use of "an ultrashort-acting barbiturate" and "a chemical paralytic agent." The DOC however, employs an ultrashort-acting barbiturate (sodium pentothal) and two paralytic agents (pancuronium bromide and potassium chloride). 26. This change represents no minor tweaking of the DPPS: the two paralytic agents Defendants have chosen to use are both very painful, and in combination, quite dangerous. Potassium chloride, which ultimately paralyzes the heart, affects the nerve fibers lining the veins, and there is universal medical agreement that its administration to an inadequately sedated person is agonizingly painful. Administration of pancuronium
8

bromide, which paralyzes the skeletal muscles, renders a person unable to move-or to breathe. While suffering the intense, visceral pain of asphyxiation, a person under the effects of pancuronium bromide will be absolutely motionless; he will appear serene. Thus, Defendants have chosen to employ two extremely painful paralytic agents. Furthermore, as administered by Defendants, pancuronium bromide has no medical purpose; it is potassium chloride that causes death. Thus, Defendants have unnecessarily added to their lethal-injection process a drug which is not only extremely painful, but also masks any feeling or awareness, making it impossible for even a medical professional to assess whether general anesthesia has been achieved and maintained. 27. Because injection of potassium chloride is so excruciatingly painful, the American Veterinary Medical Association prohibits its use as the sole agent effecting euthanasia of animals, and if the chemical is to be used at all, it may only be administered by a practitioner with the skill and training necessary to assure that the subject to be euthanized has reached and maintains a surgical plane of anesthesia. Both the AVMA and Maryland law prohibit the use of neuromuscular blocking agents, such as pancuronium bromide, in euthanasia of animals because of their impact on the ability of those administering euthanasia to ensure that a subject is sufficiently anesthetized. 28. Second, the DOC's instructions for administering its selected "ultrashort-acting barbiturate" (sodium pentothal) deviate from the DPPS. The Manual calls for the administration of the sodium pentothal in two separate bursts. This is in complete disregard of the DPPS, which calls for the "continuous intravenous administration of a
9

lethal quantity of an ultrashort-acting barbiturate" until death. Md. Code Ann., Corr. Servs. § 3-905(a). 29. Again, the DOC's unilateral decision to deviate from the DPPS is significant. administered correctly in a continuous stream, ultrashort-acting barbiturates lead the inmate to slip into unconsciousness and experience a relatively painless death. Because the effects of the drug are only temporary, they must be administered continuously, to ensure that they are effective at blocking pain. Applying the drug in two short bursts, as is called for in the DOC's Execution Operations Manual, rather than in a steady stream, as mandated by the statute, increases the risk that the inmate will be conscious during the execution and feel both the agony of suffocation (caused by the paralytic agent, pancuronium bromide) ancllor the searing pain of the potassium chloride (the third drug administered by the DOC). 30. In requiring the use of an additional, unnecessarily painful drug, and by unilaterally altering the statutorily mandated method of administering anesthesia to inmates, the DOC not only increases the risk of unnecessary suffering-it oversteps its legal authority; the DOC's regulations violate both the letter and the spirit of Maryland's Death Penalty Procedures Statute. 31. Third, Maryland's Death Penalty Procedures Statute requires the Commissioner to select execution professionals who are "trained to administer the lethal injection." Md. Code Ann., Corr. Servs. § 3-906(c)(1). 32. Though the Executions Operations Manual does perfunctorily require the hiring of "trained" persons, and calls for "drills," there are no assurances as to what type of
10

training is required and what sort of skill sets are involved in the drills. Upon information and belief, the practices and policies the DOC has devised do not include adequate directions for training staff to prepare drugs, do not require participation of qualified personnel in performing critical tasks in the lethal-injection process, do not provide for necessary supervision of personnel, and do not establish appropriate criteria and standards that these personnel must rely upon in exercising their discretion during the lethal injection process. 33. For example, only a person adequately trained in the use of intravenous anesthetics should administer sodium pentothal. Sodium pentothal is the only anesthetic drug administered during a lethal injection, and, as such, it is the only barrier that prevents the inmate from unnecessarily experiencing excruciating pain and/or paralysis. A qualified person must be present to assure that the sodium pentothal is working and that the inmate is rendered unconscious. Yet, upon information and belief, none of the procedures for lethal injection employed by the DOC require a trained person to monitor the plane of anesthesia achieved by administering sodium pentothal during an execution. This creates a significant risk that the inmate will remain fully awake and experience both the horror and pain of his death. 34. Similarly, administration of intravenous ("IV") anesthesia requires proficiency at achieving and maintaining IV access. On information and belief, Defendants are not trained and qualified to create and maintain IV access. Again, this increases the risk that the inmate will suffer unnecessarily.
11

35. Defendants have conceded misadministration of at least one lethal injection-that of Tyrone X. Gilliam. During Gilliam's execution, the IV line leaked and liquids pooled on the execution room floor. Gilliam's execution took several minutes longer than four of Maryland's five other lethal injections and nearly four times as long as its fifth lethal injection. 36. The failure to adopt adequate regulations governing the training of personnel is a direct violation of the Commissioner's statutory responsibilities.
Compliance With Warrant of Execution 37. On January 9,2006, the Circuit Court for Baltimore County signed a Warrant of Execution, setting Evans's execution for some time in the five-day period beginning February 6,2006. 38. The language of the Warrant quotes the exact language of the DPPS. It provides that Mr. Evans's sentence of death be carried out, "administering to him a continuous intravenous lethal quantity of an ultrashort-acting barbiturate or other similar drug, in combination with a chemical paralytic agent until a licensed physician pronounces death according to accepted standards of medical practice." 39. The Warrant is a mandatory court order, which states in unequivocal terms that the Division of Corrections is "COMMANDED AND CHARGED" to foHow its directives. 40. By information and belief, Defendants plan to violate the terms of Warrant in carrying out the execution of Plaintiff Evans, by using an additional, unnecessary
12

paralytic agent during the process, and by administering the required barbiturate in two doses, rather than in a steady stream.
Maryland's Administrati ve Procedure Act 41. The Administrative Procedure Act, Md. Code Ann., State Gov't §§ 10-101 - 10139, governs the adoption of regulations by Executive Branch agencies. It applies to every unit within the Executive Branch, including both the DOC and the DPSCS. Md. Code Ann., State Gov't § 10-102. 42. The APA defines the term "Regulation" as:
[A] statement or an amendment or a repeal of a statement that: (i) has general application; (ii) has future effect; (iii) is adopted by a unit to: 1. detail or carry out a law that the unit administers; 2. govern organization of the unit; 3. govern the procedure of the unit; or 4. govern practice before the unit; and (iv) is in any form, including; 1. a guideline; 2. a rule; 3. a standard; 4. a statement of interpretation; or 5. a statement of policy. Md. Code Ann., State Gov't §§ 1O-101(g)(1). 43. Any statement falling within the definition of a "Regulation" must be adopted according to the procedures laid out in the APA. Specifically, a regulation cannot become effective until it has been: (1) submitted to the Attorney General or unit counsel for approval; (2) reviewed by the Joint Committee on Administrative, Executive, and Legislative Review; (3) published in the Maryland Register (both the proposed and final versions); and (4) submitted for publication in the Code of Maryland Regulations ("COMAR"). Upon information and belief, none of these procedures was followed in adopting the Execution Operations Manual.
13

44. Furthermore, under Md. Code Ann., Corr. Servs. § 2-109(c), the Secretary of DPSCS is required to adopt regulations that govern the policies and management of the Division of Correction. See Massey v. Department ofPub. Safety & Corr. Serv., 886 A.2d 585, 592-93 (Md. 2005). The Execution Operations Manual was drafted and implemented by the Commissioner, and it is the Commissioner who retains the power to alter the regulations contained in the Manual at will, without any notice to the public or other oversight. 45. The public has a special interest in knowing that executions are conducted without unnecessary pain or suffering. Accordingly, procedures followed in carrying out lethal injections should be subject to public scrutiny, according to the APA's mandates. 46. Because the Secretary failed to comply with the APA in adopting the Manual, and because Plaintiffs have no adequate remedy at law, the continued enforcement of the regulations contained in the Manual should be enjoined.
FIRST CLAIM FOR RELIEF 47. Evans incorporates and realleges the averments contained in paragraphs 1-46 by reference. 48. The Division of Corrections has adopted regulations for the administration of executions in Maryland in violation of the Death Penalty Procedures Statute, Md. Code Ann., Corr. Servs. §§ 3-905 - 3-909, and the Warrant of Execution.
SECOND CLAIM FOR RELIEF 49. Evans incorporates and realleges the averments contained in paragraphs 1-48 by reference.
14

50. The Division of Corrections has adopted regulations for the administration of executions in Maryland in violation of the Administrative Procedure Act, Md. Code Ann., State Gov't §§ 10-101 - 10-139.
PRAYER FOR RELIEF Plaintiffs pray that relief be entered against the Defendants as follows: 1. Declaratory judgment stating that DOC procedures, which unnecessarily and dangerously call for administration of two exceptionally painful paralytic agents and which fail to provide for continuous administration of anesthetics, or proper training of staff, violate the Maryland Death Penalty Procedures Statute, Md. Code Ann., Corr. Servs. § 3-905 - 3-906. 2. Declaratory judgment stating that the DOC's regulations, as set forth in its Execution Operations Manual, were enacted in violation of the Administrative Procedure Act. Md. Code Ann., State Gov't §§ 10-101-10-139. 3. A temporary restraining order and preliminary and permanent injunctions barring Defendants from carrying out executions until the Secretary has adopted regulations that conform to Section 3-905 and to the mandates of the Administrative Procedure Act. 4. Reasonable attorneys' fees, as wen as costs of suit and any further relief that this Court deems just and proper.
15

Dated: January 20,2006

Todd Zubler Kalea Seitz Clark Anne Harden Tindall Anne H. Geraghty Wilmer Cutler Pickering Hale and DOff LLP 2445 M Street, N.W. Washington, D.C. 20037 (202) 663-6000 (phone) (202) 663-6363 (fax) stephen.hut@wilmerhale.com todd.zubler@wilmerhale.com kalea.clark@wilmerhale.com anne.tindall @wilmerhale.com anne.geraghty@wilmerhale.com
Jeffrey O'Toole Julie S. Dietrich O'Toole, Rothwell, Nassau & Steinbach 1350 Connecticut Avenue, N.W., Suite 200 Washington, D.C. 20036 (202) 775-1550 otoole@otrons.com dietrich @otrons.com
Counsel for Plaintiffs

16

CERTIFICATE OF ADMISSION I hereby certify that I was admitted to practice law in the State of Maryland in December, 2002, remain a member in good standing of the Bar of Maryland, and am authorized to practice before the Courts of this State, including the Circuit Court for Baltimore City, Maryland.
£ht:A?=~
Kalea Seitz Clark Wilmer Cutler Pickering Hale and DOff LLP 2445 M Street, N.W. Washington, D.C. 20037 (202) 663-6396
17

 
 IN THE CIRCUIT COURT FOR BALTIMORE CITY, MARYLAND

NATIONAL ASSOCIATION FOR THE )

ADVANCEMENT OF COLORED

)

PEOPLE

)

4805 Mount Hope Drive

)

Baltimore, Maryland 21215

)

)

AMERICAN CIVIL LIBERTIES

)

UNION FOUNDATION OF

)

MARYLAND;

)

I

B600 Clipper Mill Road, Suite 350

)

Baltimore, Maryland 21211

)

)

MARYLAND CITIZENS

)

AGAINST STATE EXECUTIONS;

)

PO Box 39205

)

Baltimore, Maryland 21212

)

)

and

)

)

I VERNON EVANS, JR.;

)

Division of Corrections No. 172357

)

Maryland Correctional Adjustment Center )

410 East Madison Street

)

Baltimore, Maryland 21202

)

)

Plaintiffs,

)

)

vs.

)

)

MARY ANN SAAR, Secretary,

)

Department of Public Safety and

)

Correctional Services

)

300 East Joppa Road

)

Suite 2000

)

Towson, Maryland 21286;

)

)

FRANK C. SIZER, JR., Commissioner, )

Maryland Division of Correction;

)

6776 Reisterstown Road

)

Baltimore, Maryland 21215;

)

)

Defendants.

)

Civil Action No.

MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS' URGENT APPLICATION FOR TEMPORARY RESTRAINING
ORDER AND MOTION FOR PRELIMINARY INJUNCTION
Plaintiffs, National Association for the Advancement of Colored People
,
("NAACP"), American Civil Liberties Union Foundation of Maryland ("ACLU"), Maryland Citizens Against State Executions ("CASE"), and Vernon Evans, Jr., urgently seek a temporary restraining order and preliminary injunction enjoining Defendants from performing any executions in the State of Maryland until they have complied with Maryland State law in adopting its execution protocols. Because the execution of Plaintiff Evans is schepuled for the week of February 6,' 2006, this appli1ation and motion
I
is urgent. This application and motion are based upon the allegations made in the Complaint
filed on this day in the present matter. Currently, executions in Maryland are performed by lethal injection, and the
Department of Public Safety and Correctional Services (DPSCS), Division of Corrections (DOC) has been solely responsible for adopting regulations that set forth the proper procedures for carrying out death sentences. Those regulations are set forth in the DOC's Execution Operations Manual. Department of Public Safety and Correctional Services, Division of Correction, Execution Operations Manual (June 14,2004) (sometimes hereinafter "Manual"), Exhibit A.
Plaintiffs challenge the validity of the regulations set forth in the Execution Operations Manual on three distinct grounds: (1) several of them conflict with the statutory mandates of Maryland's Death Penalty Procedures Statute, Md. Code Ann.,
2

Corr. Servs. §§ 3-905 - 3-909 (West 2005) ("Death Penalty Procedures Statute" or "DPPS"); (2) they also conflict with the Warrant of Execution issued on January 9,2006 . in the case of Plaintiff Vernon Evans, Jr.; and (3) the regulations were promulgated in violation of the State's Administrative Procedure Act ("APA"). Md. Code Ann., State Gov't §§ 10-101 - 10-139.
Plaintiffs are likely to succeed on the merits because, on their face, the regulations
\
are inconsistent with the Death Penalty Procedures Act and the Warrant issued in Mr. Evans's case. Equally plainly, they were promulgated in disregard of the APA. Plaintiffs will be irreparably harmed if injunctive relief is not granted right away; the execution of Plaintiff Vernon Evans is scheduled for the week of February 6, 2006, and, without intervention from this Court, it will take place pursuant to unlawful regulations and in violation of the Warrant of Execution. These violations of the law significantly increase the chance that Mr. Evans will be tortured to death during his execution. A temporary restraining order and a preliminary injunction are necessary in order to maintain the status quo and to restore the balance of justice.
Statement of Facts The Complaint herein alleges and shows as follows. The Maryland legislature has enacted legislation that governs executions. Md. Code Ann., Corr. Servs. §§ 3-9053-909. Death sentences are to be carried out by lethal injection, and the Commissioner of the Maryland Department of Public Safety and Correctional Services, Division of Corrections (DOC) is responsible for administering and overseeing the execution process. ld. §§ 3-905,3-906. The Death Penalty Procedures Statute ("DPPS") contains explicit
3

legislative instructions for carrying out lethal injections, delineating the types of drugs to

be used, id. § 3-905 ("Method of Execution"), and setting forth an itemized list of the

Commissioner's various duties and oversight functions, id. §§ 3-906-3-909 (requiring
I
that the Commissioner choose a suitable place for the execution, provide all of the

necessary materials, and select and train execution staff). These instructions are

unambiguous in their language, and mandatory in nature.

The Division of Corrections has promulgated regulations that purport to

implement the DPPS. These regulations are set forth in the DOC's Executions
or Operations Manual, and Plaintiffs believe that the most recent version the Manual was

adopted in 2004. Exhibit A.

I

A. Conflicts Between the Execution Operations Manual and the Death Penalty Procedures Statute

Maryland's DPPS specifies the types of drugs to be used during the lethal

injection process, the method of administering those drugs, and the training of personnel

who will be involved in carrying out executions. These instructions are mandatory, and

not open to interpretation: "[t]he manner of inflicting the punishment of death shall be the

continuous intravenous administration of' (a) "a lethal quantity of an ultrashort-acting

barbiturate or other similar drug;" along with (b) "a chemical paralytic agent." Md. Code

Corr. Servs. § 3-905 (a) (emphasis added). These drugs are to be administered

"until a licensed physician pronounces death." /d. Furthermore, the execution is to be

performed by persons who have been "trained to administer the lethal injection." Id. § 3-

906(c)(l).

4

The Execution Operations Manual deviates from the DPPS in three material ways:
First, although section 3-905 expressly calls for the injection of two-and only two-drugs, the regulations set forth in the Execution Operations Manual add a third drug to the mix of chemicals. The DPPS requires the use of "an ultrashort:-acting barbiturate" and "a chemical paralytic agent". DOC however, employs an ultrashort-
\
~cting barbiturate (sodium pentothal) and two paralytic agents (pancuronium bromide and potassium chloride). See Exhibit E, Lethal Injection Checklist. If administered without proper anesthesia one of the paralytic agents, potassium chloride, will ultimately cause an intensely painful death. Exhibit 2, Declaration of Mark J. S. Heath, M.D. at 6-7 (hereinafter "Heath Declaration"). The second paralytic agent-pancuronium bromideserves no medical purpose. Heath Declaration at <j[ 16. Potassium chloride is the killing agent in Maryland executions, id. at <j[ 9; pancuronium bromide serves only to paralyze the inmate so he appears serene, while in reality he could be experiencing (1) the visceral pain of asphyxiation, brought on pancuronium bromide, and (2) the excruciating sensation of potassium chloride traveling through his veins and ultimately causing cardiac arrest, id. at <j[ 11, 16-19.
Second, the DOC's instructions for administering its selected "ultrashort-acting barbiturate" (sodium pentothal) deviate from the DPPS. Manual calls for the administration of the sodium pentothal in two separate bursts. Exhibit A at _ . This is in complete disregard of the DPPS, which calls for the "continuous intravenous
5

administration of a lethal quantity of an ultrashort-acting barbiturate" until death. Md. Code Ann., Corr. Servs. § 3-905(a).
Finally, Maryland's Death Penalty Procedures Statute requires the Commissioner
i
to select execution professionals who are "trained to administer the lethal injection." Md. Code Ann., Corr. Servs. § 3-906(c)(l). Though the Executions Operations Manual does perfunctorily require the hiring of "trained" persons, and calls for "drills," there are no assurances as to what type of training is required and what sort of skill sets are involved in the drills. See Exhibit A at 10, 12. The policies and practices the DOC has set forth in
I
its Manual do not include adequate directions for training staff to preparF drugs, do not
I
require participation of qualified personnel in performing critical tasks iri the lethalinjection process, do not provide for necessary supervision of personnel, and do not establish appropriate criteria and standards that these personnel must rely upon in exercising their discretion during the lethal injection process. Id. B. Conflicts Between the Execution Operations Manual and the Warrant of
Execution On January 9,2006, the Circuit Court for Baltimore County signed a Warrant of Execution, setting Evans's execution for some time in the five-day period beginning February 6, 2006. Exhibit B. The language of the Warrant tracks the language of the DPPS exactly. Id. at 2. It provides that Mr. Evans's sentence of death be carried out, "administering to him a continuous intravenous lethal quantity of an ultrashort-acting barbiturate or other similar drug, in combination with a chemical paralytic agent until a licensed physician pronounces death according to accepted standards of medical
6

"" f

practice." Id. The Warrant is a mandatory court order, which states in unequivocal terms that the Division of Corrections is "COMMANDED AND CHARGED" to follow its directives. ld. Plaintiffs believe that Defendants plan to violate the terms of Warrant carrying out the execution of Plaintiff Evans, by using an additional, unnecessary paralytic agent during the process, and by administering the required barbiturate in two roses, rather than in a steady stream. Compl.!]I 40. C. Violation of Maryland's Administrative Procedure Act
The Department of Public Safety and Correctional Services has not itself adopted any regulations that govern the administration of lethal injections. Instead, it has delegated all responsibility for deciding how executions will be carried out in Maryland to the Division of Corrections. The DOC has, in tum, adopted the regulations set forth in its Execution Operations Manual. Exhibit A. The regulations contained in the Manual govern every step of the execution process, from the drugs to be used, to the types of witnesses that will be allowed to view the execution. Id. The Division of Corrections has refused to release a complete copy of the Execution Operations Manual to the public, citing security concerns. ld. at 2 ("This manual is considered confidential and should not be disclosed to anyone other than those who have responsibilities associated with the execution process."). It can be amended at the will of the Division of Corrections, with virtually no public oversight. CompI.!]I 44. fact, the procedures were amended twice within the three weeks preceding the June 2004 execution of Steven OkenY Plaintiffs

II

Oken was executed on June 18, 2004. Dan Rodricks, In 9 Minutes, Witnesses

Watch Death Take Hold, BaIt. Sun. June 27, 2004. The Manual was amended on May

7

do not know whether they were amended again prior to the December 2005 execution of Wesley Baker.
Petitioners believe that the most recent version of the DOC's Execution Operations Manual was made final on June 14,2004. Exhibit A. D. Harm Associated with Improper Administration of Lethal Injection
Although the stated purpose of the Execution Operations Manual is to "ensure that the execution process is conducted professionally and with dignity," id. at 2, many of the procedures set forth in the Manual actually increase the risk that executions will not be carried out in such. a manner. The Commissioner's decision to deviafe from the
I
language of the Death Penalty Procedures Statute, and the failure to sub1mit many of the Manual's mandates for approval as regulations, as is required by the Administrative
I
Procedure Act, increase the chances that the death penalty will be administered in ways inconsistent with the legislature's intent, and will heighten the risk that those subject to lethal injection in Maryland will suffer cruelly and unnecessarily.
First, the Commissioner's decision to administer the ultra-short acting barbiturate in two doses increases the risk that the inmate will be fully aware when the pancuronium bromide and the potassium chloride hit his bloodstream. Exhibit 2, Heath Declaration at 8, 13. administered conectly a continuous stream, ultrashort-acting barbiturates lead the inmate to slip into unconsciousness and experience a relatively painless death. CompI. <]I 29. Because the effects of the drug are only temporary, however, they are only
26, 2004, Oken v. Sizer, 321 F. Supp. 2d 658, 660 (D. Md. 2004), and again on June 14, 2004. See Execution Operations Manual dated June 14, 2004, Exhibit A.
8

effective at blocking pain if administered continuously. Applying the drug in two short bursts, as is called for in the DOC's Execution Operations Manual, rather than ina steady stream, as mandated by the Death Penalty Procedures Statute, significantly increases the risk that the inmate will remain conscious during the execution and feel botn the agony of suffocation (caused by the pancuronium bromide) and/or the searing pain of the potassium chloride (the third drug administered by the DOC). Id.
Second, the DPPS's requirement that personnel be adequately trained is important to ensure that the inmate does not suffer during death. The administration of the three drugs in the proper manner is not easy; only a person properly trained in the use of intravenous anesthetics should administer sodium pentothal. Exhibit 2, Heath i Declaration, at 8. Sodium pentothal is the only anesthetic drug administered during a lethal injection, and, as such, it is the only barrier that prevents the inmate from unnecessarily experiencing excruciating pain and/or paralysis. A qualified person must be present to assure that the sodium pentothal is working and that the inmate is rendered unconscious. Id. Yet, upon information and belief, none of the procedures for lethal injection employed by the DOC require a trained person to monitor the plane of anesthesia achieved by administering sodium pentothal during an execution. Exhibit A. This creates a significant risk that the inmate will remain fully awake and experience both the horror and pain of his death.
Similarly, administration of intravenous ("IV") anesthesia requires proficiency at achieving and maintaining IV access. On information and belief, Defendants are not
9

trained and qualified to create and maintain IV access. Again, this increases the risk that

the inmate will suffer unnecessarily. Exhibit 2, Heath Declaration, at ,9-10.

Indeed, because injection of potassium chloride is so excruciatingly painful, the
i
American Veterinary Medical Association prohibits its use as the sole agent effecting

euthanasia of animals, and if the chemical is to be used at all, it may only be administered

by a practitioner with the skill and training necessary to assure that tre subject to be

euthanized has reached and maintains a surgical plane of anesthesia. ld. at 13 (citing

2000 Report of the AVMA Panel on Euthanasia at 680-81, available at:

I

http://www.avma.org{resources/euthanasia.pdf).

I

leth~l Defendants have conceded misadministration of at least one

injection-that

of Tyrone X. Gilliam. During Gilliam's execution, the IV line leaked and liquids pooled

on the execution room floor. Oken v. Sizer, 321 F. Supp. 2d 658, 667 n. 7 (D. Md. 2004).

Gilliam's execution took several minutes longer than four of Maryland's five other lethal injections and more than twice as long as its fifth lethal injection:~1 The failure to adopt

adequate regulations governing the training of personnel is a direct violation of the

Commissioner's statutory responsibilities.

Finally, the decision to add an additional paralytic agent to the cocktail to be

administered to the inmate significantly increases the risk that the inmate will feel pain

upon death. Exhibit 2,

Declaration, at 6-7. Administration of either potassium

chloride or pancuronium bromide would be extremely painful to an insufficiently

1I

See http://www.dpscs.state.md.us/publicinfo/capitalpunishmentlhistorical.shtml

(last visited January 17, 2006).

10

anesthetized inmate. Administration of pancuronium bromide, which masks all pain and

suffering potentially experienced by the inmate, compounds the risk of pain created by

Defendants' chosen drug cocktail. Both the AVMA and Maryland law prohibit the use of

'"

'

neuromuscular blocking agents, such as pancuronium bromide, in euthanasia of animals

because of their impact on the ability of those administering euthanasia to ensure that a

subject is sufficiently anesthetized. Id.; Md. Code Ann., Criminal Law, § 1O-61l.
\

Argument In deciding whether to grant a preliminary injunction, a judge must consider the following four factors: (1) the likelihood of success on the merits; (2) the "balance of convenience," i.e., "whether greater injury would be done to the defendant by granting the injunction than would result from its refusal;" (3) "whether plaintiff[s] will suffer irreparable injury unless the injunction is granted;" and (4) "the public interest." DMF Leasing, Inc. v. Budget Rent-A-Car of Maryland, Inc., 871 A.2d 639, 647 (Md. Ct. Spec. App. 2005). These factors are not like required elements of a cause of action; rather, they are simply factors "designed to guide trial judges in deciding whether a preliminary injunction should be issued." Id. at 648. To satisfy the requirements for obtaining a temporary restraining order, a court must also find that "it clearly appears from specific facts shown by affidavit or other statement under oath that immediate, substantial, and irreparable harm will result to the person seeking the order before a full adversary hearing can be held on the propriety of a preliminary or final injunction." Maryland Rule 15-504(a).

11

I. Plaintiffs Have Demonstrated a High Probability of Success on the Merits. Plaintiffs are likely to succeed on their claims for declaratory relief. A regulation
is invalid if it: (a) violates any provision of the United States or Maryland Constitution;
(b) exceeds the statutory authority of the unit; or (c) the unit "failed to ~omply with
statutory requirements for the adoption of the provision." Md. Code Ann., State Gov't § 1O-125(d). Plaintiffs challenge the validity of the regulations contained in the Execution Operations Manual on the latter two of these three grounds.J1 First, by requiring the use of an additional, unnecessarily painful drug, by unilaterally altering the statutorily mandated method of~dministering anesthesia to inmates, and by failin~ properly to train those who administer the drugs, the DOC not only increases the risk of Lnnecessary suffering-it has "exceeded the statutory authority of the unit." Moreover, these regulations, if followed, will violate the terms of the judicial warrant, which is required to confer authority to hold an execution in the case of Vernon Evans, Jr. Second, in failing to adopt the regulations contained in the Manual according to the State's Administrative Procedure Act, the DOC has "failed to comply with statutory requirements for the adoption" of regulations.

JI

Plaintiffs also believe that the procedures contained in the Manual pose concerns

of constitutional dimension, and that there is a great risk that executions in Maryland will

be carried out in violation of both the federal and state constitutions. That claim,

however, is not raised in this complaint.

12

A. The Execution Operations Manual Conflicts With Maryland's Death Penalty Procedures Statute. The Commissioner's decision to deviate from the requirements of the Death
Penalty Procedures Statute in three material respects-by requiring the use of an additional chemical, by failing to require administration of the barbiturate a steady stream, and by failing to require adequate training of personnel-constitutes an
\
hnpermissible stretch of his legal authority. Obviously, the construction of a statute adopted by an administrative body "must be in conformity with the provisions of the statute. And it is axiomatic that an administrative regulation must be consistent with the letter and policy of the statute under which the administrative agency acts." Insurance , Comm'r v. Bankers Indep. Ins. Co., 606 A.2d 1072, 1075 (Md. 1992). The law on this point is clear: "Legislation may not be enacted by an administrative agency ... by issuing a rule or regulation which is inconsistent or out of harmony with, or which alters, adds to, extends or enlarges, subverts, impairs, limits or restricts the act being administered." Id. (emphasis added).
The regulations adopted in the Execution Operations Manual are "out of harmony with" the statutory requirements of section 3-905. The Death Penalty Procedures Statute is mandatory in its language, requiIing that the DOC "shall" carry out lethal injections via "continuous intravenous administration of' (a) "a lethal quantity of an ultrashortacting barbiturate or other similar drug;" along with (b) "a chemical paralytic agent." Md. Code Ann., Corr. Servs. § 3-905 (a) (emphasis added). The language of the DPPS could not be more simple and straightforward. The statute requires the administration of two specific drugs, and it does not leave room for the addition of a third. The statute
13

requires the "continuous" administration of the two drugs, and it does not permit

administration the drugs in two individual doses. In short, the Commissioner's

interpretation unquestionably "adds to, extends, or enlarges" the authority conferred by the statute. Insurance Comm'r, 606 A.2d at 1075.~

Chief Judge Bell of the Maryland Court of Appeals came to the same conclusion

when he compared the language of the Death Penalty Procedures Statute with the

regulations adopted in the Execution Operations Manual. In a dissenting opinion filed in the Oken case;~/ the Chief Judge observed that the language of the Death Penalty

I

I

~

The statute's language with regard to training is similarly sd'aightforward: the

Commissioner is explicitly tasked with choosing employees who are "trained to administer the lethal injection." Md. Code Ann., Corr. Servs. § 3-906(c)(1). The failure

to provide for any training of staff in the Manual completely impairs the statute's requirement that the executioner shall be "trained to administer the leth~l injection." Id at
§ 3-906 (c)(l).

'Y It is noteworthy that the Oken decision did not involve two of the claims raised in this matter: the claim based upon the Administrative Procedure Act, and the claim based upon the Warrant issued by Judge Tumball in the Evans case.

Though the Court of Appeals of Maryland ruled in Oken that "the method of execution intended to be implemented by the Division of Correction does not violate the provisions of Maryland Code (1999, 2003 Cum. Supp.) § 3-905 of the Correctional Services Article," this ruling was made with no discussion of the statutory language, no analysis of the legislative history, and no consideration of the policy implications at stake. See Oken v. Maryland, 851 A.2d 538, 538 (Md. 2004). Rather, the court summarily rejected the petitioner's claims without comment. In fact, in a later decision, the United States District Court for the District of Maryland refused to give the state court's decisions in Oken preclusive effect, stating "there are substantial decisions to doubt the quality, extensiveness, or fairness of procedures" used in that case, and observing that "[t]he Circuit Court, after hearings lasting a matter of minutes, summarily granted summary judgment in a one line order even though there were material facts in dispute." Oken v. Sizer, 321 F. Supp. 2d 658 (D. Md. 2004). Plaintiffs respectfully urge this Court not to follow the Oken decision in this respect.

14

" ,I
Procedures Statute was "clear and unambiguous." Discovering "significant and material inconsistencies" between the statutory language and the regulations contained in the Execution Operations Manual, Chief Judge Bell concluded that the DOC had exceeded its statutory authority in deviating from the DPPS. Oken, 321 F. Supp.2d. at" 539. As this opinion makes clear, the regulations in the Execution Operations Manual r~quiring the use of a third drug during lethal injections, and those regarding the administration of the \ drugs in two separate doses, conflict with the plain language of section 3-905.
Furthermore, the legislative history of section 3-905 suggests that the Maryland legislature specifically intended that only two drugs - one barbiturate and one paralytic agent be administered. Maryland's Death Penalty Procedures Statute was adopted in its i initial form in 1994, in response to the impending execution of John Thanos. See Sabra i Chartrand, Given a Push, Maryland Alters Its Death Penalty, N.Y. Times, Mar. 25, 1994, at B18. The DPPS was modeled on Oklahoma's lethal injection statute (Oklahoma had been the first state to adopt a lethal injection law), and tracks that state's statute almost to the letter. Okla. Stat. Ann. tit. 22 § 1014(a) (calling for the continuous intravenous administration of an ultrashort-acting barbiturate and a chemkal paralytic agent). Like the Maryland statute, the Oklahoma statute does not call for the use of two paralytic agents. When Maryland passed the DPPS in 1994, several states used two paralytic agents (in addition to a barbiturate). See Deborah W. Denno, Is Electrocution an Unconstitutional Method of Execution? The Engineering of Death Over the Century, 35 William & Mary Rev. 551,656 (1994). The Maryland legislature obviously looked at other states' statutes and practices in designing its own statutory language, and yet it
15

chose to specify the use of only one paralytic agent. This suggests that the exclusion of an additional paralytic agent from the statute was deliberate, and the DOC's unilateral decision to add a second paralytic agent into the mix of chemicals to be used during lethal injections would be contrary to that legislative intent.
Finally, although courts generally give legislative deference to an agency's regulations, at least one court has held that the ban against inflicting cruel and unusual
I
punishment has "significant relevance" in evaluating regulations promulgated by the Division of Corrections for carrying out the death penalty. In re Readoption With Amendments ofDeatlJ:Penalty Regulations, 842 A.2d 207, 210 (N.J. Apr 2004). Thus,
I
even though Plaintiffs do not ask this Court to reach the issue of whether the challenged regulations violate the United States Constitution or the Maryland Declaration of Rights, the Court should take the constitutional issues at stake into account in ev'aluating the challenged regulations.
In sum, the plain language of section 3-905, as well as the legislative history behind the statute, suggest that the DOC has overstepped its legal authority in enacting the regulations contained in its Execution Operations Manual. For these reasons, plaintiffs have a high likelihood of succeeding in their request that those regulations be declared invalid as incompatible with the DPPS.
The Execution Operations Manual Conflicts With the Warrant of Execution Issued in Plaintiff Evans's Case. For the same reasons discussed with regard to the DPPS, the regulations contained in the
16

Manual also conflict with the express provisions in the Warrant of Execution issued on
January 9,2006 Vernon Evans's case. The Warrant issued in that case is a mandatory court order that tracks the language of the DPPS exactly. Defendants must comply with the' terms of the Warrant, just as they must comply with the terms of the DPPS., C. The Regulations Set Forth in the Execution Operations Manual Were Enacted in
Violation of Maryland's Administrative Procedure Act. The Administrative Procedure Act, Md. Code Ann., State Gov't §§ 10-101-10139, governs the adoption of regulations by Executive Branch agencies. It applies to every unit within the Executive Branch, including both the DOC and the DPSCS. Md. I Code Ann., State Gov't § 10-102. The APA applies to all "Regulations", defined as:
[A] statement or an amendment or a repeal of a statement that: (i) has general application; (ii) has future effect; (iii) is adopted by a unit to: 1. detail or carry out a law that the unit administers; 2. govern organization of the unit; 3. govern the procedure of the unit; or 4. govern practice before the unit; and (iv) is in any form, including: 1. a guideline; 2. a rule; 3. a standard; 4. a statement of interpretation; or 5. a statement of policy. Md. Code Ann., State Gov't §§ 1O-101(g)(1). Any statement falling within the definition of a "Regulation" must be adopted according to the procedures laid out the APA. Specifically, a regulation cannot become effective until it has been: (1) submitted to the Attorney General or unit counsel for approval; (2) reviewed by the Joint Committee on Administrative, Executive, and Legislative Review; (3) published in the Maryland Register (both the proposed and final versions); and (4) submitted for publication in the
17

Code of Maryland Regulations ("COMAR"). Id. §§ 10-101-10-139. Upon information

and belief, none of these procedures was followed in issuance of the Execution

Operations Manual.

There is no question that the statements set forth in the Manu.al fall within the

statutory definition of regulations. They are regulations that have general application to

any execution, they are intended to have future effect, and, by their own terms, they were
I
adopted by the DOC to "carry out a law that the unit administers." Md. Code Ann., State

Gov't §§ 1Q-1Q1(g)(1). Because they fall into this definition, the DPSCS was required to

follow the procedure~of the APA in adopting them.

I

I

There is no exemption from the APA that would permit the DiviJion of

Corrections to completely bypass the statute's procedural requirements. Granted, the

APA exempts from the definition of regulations those statements which: '."(1) concern[]

only the internal management of the unit; and (2) do[] not affect directly the rights of the

public or the procedures available to the public." Md. Code Ann., State Govt., § 10-

101(g)(2). Although, plaintiffs concede that some of the regulations contained in the

Execution Operations Manual may concern only the internal management of the unit,

many do not. For example, the Commissioner should be free to adopt his own internal

procedures to ensure that the phones in the lethal injection rooms are operable. See

Exhibit A, at 15 ("The Execution Team Communications Officer-In-Charge shall: (a)

Test the operability of each telephone in the lethal injection room ..."). Indeed, this is

the type of day-to-day minutiae that was intended to be exempt from the APA's

procedural requirements. See Massey v. Department ofPublic Safety and Carr. Servs.,

18

886 A.2d 585, 602 (Md. 2005) (explaining that the APA was intended to exempt things like "the myriad of rules governing the details of prison life--what inmates may wear, what they mayor may not keep in their cells or on their persons, the rules governing security, sanitation, hygiene, phone calls, mail, and visits.")
But just because some of the regulations have to do with the everyday management of the unit does not mean that all of the regulations set forth in the Manual
\
are exempt from the APA's requirements. In particular, those regulations having to do with the choice of chemicals and the method of administering those chemicals do not concern the internal administration of the DOC. The Maryland legislature thought that these issues were so important that it chose to set forth rules governing the lethal injection process in a statute. The Division of Corrections should not be able to shroud the same subject in secrecy, labeling it a matter of internal administration.
Furthermore, under Md. Code Ann., Corr. Servs. § 2-109(c), the Secretary of DPSCS is required to adopt regulations that govern the policies and management of the Division of Correction. See Massey, 886 A.2d at 592-93. The Execution Operations Manual was drafted and implemented by the Commissioner, and it is the Commissioner who retains the power to alter the regulations contained in the Manual at will, without any notice to the public or other oversight. These are subjects that are of concern to the Secretary, as it is the Secretary who is charged with statutory responsibility for guiding the Department of Corrections by adopting regulations (according to the APA) in nonroutine matters. Md. Code Ann., Corr. Servs. § 2-109(c). Once the Secretary has done so, of course, the Division of Corrections may step in and adopt, in accordance with the
19

mandates of both statutory and regulatory directives, more routine regulations having to

do with the day-to-day administration of the unit. Instead, what both the DSPCS and the

Division of Corrections have done here is to bypass the statutory regime set forth by the

Maryland legislature for the governance of administrative agencies and 'proceed

according to its own terms.

The failure to follow the procedures set forth in the APA has a palpable impact on
I
the way death sentences are carried out in Maryland. The public has a special interest in

knowing that executions are conducted without unnecessary pain or suffering, and

inmates themselves have an interest in knowing that they can die with some modicum of

,

I

dignity, and in the absence of cruel and unusual pain. The fact that thescl issues raise

constitutional concerns weigh heavily in favor of the need to go through the formal

review process mandated by the APA. Massey, 886 A.2d at 597-98 (finding that, given

the due process implications involved in designing prison grievance procedures, the DOC

was required to comply with the APA in adopting those procedures). As set forth in

more detail above, the procedures currently in place create an unnecessary risk that the

prisoner will feel great pain during his execution. Had these procedures been subject to

public scrutiny when adopted, they might have benefited from the opinion of doctors,

other medical health professionals, and even organizations such as the American

Veterinary Medical Association regarding the best, and least painful method of

terminating a life. The DOC might have decided to proceed with lethal injections

without the use of a third, unnecessary, and terribly painful drug. At the very least, they

might have adopted procedures that would have ensured a person was properly

20

anesthetized before such a painful drug is administered. These are the types of regulatory

improvements that can come from public notice and comment, as required by theAPA.

. Unfortunately, the DOC did not receive the benefit of such comments because it

bypassed the APA's procedures. Btcause the Secretary failed to comply with the APA in

adopting the Manual, and because Plaintiffs have no adequate remedy at la~, the

continued enforcement of the regulations contained in the Manual should be enjoined.
\
H. Preliminary Relief Should Be Granted Because the Potential Harm to the Public Outweighs Any Harm that the Defendants Will Suffer.

There is no question that the potential harm to the Plaintiffs will outweig;h any

that will be suffered by Defendants. Of course, Defendants have an interest in seeing that

their criminal judgments are enforced, but this interest is not threatened by the present

litigation. Plaintiffs do not challenge the ongoing existence of the death penalty in

Maryland per se; they simply ask that this Court order the Defendants to comply with the

law of the State in carrying out executions. See Oken, 321 F. Supp. 2d at 666.

Furthermore, the public shares Plaintiffs' dual interests in making sure that the DOC

complies with Maryland law, and in ensuring that executions are performed with dignity,

and without excess suffering. These interests-shared both by the public and by

Plaintiffs-outweigh the minimal harm caused to the public by delaying executions in

Maryland for a short period of time.

If Preliminary

Not Granted, Plaintiffs Will Suffer Irreparable

Injury.

Plaintiffs will suffer irreparable injury if this Court does not grant preliminary

relief. Plaintiff Vernon Evans, Jr. is scheduled to be executed within a fi ve-day period

21

beginning on February 6, 2006, just two weeks from now. Exhibit B (Death Warrant). If

the procedures for carrying out the death penalty are not amended before Mr. Evans's

execution, there is a substantial risk that he will feel both the pain of suffocation caused

by pancuronium bromide and the searing burning of potassium chlorjd~ as these drugs

enter his body. Obviously, this is a harm that cannot be later undone.

Likewise, the organizational plaintiffs will be irreparably harmed. Each of them
I
and their members have an interest in making sure that government officials comply with

state law in carrying out their duties, and that they do not carry out executions that are

unjust.

I

I

III. Preliminary Relief Should Be Granted Because the Public HJs an Interest in

Ensuring that Executions are Carried Out Humanely.

As noted above, the public has an interest in the outcome of this litigation.
I
Though the public plainly has an interest in the enforcement of its criminal judgments, it

has an even greater interest in seeing that its administrative officials operate according to

the law, and in ensuring that executions are carried out in a humane fashion. Oken, 321

F. Supp. 2d at 667 n. 6 (recognizing a public interest in ensuring the right of individuals

to '''die with dignity,' at least consistent with the requirements of the Eighth

Amendment."). As such, the public interest weighs in favor of granting injunctive relief.

22

\", !

Conclusion

For all of the foregoing reasons, Plaintiffs' application for a temporary restraining

order and motion for preliminary injunction should be granted.

Respectfully SUb~t~ed",'

'

DJe~~~~/

~Stephen Hut, Jr.

Todd Zubler

Kalea Seitz Clark

Anne Harden Tindall

Anne H. Geraghty

Wilmer Cutler Pickering Hale and DOff LLP

2445 M Street, N.W.

Washington, D.C. 20037

(202) 663-6000 (phone)

(202) 663-6363 (fax)

stephen.hut@wilmerhale.com

todd.zubler@wilmerhale.com

kalea.c1 ark@wilmerhale.com

anne.tindall@wilmerhale.com

anne. geraghty@wilmerhale.com

Jeffrey O'Toole Julie S. Dietrich O'Toole, Rothwell, Nassau & Steinbach 1350 Connecticut Avenue, N.W., Suite 200 Washington, D.C. 20036 (202) 775-1550 otoole@otrons.com dietrich@otrons.com

Dated: January 20,2006

Counsel for Plaintiffs

23

IN THE CIRCUIT COURT FOR BALTIMORE CITY, MARYLAND

NATIONAL ASSOCIATION FOR THE )

ADVANCEMENT OF COLORED

)

PEOPLE

)

4805 Mount Hope Drive

)

Baltimore, Maryland 21215

)

)

AMERICAN CIVIL LIBERTIES

)

UNION FOUNDATION OF

)

MARYLAND;

)

3600 Clipper Mill Road, Suite 350

)

Baltimore, Maryland 21211

)

)

MARYLAND CITIZENS

)

AGAINST STATEEXECUTIONS;

)

PO Box. 39205

)

Baltimore, Maryland 21212

)

)

and

)

)

VERNON EVANS, JR.;

)

Division of Corrections No. 172357

)

Maryland Correctional Adjustment Center )

410 East Madison Street

)

Baltimore, Maryland 21202

)

)

Plaintiffs

)

)

vs.

)

)

MARY ANN SAAR, Secretary,

)

Department of Public Safety and

)

Correctional Services

)

300 East Joppa Road

)

Suite 2000

)

Towson, Maryland 21286;

)

)

FRANK C. SIZER, JR., Commissioner, )

Maryland Division of Correction;

)

6776 Reisterstown Road

)

Baltimore, Maryland 21215;

)

Civil Action No. __

Defendants.

DECl.,ARA TION OF ANNE GERA GHTY
I, Anne Geraghty, declare as follows:
1. I am an associate at the law firm of Wilmer Cutler Pickering H~le and , Dorr LLP, attorneys of record for Vernon Evans, Jr., in the above-captioned matter. I am licensed to practice law in the State of Illinois and the District of Columbia. I am familiar with the facts set forth herein, and if called as a witness, I could and would te,stify to those facts under oath.
2. Plaintiff Evans is indigent and financially unable to file a bond. He has been granted permission to proceed in Jonna pauperis in' proceedings before the United States Court of Appeals for the Fourth Circuit, and the United States Supreme Court..
2. On March 7, 2005, my colleague, A. Stephen Hut, Jr., a partner at the law firm of Wilmer CuIter Pickering Hale and DorrLLP, sent a letter to Jean Goodman, . Secretary of the Maryland Department of Public Safety and Correctional ~ervices ("DPSCS"), requesting access to certain records concerning lethal injecti1~ practices and procedures in Maryland pursuant to the Maryland Public Information Act ("MPIA"), State Government Article, §§ 10-611 to 628. Among the records requested were (1) documents describing the past and current procedures of the Maryland Division of Corrections ("DOC") for lethal injection; (2) past and current regulations governing lethal injections; (3) documents reflecting revisions to execution procedures; (4) documents related to the drugs used in lethal injections and their administration; (5) records related to equipment used in lethal injections; and (6) notes, reports, statements, photographs, scientific reports, physical evidence, witness interviews, and other documents prepared in connection with actual executions.
3. Ms. Goodman forwarded Mr. Hut's March 7, 2005 letter to Frank Sizer, Jr., Commissioner of DOC, and the custodian of the requested records.
4. On April 6, 2005, Commissioner Sizer responded to Mr. Hut's letter, granting in part and denying in part Mr. Hut's request for access to records concerning lethal injection. The records released included:
(a) an "Execution Operations Manual," dated June 14,2004, with nine pages redacted from sections of the manual addressing actions taken "Four Days prior to Execution Week" through "When the execution is completed";
(b) an "Execution Operations Manual," dated May 26,2004, with nine pages redacted from sections of the manual addressing actions taken "Four Days prior to Execution Week" through "When the execution is compJeted";
(c) three "Lethal Injection Execution Logs" from the execution of Mr. Gilliam;

'''I
(d) the execution warrant for Mr. Oken;
(e) "Execution Reminders," sent via email, concerning the lethal injection of Mr.Oken;
(e) what appear to be three complete "Lethal Injection Execution Logs" from the execution of Mr. Oken, but the three documents bear different dates;
(f) four draft "New Releases" concerning Mr. Oken's execution;,
(g) "IV Injection Training/Practice Records";
(h) an article printed from the website www.sunspot.net concerning Governor Ehrlich's lifting of the moratorium on executions imposed by Governor Glendening;
(0 the Warden's report on Mr. Oken's execution; I
a "Summary Report" from a Technical Assistance visit by/Maryland officials to "Oklahoma's execution-related staff' sponsored by the National Institute of Corrections;
(k) Directives concerning the death penalty issued by the Division of Corrections on September 15, 1998;
(1) Directives concerning the death penalty issued by the Division of Corrections on January 25, 2000; and,
(m) Directives concerning the death penalty issued by the Division of Corrections on January 20, 2004.
4. On May 5, 2005, Mr. Hut sent a Jetter to Commissioner Sizer requesting admi nistrati ve review of the Commissi oner' s complete denial of access to some records and his substantial redactions of the records that were released. By Jetter dated June 17, 2005, Commissioner Sizer delegated the matter to the Maryland Office of Administrative Hearings ("OAH") for an evidentiary hearing. That hearing is currently scheduled for January 24, 2006.
5. On December 20, 2005, after the execution of Wesley Baker, Mr. Hut sent a supplementary MPJA request to Commissioner Sizer, renewing the March 7, 2005 request as to any such records pertaining to the execution of Wesley Baker and clarifying that the request included autopsy, toxicology, and scene investigation reports. On the same day, Mr. Hut sent an MPJA request to the Office of the Chief Medical Examiner of Maryland, requesting documents related to lethal injections, including autopsy,

toxicology, and scene investigation reports. Neither Commissioner Sizer nor the Office of the Chief Medical Examiner has responded to these requests.

6. To date, DOC has not provided Evans with a complete copy of its

Execution Operations Manual, or with other documents related to lethal injections

included in Mr. Hut's MPIA requests, and it continues to contest release of those records

in the OAR proceedings~

.

7. Attached as Exhibit A to this Declaration is a true and correc(copy of the

\ heavily redacted copy of an Execution Operations Manual, dated June 14,2004, provided

\to Mr. Hut in response to his public information request..

I

8. Attached as Exhibit B to this Declaration is a true and correct copy of the Warrant of Execution signed on January 9, 2006, by Baltimore County Circuit Judge John G. TumbuH II setting Evans's execution for the week of February 6, 2006.

9. Attached as Exhibit C to this Declaration is a true and correct copy of the letter from A. Stephen Hut, Jr. to Jean Goodman, dated March 7, 2005, cbntaining a public information request seeking access to records related to lethal injehion.

10. Attached as Exhibit D to this Declaration is a true and correct copy of the Jetter from A. Stephen Hut, Jr. to Frank Sizer dated December 20, 2005, supplementing Mr. Hut's original public information request to include records related t(l) the December 2005 execution of Wesley Baker.

11. Attached as Exhibit E to this Declaration is a true and correct copy of a document entitled "Lethal Injection Checklist," identical copies of which were appended to both Execution Operations Manuals supplied to Mr. Hut in response to his public information request.

12. Attached as Exhibit F to this Dec]aration is a true and correct copy of the 2000 Report of the American Veterinary Medical Association Panel on Euthanasia.

I declare under penalty of perjury that the foregoing is true and correct.

Executed on January 20, 2006.

•
Department of Public Safety and Correctional. Services Division of Correction

Execution

•

Operations Manual

oeM 110-2
•

FINAL - 6/14/04 CONFIDENTIAL

•

FOREWORD
This Division of Correction Manual shall be used by all appropriate personnel to ensure the performance of an efficient and successful execution when ordered by a court in the State of Maryland. It is also intended to establish procedures from the time a warrant of execution is received through the post execution process for the care and treatment of inmates sentenced to death. This manual identifies staff responsibilities in the preparation and implementation of the execution process. This manual is considereq confidential and should not be disclosed to anyone other than those who have responsibilities associated with the execution process.
The execution of persons sentenced to death in the State of Maryland is a serious and complex assignment. This manual has been developed to ensure that the execution process is conducted professionally and with dignity .

•

•
2

•

TABLE OF CONTENTS

Section I

Authority

4

Section II

Definitions

'4

Section III

Logistics and Responsibilities

6

Section IV

Pre-Execution Procedures

9

Section V

Post-Execution Procedures

25

Section VI

Special Security Unit

27

Section VII

Command Center

29

•

•

3

• • •

I. AUTHORITY

The Maryland Code Annotated, Correctional Services Article, §§3-901 through 3-309, governs death penalty procedures.

II. DEFINITIONS

A. Access Control Officers - Personnel responsible for access to Command Center and Special Security Unit immediately prior to, during and after the execution

B. Command Center - Coordinates all activities associated with the execution process and manages MTC operations during the . execution

C. Command Center Commander - Officer-In-Charge of the Command Center

D. Commissioner - Commissioner of the Division of Correction

E. DCD - Division of Correction Directive
F. DOC - Division of Correction

G. DMSP - Department of the Maryland State Police

H. DPSCS - Department of Public Safety and Correctional Services

I.

Execution Area -- The area located at the west end of the second

floor of the Metropolitan Transition Center Hospital and comprised

of four separate components: Special Security Unit, Execution

Room, Lethal Injection Room, Witness Room

J. Execution Commander - Commissioner or person designated by the Commissioner to have overall responsibility for the execution process

K. Execution Team Commander -Individual who has operational control of the execution process

L. Execution Team Communications Officer-In-Charge - Individual who monitors telephones in the Lethal Injection Room in the event of a last minute stay of execution

M. Execution Room - Area where the execution table is located and the inmate is placed to receive lethal injection

4

• •

N. Lethal Injection - The administration of a lethal quantity of an ultra short-acting barbiturate or other similar drug in combination with a chemical paralytic agent until a licensed physician pronounces death according to accepted standards of medical practice

O. Lethal Injection Team - Those individuals responsible for the preparation of the pharmaceuticals, insertion of the intravenous catheters, and injection of the pharmaceuticals until death is pronounced on the inmate

P. Lethal Injection Team Officer-In-Charge - Individual who
supervises Lethal Injection Team

Q. MCAC - Maryland Correctional Adjustment Center

R. MRDCC - Maryland Reception Diagnostic and Classification Center·
I

S. MTC - Metropolitan Transition Center

I

T. MTC Operations Supervisor - Individual responsible for institutional
operations of MTC during the execution process.

U. Maintenance Team - Individuals responsible for the operation of all electrical, plumbing and audio-visual equipment in the execution area

V. Special Security Unit - An area where the condemned inmate is housed for a relatively short period of time prior to his/her execution

W. Special Security Unit Team - Staff responsible for the security, safety and welfare of an inmate awaiting execution

X. Witness Room - Area located on the south side of the Execution Room for witnesses to observe the execution

•

5

• • •

"" i
III. lOGISTICS AND RESPONSIBILITIES
A. Commissioner
1. Designates the Assistant Commissioner - Security Operations, unless circumstances warrant someone else to act in his/her stead as the designee as Execution Commander. This individual shall have overall responsibility for the execution.
2. Establishes date and time of execution
3. Selects Execution Team
\
B. The Assistant Commissioner - Security Operations or other designee (Execution Commander)
1. Overall responsibility for the execution process
2. Obtains required pharmaceuticals
3. Schedules and conducts training, audits and inspections related to the Execution Area
4. Advises condemned inmate of receipt of death warrant
5. Ensures personnel, procedures and equipment are prepared for the execution
6. Orders transfer of condemned inmate to Special Security Unit
C. The Warden of the Metropolitan Transition Center or other designee (Execution Team Commander)
1. Establishes and maintains execution records log
2. Prepares letter of acknowledgement for receipt of warrant of execution to Governor's Office
3. Assists with execution
4. Designates other support deemed necessary by Execution Commander
D. Assistant Warden of the Metropolitan Transition Center or other designee
6

• • •

1. Responsible for communications in the Execution Area (Execution Team Communications Officer-in-Charge)

2. Responsible for administrative activities and other assignments delegated to him/her in the event of a scheduled execution

E. Other Assistant Warden of the Metropolitan Transition Center shall be responsible for institutional operations during the time an execution is in progress (MTC Operations Supervisor)

F. The Chief of Security of the Metropolitan Transition Center or other designee
I
1. Supervises Special Security Unit Team

2. Responsible for the operation of the Special Security Unit

3. Responsible for the security of the condemned inmate flfter

transfer to the Special Security Unit and security operalions

related to this procedure

I

4. Assist the Execution Commander in the Execution Room

G. The Warden of the Maryland Correctional Adjustment Center or other designee shall serve as Command Center Commander during' an execution

H. A Warden as designated by the Commissioner shall serve as the Alternate Command Center Commander.

I. The Warden of the Maryland Reception Diagnostic and Classification Center or designee:

1. Shall serve as the alternate Execution Team Commander

2. Serve as the liaison/communications officer between the Execution Area and the Command Center

J. The Execution Team shall be comprised of:

1. Lethal Injection Team 2. Special Security Unit Team 3. Maintenance Team 4. Communications Officer-In-Charge

7

• • •

K. The Commissioner shall make the selection of DPSCS staff members to serve on the Execution Team. Selection for members of this team shall be based on:
1. Good attendance record 2. Ability to maintain confidentiality 3. Good moral character 4. Professional appearance 5. Ability to work well with others 6. Completion of the Minnesota Multiphasic Personality Inventory 2 7. Psychological assessment 8. Personal interview with the Commissioner and/or designee
L. The Commissioner may select individuals not employed by DPSCS to serve on the Execution Team. Selection shall be based on:
1. Ability to maintain confidentiality 2. Good moral character 3. Professional appearance 4. Ability to work well with others 5. Professional Credentials 6. Personal interview with the Commissioner and/or designee
M. The Execution Team is responsible for the equipment, security, maintenance and sanitation of the Execution Area. The Execution Area includes:
1. Special Security Unit which consists of:
a. four cells each of which is 8' 9" in length and 7' 6" in width
b. each cell has a window with a heavy security screen c. each cell is equipped with a bed, toilet and sink with hot
and cold running water d. officer station e. shower
2. The Lethal Injection Room located just beyond the west end of the Special Security Unit and consists of:
a. a storage room b. a lethal injection administration room
3. Execution Room farther along the west end in the Execution Area and contains the execution table
8

• • •

4. Witness Room located immediately south of the Execution Room. The room is divided into two (2) areas:
a. a general witness observation room with seating for 12 persons
b. a separate smaller witness observation room for family members of the victim(s)
N. DPSCS Director, Public Information
1. Issues press release to media on pending execution 2. Arranges tour of Execution Chamber for media representatives 3. Selects media witnesses for execution 4. Arranges for news briefing following e>,<ecution
IV. PRE-EXECUTION PROCEDURES
I
A. While the procedures listed here are to be applied in every case, the
Execution Commander shall consult with the Office of the Attor~ey
General to assess the likelihood of an actual execution. With the approval of the Commissioner, the Execution Commander may modify the frequency of the procedures here.
B. Ifthere is a stay in effect, the Lethal Injection Team and the Special Security Unit Team shall conduct drills quarterly under the direction of the Execution Commander.
C. If, in the opinion of the Attorney General's Office, a Warrant of Execution is pending, these drills shall be conducted monthly.
D. Upon receipt of any Warrant of Execution:
1. The Commissioner shall hand carry the Warrant of Execution to the Execution Commander and shall notify the Execution Team Commander.
2. The Commissioner shall conduct a meeting to plan the pending execution and make assignments. This meeting may include:
a. Commissioner b. Execution Commander c. Assistant Commissioner - Baltimore Region d. Attorney General's representative e. Execution Team Commander
9

'.", !
•
•
•

f. Warden - Mary/and Reception Diagnostic and Reception Center (MRDCC)
g. Warden - Maryland Correctional Adjustment Center (MCAC)
h. Assistant Warden - MTC i. Chief of Security - MTC j. DPSCS Director of Public Information k. DOC Director of Public Information I. DPSCS Psychologist m. Department of Maryland State Police representative n. Baltimore City Police Department representative o. Representative of State's Attorney Office which
prosecuted the case p. Office of Victim Services representative q. Health Care Administrator - Baltimore Region r. Lethal Injection Team Officer-In-Charge s. Medical Examiner's Office representative t. Warden designated by Commissioner to serve as
alternate Command Center Commander
3. The Execution Commander shall initiate weekly drills by the Execution Team .
4. The Execution Team Commander shall initiate a log to record all activities and actions related to the Warrant of Execution and the implementation of the death penalty.
e. Receipt of the Warrant of Execution shall be logged immediately.
f. If no stay accompanied the Warrant of Execution, the Execution Commander shall personally notify the inmate as soon as practicable that the Warrant of Execution has been received; this shall be done at a private meeting in the presence of at least one witness, usually the Execution Team Commander. The notification process shall include:
1) The Warrant of Execution shall be read to the inmate.
2) The inmate shall be given a copy of the Warrant of Execution.
3) The inmate shall be asked to sign a receipt for the copy of the Warrant of Execution. (Appendix 1)
10

• • •

4) If the inmate refuses to sign the receipt, it shall be so noted on the receipt and signed by the Execution Commander and the witness present

c. Arrange inspection of the inmate in preparation of intravenous insertion

5. The Warrant of Execution shall be hand-carried to the records department supervisor by a member of the Warden's staff

e. The Warden shall prepare a letter of acknowledgement to the Governor's Office. (Appendix 2)

f. Copies of the letter of acknowlepgement shall be sent to the following:

1) Secretary of Public Safety and Correctional

Services

2) Attorney General's Office - Criminal Appeals

Division

'

I

3) Commissioner

I

4) The inmate's attorney

5) The inmate's commitment folder

6) The Warden's file

6. The DPSCS Director of Public Information shall issue a press release to the news media.

7.

Establishment of Date and Time of Execution

a. The Commissioner shall set the date and time, within the period designated in the warrant of execution, when the sentence of death shall be executed.

b. No announcement of the date and time of execution shall be made, except to those individuals who will be present at the execution and to those public officials who have a need to know due to responsibility connected to the execution.

c. An alternate date and time shall be established in the event the execution cannot be carried out on the original date and time .

11

• • •

E. Fourteen days prior to execution week
1. Execution Commander, in conjunction with the Execution Team Commander, shall:
a. Inspect the Execution Area
b. Ensure that personnel, procedures and equipment are prepared for the execution
g. Coordinate with Baltimore City Police Department for traffic control at time of transfer of inmate from MCAC to the Special Security Unit
h. Order the necessary pharmaceuticals, if needed
2. The Commissioner shall designate the members of the Execution Team who shall participate in the execution as the Lethal Injection Team. This Team shall include:
a. Lethal Injection Team Officer-In-Charge
b. One (1) trained individual designated by the Execution Commander as the Execution Recorder to conduct record keeping and key control activities during the execution period.
c. One (1) trained individual designated to assist in setup in the Lethal Injection Room
d. Two (2) trained individuals designated to insert the intravenous lines to the inmate
e. One (1) or more trained individual(s) designated to administer the drugs
3. The Warden of MTC shall:
a. Designate a three (3) officer team, under the direction of a DOC supervisor, to escort official witnesses
b. Designate a four (4) officer team to regulate parking, and other support staff deemed necessary by the Execution Commander
]2

• • •

c. Submit a request to the Assistant Commissioner for the Baltimore Region for additional staffing as needed for the week of the execution

4. The Warden of MCAC shall:

a. Develop plans for activation of the Command Center

b. Contact personnel necessary to staff the center

c. Transfer inmate to Alternative Housing Unit at MCAC

d. Establish a log in a bound ledger to record all observations of inmate while in Alternative Housing Unit
I
e. Establish non-contact visitation procedures for no more than 2 visitors at a time for 30 minutes from 0900-2000. (Attorney and clergy shall be unlimited during these hours)
I
f. Arrange for medical, psychological and custody I
supervisory staff to perform checks on the inmate daily

5. The Chief of Security of MTC shall designate seven (7)

officers to function as the Special Security Unit Team who

shall staff the Special Security Unit when the inmate is

transferred.

.

6. Execution Commander or designee shall arrange for a licensed physician to be available to pronounce death on the condemned inmate at the time of execution.

7. DPSCS Director of Public Information shall meet with the Governor's Press Secretary to review media procedures and conduct media activities.

F.

Nine Days prior to Execution Week

The DPSCS Director of Public Information shall arrange a tour of the Execution Room for representatives of the news media.

G.

Five Days prior to Execution Week

1. The Commissioner shall identify at least six (6) witnesses but no more than twelve (12). Individuals who may be invited to attend and witness the execution shall include:

13

• • •

a. Prosecuting Attorney or designee
b. Chief Law Enforcement Officer (or designee) of the County/City where the crime was committed
c. County Executive, County Commissioner or Mayor (or designee) where the crime was committed
d. Victim family members and/or representatives
e. Media representatives as recommended by the DPSCS Director of Public Information
1. 1 representative of the Associated Press 2. 1 representative of a television news outlet 3. 1 representative of the print media 4. 1 representative of a radio news outlet
f. Others as deemed appropriate
2. In order to enter the secure perimeter of the institution, the Commissioner shall ensure that all witnesses:
a. Be 18 years of age or older b. Undergo and pass a criminal history and security check c. Be properly attired in accordance with the Division of
Correction visitor dress code d. Complete and sign a witness agreement (Appendix 3)
3. The Commissioner shall arrange, if desired by the inmate, the attendance of:
a. Inmate's attorney b. A religious representative, which may be designated by
the inmate and must be approved by the Warden of MTC
4. Execution Commander shall:
a. Inspect the Command Center b. Inspect Execution Area c. Designate medical support staff for the execution d. Announce the date and time of the execution to those
directly involved in the execution .
14

• • •

5. The Warden of MTC shall brief MTC Shift Commanders and Department Heads regarding the execution. Under no circumstances shall the date or time or any details of the execution be communicated to them.

6. The Maintenance Team shall conduct equipment tests to include emergency generator, telephones, closed circuit camera and other equipment to be utilized.

7. The Commissioner shall give the Governor's Counsel a status update.

H.

Four Days prior to Execution Week

1. The Execution Commander shall:

a. Conduct a status update briefing with individuals having

responsibilities for activities associated with the

execution, including the Baltimore City Police I

Department, regarding crowd control.

I

b. Plan crowd control strategies with the Baltimore bty Police Department to include designation of areas for demonstrators both pro and anti-death penalty groups.

c. Inspect the Command Center, Special Security Unit, Execution Area and Witness Room.

d. Verify receipt of pharmaceuticals.

2. The Execution Team Communications Officer-In-Charge shall:

a. Test the operability of each telephone in the lethal injection room and advise the Execution Commander of the results

b. Develop a list of all persons who may be admitted entry into the Command Center and/or the Execution Area (Appendix 4) for use by the Access Control Officers on the date of execution

c. Develop a list of persons permitted in the designated parking area for the persons involved in the execution (Appendix 5). This list shall include the names of the individuals, makes and models of vehicles and vehicle license tag numbers.

15

\", I
•

•

•

8. When the execution is completed: a. Witnesses shall be returned to the witness waiting area. The Execution Commander or designee will report to this
24

• • •

area to obtain signatures of all official witnesses on the Certification of Execution (Appendix 7).

b. Victim family witnesses shall be escorted to the family witness waiting room. The Execution Commander or designee will report to this area to obtain signatures of all official witnesses on the Certification of Execution (Appendix 7).

c. The physician shall complete and sign the Certification of
Pronouncement of Death (Appendix 6).

Q. Stay of Execution

1. In the event a notice of a last-minute stay or revocation of the

Warrant of Execution is received from the Governor or from

the Attorney General communicating an order from a Court, is

received prior to the initial surge of sodium pentothal, the

Execution Team Communications Officer-in-Charge shall

inform the Execution Team Commander, and the exepution

process shall immediately cease.

I

I

2. The witness drapes shall be closed and the witnesses shall be escorted downstairs to their respective witness waiting rooms.

3. The Execution Commander shall personally confirm the order

to halt the execution process.

'

4. The Execution Commander shall personally advise the witnesses of the circumstances.

V. POST-EXECUTION PROCEDURES

A. The representative of the Medical Examiner's Office shall complete the Certificate of Death.
B. The Chief of Security shall contact the designated funeral director and advise him/her that the execution is complete and the funeral director should report to MTC to retrieve the body. If no funeral arrangements have been made, the Commissioner shall arrange for disposal of the body in accordance with DOC procedures.
C. If no victim family members were present to witness the execution, the Commissioner shall designate an individual to immediately notify the

25

• • •

victim family members of the completion of the process if such notification has been requested.

D. The DPSCS Director of Public Information shall arrange the media briefing for the press in the lobby of MRDCC.

E. Witnesses attend and participate in the media briefing if they choose.

F.

\
\

G .

If any witnesses elect not to remain, they shall be immediately escorted back to the witness staging area(s). If they elect to remain, they shall be escorted back to the witness staging area(s) after the media briefing.
Immediately following the media briefing, the Execution Commander shall have all persons involved in the execution process report to the Command Center and conduct a critique of the entire execution process.

H.. No later than twenty-four (24) hours after the completion of the execution, the Warden of MTC shall submit to the Execution Commander, a Serious Incident Report in accordance with DCD 20-3, which shall include:

1. Completed Serious Incident Report form

2. List of Division of Correction personnel present and their roles. Names of Execution Team members shall be sealed in an envelope attached to the Serious Incident Report, which may only be opened by order of court

3. List of official witnesses

4. List of all staff from other agencies involved and their roles

5. Lethal Injection Checklist as recorded by the recorder or copy of it

6. Certificate of Death or copy of it

7. Certification of Execution or copy of it

8. Certification of Pronouncement of Death or copy of it

9. Any other document, report, photographs, etc. required by the Commissioner, Secretary of DPSCS, or Governor of the State of Maryland

26

• • •

l.

The Execution Commander shall prepare a report summarizing the

execution for the Commissioner. The Commissioner shall distribute

this report to the Governor, Secretary of DPSCS and the DPSCS

Public Information Office

J. Within ten (10) days after the execution, the Commissioner shall file
the Certificate of Execution with the Clerk of the Court in the I jurisdiction in which the inmate was indicted.

VI. SPECIAL SECURITY UNIT

A. The Maryland Division of Correction has the absolute responsibility to provide security for those individuals awaiting execution. Due to the varying circumstances and contingencies, routine details of security and preparation for execution shall be made at the discretion of the Assistant Commissioner - Security Operations or the Warden of MTC.
Whenever Em inmate is housed in the Special Security Unit, tMere shall
always be at least three (3) members of the Special Security IiJnit Team on duty. Post Orders shall be established for the normal operation of the SSU .
B. Mail
Inmate mail shall be photocopied upon receipt and the inmate will receive the photocopy. The original letter will be placed in the inmate's base file. Legal mail will not be photocopied but must be opened and inspected in the presence of a Correctional Officer assigned to the SSU.
C. Visitation
1. Visitation will be permitted in the SSU between the hours of 1:00 p.m. and 7:00 p.m., except for attorney and clergy.
2. The inmate will be permitted three (3) visitation periods each day with no more than two (2) visitors at a time.
3. A maximum of ten (10) visitors will be permitted on the inmate's visiting list. If immediate family members exceed 10, the Warden may approve additional visitors.
4. The inmate's attorney should, as much as possible, visit during normal visiting hours .

27

• • •

5. All visitations shall be non-contact and be no longer than one (1) hour in length.

6. Six (6) hours prior to the designated date and time of the execution, visitation shall be terminated except attorney and clergy.

D. Telephone

1. The inmate may not receive any incoming calls.

2. The inmate shall provide a list of no more than ten (10) telephone numbers that he would elect to call. The MTC Warden must approve this list. The inmate's attorney is not included in the list of numbers.

3. Telephone calls may be made between the hours of 10:00 a.m. and 9:00 p.m.

E. Exercise

Exercise shall be permitted in the cell only .

F. Property

1. Allowable property is limited to the following state issued items:

1 mattress 1 pillow case 2 sheets 1 tee shirt 1 pair socks
shoes 1 towel 1 bar soap

1 pillow

2

blankets

1 jumpsuit

1 underwear

1 pair shower

1 washcloth 1 religious book

2. The following items may be issued to the inmate as needed:

1 toothpaste 1 cordless electric razor 1 comb 1 deck of playing cards

1

toothbrush

1 reading material

toilet paper

stationery

3. A radio and television set may be allowed outside of the cell.

28

• • •

4. The inmate may purchase snack items from the commissary but items may not be kept in the cell. The officer assigned to Special Security Unit shall issue them to the inmate.
G. Meals
will A Correctional Dietary Officer will deliver all meals to the Special
Security Unit where a Special Security Unit Team member serve them to the inmate.

VII. COMMAND CENTER

The Command Center is responsible for the management of the institution
during the execution process and immediately following. It is also responsible for coordination of all activities associated with the execution process to include allied agencies. The Command Center Commander will work closely with the Baltimore City Police Department in han~ling crowd control outside of MTC. Communication will be establishedjwith all
principals involved.

A.

Command Center staff shall include:

1. Command Center Commander 2. Communications Officer 3. DOC Director of Public Information 4. Witness Escort Team 5. Allied Agencies Representatives as needed 6. Allied Agencies Coordinator 7. Historian 8. Access Control Officers 9. DPSCS Psychologist 10. Representative of the Attorney General's Office 11. Victim Services Coordinator

B.

Command Center Commander

1. Open Command Center six (6) hours before the designated time of execution.

2. Coordinate witness transportation and arrival -- at three (3) hours prior to the designated execution time, the witnesses shall be paged and instructed to report to the designated

29

• • •

I

staging area(s). Witness escorts shall leave MTC and report to the designated staging area(s) to pick up witnesses.

3. When directed by the Assistant Execution Team Commander, have the physician and designated Lethal Injection Team Members escorted to the Lethal Injection Room.

4. As the Execution Team follows the Lethal Injection Checklist, the Assistant Execution Team Commander shall coordinate with the Command Center Commander to direct appropriate staff to carry out their duties.

C.

MTC Operations Supervisor - Assistant Warden of MTC

1. Monitor and maintain normal operations of MTC.

2. Communicate with other institutions in the Baltimore Region to monitor activities and mood of the inmate population at those institutions

D.

Communications Officer

1. Set up equipment for Command Center to include necessary radios and telephones. Telephone numbers for the Command Center shall be distributed to appropriate personnel.

2. Maintain a list of personnel authorized in the Execution Area and the Command Center. (Appendix 4)

3. Coordinate and maintain a log of all external and internal communications

4. Maintain communication with #1 Wall, #3 Wall and the first floor hospital officer

E.

DOC Director of Public Information

1. Prepare news release of the execution for the DPSCS Director of Public Information

2. Serve as liaison between the Command Center and the DPSCS Director of Public Information of activities as they occur

30

• • •

F.

Witness Escort Team

1. Shall arrive at the Command Center four (4) hours prior to the designated execution time.

2. When instructed by the Command Center Commander, proceed to the witness staging area(s) and transport the witnesses to MTC.

3. Ensure that witnesses, other than victim family witnesses, shall enter MTC through the #1 Wall gate and escorted to the witness waiting area in room #H9A of the MTC Hospital

4. Ensure that victim family witnesses shall enter MTC through #1 Wall gate and be escorted to the witness waiting room in room #108 of the MTC Hospital

5. The supervisor of the Witness Escort Team shall return to the
Command Center and await further instructions
I
6. Notify the DPSCS Psychologist that the witnesses ha~e
arrived and are in the waiting rooms

7. Ensure that, at the completion of the execution process, the witnesses are transported to the witness staging area(s) as directed

G.

Correctional Maintenance Officer

1. Ensure the closed circuit camera and all communication equipment is in working order and set-up as required

2. When instructed by the Command Commander, turn on the closed circuit camera and monitor

3. At the conclusion of the execution process, disconnect and store all closed circuit camera equipment and all communication equipment

H.

Allied Agencies Coordinator shall serve as liaison between the

Command Center and agencies operating outside of MTC.

I.

Historian shall maintain an accurate log of events occurring during

the execution process that are processed through the Command

Center

31

• •

"" I
J.
K. L.
M. N.

!
Access Control Officers
1. Maintain security of the Command Center and the entrance to the Special Security Unit
2. Limit access to persons based on the color of badge displayed by personnel (Appendix 8).
3. Perform other duties as assigned by Command staff
DPSCS Psychologist
1. Provide briefing and guidance to witnesses prior to the witnessing of the execution itself
2. Be available to all staff needing or requesting Critical Incident Stress Debriefing
Representative of the Attorney General's Office
1. Monitor any pending legal issues that may arise during the execution process
2. Immediately notify appropriate staff in the Lethal Injection Room in the event of a stay or revocation of the warrant of execution
Victim Services Coordinator shall attend to the needs of the victim family witnesses and provides assistance to those needs.
Food Service Contractor shall provide food service as needed to Command Center staff, Execution Team and witnesses .

• 32

•

NOTICE OF WARRANT

I certify that I have read/have had read to me the warrant of execution

issued by the Honorable

on _ _ _ _ _ _ __

and have received a copy.

I further certify that I have been made aware the execution of this warrant shall occur during the week of_ _ _ _ _ _ _ _ _ _ _ _ __

Inmate Name and Number

Inmate Signature

Date

•

Witness Name DOC Representative and Title

Witness Signature

Date

Signature

I Date

•

Appendix 1 OeM 110-2

STATE OF MARYLAND
ROBERT L. EHRLICH. JR. GOVERNOR
MICHAEl S. STEELE LT. GOVERNOR
MARY ANN SAAR SECRETARY
MARY L. LIVERS. Ph.D. DEPUTY SECRETARY
FOR OPERATIONS
DIVISION OF CO~RECTION

FRANK C. SIZER JR. COMMISSIONER
Bobby Shearin AlDEPUTY COMMISSIONER

METROPOLITAN TRANSITION CENTER

GARY N. HORNBAKER. CCE V\lARDEN

•

I CHARLES H. SMITH ASSIST4NT WARDEN
JOHNV( SCHMITT ASSIST4NT WARDEN
ARMSTEAD JOHNSON CHIEF OF SECURITY

Department of Public Safety and Correctional Services
Division of Correction Metropolitan Transition Center
954 FORREST STREET' BALTIMORE, MARYLAND 21202 (410) 837·2135' FAX (410) 385·1049' TTY USERS 1·800·735·2258' www.dpscs.state.md.us

The Honorable Governor of Maryland S~ate House Annapolis, Maryland 21401

Re:

Dear Governor

This will acknowledge receipt of a Warrant of Execution for the abovenamed inmate, who was convicted by (judge or jury) in the Circuit Court for _____________ on ________

On _____________ in the Circuit Court for_____

_ - : - - - - :_ _ _ _ _ ___:_-'

was sentenced

under § 2-303 of the Criminal Law Article, Maryland Annotated Code, to death by lethal injection.

In accordance with § 3-905 of the Correctional Services Article, Maryland Annotated Code:

The Warrant of Execution dated

and signed

the same date, designates the execution to be during a five day period beginning_ _ _ _ _ _ _ _ _ __

Sincerely,

•

Warden
cc: Secretary of Public Safety and Correctional Services Attorney General's Office - Criminal Appeals Division Commissioner of Correction Inmate's Attorney Commitment File File
Appendix 2 OeM 110-2

• • •

WITNESS AGREEMENT
This is to certify that _ _ _ _ _ _ _ _ _ _ _ _ has agreed to attend and witness the execution of _ _ _ _ _ _ _ _ _ _ _ _ _ __ currently scheduled for the week of _ _ _ _ _ _ _ _ _ __

It is understood that:

1. injection.

The inmate will be executed through the administration of lethal

2. The execution chamber is located within the confines of the

Metropolitan Transition Center in Baltimore, Maryland. The witness area is

relatively small and the room temperature will be approximately 75 degrees

Fahrenheit. Witnesses may be subject to a criminal history check and upon entry

into the institution, will be searched. Weapons of any kil7ld, including pocketknives

and personal pepper spray canisters, are not permitted inside the institution or

witness transport vehicles.

I

3. In order to satisfy the legal requirement that the specific date and time not be disclosed prior to the execution, witnesses will receive notice to appear no more than three (3) hours prior to the time they are to be pre~ent. Witnesses may be requested to report to some location other than the Metropolitan Transition Center, in which case transportation to the facility will be provided by the Maryland Division of Correction, Maryland State Police or a local law enforcement agency. Court intervention or other factors may cause delays in the execution schedule and these delays may necessitate either waiting at the institution or returning on another occasion.

4. By agreeing to become a witness, you are acknowledging that the Commissioner of Correction has requested you sign the Certificate of Execution at the conclusion of the execution process. This is a public document and will become a matter of public record.

5. Outbursts, demonstrations, protests, or any other lack of decorum will not be tolerated. Witnesses shall not annoy, harass, attempt to interview, or otherwise disturb any other witness or persons in the execution process within the confines of the institution. Any witness engaging in such conduct shall be promptly removed from the institution.

6.

Witnesses must abide by the visitor dress code of the Division of

Correction and must be 18 years of age or older.

Appendix 3 OCM 110-2

•
•

,,:, !
7. Persons having any physical or mental condition that may be affected by witnessing the above-described execution shall not be eligible to witness the execution process. Any person affixing a signature hereto certifies that he/she is unaware of any health condition that would be affected by participation as a witness.
8. Radios, tape recorders, video or still cameras, transmitting devices, artist equipment, etc. will not be permitted into the Metropolitan Transition Center on the date of the execution.
I hereby certify that! have read and understand the matters set forth ~bove and agree to abide by the terms and conditions therein. I further release ahd forever discharge the State of Maryland, its agencies, departments, divisions, officials and employees, from any and all claims and liabilities under the laws of Maryland and laws of the United States for damages, losses, and/or injuries arising out of the Witnessing of an execution.
Signed, sealed and witnessed this _ _ _ _ _ day of _ _ _ _ _ _' 20_.
Attending Witness
Witness to Agreement

•

2

Appendix 3

OeM 110-2

• •

NAMEI TITLE

BADGE DISTRIBUTION ROSTER

AGENCY DATE ISSUED

WORK
PHONE

BADGE COLOR! ,NUMBER

I
,

I
I
I I
I

•

Appendix 4

DeM 110-2

•

NAME

PARKING ROSTER
CAR MAKE & MODEL

TAG #

STATE

\

,

•

I
•

I
Appendix 5 OeM 110-2

•

CERTIFICATION OF PRONOUNCEMENT OF DEATH

I, _ _ _ _ _ _ _ _ _ _, certify that on the _ _ _ _ day of

200 at

a.m./p.m.,

pronounced that

_ _ _ _ _ _ _ _ _ _ _ _ had expired.

Signature

Date

•

•

Appendix 6

OeM 110-2

•

CERTIFICATION OF EXECUTION
To the Honorable Judge of the Circuit Court for

In accordance with Maryland Code, Annotated, Correctional Services Article,

Section 3-908, I,

, the Commissioner of the Division of

Correction, certify that

was executed at the Metropolitan

Transition Center by lethal injection on

20 ,at

o'clock in conformity with the sentence of the court and provisions of law. Those

present and witnessing the execution have affixed their signatures below.

\

• •

Witness Witness Witness Witness Witness Witness

Commissioner Witness Witness Witness Witness Witness Witness
Appendix 7 DCM110-2

•

LETHAL INJECTION CHECKLIST

CONFIDENTIAL

INSTRUCTION SHEET
I
The attached Lethal Injection Checklist shaH be completed in detail by the Lethal Injection Team Recorder at the time of an execution by lethal injection. The actual time, any movement that occurred, problems that were encountered, etc. shall be reported on this form. If additional space is needed, use the re"Verse side and/or additional sheets, as necessary. Once the form is completed, it shall be immediately turned in to the Execution Commander.

•

• Rev: 6112/2004

CONFIDENTIAL

,

/
i LETHAL INJECTION CHECKLIST

• LABEL MARKED

CONTENTS OF SYRINGES CONTENTS

#1 (color coded RED)

Sodium Pentothal, (4.5 gr) (Nine 500 mg. packages, mixed as directed on the packages)

CONFIDENTIAL
QUANTITY
3 Syringes 60 cc per syringe

#2 (color coded GREEN)

Pavulon (pancuronium Bromide) (Five 10 cc. ampules oflO mEq. each in each syringe)

, 2 Syringes 50 cc per syringe

#3 (color coded BLUE)

Potassium Chloride (One 50 cc ampule of 50 mEq. in each syringe)

2 Syringes 50 cc per syringe

•

i
Total ,Injection: ,

120cc/ 3 gr.l two 60cc syringes of Sodium Pentothal 50cc/50 mEq./ one 50cc syringe of Pavulon 50cc/50 mEq./ one 50cc syringe of Potassium Chloride
One extra syringe of each made up as a stand-by.

• Rev: 6fl2!2004

CONFIDENTIAL

•

LETHAL INJECTION CHECKLIST
DATE SET FOR EXECUTION'
PROCEDURE
REQUIRED STAFF:

Execution Commander

CONFIDENTIAL
Y TIME
,

Execution Team Commander

Back-up Execution Team Commander
,
Lethal Injection Team Officer-in-Charge

Designated Lethal Injection Team Members

Set-up

IV hook-up (No.1) IV hook-up (No.2)

I I

Drug Administrator

Lethal Injection Team Recorder

Execution Team CommunicationS Officer-in-Charge

I

Special Security Team Commander

I

•

Special Security Officer (No.1) Special Security Officer (No.2)

I

Special Security Officer (No.3)

Special Security Officer (No.4)

Special Security Officer (No.5)

Special Security Officer (No.6)

Physician

Maintenance Team

Maintenance Officer (No.1)

•

Maintenance Officer (No.2) Medical Provider & Crash Cart (On stand-by on 2nd floor for any medical needs of staff or witnesses)
PREPARATIONS FOR OPERATIONS OF THE LETHAL INJECTION ROOM The Lethal Injection Team shall conduct an inventory of an necessary materials. (Not more than 96 hours prior to the execution).
Not less than 24 hours prior to the execution, the agents are obtained.
Drugs are issued, checked, and placed in the lethal injection drug box by the Lethal Injection Team. The lethal injection drug box is locked and sealed.

Rev: 611212004

10f7

CONFIDENTIAL

•

LETHAL INJECTION CHECKLIST
!
PROCEDURE

CONFIDENTIAL
Y TIME

A Lethal Injection team member shall maintain personal control of the lethal injection drug box key. The Lethallnjection Team shall re-inventory all necessary materials at least 2 hours prior to

execution.

The Lethallnjection Team Officer-in-Charge shall ensure that the Gas Chamber drape and the

Witness Room drapes are in their closed positions and that there are two (2) sheets on the

Execution table.

Execution Team Commander has the Certification ofExecution and Certification of

-

Pronouncement ofDeath completed with necessary information, except time of death and

,

signatures.

I.V. SET-UP PROCEDURES

90 minutes prior to the execution, members of the Lethal Injection team that are designated to do set-up procedures assemble in the Lethallnjection Room. Back-up Execution Team Commander reports to the Lethallnjection Room and shall be equipped , with headset to maintain communications with the Command Center. The Lethallnjection Officer-in-Charge shall prepare the necessary equipment, complete with preexecution inventory and equipment check.

PREP-TABLE

7 60 cc. .syringes

•

3 LV. Bags
2 Administration Sets
2; Luer Locks 4 Extensions

7 18 gauge 1 :h Straight Needles

2 Pressure Infusion Bags

INSTRUMENT STAND #1

4 Alcohol Prep Pads

2 Angiocath 22 gauge

,

2 Angiocath 20 gauge

2 Angiocath 18 gauge

2 Angiocath 16 gauge

1 Constricting Band

1 Roll Tape

2 4 x 4 Pads

•

INSTRUMENT STAND #2 3 Pairs Gloves
Rev: 6112/2004

2of7

, CONFIDENTIAL

•

LETHAL INJECTION CHECKLIST
PROCEDURE 3 Pairs Eye Protectors 3 Surgical Masks

CONFIDENTIAL Y TIME

1 Needle Box

The Lethal Injection Officer-in-Charge notifies the Execution Team Commander that the equipment has been preIlared.

Execution Commander approves set-up of equipment.

I

I

Execution Commander instructs Lethal Injection Team Officer-in-Charge to begin set-up process.

FIRSTLlNE

la. The I.V. Bag is opened and inspected.
I
2a. The administration set is opened and the flow control valve closed. I

3a. Attach two extensions.

4a. Attach Luer lock to end of extensions.

Sa. Spike the LV. Bag and secure with a twist. Fill the drip chamber halfway.

6a. Start the flow ofl.V. fluid until all air is purged.

I
I

7a. Place the pressure infuser over the I.V. Bag and inflate to green line.

I

,

•

SECONDLlNE lb. The I.V. Bag is opened and inspected 2b. The administration set is opened and the flow control valve closed.

,

3b. Attach two extensions.

4b. Attach Luer lock to end of extensions.

5b. Spike the I.V. Bag and secure with a twist. Fill the drip chamber halfway.

6b. Start the flow ofI.Y. fluid until all air is purged.

7b. Place the pressure infuser over the LV. Bag and inflate to green line.

Execution Team Commander instructs Execution Team Officer-in-Charge to prepare medications.

MEDICATION PREPARATION

Prepare 3 syringes (60 cc. Sodium Pentothal). Label using code #1 (color coded RED).

Prepare 2 syringes (50 cc. Pavulon). Label using code #2 (color coded GREEN).

I Prepare 2 syringes (50 cc. Potassium Chloride). Label using code #3 (color coded BLUE).

Lethal Injection Officer-in-Charge notifies Execution Commander that MEDS are prepared.

Execution Commander in Execution Room and Execution Team Commander in Lethal Injection

Room test the red and green lights. Lights returned to the off position.

PLACEMENT OF INMATE IN EXECUTION ROOM (10 mins. before designated I
execution time)

Execution Commander directs Execution Team Commander to have the inmate escorted from the

•

Special Security Unit to the Execution Room and placed on the Execution Table. One member of the Special Security Unit Team shall videotape the entire movement process, from the time the inmate is removed from the cell until he/she is strapped down to the Execution TabJe.

Rev: 6/12/2004

30f7

CONFIDENTIAL

•

LETHAL INJECTION CHECKLIST
I
PROCEDURE

CONFIDENTIAL Y TIME

Execution Team Commander directs Special Security Team to prepare the inmate for execution. Special Security Team places inmate on the Execution Table in the Execution Room and straps

him down. Check ann straps to ensure they are not acting as tourniquets.

Physician and designated Lethal Injection Team members shall assemble in the Lethal Injection

, Room.

. Special Security Team exits the Execution Room and stands by in the Special Security Area. The

Special Security Team Commander shall remain in the Execution Room.

. Execution Team Commander directs designated Lethal Injection Team members to enter the

Execution Room and prepare the inmate for injection.

INJECTION PREPARATION - LEFT ARM

A sterile absorbent pad shall be placed on the floor under the left arm.

: la. Plar a constricting band on the left arm, one inch above the antecubital fossa (ACF).

Sel ~t a vein.

,

2a. Clean the l.V. site with alcohol.
an 3a. Open angiocath of appropriate size.

4a. Stretch the skin at the site and insert the angiocath, bevel up.

Sa. Advance the catheter over the stylette.

6a. Apply pressure to the distal end of the catheter and remove the stylette.

•

7a.~ttach the LV. tubing and start the flow of fluid. Sa. \Remove the constricting band. 9a. bbserve for swelling or discoloration. Confirm flow ofLV. lOa. Secure the LV. with tape.

lla. Slow the LY. to KVO.

l2a. Check arm straps to ensure they are not acting as tourniquets.

INJECTION PREPARATION -RIGHT ARM

A sterile absorbent pad shall be placed on the floor under the right arm.
lb. Place a constricting band on the right arm, one inch above the antecubital fossa (ACF). Select a vein.
2b. Clean the I.Y. site with alcohol.

3b. Open an angiocath of appropriate size.

,4b. Stretch the skin at the site and insert the angiocath, bevel up.

Sb. Advance the catheter over the styJette.

6b. Apply pressure to the distal end of the catheter and remove the stylette.

7b. Attach the LV. tubing and start the flow of fluid.

Sb. Remove the constricting band.

9b. Observe for swelling or discoloration. Confirm flow ofLY.

•

lOb. Secure the LV. with tape. l1b. Slow the I.Y. to KYO . 12b. Check arm straps to ensure they are Dot acting as tourniquets.

Rev: 6112/2004

4 of?

CONFIDENTIAL

•

LETHAL INJECTION CHECKLIST

CONFIDENTIAL

PROCEDURE

Y TIME

The sterile pads under the anns shall be removed. EKG monitor leads shall be passed through the port from the Lethal Injection Room and attached to the inmate by designated members of the Lethal Injection Team. Cover the inmate with a sheet chest high.

Rotate Execution Table to face Witness Room at a 45-degree angle.

Pass both LV. Bags through the port into the Lethal Injection Room and place on stands.
Lethal Injection Team Officer-in-Charge verifies that the execution process is ready to begin l:jIld . notifies the Execution Team Commander. Execution Commander and designated Lethal Injection Team members remain in Execution Room. Remaining Lethal Injection Team members return to Lethal Injection Room.
Lights are turned down in the Lethal Injection Room.

ESCORT OF WITNESSES TO WITNESS ROOM
Back-up Execution Team Commander Clirects Command Center to have witnesses escorted to Witness Room (Victim's Family, then Media & Citizens)
Victim's Family witnesses are escorted into Witness Room.

Door is closed between Victim's Family Witnesses andremaining area.

•

Media and Citizen Witnesses are escorted into Witness Room.

I

Witness escort officer dims lights in Witness Room and Execution Room.

I

Lethal Injection Team members in Execution Area confirm operability onv and return to the I

Lethal Injection Room.

Back-up Execution Team Commander directs Command Center to have member of the

Maintenance Team turn on Execution Room Camera.

Special Security Team Commander opens drapes between Execution Room and Witness RooTh.

Execution Commander asks clergy if he wishes to speak to the inmate.

Execution Commander turns on green light in Lethal Injection Room.

EXECUTION PROCEDURE

Note: If at any time, the Execution Commander, Execution Team Commander, or Lethal

Injection Officer-in-Charge finds it necessary to stop the execution process, he/she shaUligbt

tbe red light and turn off the green light. If open, the Witness Room drapes shall be

immediately closed until the cause is determined. Escorts shall immediately conduct \Vitnesses

to assembly rooms on the first floor if the Execution Commander closes the Witness Room

drapes. The Back-up Execution Team Commander shall direct the Command Center to

notify the witness escorts of a delay. When ready to resume, the Back-up Execution Team

Commander shall direct the Command Center to have the witnesses escorted to the Witness

Room in a manner identical to the original procedure.

The Execution Team Commander shall light the green light in the Execution Room indicating the

. FIRST MED (Sodium Pentothal) coded #1 (color coded RED) should be administered.

,

60 cc syringe coded #1 (color coded RED) is inserted and locked into Y Port, flow clamp opened

and the medication administered at the rate of approximately I to 1.5 ml per second. Syringe is

removed.

Second 60 cc. Syringe coded #1 (color coded RED) is locked into the Y Port and administered at

the rate of approximately 1 to 1.5 m! per second.

•

Execution Team Commander shall turn off the green light in the Execution Room indicating #1 (color coded RED) MED has been administered.
Second #1 (color coded RED) syringe is removed; the LV. run wide open for 10 seconds.

Rev: 611212004

50f7

CONFIDENTIAL

LETHAL INJECTION CHECKLIST

CONFIDENTIAL

•

!

PROCEDURE

The Execution Team Commander shall light the green light in the Execution Room indicating #2 (color coded GREEN) MED is being administered. SECOl\TJ) MED (pavulon) coded #2 (color coded GREEN) is inserted and locked into the Y Port and the medication administered at the rate of approximately 1 to 1.5 m! per second. Execution Team Commander shall turn off the green light in the Execution Room indicating the #2 (coior coded GREEN) MED has been administered.
#2 (color coded GREEN) syringe is removed and the I.v. run wide open for 10 seconds.

Y' TIME

•

The Execution Team Commander shall!ight the green light in the Execution Room indicating #3 (color coded BLUE):MED is beinE administered. THIRD MED (potassium Chloride) coded #3 (color coded BLUE) is inserted and locked into i the Y Port and the medication administered at the rate of approximately 1 to 1.5 m! per second. Execution Team Commander shall tum off the green light in the Execution Room indicating the #3 (color coded BLUE) MED has been administered. #3 (colo~ coded BLUE) syringe removed and the LV. continued to run wide open for 10 seconds and redu\ce to KVO. ' When the EKG monitor indicates that no heart activity is occurring, the physician observing the inmate from the Lethal Injection Room shall advise the Execution Team Commander. The Executiop Team Commander shall continuously turn the green light on/off in a blinking manner until the Special Security Team Commander begins closing the drapes to the Witness Room. Back-up Execution Team Commander directs Command Center to have Maintenance Team member turn off Execution Room camera. The physician shall pronounce death and complete and sign the Certification ofPronouncement ofD,;!ath.
Shut! off LV.
POST EXECUTION
Back-up Execution Team Commander shall direct the Command Center to make appropriate notifications. After closing the drapes to the Witness Room, the Execution Commander shall:
Turn off the green light in the Lethal Injection Room. Have the Witnesses escorted downstairs. (Ensure Witness Room door is closed and locked.)

The Execution Commander shall enter the time of death on the Certification ofExecution.

The Execution Commander shall have Certification ofExecution taken downstairs for signature by the Citizen and Media witnesses and the Victim's family witnesses.

The Back-up Execution Team Commander shall notifY the Command Center of the time of death.

Lethal Injection team members shall remove l.v. and EKG monitor leads and pass them through

the port into the Lethal Injection Room. i

Lethal Injection Team Officer-in-Charge collects all equipment.

I

Unused drugs (vials that had been opened for the execution) are secured, placed in the Lethal Injection Drug Box and held for 10 davs.

Body is photographed by the Special Security Team.

Body is placed in a body bag by the Special Security Team,

Body is disposed of per predetermined arrangements,

Execution Commander collects all completed and signed Lethal Injection Checklists.

•

Execution Commander verifies that the time of death is noted and all signatures are in place on the Certification ofExecution and Certification of Pronouncement ofDeath,

I

Rev: 611212004

60f7

CO:r-TfIDENTIAL

•

LETHAL INJECTION CHECKLIST

CONFIDE-NTIAL

PROCEDURE

Y TIME

The Execution Commander shall conduct a debriefing and critique of the execution process in the

I

Command Center immediately following the media briefing.

DISPOSAL OF DRUGS (approximately 10 days after execution)

Execution Team Commander (upon notification from Execution Commander) designates staff

'

,

member to dispose of drugs.

Drugs are disposed of according to proper procedures.

I

Name and title of person completing form (PRINT)

Signature

Date

•

• Rev: 6112/2004

70f7

CONFIDENTIAL

61/10/2006 12;43

2627750008

OTRONS

Ell,,-re/"2E)fl5 16; 41:3

CI~ClJl" COURT DIV ""Sot!! e&'i' GG46 • 'lii!:I.~02'7'?~e

PAGE 133/64
NO _171 tiEIi:l2

STATE OF MARYLAND

IN THE CIRCUIT COURT

VS.

FOR SALTlMORE COUNTY

VERNON EVANS, JR.

CAse NO. 03-K...83002339

"*

*

*

*

WARRANT QF eXECUTION

TO THI; COMMISSIONER OF CORRECTION;

WHEREAS, VernOn Evans, Jr. was conviCted by a Jury in the Circuit
Court for Worcester County, 01'1 the aD! day of May, 1984. of tNo counts of Murder

In the First Degl'Qe; and.
WHEREAS, on the sll'l day of November, 1992. in the Circuit Court fOr

Battimore Oounty, the said Vemon Evan.s~ Jr. was sentenc&d. under Article V.

Sections 412-413, ofthe Annotated Code of Maryland, to death byadminJs1ratfon

of a lethal SJ": and

WHEREAS. Chapter 5, Sec:1.ion 2, of the 1994 Session Laws of Maryland

Genilral Assetnbly provides that "any person who Is sentenced to death by letha'

gas prior to the effectfve date, of this Act [March 26, 1994]. shall b8 executed by

Iettler InJection. However, the pef'$On m~y el~ot ttl be exeQuted by letha' gas. If a
,
person erects to be exeouted by lethal gasj the person shal subtnH: Iii written

request for executlon by lethal gas to the Cle.rk of Court that imposed the

sentence of death with e copy to the Commissioner of Correction Within 60 days

after the effedlve date of this Act [MatCh 25. 1~941 .• ,. If $OM III request Ie not

. ,

__.. • 9..1/HI/20B6 12: 43 01~/~ 1c~40

29277500138

OTRONS

CIRCUlT COU~T DIU 410 ~ 6S~e ~ ~12a!~7SBaa9

PAGE 04/9~ NO.l'(l "'~

WHEREAS, Vernon Evans, Jr. did not elect execution by lethal gaa within

60 days 3ilfter March 20, 1994, pUl'&l.Iant to Chapter 5, St::tctlon 2, of the 1994

Session laws of. Maryland General Assembly. he must be executed by lethal

injection.

NOW. THEREFORE, in aeCQrrj;iimce WIth the provisions OHMS COrrectional

Services Article, Seotfon$ 3~901 et, seq., of the Annotated Code of Maryland.

YOU ARE HEREBV COMMANDED AND CHA~GED that the sentence of this

Court I1lhall be executed within a fiVe day period ~egjnni,ng on Monday, February
6, 2006, by taking the said VernOA Evans, Jr. to a suitable and effiCient place.

enclosed from public view, and there administering to him a cont!nuous

ItTtravenou!I IErthalquantity of an ultrashort-acting barbiturate or other $i~i1ar drug

,

1

in combination wIth 8 chemIcal paralytic agent until a licensed phy9lci~n I

pronounces death aerording to aec~pted StandGfrda of medical practice- For alf

of wl'llch this shall be your slrmclent warrant and authority.

WITNESS the hand and seal of the Circuit Court for Baltimore County)
duly attested by the Clerk of said Court, this 9~ day of January, 2006.

ATTEST:
,"

WILMER CUTLER PICKERING HALE AND DORRup

March 7, 2005

A Stephen Hut,Jr.
2+15 M STREET NW WASHINGTON. DC 20037
+ I ,202 663 6235
+ I 202 663 6363 fax
stephen.hut@wilmerhale.com

VIA OVERNIGHT MAIL
Ms. Jean Goodman Secretary of the Department of Public Safety
and Correctional Services 300 East Joppa Road Towson, MD 21286
Re: Maryland Public Information Act (MPlA) Request
Dear Ms. Goodman:
On behalf of this firm's client, Vernon Evans, Jr., I make the request set forth below under the Maryland Public Information Act (MPIA), State Government Article §§ 10-611 to 628. As you may be aware, Mr. Evans is currently under a warrant of execution commanding that he be executed during the week of April 18, 2005. The following request is therefore of paramount urgency. We request:
1. DCM 110-2, or the most recent form of "The Execution Operations Manual";
2. Any and all documents describing the procedures for execution by lethal injection or the administration of lethal chemicals separate and distinct from DCM 110-2;
3. Any and all documents in any way relating to lethal injection and its administration, including, but not limited to all MaryJand Division of Corrections (DOC) Regulations promulgated or revised since lethal injec60n became the sole manner of execution in the State of Maryland;l
4. Any and all documents produced, prepared, or generated by witnesses or officials connected to executions by lethal injection, including, but not limited to the executions of Tyrone X. Gilliam and Steven Howard Oken, and including, but not limited to reports by:

1

As used herein, "relating to" means having any relationship to, pertaining to, evidencing,

constituting, comprising, containing, setting forth, showing, disclosing, describing, explaining,

summarizing, mentioning, or in any way referencing directly or indirectly.

BALTIMORE

BEIJING

BERliN

BOSTON

BRUSSELS

LONDON

MUNICH

NEW YORK

NORTHERN VIRGINIA

OXFORD

WALTHAM

WASHINGTON

Ms. Jean Goodman ,, I
March 7, 2005 Page 2
a. the Wardens of the Maryland Correctional Adjustment Center, Maryland Penitentiary, and/or the Maryland Transition Center;
b. the coroner of the City of Baltimore or the State of Maryland Medical Examiner or their deputies; and/or
c. the person selected by the re1evant Warden to administer a lethal injection;
5. Any and a]] documents in any way relating to the administration of lethal injection reflecting revisions in the process, including, but not limited to any changes in consideration of factors such as weight, age, and/or physical condition of an inmate in admipistering the dosage of chemicals and the relation between the timing of the lethal injection and the time and quantity of food last ingested by the an inmate;
6. Any and all documents prepared, generated, or produced by DOC personnel concerning preparation of Maryland inmates for execution by lethal injection;
7. Any and all documents itemizing the name, amount, and concentration of chemical substances utilized during execution by lethal injection;
8. Any and all documents outlining or in any way relating to DOC's plan for administering drugs in future executions, including, but not limited to, the timing of each step of the process, a description of the persons administering the lethal injection (redacting names for privacy, as necessary), and information concerning the medical training, if any, of those persons administering lethal injection;
9. Any and a11 notes (printed, typed, or handwritten), reports, statements, photographs, initial reports, supplemental reports, memoranda, scientific reports, tapes of statements, interview notes, interview summaries, narratives, affidavits, files, audio and video recordings, drawings, sketches, physical evidence, inventory logs, chronologies, summaries, witness statements, and/or witness interviews concerning execution by lethal injection, including, but not limited to, aU such material related to the executions of Tyrone X. Gilliam and Steven Howard Oken;
10. Any and al1 requisition forms for equipment to be used during execution; and
11. Any and all documents that have been adopted specifically for the execution by lethal injection of Vernon Lee Evans, Jr.
For the purposes of this request under MPIA, the terms "reports," "documents," "records," or "materials" are intended to include, without limitation, any and all written, typed, printed, recorded graphic computer-generated, or other matter of any kind from which information can be derived, whether produced, reproduced, stored on paper, cards, tapes, films, electronic facsimiles, computer storage devices, or any other medium. They include, without limitation, letters, memoranda (inc1uding internal memoranda), calendars, schedules, books,

Ms. Jean Goodman March 7, 2005 Page 3

indices, notes, printed forms, publications, press releases, notices, minutes, summaries or abstracts, reports, files, transcripts, computer tapes, printouts, drawings, photographs, recordings (inc1uding videotapes and audiotapes), telegrams, and telex messages, as well as any reproductions thereof which differ in any way from any other reproduction, such as copies containing marginal notations.

I also anticipate that we will want copies of the requested records. Therefore, please advise me immediately as to the cost, if any, for obtaining a copy of the records and the total cost, if any for all the records described above.

If all or any part of this request is denied, I request that I be provided with a written· statement of the grounds for the denial and notification of any and a11 appeal processes available to me under Maryland law. If you determine that some portions of the requested records are exempt from disc1osure, please provide me with the portions that can be disclosed.

In light of Mr. Evans's scheduled execution in approximately 6 weeks, I ask that you

please respond to this request immediately. If you have any questions regarding this request,

please telephone me at the above number. Thank you for your cooperation.

I

I

WILMERHALE

December 20, 2005

A. Stephen Hut; Jr.
+ 1 202 663 6235 (t) + 1 202 663 6363 tf) stephen.hut@wilmerhale.com

By Overnight Mail
Commissioner Frank C. Sizer, Jr. Maryland Division of Corrections Dep<\rtment of Public Safety and Correctional Services 6776 'Reisterstown Road, Suite 310 Baltimore, MD 21215-2342
Re: Maryland Public Information Act Request
Dear Commissioner Sizer:
I am writing on behalf of Maryland imnate, Vernon Evans, Jr., to supplement my March 7, 2005 letter requesting access to certain public records within the custody of the Department of Corrections ("DOC"), pursuant to the Maryland Public Information Act ("MPIA"), State Government Article §§ 10-611 to 628. By letter dated April 6, 2005, Commissioner Frank C. Si~er, Jr., granted in part and denied in part that request. An administrative appeal of the part of the disposition denying my request is now pending and scheduled for an evidentiary hearing on January 24,2006. As you know, Mr. Evans is currently incarcerated under a sentence of death. The following supplement to my March 7 request is therefore urgent. We request:
Any and all documents produced, prepared, or generated by officials from the Office of the Medical Examiner in connection with executions by lethal injection, including, but not limited to the executions of John Thanos, F. Gregory Hunt, Tyrone X. Gilliam, Steven Howard Oken, and Wesley Eugene Baker and including, but not limited to, autopsy reports, toxicology reports, and scene investigation reports.
For the purposes of this request under MPIA, the terms "reports," "documents," "records," or "materials" are intended to include, without limitation, any and all written, typed, printed, recorded graphic computer-generated, or other matter of any kind from which information can be derived, whether produced, reproduced, stored on paper, cards, tapes, films, electronic facsimiles, computer storage devices, or any other medium. They include, without limitation, letters, memoranda (including internal memoranda), calendars, schedules, books, indices, notes, printed forms, publications, press releases, notices, minutes, summaries or abstracts, reports, files, transcripts, computer tapes, printouts, drawings, photographs, recordings (including videotapes and audiotapes), telegrams, and telex messages, as well as any reproductions thereof that differ in any way from any other reproduction, such as copies containing marginal notations.
Wilmer Curler Pickering Hale and Dorr LLP, 2445 M Srreet, NW, Washington, DC 20037
Baltimore Beijing Berlin BoslOn Brussels London Munich New York Northern Virginia Oxford Palo Alto Waltham Washington

Commissioner Frank C. Sizer, Jr. December 20, 2005 Page 2

WILMERHALE

I also anticipate that we will want copies of the requested records. Therefore, please advise me immediately as to the cost, if any, for obtaining a copy of the records and the total
an cost, if any for the records described above.

If all or any part of this request is denied, I request that I be provided with a written statement of the grounds for the denial and notification of any and all appeal processes available to me under Maryland law. If you detennine that some portions of the requested records are exempt from disclosure, please provide me with the portions thal can be disclosed.

Given that Mr. Evans is currently incarcerated under a sentence of death, and that an evidentiary hearing on my related-March 7, 2005 request is scheduled for January 24,2006, I ask that you please respond to this request immediately. If you have any questions regarding this request, please telephone me at 202-663-6235. Thank you for your cooperation. I

Sincerely,
~ -,,/~IV (
A. Stephen Hu

/

I
l

j

(

>.

LETHAL INJECTION CHECKLIST

•

CONTENTS OF SYRINGES

LABEL :MARKED

CONTENTS

#1 (color coded RED)

Sodium Pentothal, (4.5 gr) (Nine 500 mg. packages, mixed as directed on the packages)

CONFIDENTLU
QUANTITY
3 Syringes 60 cc per syringe

#2 (color coded GREE:N)

Pavulon (pancuronium Bromide) (Five 10 cc. ampules of 10 mEg. each in each syringe)

2 Syringes 50 cc per syringe

#3 (color coded BLUE)

Potassium Chloride (One 50 cc ampule of 50 mEg. in each syringe)

.otal Injection:

120ce/ 3 gr.! two 60cc syrJliges of Sodium Pentothal 50ce/50 mEg.! one 50ce syringe of Pavulon SOce/SO mEg.! one 50cc syringe of Potassium Chloride
One extra syringe of each made up as a stand-by.

2 Syringes 50 cc per syringe

•
Rev: 6Ib8/2004:!.........-_ _ __

___________________CQbifJI!EbTIL'll-_ _ _ __

IN THE CIRCUIT COURT FOR BALTIMORE CITY, MARYLAND

NATIONAL ASSOCIATION FOR THE )

ADVANCEMENT OF COLORED

)

PEOPLE

)

4805 Mount Hope Drive

)

Baltimore, Maryland 21215

)

)

AMERICAN CIVIL LIBERTIES

)

UNION FOUNDATION OF

)

MARYLAND;

)

3600 Clipper Mill Road, Suite 350

)

Baltimore, Maryland 21211

)

)

MARYLAND CITIZENS

)

AGAINST STATE EXECUTIONS;

)

PO Box 39205

)

Baltimore, Maryland 21212

)

)

and

)

)

VERNON EVANS, JR.;

)

Division of Corrections No. 172357

)

Maryland Correctional Adjustment Center )

410 East Madison Street

)

Baltimore, Maryland 21202

)

)

Plaintiffs,

)

)

vs.

)

)

MARY ANN SAAR, Secretary,

)

Department of Public Safety and

)

Correctional Services

)

300 East Joppa Road

)

Suite 2000

)

Towson, Maryland 21286;

)

)

FRANK C. SIZER, JR., Commissioner, )

Maryland Division of Correction;

)

6776 Reisterstown Road

)

Baltimore, Maryland 21215;

)

Civil Action No.

Defendants.

DECLARATION OF MARK J. S. HEATH, M.D., BOARD-CERTIFIED
ANESTHESIOLOGIST
I, Dr. Mark J.S. Heath, declare as follows:
1. I am an Assistant Professor of Clinical Anesthesiology at Columbia University in New York. I obtained my Bachelor of Arts degree from Harvard University in 1983, magna cum laude, and graduated with honors from the University of North Carolina Chapel Hill Medical School in 1986. My current practice is devoted one-third to clinical care, one-third to education of medical residents and fellows, and one-third to laboratory research in the field of neuroscience. As a result of my training and research, 1 am familiar and proficient with the use and pharmacology of the chemicals used to perform lethal injection. 1 am qualified to do animal research at Columbia University and am familiar with the American Veterinary Medical Association's guidelines.
2. Over the past several years, as a result of concerns about the mechanics of lethal injection as practiced in the United States, 1 have performed many hundreds of hours of research into the techniques that are used during this procedure. 1 have testified as an expert witness medical witness in the following actions:
Baker v. Saar, No. Civ. WDQ-05-3207 (D. Md.);
Reid v. Johnson, No. Civil Action. 3:03cv1039 (E.D. Va.);
Abdur'Rahman v. Bredesen, No. 02-2236-111 (Davidson County Chancery Ct., Tenn.);
State v. Michael Wayne Nance, 95-B-2461-4 (Ga. Superior Ct.);
Ralph Baze & Thomas Bowling v. Rees, 04-CI-01094, (Franklin County Circuit Ct., Kent.);
1 also testified in a case before the Hon. Ramona Emanuel, state District Court judge, in Shreveport, Louisiana on February 11,2003, but at this time am unable to find the case number for this hearing.
3. 1 have filed affidavits that have been reviewed by courts in the above states and also, New York, Alabama, Maryland, North Carolina, South Carolina, Ohio, Oklahoma, Texas, California, Connecticut, Missouri, and by the United States Supreme Court. During court proceedings, 1 have heard testimony from prison wardens who are responsible for conducting executions by lethal injection. 1 have testified by invitation before the Nebraska Senate Judiciary Committee regarding proposed legislation to adopt lethal injection. 1 have testified by invitation before the Pennsylvania House Judiciary Committee regarding legislation proposing to prohibit the use of pancuronium and other neuromuscular blockers during lethal injection procedures. My research regarding lethal injection has involved both extensive conversations with experts in fields including lethal injection, toxicology, and forensic
2

pathology; and personal correspondence with the individuals responsible for introducing lethal injection as a method of execution in the United States.
4. I have been asked to review available information concerning Maryland's lethal injection protocols and to provide expert opinion. In addition to my education, training, research, and experience as a practicing anesthesiologist in a teaching hospital, I have reviewed information concerning Maryland executions by lethal injection, including affidavits and accounts of witnesses to executions by lethal injection in Maryland, the Execution Operations Manual, and the affidavit of Randall Watson, Assistant Commissioner for Security Operations of the Maryland Division of Correction. I have also reviewed similar materials for litigation in other states.
5. Currently 37 states, the federal government and the United States military use lethal injection as a method of execution. Maryland has recently revised its procedure so that the sequence of drugs is comparable to the sequence used to my knowledge in other jurisdictions.
6. It is my opinion to a reasonable degree of medical certainty that the lethal injection procedures selected by Defendants for use in Maryland and used elsewhere subject the prisoner to an increased and unnecessary risk of experiencing excruciating pain in the course of execution. The potassium chloride selected by Defendants to cause death causes extreme pain and requires induction and maintenance of an appropriate plane of anesthesia. The risk of a prisoner suffering the pain that accompanies injection of potassium chloride is increased by the Defendants' failure to eliminate obvious flaws in the selection, training, and supervision of the personnel charged with inducing and maintaining anesthesia. This risk is further increased by the circumstances and environment under which anesthesia is to be induced and maintained. The Defendants' procedures do not comply with the medical standard of care for inducing and maintaining anesthesia prior to and during a painful procedure. Likewise, Defendants' procedures are not compliant with the guidelines set forth by the American Veterinary Medical Association for the euthanasia of animals. Further, Defendants have made insufficient preparation for possibility, encountered in many other jurisdictions, and planned for in those jurisdictions, that peripheral IV access cannot be successfully established.
A. Sequence of Drugs Administered Under the Maryland Lethal Injection Protocol
7. It is my understanding, based on review of documents provided by counsel for the Plaintiffs, that the essential steps in the conduct of lethal injection procedures in Maryland are the following:
a. The two IV lines are prepared. b. Pressure bags are placed over the IV bags and inflated.
3

c. Medications are prepared in color-coded and numerically-code syringes. d. The condemned prisoner is strapped to the Execution Table. e. An angiocath is inserted into the left arm and attached to IV tubing. f. An angiocath is inserted into the right arm and attached to the IV tubing. g. EKG leads are passed through the port and attached to the inmate. h. The Execution Table is rotated. 1. The IV bags are passed through the port. J. When the signal to commence the execution is given, a 60 cc syringe containing 1.5
grams of Pentothal is locked into the Y port, the flow clamp is opened, and the medication is administered at the rate of 1 to 1.5 ml per second. The syringe is removed. k. A second 60cc syringe containing 1.5 grams of Pentothal is locked into the Y port and administered at the rate of 1 to 1.5ml per second and then removed. 1. The IV is run "wide open" for 10 seconds. m. A syringe containing 50 cc of Pavulon is locked into the Y port and administered at the rate of approximately 1 to 1.5 ml per second and then removed. n. The IV is run "wide open" for 10 seconds. o. A syringe containing 50 rnEq of potassium chloride in 50 cc is locked into the Y port and administered at the rate of approximately 1 to 1.5 ml per second and then removed. p. The IV is run "wide open" for 10 seconds, and then slowed to "KVO". q. When the physician observes the cessation of EKG activity he or she notifies the Execution Team Commander. r. The physician pronounces death.
8. Of note, the protocols I have reviewed from Maryland do not address the real possibility that it may not be possible for the execution team to obtain peripheral IV access, and that placement of a central venous catheter (also called a "central line") might be necessary. Were placement of a central venous catheter to be needed, an array of equipment would be necessary, both for the placement of the catheter and for treating any complications that might occur during the procedure. Further, it is essential that placement of a central line be performed by and individual with adequate proficiency and demonstrated licensure and credentialing in an appropriate medical field. There are multiple cases in other states in which it has proven necessary to place a central venous catheter in order to proceed with the execution, because it was not possible for the execution team to place peripheral IV catheters. Failure by the DOC to provide staffing of personnel to perform the placement of a central venous catheter invites an extreme misadventure that could include exsanguination (severe blood loss), pneumothorax (collection of air between the lung and the inner chest wall, which if progressive and untreated results in an excruciating death by suffocation), pain, unstable cardiac rhythms requiring delivery of electrical shocks, perforation of the bladder, and multiple other complications. I am aware that other states have formally promised that a central venous catheter will not be placed. As an example, it is my understanding that as a result of litigation in Kentucky, if a peripheral IV line cannot be placed within 60 minutes, there will be no attempt to place a central line and the lethal injection procedure will be postponed. Thus, intrinsically and in comparison to other states,
4

Maryland's lethal injection procedures are deficient in that there appears to be a failure to plan for the need for a central line. Failing to plan is planning to fail.
9. Under the Maryland execution protocol, the prisoner is rendered dead by the administration of potassium chloride, a salt solution that, when given in high concentrations, causes cardiac arrest. The other drugs that are administered during the procedure, thiopental and pancuronium, while intended to be administered in lethal doses, are not responsible for the death of the prisoner. It is certainly the case that, if successfully delivered into the circulation, thiopental and pancuronium in high doses would be lethal. But it is important to understand that the lethality of thiopental and pancuronium is due to respiratory arrest, which takes several minutes and does not typically occur prior to the administration of potassium. In the execution sequence, before death is caused by respiratory arrest from thiopental and pancuronium, death is caused by potassium. I base this opinion, that the potassium and not the pancuronium or thiopental is responsible for the death of prisoners during lethal injection, on the following:
A) Review of records from EKGs from lethal injection procedures conducted in other states. During lethal injection, cardiac activity consistent with generating perfusion persists through the administration of thiopental and pancuronium, and only stops after potassium has been administered. The relatively sudden cessation of organized EKG activity is not consistent with what would be expected so long after the administration of thiopental and/or pancuronium, and is exactly consistent with what would be expected after the administration of a large dose of potassium chloride.
B) Statements by expert witness Dr. Mark Dershwitz. Dr. Dershwitz, who frequently appears as an expert witness for State corrections officials, in affidavits relating to litigation in North Carolina, has made statements such as, " ...during an execution by lethal injection, circulation is slowed immediately by the administration of thiopental, and circulation is stopped completely by the administration of potassium chloride..." (Affidavit of Mark Dershwitz dated September 27, 2004, at p. 9, Perkins v. Polk, et. aI, No. 5:04-CT-643-BO). While I agree with Dr. Dershwitz that the successful delivery into the circulation of large doses of thiopental will slow the circulation, slowing of the circulation is a common consequence of the induction of general anesthesia and does not cause death. I also agree with Dr. Dershwitz that circulation is completely stopped by the administration of potassium. For circulation to be completely stopped by potassium, it is logical that circulation is present prior to the administration of potassium, and that therefore the prisoner is alive until the potassium is administered and has traveled via the circulation to the heart.
C) Statements by Wardens in North Carolina. In Responses to Interrogatories, the Wardens involved in North Carolina litigation responded that "in the five executions which have occurred since the execution protocol was modified in
5

September 2004 he has observed the condemned inmate remained alive from the beginning of the first injection of a lethal chemical until all signs of cardiac activity were no longer visible to the medical observers, which occurred following the injection of the full doses of all three lethal injection chemicals." North Carolina administers lethal injections in the same sequence as Maryland: first thiopental, second pancuronium, third potassium chloride.
D) Properties of Thiopental and Pancuronium. Thiopental and pancuronium exert their effects by interacting with molecular targets in the nervous system and on muscles cells. Thiopental and pancuronium do not kill cells or tissue, rather they act very selectively to induce unconsciousness and stop breathing. This is in contrast to chemicals that directly kill cells, tissues, and organs, such as cyanide. Thiopental and pancuronium are useful to clinicians because they do not kill or harm cells or tissues. The reason that thiopental and pancuronium can cause death is that they cause the patient to stop breathing. Failure to breathe will result in brain damage, brain death, and cardiac arrest as the level of oxygen in the blood declines over time. These processes take a varying amount of time, depending on many factors. Physicians generally use 4 minutes of not breathing as the approximate benchmark time after which irreversible brain damage from lack of oxygen occurs.
E) Executions in which a second round of chemicals, including potassium, has been required to produce cardiac arrest. In some instances, including the California execution of Clarence Ray Allen two days ago (January 17,2006), the first "round" of thiopental, pancuronium, and potassium does not cause death, and an additional dose is required. This demonstrates that thiopental and pancuronium alone do not cause rapid death.
10. In the context of lethal injection, thiopental and pancuronium, if successfully delivered into the circulation in large doses, would indeed each be lethal, because they would stop breathing. However, as described above, the administration of potassium precedes the cardiac arrest that would be caused by thiopental and pancuronium.
1. Potassium Chloride
11. Intravenous injection of concentrated potassium chloride solution causes excruciating pain. The vessel walls of veins are richly supplied with sensory nerve fibers that are intensely activated by potassium ions. The intravenous administration of concentrated potassium in doses intended to cause death would be extraordinarily painful. There is absolutely no medical doubt or dispute about the pain-producing properties of concentrated potassium administered intravenously. Defendants' selection of potassium chloride to cause cardiac arrest needlessly increases the risk that a prisoner will experience excruciating pain prior to execution. Defendants failed to select one of the several alternatives that do not activate the nerves in the vessel walls of the veins in the way that potassium chloride does and
6

do not cause any pain. The language of the legislation enacting lethal injection in Maryland does not specify or require the use of potassium.
12. Since the introduction of the techniques of intravenous anesthesia in the 19th century, the provision of anesthesia has become a mandatory standard of care whenever a patient is to be subjected to a painful procedure. Throughout the civilized world, the United States, and Maryland, whenever a patient is required to undergo a painful procedure, it is the standard of care to provide some form of anesthesia. It would be unconscionable to forcibly subject any person, including a prisoner in Maryland, to a planned and anticipated highly painful procedure without first providing an appropriate anesthetic.
13. Presumably because of the excruciating pain evoked by potassium, lethal injection protocols plan for the provision of general anesthesia by the inclusion of thiopental. When successfully delivered into the circulation in sufficient quantities, thiopental causes sufficient depression of the nervous system to permit excruciatingly painful procedures to be performed without causing discomfort or distress. Failure to successfully deliver into the circulation a sufficient dose of thiopental would result in a failure to achieve adequate anesthetic depth and thus failure to block the excruciating pain of potassium administration.
14. Based on my extensive clinical experience caring for patients in Intensive Care Units, and based on common sense, there is no medical or legal status that a human can occupy that lies between life and death. Until the prisoner is rendered dead by the potassium, he or she is necessarily a living human being. I am not aware of any articulated legal or ethical notion that would allow a prisoner who is undergoing lethal injection but who has not yet undergone potassium-evoked cardiac arrest to be considered to be anything other than a living human person.
15. As a living person who is about to be subjected to the excruciating pain of potassium injection, it is imperative that all prisoners undergoing lethal injection be provided with adequate anesthesia. This imperative is of the same order as the imperative to provide adequate anesthesia for any Maryland prisoner undergoing surgery at any of the hospitals to which prisoners are admitted for surgical procedures. Given that the injection of potassium is a scheduled and premeditated event that is known without any doubt to be extraordinarily painful, it would be unconscionable and barbaric for potassium injection to take place without the provision of sufficient general anesthesia to ensure that the prisoner is rendered and maintained unconscious throughout the procedure.
2. Pancuronium Bromide (Pavulon)
16. The second chemical to be administered during the Maryland's lethal injection protocol is pancuronium bromide or Pavulon. Pancuronium is a neuromuscular blocking agent, the effect of which is to render the voluntary muscles unable to contract. Pancuronium does not affect the brain or nerves; rather, this drug affects the voluntary muscle system of the body and causes asphyxiation or suffocation. In the lethal injection process, pancuronium
7

makes the prisoner appear serene because of the drug's paralytic effect on the muscles. The facial muscles cannot move or contract to show pain or suffering if they are present, but become relaxed, thereby generating an impression of tranquility. The use of pancuronium serves no legitimate medical or legal purpose in an execution, as it has no effect on the efficacy of the lethal injection. Nor does administration of pancuronium in any way render the execution more humane, because it is devoid of anesthetic properties.
17. Administration of pancuronium to a person who is not anesthetized would necessarily result in extraordinary suffering and torture. A person who is awake but paralyzed would be desperately straining to draw breath, but the respiratory muscles would not respond. Such a person would be unable to move or signal that they were awake and experiencing the agony of suffocation. There is no medical doubt or dispute about the fact that death by suffocation while conscious and paralyzed by pancuronium would be excruciatingly agonizing.
18. The Maryland lethal injection protocol is required by statute to include the administration of a chemical paralytic agent, such as pancuronium. While many other paralytic agents could be used, and in other states many other paralytic agents have been used, they all would result in the same excruciating suffering that pancuronium would cause were it administered to an inadequately anesthetized person.
19. Again, as with the potassium chloride, a person receiving a paralyzing (and thus lethal) dose of pancuronium requires appropriate anesthetic care. Specifically, because the administration of a paralyzing dose of pancuronium to a conscious person would necessary result in excruciating suffering, it would be unconscionable to do so without first taking all reasonable and feasible steps to ensure that the person is adequately anesthetized.
B. Qualification and Training Required for Personnel Involved in the Administration and Monitoring of Anesthesia
20. In Maryland and elsewhere in the United States, the provision of anesthetic care is performed only by personnel with advanced training in the medical subspecialty of Anesthesiology. This is because the administration of anesthetic care is complex and risky, and can only be safely performed by individuals who have completed the extensive requisite training to permit them to provide anesthesia services. Failure to properly administer a general anesthetic engenders a high risk of medical complications including death and brain damage. Failure to properly administer a general anesthetic is also recognized to engender a risk of inadequate anesthesia, resulting in the awakening of patients during surgery, a dreaded complication known as "intraoperative awareness." If the individual providing anesthesia care is inadequately trained or experienced, the risk of these complications (death, intraoperative awareness) is enormously increased. In Maryland, and elsewhere in the United States, general anesthesia is administered by physicians who have completed residency training in the specialty of Anesthesiology, and by nurses who have undergone the requisite training to
8

become Certified Registered Nurse Anesthetists (CRNAs). Physicians and nurses who have not completed the requisite training to become anesthesiologists or CRNAs are not permitted to provide general anesthesia.
21. Hospitals in Maryland and other states require that physicians undergo a credentialing process, before they are permitted to render clinical care. In the credentialing process the physician applies to the hospital for specific privileges. The hospital reviews the physician's CV, letters of reference, licensure, board certification, and other documentation in order to ensure that the physician applicant possesses the requisite training and certification to practice clinical medicine. Additionally, the hospital determines whether a physician should be given privileges, or credentialed, to perform a variety of procedures. For example, physician applying for privileges to perform surgery on the brain or spinal cord would only be given privileges to do so if he or she could demonstrate the requisite experience, training and certification, which in this instance would typically be achieved by completion of a Neurosurgery residency. Similarly, a physician applying for the privilege of performing general anesthesia would be required to have completed a residency in Anesthesiology, a process that in the United States takes three years.
22. In my opinion, individuals providing general anesthesia for Maryland prisoners who require surgery should not be held to a different or lower standard than is set forth for individuals providing general anesthesia in any other setting in Maryland. Specifically, the individuals providing general anesthesia· for prisoners in Maryland should possess the experience and proficiency of anesthesiologists and/or CRNAs. Conversely, a physician who is not an anesthesiologist or a nurse who is not a CRNA should not be permitted to provide general anesthesia to prisoners in Maryland or to any person in Maryland.
23. The infliction of lethal injection is among the most serious and solemn actions ever undertaken by a state government. Because the Maryland lethal injection protocol employs two drugs (pancuronium and potassium) that individually and together would, in the absence of general anesthesia, necessarily cause excruciating pain and agony, it is imperative that the preceding provision of general anesthesia be performed by individuals who have no less experience or training than the individuals who provide general anesthesia in all other instance in Maryland.
24. I have reviewed information about the criteria used in the selection of the personnel who participate in lethal injection procedures in Maryland. There does not appear to be any process involving the review of licensure and credentialing of the candidates. Therefore, there appears to be no requirement that the individuals who are responsible for the provision of general anesthesia possess any training in the field of Anesthesiology.
25. In my opinion, there is no justification for the apparent failure to provide to prisoners undergoing lethal injection a practitioner with the same or higher level of training and credentialing as would be provided to any other prisoner who is about to undergo a procedure that is known in advance to be agonizing. Specifically, it is my opinion to a
9

reasonable degree of medical certainty that the general anesthesia that is necessary for the humane conduct of the execution should not be provided by individuals who have not completed anesthesiology training.
26. Errors are never completely preventable in any human activity. However, it is self-evident that errors in the attempted administration of general anesthesia are more likely to occur in the hands of personnel who do not possess the training held by anesthesiologists or CRNAs. While the administration of intravenous medications may seem like a simple task, in fact it is not. Opportunities for problems with the administration of thiopental and other drugs during lethal injection include, but may not be limited to, the following:
a) Errors in preparation. Thiopental is delivered in powdered form and must be mixed into an aqueous solution prior to administration. This preparation requires the correct application of pharmaceutical knowledge and familiarity with terminology and abbreviations. Calculations are also required, particularly if the protocol requires the use of a concentration of drug that differs from that which is normally used.
b) Error in labeling of syringes. This risk is compounded by Maryland's needless use of an arcane color-coding system to de-identify the syringes.
c) Error in selecting the correct syringe during the sequence of administration. d) Error in correctly injecting the drug into the intravenous line. e) The IV tubing may leak. An "IV setup" consists of multiple components that are
assembled by hand prior to use. If the personnel who are injecting the drugs are not at the bedside but are instead in a different room or part of the room, multiple IV extension sets need to be inserted between the inmate and the administration site. Any of these connections may loosen and leak. In clinical practice, it is important to maintain visual surveillance of the full extent of IV tubing so that such leaks may be detected. The configuration of the death chamber and the relative positions of the executioners and the inmate may hinder or preclude such surveillance, thereby causing a failure to detect a leak. The practice of covering the inmate's body and extremities with a sheet; if the IV tubing runs under a sheet, makes it difficult or impossible to detect the leakage of drugs during injection. In particular, if the IV tubing were to be incorrectly inserted into the hub of the catheter, there would be leakage of the drug under the sheet and under the inmate's body that would not be detectable. Notably, review of execution logs and witness reports show that Maryland has encountered this problem, and failed to address it during the course of the execution even though it was recognized. f) Incorrect insertion of the catheter. If the catheter is not properly placed in a vein, the thiopental will enter the tissue surrounding the vein but will not be delivered to the central nervous system and will not render the inmate unconscious. This condition, known as infiltration, occurs with regularity in the clinical setting. Recognition of infiltration requires continued surveillance of the IV site during the injection, and that surveillance should be performed by the individual who is performing the injection so as to permit correlation between visual observation and tactile feedback from the plunger of the syringe.
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g) Migration of the catheter. Even if properly inserted, the catheter tip may move or migrate, so that at the time of injection it is not within the vein. This would result in infiltration, and therefore a failure to deliver the drug to the inmate's circulation and failure to render the inmate unconscious.
h) Peiforation or rupture or leakage of the vein. During the insertion of the catheter, the wall of the vein can be perforated or weakened, so that during the injection some, or all, of the drug leaves the vein and enters the surrounding tissue. The likelihood of this occurring is increased if too much pressure is applied to the plunger of the syringe during injection, because a high-pressure injection results in a high velocity jet of drug in the vein that can penetrate or tear the vessel wall.
i) Excessive pressure on the syringe plunger. Even without damage or perforation of the vein during insertion of the catheter, excessive pressure on the syringe plunger during injection can result in tearing, rupture, and leakage of the vein due to the high velocity jet that exits the tip of the catheter. Should this occur, the drug would not enter the circulation and would therefore fail to render the inmate unconscious.
j) Securing the catheter. After insertion, catheters must be properly secured by the use of tape, adhesive material, or suture. Movement by the inmate, even if restrained by straps, or traction on the IV tubing may result in the dislodging of the catheter. If this were to occur under a sheet, it would not be detected, and the drug would not enter the inmate's circulation and would not render the inmate unconscious.
k) Failure to properly administer flush solutions between injections of drugs. Paralytic agents such as pancuronium cause thiopental to precipitate out of solution on contact, thereby interfering with the delivery of the drug to the inmate and to the central nervous system.
1) Failure to properly loosen or remove the tourniquet from the arm or leg after placement of the IV catheter will delay or inhibit the delivery of the drugs by the circulation to the central nervous system. This may cause a failure of the thiopental to render and maintain the inmate in a state of unconsciousness.
m) Impaired delivery due to restraining straps. Restraining straps may act as tourniquets and thereby impede or inhibit the delivery of drugs by the circulation to the central nervous system. This may cause a failure of the thiopental to render and maintain the inmate in a state of unconsciousness. Even if the IV is checked for "free flow" of the intravenous fluid prior to commencing injection, a small movement within the restraints on the part of the inmate could compress the vein and result in impaired delivery of the drug.
27. In an article entitled "Physicians' attitudes about involvement in lethal injection for capital punishment," Neil Farber and colleagues surveyed U.S. physicians in 2000 and found that 34% approved of eight actions related to the conduct of lethal injection, including the injection of the lethal drugs. (Arch. Intern Med. 2000 Oct. 23; 160(19):2912-6). In a related study, Farber and colleagues found that 25% of physicians would personally perform five or more actions intrinsic to the conduct of lethal injection. ("Physicians' willingness to participate in the process of lethal injection for capital punishment", Ann Intern Med. 200t
11

Nov. 20; 135(10):884-8). Nineteen percent of responding physicians stated that they would personally administer the lethal drugs. The study concluded that, n[d]espite medical society policies, many physicians would be willing to be involved in the execution of adults. n Based on these surveys, it appears highly likely that the Maryland D.O.C. would not encounter significant difficulty in recruiting and contracting for an adequately trained physician to provide the general anesthetic that necessarily must precede the administration of thiopental and pancuronium.
28. It is my personal opinion that it is not acceptable for physicians or nurses, including anesthesiologists and CRNAs, to participate in the design or implementation of lethal injection procedures. It is also my personal opinion that it is not acceptable to deliberately take human life under any circumstance in which conditions of civilized order exists. However, as clearly shown by the work of the Farber group, these personal views are not shared by a large proportion of physicians, and therefore my personal opinions are irrelevant to the Maryland DOC process of recruitment and selection of the individuals who are to provide the necessary and required general anesthesia that must precede the administration of pancuronium and potassium. I am not aware of any laws in Maryland that prohibit the participation of physicians or nurses, including anesthesiologists and CRNAs, in the design or implementation of lethal injection procedures.
29. It is important to recognize that, in the United States, the medical profession has very limited experience in the provision of euthanasia. This is in contrast to the veterinary profession, whose practitioners routinely perform euthanasia. The introduction of lethal injection protocols in the United States was led by physicians, and to my knowledge no input was obtained from the veterinary profession. However, it is very informative to review the approach taken by the veterinary profession to the use of lethal injection as a technique for providing euthanasia to household pets.
30. Characteristic of professions in general, the profession of veterinary medicine has developed and set in place multiple institutions and practices that serve to ensure to the greatest extent possible that their patients receive the best care possible. These include, but are not limited, a specific regimen of education and training, an examination process, the award of a doctoral degree, the conduct of research, the generation of scholarly publications, conferences and meetings, and promulgation of guidelines for best practice. Because medical and veterinary knowledge are constantly advancing, and because new drugs and techniques are constantly being introduced, the approaches taken by veterinarians to clinical problems have evolved over time.
31. In keeping with the practices described above, the American Veterinary Medical Association (AVMA) periodically convenes a panel of veterinary experts to review, refine, and update a set of recommendations about the conduct of euthanasia. The purpose of this periodic review is to ensure, as much as is reasonably possible, that the recommendations of the AVMA regarding euthanasia have taken into account advances and developments in the veterinary field and in the sub-field of veterinary euthanasia. The most recent panel released
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the report entitled "2000 Report of the AVMA Panel on Euthanasia"; a copy of this report is available under the internet address: http://www.avma.org/resources/euthanasia.pdf.
32. Page 680 of the AVMA report states that "although unacceptable and condemned when used in unanaesthetized animals, the use of a supersaturated solution of potassium chloride injected intravenously or intracardially is an acceptable method to produce cardiac arrest and death." This statement firmly establishes the utter unacceptability of administering potassium chloride to an animal that is not anesthetized.
33. On page 681 the AVMA report goes on to state that "[ilt is of utmost importance that personnel performing this technique are trained and knowledgeable in anesthetic techniques, and are competent in assessing anesthetic depth appropriate for administration of potassium chloride intravenously." As discussed above, the information thus far provided in exhibits provides no meaningful information about the training, competency, or proficiency of the executioners in the assessment of anesthetic depth. Therefore, it is not possible to conclude that reasonable steps have been set in place to ensure that the execution of prisoners in Maryland is compliant with the AVMA requirements set forth for animals.
34. On page 681 the AVMA report also states that "administration of potassium chloride intravenously requires animals to be in a surgical plane of anesthesia characterized by a loss of consciousness, loss of reflex muscle response, and loss of response to noxious stimuli." The Maryland lethal injection protocol fails to provide for the testing, after the administration of thiopental and prior to the administration of potassium, of the prisoner's surgical plane of anesthesia as described and required by the AVMA.
35. It is critical to understand that the use of pancuronium greatly increases the difficulty of making the assessment of anesthetic depth as described and required by the AVMA report. For example, a common way in which veterinarians assess anesthetic depth is to use a surgical clamp to pinch the tailor paw. If the animal is not adequately anesthetized it will withdraw the pinched appendage, and may possibly exhibit generalized escape or withdrawal responses, and may even vocalize. By contrast, if an animal is adequately anesthetized, it will not exhibit any of these responses. However, if the animal has been administered a neuromuscular blocker such as pancuronium, this pinch test cannot be used, because the animal will not be able to exhibit such reflexive withdrawal responses because it is paralyzed. If the animal is not properly anesthetized it will feel the extreme pain caused by the clamping of its tail or paw, but will be unable to withdraw, struggle, or vocalize because of the entombing effect of pancuronium. If the veterinarian is not closely monitoring subtle indicators of anesthetic depth such as pupil size, heart rate, and blood pressure, they would have no knowledge that the animal is in fact feeling the pain but unable to respond.
36. The "2000 Report of the AVMA Panel on Euthanasia" discusses the use of barbiturates and neuromuscular blockers in euthanasia. At the bottom of page 680 it is stated
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(in its own paragraph, presumably to underscore its importance) that "a combination of pentobarbital with a neuromuscular blocker is not an acceptable euthanasia agent." While this statement refers specifically to pentobarbital it is clearly intended to be generalized to all barbiturates, because earlier on this page it discusses the use of "all barbituric acid derivatives." Consistent with the concerns raised in paragraphs 9-11 above, the AVMA recommends the use of pentobarbital (not thiopental) in part because it is long-acting (in contrast to the ultra-short acting thiopental used in Maryland executions). Indeed, the use of thiopental in combination with a neuromuscular blocker would certainly be considered by the AVMA to be even more repugnant than the use of pentobarbital with a neuromuscular blocker, because of the increased chance that the animal would regain consciousness as described above.
C. Risks in the Current Maryland Execution Procedure.
37. The deliberate induction of cardiac arrest or paralysis of the entire body by any means, should whenever possible, be preceded by the induction of general anesthesia. Thus, regardless of any changes .that the Maryland D.O.C. might make in the selection of the drug or drugs used to cause cardiac arrest, it is my opinion to a reasonable degree of medical certainty that all reasonable steps must be taken to ensure that an adequate general anesthetic has been provided. It is important to understand, however, that the specific drugs selected for use in the Maryland lethal injection protocol possess attributes that increase, needlessly, the risk that the procedure will cause excruciating suffering and agony.
38. For example, for reasons that are unclear, the legislation enacted in Maryland requires the use of an ultra-short acting barbiturate for the provision of anesthesia. As the name implies, ultra-short acting barbiturates wear off faster than other classes of barbiturates that exhibit longer lasting effects. Thus, the accidental administration of a low dose of thiopental instead of the high dose intended by the protocol could easily result in transient unconsciousness. Had the legislature permitted the use of different anesthetic drugs the undesirable and needlessly risky attribute of ultra-short duration of action could have been avoided. The use of an ultra-short acting barbiturate, with its attendant risk of inadequate depth of anesthesia, therefore renders even more important the need to have the general anesthetic provided by a properly trained and credentialed individual.
39. There is no medical purpose served by the administration of pancuronium during lethal injection procedures. The administration of a lethal dose of potassium necessarily renders redundant the use of pancuronium; if potassium is to be given in a lethal dose then pancuronium contributes neither to the death of the prisoner nor to the provision of the general anesthetic that is necessary to make the procedure humane. The use of a chemical paralytic agent such as pancuronium, with its attendant risk of the extreme distress of conscious paralysis, therefore renders even more important the need to have the general anesthetic provided by a properly trained and credentialed individual.
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40. The Maryland lethal injection protocol fails to provide for the testing, after the administration of thiopental and prior to the administration of potassium, of the prisoner's surgical plane of anesthesia. Further, any theoretical attempt to assess anesthetic depth would be made much more challenging and subject to error by the needless administration of pancuronium.
41. An additional concern regarding the Maryland lethal injection protocol is that it does not articulate a procedure for addressing the foreseeable situation in which a stay of execution could be issued and communicated to the prison after some or all of the drugs for the lethal injection have been administered. If one of these instruments were to be furnished prior to the pronouncement of death it would be incumbent on the Division of Corrections to take all possible steps to resuscitate the prisoner from the effects of the drugs that had been administered. In this regard Maryland departs from the practices of other states in which systems, equipment, and personnel are set in place prior to the start of the execution. The fact that other states have addressed this important issue underscores the recognized need to plan for this unlikely yet very possible event, and also underscores that resuscitation can realistically be considered to be achievable.
42. It is my understanding that Plaintiffs' counsel has sought from Defendants, pursuant to public information requests, all documents generated in the course of Maryland lethal injections, but that Defendants have refused to release all such documents. Thus, in an effort to understand how lethal injections have been conducted by Defendants, I have reviewed information concerning the capital punishment process found on the website of the Maryland Department of Public Safety and Correctional Services (lfDPSCS If), as well as press articles reporting on lethal injections that have taken place in the State. The DPSCS website declares that its lethal-injection procedure Iflasts about seven minutes. If Press reports, however, reveal that only one of the 5 lethal injections conducted by Defendants-that of Flint Gregory Hunt-has been completed within 7 minutes. Rather, the execution of Steven Oken lasted approximately 9 minutes, the execution of Wesley Baker lasted approximately 10 minutes, the execution of John Thanos lasted approximately 12 minutes, and the execution of Tyrone Gilliam lasted approximately 23 minutes. It is my understanding, from my participation in litigation concerning the execution of Steven Oken, that Defendants have conceded that the execution of Tyrone Gilliam was botched--namely, that a primary IV line used during that execution leaked, allowing liquids to pool on the execution chamber floor. I also spoke with a reporter who witnessed the Gilliam execution who, along with the other witnesses, observed the IV fluid dripping onto the floor and forming an expanding puddle. The reporter said that at the subsequent press conference the warden, when asked about the leakage, said something to the effect that it is a "normal thing that can happen anytime." This extraordinary level of disregard for the centrally important element of the execution, namely the effective delivery of all of the drugs, is very concerning.
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Conclusion. 43. In conclusion, as stated earlier in this report, it is my opinion to a reasonable
degree of medical certainty that the lethal injection procedures selected by defendants for use in Maryland and used elsewhere subject the prisoner to an increased and unnecessary risk of experiencing excruciating pain in the course of execution. The potassium chloride selected by defendants to cause death causes horrible pain and requires induction and maintenance of an appropriate plane of anesthesia. The risk of a prisoner suffering the pain that accompanies injection of potassium chloride is increased by the defendants' failure to eliminate obvious flaws in the selection, training, and supervision of the personnel charged with inducing and maintaining anesthesia. This risk is further increased by the circumstances and environment under which anesthesia is to be induced and maintained. The defendants' procedures do not comply with the medical standard of care for inducing and maintaining anesthesia prior to and during a painful procedure. Likewise, defendants' are procedures are not compliant with the guidelines set forth by the American Veterinary Medical Association for the euthanasia of animals. Further, the defendants have made insufficient preparation for the real possibility, encountered in many other jurisdictions, and planned for in those jurisdictions, that peripheral IV access cannot be successfully established. The protocol as currently formulated, and the procedure as currently staffed, should not be performed.
Dr. Mark J.S. Heath, pursuant to 28 U.S.c. § 1746, declares as follows:
I declare under penalty of perjury under the laws of the United States of America that the foregoing istrue and correct. Executed on this 19th day of January 2006.
Mark J.S. Heath, M.D.
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 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

VERNON EVANS, JR.,

*

Plaintiff,

*

v.

*

MARY ANN SAAR, Secretary,

*

Department of Public Safety and

Correctional Services;

*

*
FRANK C. SIZER, JR., Commissioner,

Maryland Division of Correction;

*

LEHRMAN DOTSON, Warden,

*

Maryland Correctional Adjustment Center;

*
GARY HORNBAKER, Warden,

Metropolitan Transition Center;

*

and,

*

JOHN DOES,

*

Defendants.

*

Civil Action No. 06-CV-00149 BEL

******
SUPPLEMENTAL EVIDENCE IN REPLY TO DEFENDANTS' OPPOSITION AND IN SUPPORT OF APPLICATION FOR TEMPORARY RESTRAINING ORDER AND MOTION FOR PRELIMINARY INJUNCTION

Plaintiff respectfully submits, in further support of his requests for temporary and preliminary injunctive relief, the attached declarations:
1. Declaration of Thomas M. Scalea, M.D. Dr. Scalea, who is physician-in-chief at University of Maryland Trauma Cener in Baltimore, has conducted a thorough examination of

Mr. Evans with instruments, and describes Mr. Evans's highly compromised venous system, such that peripheral access would be impossible, and the disfavored cut-down procedure probably be impossible. Dr. Scalea states that it is not clear that Maryland Department of Correction has the proper staff or equipment to ensure reliable IV access.
2. Declaration of Vernon Evans, Jr. Mr. Evans describes the observations of his veins performed by the nursing assistant, which took no more than 50 seconds.
3. Declaration of Dennis R. Geiser, DVM Dr. Geiser further elaborates on the veterinary standards that prohibit the practices that the State plans to follow if they were proposed for euthanize animals.
Respectfully submitted,

Dated: January 26,2006

Jeffrey O'Toole (Bar No. 03436)

Julie S. Dietrich

O'TOOLE, ROTHWELL, NASSAU & STEINBACH

1350 Connecticut Avenue, N.W., Suite 200

Washington, D.C. 20036

(202) 775-1550

otoole@otrons.com

dietrich@otrons.com

~~a , A. Step en H t., Jr.

tI

Todd Zubler

Kalea Seitz Clark

Anne Harden Tindall

WILMER CUTLER PICKERING HALE AND DORR LLP

2445 M Street, N.W.

Washington, D.C. 20037

(202) 663-6000 (phone)

(202) 663-6363 (fax)

stephen.hut@wilmerhale.com

todd.zubler@wilmerhale.com

kalea.clark @wilmerhale.com

anne.tindall @wilmerhale.com

Counselfor Defendant Vernon Evans, Jr.

CERTIFICATE OF SERVICE
I hereby certify that on this 26th day of January 2006, I caused a copy of the foregoing
motion to be sent via electronic filing to:
Scott S. Oakley, Esq. Assistant Attorney General Office of the Attorney General Dept of Public Safety & Correctional Services Plaza Center Office 6776 Reisterstown Road, Suite 313 Baltimore, MD 21215-2341
Mary Bet aswell

_Olj25/i:l6_ WED 18: 11 FAX 865 974 5773

UTCVM LG ANIMAL CLIN SCI

141002

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

VERNON EVANS, JR.,

Plaintiff,

v.
00149BE1l..

*

Civil Action No. 06-CV-

MARY ANN SAAR, Secretary,

Department of Public Safety and

Correctional Services;

*

FRANK C. SIZER, JR., Commissioner,

Maryland Division of Correction;

*

LEHRMAN DOTSON, Warden,

*

Maryland Correctional Adjustment Center;

*
GARY HORNBAKER, Warden,

Metropolitan Transition Center;

and,

*

JOHN DOES,

Defendants.

******
DECLARATION OF DENNIS R. GEISER, DVM

Dertms R Geiser, D.V.M., pursuant to 28 U.S.C. § 1746. states as follows:

1. I have been practicing veterinary medicine for 33 years, both in private practice and academic veterinary medicine. I received a Bachelor of Science degree in microbiology from Colorado State University in 1968. I received a Doctor of Veterinary Medicine degree from the University of Illinois in 1972. I practiced in a small animalllarge animal practice in California for two years and then completed a residency program in equine medicine and surgery at Michigan State University from 1974 to 1976.. I practiced in Florida for two years in an exclusively equine referral practice and then took a position at the University of Tennessee College of Veterinary Medicine in 1978.
2. In 1985, I was appointed Chiefof Service in large animal anesthesiology at the Coliege of Veterinary Medicine, University ofTennessee. I was appointed Chair

01/251'06 WED 18: 11 FAX 865 974_ 5773

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l4I003

of the Department of Large Animal Clinical Sciences in 1998 and was appointed Assistant Dean of Organizational Development and Outreach in 2005, also at the University ,of Tennessee.
3. I became board certified in the American Board of Veterinary Practitioners in 1985. I am a tenured full professor and have been involved exclusively in clinical service and teaching of anesthesia for the last 21 years at the University of Tennessee. I have taught courses in respiratory diseases, anesthesiology,pain management, and equine neonatal intensive care. I am a member in good standing ofthe American Veterinary Medical Association and the American Association of Equine Practitioners. As a practicing veterinarian and a clinical veterinarian in the academic setting, I have been involved directly or through supervision ofothers in the euthanasia of over a thousand animals. I do not know the exact number. A copy of my curriculum vitae is attached as Exhibit A.
4. I was contacted by legal counsel for Vernon Evans, Jr. and asked to provide my opinion regarding methods of veterinary euthanasia, as they compare to chemicals and procedures used in Maryland's lethal injection protocol. In preparing this Declaration, I have fully reviewed Maryland's Lethal Injection Instruction Sheet and Checklist (attached as Exhibit B) as well as relied upon my knowledge and underStanding ofanesthesiology, euthanasia solutions, and recommendations of the American . Veterinary Medical Association (AVMA). In addition, I have reviewed the veterinary practice acts of multiple states including Tennessee and Maryland. I have previously provided trial testimony in Tennessee for Abu-All Abdur'Ralunan (2003) and Kentucky for Thomas Clyde Bowling and Ralph Baze (2005).
5. The AVMA provides guidelines and recommendations to veterinarians and certifi¢d technicians on how to perform humane euthanasia. These recommendations provide nationwide guidelines and mandates for personnel who perform animal euthanasia~ regarding their certification and training. The AVMA has published two reports (1993 & 2000) that contain acceptable and unacceptable protocols for animal euthanasia to be painless and distress-free.
6. The 2000 report from the AVMA Panel on Euthanasia, attached as Exhibit C, describes the advantages and disadvantages of drugs and procedures used for euthanasia. The 2000 AVMA report on euthanasia divides euthanasia methods into acceptable, conditionally acceptable, and unacceptable. 'Whether a method ofeuthanasia is acceptable or conditionally acceptable depends on the species of animal involved.
7. . The most commonly used anesthetic for euthanasia of companion animals, large and small, is sodium pentobarbital. This drug is an oxybarbiturate that is administered intravenously. The procedure utilizes pentobarbital as the sole agent for euthanasia. The effect is essentially a lethal overdose of a general anesthetic. Pentobarbital produces central nervous system depression and analgesia. The subject falls asleep and the high concentration ofthe drug produces respiratory and cardiac arrest during the' anesthetic state. In many cases the subject is heavily sedated prior to administrdtion of the pentobarbital to further eliminate the chance of apprehen~ion.
2

.01-125/"06 WED 18: 13 FAX 865 974 5773

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(4J 006

distress, discomfort, and pain. This method has several advantages: it is very quick, is a better anesthesia, has longer duration, is inexpensive, more reliable (use of multiple drugs increases risk of unwanted side effects and drug interactions). more familiar, and conforms with prevailing professional standards.
8. According to the Lethal Injection Instruction Sheet and Checklist, the protocol for lethal injection in Maryland involves a combination of sodium pentothal (an ultra-short acting anesthetic), pancuronium bromide, and potassium chloride (the latter two of which do not depress cerebral functions or produce anesthesia or analgesia). This combination would be unacceptable for veterinary euthanasia by AVMA standards.
_.9. _Sodium pentothal is an ultra-short acting thiobarbiturate that can be used
as a sedative or a very short acting anesthetic depending on the dose administered. Sodium pentothal has minimal analgesic properties. There are many factors that detennine duration and potency of this barbiturate including patient weight, fat content, blood protein levels, and acid-base status. Should all or a portion of the thiobarbiturate be administered outside of the vein, its effect would be greatly diminished.
10. Neuromuscular blocking agents (including Pavulon or pancuronium bromide) block transmission of nerve impulses from the nerve to the skeletal muscles. This class of drugs does not act at the spinal chord or brain level, only at the peripheral level, a distance from the spinal chord or brain, e.g. at the muscle. The administration,of pancuronium bromide results in the loss of diaphragmatic function, cessation of breathing, and eventually suffocation. Neuromuscular blocking agents do not, therefore, produce unconsciousness or relieve pain or distress. "When these drugs are used alone, the subject will perceive pain and distress but would be unable to react to it because of muscle paralysis. Pancuronium bromide would also prevent a subject from vocalizing' pain because of the paralysis of those muscles ofthe larynx and pharynx used to vocalize. The use of pancuronium bromide is strictly prohibited by the ethical standards of the AVMA for euthanasia. Both the 1993 and the 2000 AVMA recommendations condemn the use of neuromuscular blocking agents, such as pancuronium bromide, regardless of whether it is used alone or in combination with other drugs for euthanasia purposes.
11. The use ofa neuromuscular blocking agent poses a significant risk of inhumane suffering and masks visible and audible signs of other problems that might arise. Although neuromuscular blocking agents are used in conjunction with other anesthetic agents for surgery in both human and animal venues, their use requires very specialized training and expertise. Neuromuscular blocking agents eliminate several reflexes that are used to detennine the depth of anesthesia (the amount of central nervous system depression). A surgical depth of anesthesia is achieved when brain and spinal chord function is adequately depressed so that pain and distress from a stimulus is not perceived. The ability to accurately assess proper anesthetic depth prior to neuromuscular blocker administration is paramount. Any reduction in the potency of the thiobarbiturate or general anesthetic, without monitoring anesthetic depth, would increase the risk of neuromuscular blocking agent producing pain and distress. Because there is a significant potential to produce a painful, agonizing death when neuromuscular blocking agents are used in any fashion, the AVMA has made their use unacceptable to minimize
3

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~004

any possibility of an excruciating death occurring. Even the use of pancuronium bromide in combination with an anesthetic administered prior to its use is unacceptable because the individual performing the procedure does not have sufficient observable physical parameters to rely upon to ensure that the animal is under anesthesia at an appropriate level. If the animal is not under anesthesia at an appropriate level, it would feel the effects ofthe pancuronium bromide and if followed by potassium chloride, the experience prior to death would be torturous. Thus, the use of neuromuscular blocking agents and potassium chloride falls below professional and community standards.
12. Under Maryland law (MD Code Crim. Law § 10-611), the use of "curariform drugs" for the killing ofdogs and cats is prohibited. Curariform drugs are neuromuscular blocking agents such as pancuronium bromide.
13. Potassium chloride is a compound composed oftwo electrolytes, potassium and chloride. Potassium in high concentrations affects conduction of nerve impulses to the heart muscle and results in muscle relaxation and eventually cardiac arrest. The potassium chloride solution used in lethal injection is a saturated solution of the compound and therefore toxic to the heart. Potassium chloride, like neuromuscular blocking agents, is not an anesthetic and therefore does not produce central nervous system depression, analgesia, or relieve distress. In the case ofpotassium chloride, the AVMA allows its use for euthanasia only when administered following the determination that the patient is in a "surgical plane of anesthesia." A surgical plane of anesthesia is determined by many variables, some ofwhich include reflexes that are eliminated by neuromuscular blocking agents, such as pancuroniurn bromide. Since potassium chloride causes rippling ofmuscle tissue and colonic spasms, the animal must be sufficiently .. under anesthesia to avoid extreme pain and suffering. The AVMA panel has recommended that personnel performing this form of euthanasia be trained in techniques that assess anesthetic depth appropriate for the administration ofpotassium chloride intravenously. Administration ofpotassium chloride intravenously requires animals to be in a surgical plane of anesthesia characterized by a loss of consciousness, a loss of reflex muscle response, a loss of response to any noxious stimulus. Because the administration of pancuronium bromide impairs the ability to accurately assess anesthetic depth, this lethal injection sequence followed by the State of Maryland has the potential for allowing an individual to experience substantial pain and distress.
14. Maryland's lethal injection protocol calls for the use of an ultra-short acting anesthetic, followed by pancuronium bromide and potassium chloride to be administered rapidly one after another. This has the very real potential of inflicting a torturous death as described above. Such an approach is not tolerated by the AVMA euthanasia guidelines.
15. In summary, veterinary medicine and the American Veterinary Medical Association prohibit the use of neuromuscular blocking agents alone or in any combination for euthanasia ofanimals. The use ofpotassium chloride is also severely restricted.• The reasons include:
4

,01/25/"06 WED 18: 13 FAX 865 974 5773

UTCVM LG ANIMAL CLIN SCI

~005

•

Neuromuscular blocking agents alone or in any combination and

potassium chloride alone have adverse effects that can produce pain and

distress.

•

The use of neuromuscular blocking agents and potassium chloride in

combination with anesthetic agents requires advanced expertise in patient

monitoring prior to their use. In the absence of such advanced expertise.

the use ofthese chemicals has the potential to cause severe pain and

distress.

•

There are other agents available that fulfill all of the requiremen~ for

humane euthanasia of animals.

16. It is my opinion to a reasonable degree of medical certainty that the combination ofchemicals used by the Maryland Division of Correction for lethal injection would not be an acceptable protocol for veterinary euthanasia, because it creates an unacceptable risk of painful and inhumane death.

I declare under penalty of perjury that on January 25, 2006.

5

 
 1

IN THE UNITED STATES DISTRICT COURT

2

FOR THE DISTRICT OF MARYLAND/NORTHERN DIVISION

3

VERNON EVANS,

4

Plaintiff

5

CIVIL NO.

06-149

6

Vs.

7

Mary Anne Saar, et al,

8

September

19, 2006

9

Defendants

10

______________________________/

11

TRANSCRIPT OF BENCH TRIAL

12

BEFORE THE HONORABLE BENSON E. LEGG,

13

UNITED STATES DISTRICT CHIEF JUDGE

14

APPEARANCES:

15

On behalf of the Plaintiff:

16

Stephen Hut, Jr, Esquire

16.5 Todd Zubler, Esquire

17

Kale Clark, Esquire

19

On behalf of the Defendant:

20

Laura Mullally, Esquire

21

Philip Pickus, Esquire

23

REPORTED BY:

24

Jacqueline Sovich, RPR, CMR, FOCRR

25

Official Court Reporter

-1-

1 2 3 4 5 6 7 8 9 10 11 12 13 14 are. 15 16 17 18 19 20 21 22

(PROCEEDINGS) THE COURT: Good morning, please be seated. Mr. Hut, are you ready to call your first witness? MR. HUT: We are ready, Your Honor. THE COURT: Please do. MR. HUT: As its first witness, plaintiff calls Dr.. Mark Heath. MS. MULLALLY: Your Honor, I don't believe either side has moved for sequestration yet. I would do so at this time. MR. HUT: We actually invoked the rule in the pretrial order, we indicated we would. We would have no objection. THE COURT: So you all know who your witnesses
MR. HUT: It's my understanding, Your Honor, the rule on witnesses does not apply on experts whose function it is, among other things, to comment upon the factual case.
THE COURT: That's correct. The rule of sequestration applies only to fact witnesses and not expert witnesses, and expert witnesses are entitled to be in the courtroom to hear any testimony they want to hear.
And if you have an expert who can't be here

23

physically, but who would like to listen in, we can arrange

24

to have a feed, except we can't do it tomorrow, because we

25

only have one line out. Good.

-2-

1 2 state 3 4 A 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

(The Witness is sworn.) THE CLERK: Sir, if you would, I need you to
your name and spell your name for the record. THE WITNESS: My name is Mark Heath, M A R K, H E
T H. THE CLERK: Thank you. DIRECT EXAMINATION
BY MR. HUT: Q. May I inquire, Your Honor?
THE COURT: Whenever you're ready. Q. Thank you.
Good morning, Dr. Heath. What is your occupation? A. I'm an anesthesiologist. Q. And you received the MD degree? A. Yes. Q. When did you receive the MD degree? A. 1986. Q. And when did you receive a medical license? A. A year and a half after that. I believe 1988. Q. Where do you currently practice, Dr. Heath? A. In New York City. Q. Is there an institution in New York City in which you practice in particular? A. New York Presbyterian Hospital. I practice at the part

-3-

1

that's called Columbia University Medical Center.

2

Q. Is New York Presbyterian affiliated with Columbia

3

University and Columbia Medical School?

4

A. It's two hospitals that joined together, and one of the

5

campuses is connected with Cornell Medical School and one of

6

the campuses is connected with the Columbia Medical School.

7

Q. Since the receipt of your medical license in 1998, have

8

you practiced as an anesthesiologist?

9

A. Yes. First I trained as a resident and then fellowship

10

training, and then I became an attending anesthesiologist.

11

Q. Are you board certified?

12

A. I am.

13

Q. To ask a very elementary question, Dr. Heath, what is

14

anesthesia?

15

A. Anesthesia is a state that anesthesiologists induce, it's

16

induced by drugs, and it's a state where in a person has no

17

experience or consciousness or awareness that would be

18

general anesthesia that's to be contrasted with regional

19

anesthesia. Sometimes we only need to or only want to block

20

sensation from part of the body.

21

So, for example, for a Cesarean section, we would

22

often give a spinal anesthetic causing anesthesia in the

23

lower half of the body. In that case, the person would still

24

be awake and conscious, but they would not be able to

25

experience any sensation, including pain from the lower half

-4-

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Court,

of the body. Q. Do you induce general anesthesia as part of your practice in the operating room at New York Presbyterian? A. I'd say virtually every day time in the operating room I'm inducing general anesthesia. Q. How many days per week would you say you're in the operating room? A. It varies over the last couple months. It's been averaging about four days a week. Q. In addition to your clinical practice and work in the operating room, do you have other responsibility or duties at New York Presbyterian or Columbia? A. Sure. We're a teaching hospital, and there's a triad of responsibility, and that includes first and foremost clinical care of patients, and then also teaching of medical students and residents and fellows, and also performing research. Q. Dr. Heath, are you being compensated for your testimony here today? A. Yes. Q. And at what rate, sir? A. I believe it's $190 per hour. Q. I'd like, if I may, with the Court's leave, to show to the witness what's been premarked as plaintiff's Exhibit Number 1.
What I'm doing, if it's satisfactory to the

-5-

1 2 3 4 either 5 6 7 8

is handing a witness a pre-prepared notebook that is comprised of what I hope are all of the documents that we intend to show to him today.
As long as I'm close to the bench, if I can
hand to Your Honor for to the Court's law clerk a set of the demonstratives we may use as well today.
THE COURT: Thank you. If you would make sure they're marked? And then I'll see them, thank you.

9

BY MR. HUT:

10

Q. Dr. Heath, if you could either look at the screen, which

11

now displays plaintiff's exhibit 1, or a tab marked

12

plaintiff's exhibit 1 in the notebook just handed to you,

13

could you identify plaintiff's exhibit 1 for us, please?

14

A. Yes. It's my curriculum vitae.

15

Q. Does plaintiff's exhibit 1 accurately reflect your

16

training, experience, and qualifications?

17

A. Pretty close. We talked about a couple of changes now in

18

the American Medical Association, and that's not listed here.

19

I think maybe one or two of these organizations

20

that are listed here I might have, my membership might have

21

expired. I usually renew them when I go to their meetings,

22

but I don't go every year. American Society of

23

Anesthesiologists, and that's not listed here.

24

Q. Thank you, doctor.

25

Where did you attend college?

-6-

1

A. Harvard College, or University.

2

Q. And what degree did you receive from Harvard?

3

A. A BA.

4

Q. What year?

5

A. 1983.

6

Q. Did you receive your BA with any honors?

7

A. I think it was Magna Cum Laude.

8

Q. Where did you attend medical school?

9

A. University of North Carolina Chapel Hill.

10

Q. Did you serve an internship following graduation from

11

medical school?

12

A. Yes, I did, Washington, D.C.

13

Q. How long was that?

14

A. Internship's one year.

15

Q. Did you thereafter serve a residency?

16

A. Yes.

17

Q. For how long?

18

A. It was three years of residency and two years of

19

fellowship.

20

Q. Where did you serve that?

21

A. All at Columbia University Medical Center.

22

Q. In New York City?

23

A. Yes.

24

Q. Does -- with the exception of the additions and

25

corrections that you noted a moment ago, does plaintiff's

-7-

1

exhibit 1, your CV, list your principal professional

2

associations?

3

A. I believe so, yes.

4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 been

Q. Does the list your principal honors -- I'm directing your attention, to page four of plaintiff's exhibit 1, caption at the top, "Publications," does plaintiff's exhibit 1 accurately list publications that you have authored, Dr. Heath? A. I believe so, yes. Q. Are the journals listed on page 4 and at least one on page 5 of plaintiff's exhibit 1 peer-reviewed scientific journals? A. Yes. Q. Doctor, have you previously testified in cases concerning execution by lethal injection as an expert witness? A. I have, yes. Q. Approximately how many times, sir? A. I'm guessing around 8, or 8 times, approximately, maybe 10 times. Q. Are you addressing only in the court trial testimony or does that include depositions? A. Well, I've testified in court and I think at least once by telephone. And then if you add -- so that was including just actual testimony.
If you add in depositions, I think there have

-8-

1

a couple more depositions, but those were for trials that

2

ended up having testimony, but affidavits and declarations

3

for cases where I did not testify in any form.

4

Q. Dr. Heath, have you done any scientific research on the

5

subject of lethal injection?

6

A. I have now, yes.

7

Q. Could you describe it for the Court, please?

8

A. Over the past, approximately five years, since I became

9

interested in this subject, I've reviewed execution protocols

10

and execution logs from the great majority, from all the

11

states that are doing it with any frequency and for many

12

states that are only occasionally or never doing it.

13

I've had visited or have attended the inspections

14

of lethal injection facilities in three states. I have

15

reviewed probably thousands of pages of depositions by

16

executioners and other participants or people who are present

17

during the injection procedures.

18

I've spoken with the folks who either supervised

or

19

participated in lethal injection procedures. I write many

20

journal articles that pertain to the practices in lethal

21

injection or directly discuss lethal injection.

22

I've reviewed hundreds of, I believe I've

reviewed

23

all the postmortem toxicologies and autopsies performed for

24

lethal injection procedures.

25

Q. your writings on the subject of lethal injection, have

-9-

1

any of those been published in peer-reviewed scientific

2

journals?

3

A. I wrote a correspondence regarding a paper that was

4

published in the Lancet that was about lethal injection or

5

lethal injection toxicology.

6

Q. And the article was published in Lancet, was your

7

correspondence on that article published in the Lancet as

8

well?

9

A. Yes. It came out I think a couple months later after the

10

initial article that I was commenting on came out.

11

Q. The article that you were commenting on, was the tenor of

12

that article essentially criticism of aspects the way lethal

13

injections are performed in the United States?

14

A. Yes. They were saying that 43 percent of prisoners had

15

inadequate thiopental concentrations during their executions.

16

Q. And what was the tenor of your correspondence on the

17

subject of that article that was published in the Lancet?

18

A. My -- our correspondence said that their methodology was

19

completely flawed and their conclusion was totally

20

unsupported.

21

Q. In other words, you criticized the criticism of lethal

22

injection on scientific grounds; is that accurate, sir?

23

A. Yes. They were wrong.

24

Q. You mentioned, Dr. Heath, that you had occasion to study

25

the protocols of, and numerous and perhaps most states on

-10-

1

lethal injection. Have you had occasion to study the

2

protocol used in the state of Ohio?

3

A. I have reviewed that, yes.

4

Q. Have you reviewed the protocol that was used in

5

connection with the execution of Joe Clark?

6

A. And it's important to understand that states frequently

7

modify their protocols. So the protocol I looked at I'm not

8

sure if it was the exact one used on Mr. Clark, but I have

9

reason to believe its fundamental elements that were the

10

same.

11

Q. Do those elements that remain the same to use in the

12

Clark execution include the use of the same three drugs used

13

in the Maryland lethal injection cocktail?

14

A. With minor variations, every state is using basically the

15

statement four steps for accomplishing lethal injection

16

executions.

17

Q. Dr. Heath, do you have an opinion on the death penalty?

18

A. I do, yes.

19

Q. What is that, doctor?

20

A. I'm not in support of it.

21

Q. Does your position not in support of the death penalty

22

influence in any way your medical and scientific assessment

23

of lethal injection?

24

A. I try very hard not to let it. It's something I think

25

about. I try to keep an open mind about everything. I'm

-11-

1

looking at and try to assess it in the clearest light in the

2

most accurate way.

3

I think discussion and debate is only hindered by

4

inaccurate or misleading information. I think everybody

5

needs to get the right and truthful information out there on

6

the table and discuss it in a forthright way.

7

Q. In preparing the opinions that are set forth in the

8

expert report for this case, did you attempt, to the extent

9

you possibly could, to divorce those opinions from your

10

opinion about the death penalty?

11

A. Yes.

12

Q. Do you think did, that your opinion that lethal injection

13

can be performed humanely?

14

A. I'm very confident of that, yes. I believe it's

15

performed on household pets, on dogs and cats, thousands of

16

times a day in the United States or more, and it's done in a

17

reliable and humane fashion.

18

Q. Dr. Heath, why did you agree to testify in this case?

19

A. I'd seen the protocol from prior cases in Maryland and

20

the protocol hadn't substantially changed, and it's something

21

that you wouldn't be allowed to do to a dog or a cat. And it

22

doesn't meet those, doesn't even come close to veterinary

23

standards, and this should not be done to any animal,

24

including a human.

25

MR. HUT: Your Honor, plaintiffs offer Dr. Heath

as

-12-

1

an expert in anesthesiology medicine and lethal injection

2

procedure.

3

THE COURT: Anesthesiology, medicine, and lethal

4

injection procedure.

5

Is there any voir dire on that?

6

MS. MULLALLY: Yes, Your Honor.

7

THE COURT: Miss Mullally, go right ahead.

8

BY MS. MULLALLY:

9

Q. Now, Dr. Heath, you're a medical doctor?

10

THE COURT: If you would use the podium, please,

it

11

makes it easier for our court reporter.

12

BY MS. MULLALLY:

13

Q. Dr. Heath, you're a medical doctor, correct?

14

A. Yes.

15

Q. And do you have a degree in pharmacology?

16

A. The degree of medicine includes training in pharmacology,

17

but I do not have a Ph.D. in pharmacology, no.

18

Q. But there are those medical doctors, however, that do

19

have Ph.Ds in pharmacology; am I correct?

20

A. There are a few, yes.

21

Q. Okay. You mentioned the Lancet letter that you published

22

in 2005?

23

A. I'm not sure of the year, but that sounds about right.

24

Q. Okay. Is this the only publication that you have written

25

on the subject of lethal injection procedures?

-13-

1

A. I presented an abstract at a meeting a couple of years

2

ago regarding thiopental toxicology.

3

Q. Okay. Did you publish anything as a result of that

4

abstract?

5

A. No.

6

Q. You say that you've done research, scientific research in

7

lethal injection?

8

A. Yes.

9

Q. But so far this research has not led to any publications;

10

am I correct?

11

A. I haven't submitted anything, that's correct.

12

Q. Thank you.

13

THE COURT: Thank you. Is the state contesting

the

14

doctor's expertise in the three years in which he's been

15

offered, anesthesiology, medicine, lethal injection

16

procedures?

17

MS. MULLALLY: No, Your Honor.

18

THE COURT: Good. Thank you. Then I will accept

19

the doctor as an expert qualified to express opinions in

20

these three areas.

21

Mr. Hut, whenever you're ready to proceed.

22

BY MR. HUT:

23

Q. Judge Legg, with Dr. Heath's assistance, what I'd like do

24

now is some stage-setting, and ask the witness to testify to

25

an overview of lethal injection, the area Maryland facility

-14-

1

where it physically takes place, people who perform it, and

2

its origins and history.

3

And prefatorily, Dr. Heath, let me ask you, have

4

you reviewed documents produced by the defendants in

5

discovery in this case?

6

A. Yes.

7

Q. If you could turn in the notebook supplied to you to

8

what's been premarked as plaintiff's exhibit number 4.

9

Have you read plaintiff's exhibit 4 before, Dr.

10

Heath?

11

A. Yes. This is the Execution Operation Manual from 2004.

12

Q. Directing your attention as well, Dr. Heath, to portion

13

of exhibit 4 toward the back, the page Bates stamped number

14

Evans 0 0 3 5 9 2, those numbers will be found in the bottom

15

of the pages.

16

Are you with me?

17

A. Yes.

18

Q. Do you recognize that portion of plaintiff's exhibit 4?

19

A. Yes.

20

THE COURT: If I could ask you, Mr. Hut, 4 should

21

be in what you just handed out?

22

MR. HUT: No, Your Honor. 4.

23

THE COURT: Good.

24

MR. HUT: We do have an extra copy of the trial

25

exhibits for the court.

-15-

1 2 sorry 3 4 5 6 just 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

THE COURT: I have it here. MR. HUT: But the book that I handed you, I'm
for any confusion. This may be more manageable for you. THE COURT: That's all right. I need to get my
exercise for the day. MR. HUT: I'll hand it to the courtroom deputy
in case you change your mind. (Pause.) MR. HUT: Just to clarify what I handed you a
moment ago is the set of demonstratives that we may be using. THE COURT: I have plaintiff's 4 redacted
memorandum, execution operations manual? MR. HUT: That's correct, Your honor
BY MR. HUT: Q. Dr. Heath, have you had occasion to look at recent changes that were made by the State of Maryland this year in August, changes to the protocol that are set out in the checklist at the end of plaintiff's exhibit 4? A. Yes, I have. Q. And if you just want to look ahead to plaintiff's exhibit 5 for a moment, do you recognize will have's exhibit 5? A. Yes. Q. And what is that? A. It's a memorandum describing some alterations to the previous protocol.

-16-

1

Q. In addition to plaintiff's exhibit 4 and 5 and the other

2

materials produced by defendants in discovery, have you

3

reviewed all of the expert reports from both sides?

4

A. I believe so, yes.

5

Q. Have you reviewed the depositions taken and transcribed

6

in this case?

7

A. I have, yes. There's a lot of materials, so I've skipped

8

some parts of it that didn't appear to be directly relevant

9

to what I need to know.

10

Q. But you looked at all of them; is that correct?

11

A. Yes.

12

Q. Have you reviewed the defendant's answers to plaintiff's

13

interrogatories?

14

A. Yes.

15

Q. Did you have occasion to attend an inspection of

16

Maryland's execution area earlier this summer?

17

A. Yes.

18

Q. And as you understand it, during that inspection, was the

19

pertinent equipment set up as it would be during an

20

execution?

21

A. Yes. It was very helpful. They laid everything out, and

22

they kind of walked us through to the best of their ability.

23

It wasn't a real execution, trying to portray for us what,

24

how things would be arrayed.

25

Q. Were you able to ask questions of the individuals who

-17-

1

were assisting at the inspection about the equipment and the

2

facility?

3

A. Yes, they were helpful.

4

Q. Have you reviewed, Dr. Heath, photographs that were taken

5

at the inspection by a state designated photographer?

6

A. Yes.

7

Q. And were you able to determine, based on your review of

8

the photographs, that those depict their subjects and the

9

views and vantage points accurately?

10

A. Yes, they do. Cameras have these automatic light

11

adjustments, and so sometimes the light levels are a little

12

difficult to interpret, but overall, yes, they're accurate.

13

They're photographs.

14

Q. Directing your attention, Dr. Heath, to plaintiff's

15

exhibit 10 in your book, which is also depicted on the easel

16

that I've set up in the courtroom, and the demonstrative is

17

labeled plaintiff's demonstrative exhibit 2. This is

18

plaintiff's 10.

19

THE CLERK: Okay.

20

Q. Can you generally describe your understanding, Dr. Heath,

21

of the Maryland execution area?

22

A. There are areas that are in my view regarding witnesses

23

and movement of people, and where the prisoner is held prior

24

to the execution.

25

The two areas of interest to me are the what are

-18-

1

called the execution room and the preparation room or the

2

injection room. And the prisoner is on a gurney in the

3

execution room, and the folks who were injecting the drug

4

working with the IV's are in the preparation room or

5

injection room.

6

Q. And does plaintiff's exhibit 10, the schematic, generally

7

accurately represent the layout of the execution area?

8

A. It fits my recollection, from the photographs, yes. The

9

gurney looks larger to me than I remember it being in the

10

room, but that just may be my memory.

11

Q. And on the subject of the gurney, Dr. Heath, is the

12

orientation of the gurney approximately accurate as you

13

remember it in terms of how it is oriented when the lethal

14

injection execution take place?

15

A. It seems pretty close, yes.

16

Q. Now, I'd like you to turn to what's been premarked as

17

plaintiff's trial exhibit 11 A.

18

Do you recognize plaintiff's exhibit 11 A?

19

A. Yes.

20

Q. Can you describe it?

21

A. It's a photograph that's taken from the room where the

22

injections are done looking through the one-way mirror or

23

window into the actual execution chamber, and one of the

24

attorneys on your team is lying on the gurney, and she's been

25

strapped down, and had a sheet put over her by the officers.

-19-

1

And that's to portray what things would look like during an

2

actual execution.

3

Q. And is this a generally accurate representation of the

4

window that looks onto the execution room and the viewpoint

5

from the preparation room into the execution room?

6

A. Yes.

7

Q. Now, let me ask you to turn to what's been premarked as

8

plaintiff's trial exhibit 11 D.

9

First looking at the partial rectangle, the

10

uppermost portion of the photograph that is plaintiff's 11 D,

11

is that the same window that we looked at a moment ago in 11

12

A from a somewhat different vantage point?

13

A. Yes, it is.

14

Q. What is the smaller rectangle below and somewhat to the

15

left of the one I just mentioned?

16

A. That's the slot or aperture through which IVs are in

17

place and the IV bags and tubing are all in the execution

18

room and they start the IV's. And then once they're placed,

19

once the IV's are placed, then those bags are handed through

20

that aperture into the lethal injection room, the preparation

21

room.

22

Q. Finally, if you would, Dr. Heath, turn to plaintiff's

23

trial exhibit 11 C, please. What does trial exhibit 11 C,

24

plaintiff's 11 C depict?

25

A. This is, they've rotated the table now, because initially

-20-

1

the table, before the execution is in a different orientation

2

from how it's shown here, the table's now rotated, and you

3

can see the IV tubing arcing from the slot where it enters

4

the execution room and then going up to the right-hand side

5

of the gurney.

6

Q. Looking at the piece of tubing that appears to be running

7

along the floor, do you see that, doctor?

8

A. Yes. It wasn't actually touching the floor, at least I

9

recall at least, it was an arc that went a little bit above

10

the floor.

11

Q. Where is that running to?

12

A. Goes to the right side of the table, and they simulated

13

that it would be attached to the right arm.

14

Q. And on the other side, does it go through the aperture

15

that you described a moment ago?

16

A. Yeah, on the left-hand side of this picture, if the

17

picture extended further to the left, you'd see the aperture,

18

the slot that the tubing's coming out of.

19

Q. From any location, in either the execution room where the

20

gurney's located, or the preparation room, can any person

21

standing in either room see the entirety of the tubing either

22

before the IV is connected or after?

23

A. No.

24

Q. Is the tubing as it's depicted in plaintiff's 11 C, to

25

your recollection, an accurate representation of the tubing

-21-

1

as correction officials told you it would be set up at a

2

Maryland execution?

3

A. Yes, to photograph it the way they set it up.

4

THE COURT: So, Mr. Hut, the injection room where

5

the chemical's mixed, correct? I want to make sure we have

6

the terminology, injection room, execution room, execution

7

room is what we're seeing now, correct?

8

MR. HUT: We are seeing the, both, Your Honor.

9

Well, in the photograph, we are seeing the execution room,

10

that's right.

11

THE COURT: And then the other room is the

12

injection room?

13

MR. HUT: That's correct.

14

THE COURT: And the question is, from the

injection

15

room, can the observers see the entire IV line?

16

MR. HUT: That's one question.

17

BY MR. HUT:

18

Q. And the answer to that, doctor, is?

19

A. Part of the IV line's one room, part of it's in another

20

room, and then even from the injection room when you look out

21

of that window, you can't see parts of this arcing tubing,

22

that's here, or where it's going into the person on the

23

gurney.

24

Q. So let's take it a step at a time. The Court's question

25

was from the preparation room, can an individual standing in

-22-

1

the preparation see the entirety of the tubing as it extends

2

into the execution room and on to the site on the inmate, and

3

what is the answer to that?

4

A. No, you can't.

5

Q. And from the execution room, can anybody standing there

6

see the length of the tubing during the conduct of the

7

injection?

8

A. You can see the length, if you stood where the camera is

9

and a little bit to the right of where the camera is in this

10

picture, I think, and if you got down on your knees, you

11

could see, you wouldn't miss the part. Under the table, you

12

might be able to see all the tubing that's in the execution

13

room, but you would not be able to see them what's in the

14

lethal injection room, because that's behind a wall.

15

Q. And what part of the tubing is in the lethal injection

16

room?

17

A. The part in the injection room is the IV bag, the drip

18

chamber, what are called the Y ports or injection sites, the

19

flow regulator, all of that apparatus is in a separate room.

20

So no one person can see everything of the layout. I guess

21

bottom line, no one person can see it all.

22

MR. HUT: Unless Your Honor has any more

questions,

23

I'm going to move to the next subject.

24

THE COURT: Just to clarify one point. From the

25

vantage point in the injection room, doctor, can the person

-23-

1

who is pushing the plunger in the IV see the site where the

2

injection was in the arm, what's it call? I forget what

3

that's called.

4

THE WITNESS: I am not sure you call it,

insertion

5

site.

6

THE COURT: Insertion site?

7

A. They're able to see the insertion site on the left arm,

8

but not on the right arm.

9

THE COURT: And is the view of the left arm close

10

enough so that the person who was actually pushing the

11

plunger could tell whether there was I think it's call the

12

extrava --?

13

A. Extravasation, infiltration. You need to be at the

14

bedside to properly assess extravasation or infiltration.

15

You can't do it from a distance. You can't do it through a

16

window.

17

And also from reading this deposition, it's very

18

clear that he doesn't know what those things are, they needs

19

to look for them. He has no interest in those things, and so

20

he's not capable of doing it even if he were able to see.

21

He's the wrong kind of person, or he doesn't have the right

22

kind of training to be tasked with that.

23

THE COURT: And, doctor, the two terms

24

extravasation and --

25

THE WITNESS: Infiltration.

-24-

1 2 3 4 5 6 7 8 9 thing, 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

THE COURT: -- infiltration, if you could define those for the record, please?
THE WITNESS: It's somebody asked me about that before. We use those terms in medicine, but I never thought about their exact definitions. It's a good question.
The vaso refers to vessel, so extravasation means the fluid or drug is leaving the vessel, which it is not supposed to do.
And infiltration is probably a very similar
but it could also refer to when the catheter itself isn't in the vessel so the fluid never enters the vessel and therefore it can't extravasate because it was never in there in the first place.
First of all, when this entity happens, whichever one you want to call it, we don't actually know what's going on inside, we see it happening, but we don't know in most cases the exact reason it's happening, whether the vein's torn or the catheter has come out, we'll call it infiltration or extravasation. We don't know which one it is. We use it interchangeably.
THE COURT: But they both mean, extravasation and infiltration are indications that what is being injected is not going into the vein, it's going into the surrounding tissue?
THE WITNESS: That's exactly right. That's the

-25-

1

important part.

2

THE COURT: Good. Thank you.

3

THE WITNESS: Just to clarify, at least some of

it

4

was not going into the vein, some of it could be, but to have

5

infiltration or extravasation, some of it is not getting into

6

the vein, possibly all of it

7

BY MR. HUT:

8

Q. Dr. Heath, what are some of the causes of extravasation

9

or infiltration in an IV?

10

A. There are many. The catheter cannot be in the vein or

11

partly not in the vein or the vein can have a tear or hole or

12

perforation in it. Those are the two main things that

13

happen. The catheter can dislodge or move, and the fluid

14

that's being injected does not either enter the vein in the

15

first place or does not stay in the vein.

16

Q. And is the hole or tear in the vein, what are some of the

17

causes of such a hole or tear?

18

A. Well, when we put the catheter in, it's put in with, it's

19

a sharp steel needle that goes in, and the catheter is

20

surrounding that needle. Once we're in the vein, then we

21

pull the needle out.

22

But it's I think very common for that, sharp tip

of

23

that needle to perforate the other side of the vein while

24

we're putting the catheter in. And so I think a lot of times

25

veins have these small holes or leaks.

-26-

1

Q. Have you encountered situations in which the pressure of

2

the drug infusion itself causes a leak or a tear in the vein?

3

A. Oh, yes. So sometimes when we're inducing anesthesia up

4

until that time the IV has been dripping by force of gravity,

5

which is a relatively low pressure. And we'll also have a

6

flow regulator also lowering the pressure of the fluids as it

7

reaches the catheter.

8

But then when we start injecting drugs,we're

9

injecting pretty significant volumes, and that increases the

10

flow through the catheter into the vein. And that's the time

11

when we often see, or that's the time that we often first

12

detect an infiltration.

13

Q. Is that relatively early in the performance of an

14

infusion or an injection of a drug?

15

A. I think you can see it any time during the induction,

16

start to see it right away or see it in the middle or see it

17

at the end. The earlier you see it, the better, but you can

18

see it any time. It can happen any time.

19

Q. In your opinion and experience is extravasation or

20

infiltration a common phenomenon in the performance of IV

21

administration?

22

A. Oh, yeah. I think sometimes when I give talks about

23

these injections, I'll ask the audience how many folks have

24

and an IV. 90 percent raise their hands. How many have to

25

have the IV replaced because of problems with it? Probably

-27-

1

half the hands will go up. It seems about typical.

2

Q. Is that informal survey result consistent with your

3

clinical experience, Dr. Heath?

4

A. Yeah. IV's, unfortunately, are not perfect things.

5

Veins have thin walls, and IVs dislodge. We have to track

6

them carefully and assess them carefully.

7

Q. Dr. Heath, based on your review of the documents and the

8

depositions and your inspection in the execution area, can

9

you describe for the Court your understanding of the

10

principle or essential steps in Maryland's lethal execution

11

procedure?

12

A. Sure. I think it's most informative about it in four

13

steps. The first step is obtaining the intravenous access,

14

and that's usually done by a peripheral access, peripheral

15

vein, in the arm and the hand or occasionally in the foot.

16

Or it's done by central access, which is in one

of

17

the large veins that is close to the heart.

18

Once that stage has been accomplished, then that

19

second phase is to provide anesthesia. The drugs that are

20

used later on are capable of causing excruciating suffering,

21

so it's important to have an anesthesia step in there.

22

That's the second step. Every state is using thiopental to

23

accomplish that.

24

Then there's the third step which does not kill

the

25

prisoner and it doesn't make it more humane, in fact, it puts

-28-

1

him at risk of being less human ,and that's cosmetic step

2

that's done to make it more palatable for witnesses and

3

execution personnel.

4

And then there's the last step, which is the

5

administration of the potassium. That's the drug that

6

actually kills the prisoners.

7

I know from reviewing a lot of EKG's, the

prisoners

8

are still alive until the potassium reaches their heart in a

9

great majority of executions.

10

Q. Now, I want to turn, if I may, to some of the individuals

11

who play key roles in administering lethal injection in

12

Maryland. To do that, I would like you, Dr. Heath, to turn

13

to PDX 1.

14

This is the chart, Your Honor, of the key players

15

that we discussed in part yesterday and I used it in my

16

opening statement.

17

Just to be clear to the Court and counsel, we're

18 19 20 21 copy 22 23 24 25

not offering this in evidence. This is simply a demonstrative to facilitate some of the witness description and testimony.
I understand that I'm nonetheless to proffer a
to the courtroom deputy, which I am now doing. A. Do I have this? Q. I believe you do, I believe it's in the back of the book you have, under demonstrative number 1.

-29-

1 to
2 3 4 5 6 7 8 9 10 don't 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

MS. MULLALLY: Your Honor, the defendants object
this witness seeing the photos in this chart. We have no objection to the text of the chart, but we -- since Dr. Heath has not ever seen these people, we see no reason for him to see them at this time.
MR. HUT: He's already seen the videotaped depositions, Your Honor, with the express consent of counsel for the defendants.
Seen it many times, with their consent. THE COURT: I will overrule the objection. I
see whatever any harm in having Dr. Heath see the pictures, provided that he understands the ground rule and the protective order, and that he would not make any attempt, based upon his familiarity with these pictures, or with the depositions, to assist people in finding out, or identifying these individuals.
So -MR. HUT: Excuse me, Your Honor. THE COURT: The protective order states that the identities of these individuals, who are on the Maryland execution team, will be held within a certain defined group of people. The attorneys in the case, and I think on your side experts. I don't think Mr. Evans knows who these folks are, correct? MR. HUT: I believe that that is true, with the

-30-

1

exception of the one individual who performed an assessment

2

of his veins.

3

THE COURT: That's correct. And he may not even

4

know her name.

5

MR. HUT: I suspect he does not.

6

THE COURT: And so that that is the group of

7

people who were permitted to know the identities of the

8

members of the Maryland execution team.

9

So that the rule is Dr. Heath can't use the

10

information that he gained during the case to help anyone

11

else identify the members of the Maryland execution team.

12

And you understand that, don't you, doctor?

13

THE WITNESS: I understand it very well, and I

14

completely agree with the need to protect their identities.

15

THE COURT: Good. Just for the record, all

that's

16

been explained to you by Mr. Hut and his team?

17

THE WITNESS: Yes. And I also personally think

18

that's an important thing.

19

THE COURT: Good. So that with that

understanding,

20

I'll overrule the objection.

21

BY MR. HUT:

22

Q. Dr. Heath, did you read the protective order in the case?

23

A. I did, yes, some time back, I don't remember the details.

24

Q. Did you sign an acknowledgment acknowledging that you had

25

read it and agreed to be bound by its terms?

-31-

1

A. Yes.

2

Q. And you affirm your intention to be bound by its terms

3

once again here under oath, correct?

4

A. Correct.

5

Q. Was the chart that you're now looking at, plaintiff's

6

demonstrative 1, prepared, doctor, at your direction,

7

pursuant to your general supervision?

8

A. Yes. It's very hard to keep track of who all these folks

9

are because of the code names that are being used for them.

10

So this is helpful.

11

Q. Directing your attention to the person depicted in the

12

left-hand column at the top row, under key members of the

13

injection team, called Contractual Team B, do you recall

14

either by reference to the demonstrative or otherwise what

15

her essential role to the Maryland lethal injection?

16

A. Yes. From reviewing the videos and looking at the

17

depositions, it's important to understand there's ambiguities

18

and contradictions in the descriptions of what's going on if

19

these executions.

20

But in general, she is responsible for the

21

apparatus IV sites that are in the execution room, making

22

sure those are working properly.

23

And then during the execution, she's actually,

she

24

was in the past in the preparation room, although that's now

25

been changed. And her role there to me is less clear. There

-32-

1

seems to be ambiguity among people's expectations of what her

2 3 what 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

role is.

THE COURT: I'm sorry. If you could say again

she does? She actually administers or puts the needle in the arm, correct?
THE WITNESS: Right. She's in charge of what we call the insertion site end of things, and but then in the past, she is at a certain point left the execution room and gone into the injection room, and she's no longer positioned where she can do that, perform that task. That has now been changed.
THE COURT: To what? THE WITNESS: The memorandum from August of 2006 now says that she will stay in the execution room and monitor those IV sites BY MR. HUT: Q. Just to perhaps clarify, I hope, if you turn, Dr. Heath, to the second page of the plaintiff's trial exhibit 5, focusing on paragraph 3, in exhibit 5 on the second page, are you there? You can look on your monitor, I think we've blown that up now. (Pause.) Q. Does paragraph 3 on the second page of plaintiff's trial exhibit 5 and, do you see it on your monitor, Dr. Heath? A. Yes, I see that, sorry. That's what I was talking about,

-33-

1

yes.

2

Q. Does paragraph three provide for the presence of one or

3

more lethal injection team members in the execution room for

4

the remainder of the injection?

5

A. Yes.

6

Q. And the paragraph to which I'm directing you now does not

7

state in terms that the person who will perform that function

8

is Contractual Team B. What's the basis for your

9

understanding that she will in fact perform that function?

10

A. I can't recall if it was in her deposition or I'm not

11

sure where I have that understanding from, but it is my

12

understanding. I'm sorry, I can't give you a citation for

13

it.

14

Q. Do you recall whether it was in the second of the two

15

depositions that she gave in the action?

16

A. I wouldn't want to say -- it would make sense that it

17

was, that the change occurred and she was deposed again and

18

she'd be doing that, but I'm not certain of that. I'm just

19

kind of --

20

Q. In addition to determining the IV sites and making an

21

insertion into the IV site on the inmate, to your

22

understanding, did Contractual Team B also perform an

23

assessment in January of this year of Mr. Evans's veins in

24

person?

25

A. Yes.

-34-

1

Q. Now, I want to direct your attention to the next picture

2

in the left-hand column of Injection Team E on the

3

demonstrative chart of the personnel.

4

Did you review the deposition testimony of

5

Injection Team E?

6

A. The video clips and I guess you'd call it transcripts.

7

Q. And before following up with respect, let me go back to

8

Contractual Team B for a moment, based on your review of

9

materials pertinent to Contractual Team B, to your

10

understanding, does she have a medical background?

11

A. Yes.

12

Q. What is her medical background?

13

A. She's a certified nursing assistant.

14

Q. Shifting gears now back to Injection Team E, based on

15

your review of his deposition, does Injection Team E have a

16

medical background?

17

A. Virtually none. I think he at one point had to take a

18

first aid course or something in the distant past.

19

Q. Do you recall in what room in the execution area

20

Injection Team E stands during a lethal injection?

21

A. He's standing in front of the window in the preparation

22

room, or the injection room, looking out on to the gurney in

23

the execution room.

24

Q. When the IV apparatus and set up itself has been brought

25

from the execution room back into the injection room, which

-35-

1

team member has the responsibility for monitoring the

2

apparatus itself?

3

A. That's Injection Team E.

4

Q. And before it is brought back into the injection room to

5

commence the injection itself, and while it is in the

6

execution room, to your understanding, which team member has

7

responsibility for monitoring the apparatus there?

8

A. That's the Contractual Team B.

9

Q. Now, I'd like to explore with you a bit functioning of

10

the IV apparatus. And to facilitate that, Your Honor, I

11

thought it might be good for Dr. Heath to step down from the

12

stand so he can have some hands on contact with the machinery

13

itself, if that's satisfactory to the Court.

14

THE COURT: Certainly.

15

Q. If you could step down, doctor, and go over to the

16

machine, the apparatus.

17

Could you point out for the Court, and this is

18

demonstrative PDX 13 for identification, also not being

19

offered in evidence, Your Honor, just to illustrate.

20

What is the drip chamber on an IV bag, doctor?

21

A. I'll just straighten this out. So this part here is the

22

trip chamber, it's this clear plastic area that we fill the

23

bottom part of it with IV fluid. And then there's a tube

24

where the fluid comes out. If you didn't have that, you

25

can't see fluid flowing through this tubing. It's clear and

-36-

1

there's no way of knowing if anything's happening there. So

2

the drip chamber allows us to approximate or assess how fast

3

the fluid is flowing.

4

THE CLERK: Counsel, if I could I want to --

5

BY MR. HUT:

6

Q. In your opinion, Dr. Heath, is it important to monitor

7

the drip chamber during the administration of anesthetic

8

drugs?

9

A. Yes. It's critical.

10

Q. And why is that?

11

A. Again, it's the only way of us knowing how the fluid is

12

flowing and that's an all important thing.

13

Q. And who, if anyone, in the Maryland execution team

14

monitors the drip chamber during an injection?

15

A. I believe, well, from what I saw, you wouldn't be able to

16

do it in the past, because the lights were so dim, I could

17

not see what was going on in the drip chamber looking as

18

closely as I possibly could.

19

So if that was representative of the lighting,

20

which we were told it was, no one was that able to do it in a

21

meaningful way before. And he also just wasn't proficient in

22

IV technology. So I don't know if he knew to do it.

23

Now they've put up a light there, and I think it's --

24

I guess I'm assuming I don't know, but I assume it would

25

still be Injection Team E, but I haven't actually seen that

-37-

1

articulated. But I assume that would be added to his job.

2

Q. To your understanding, Dr. Heath, do the defendants

3

propose to augment the lighting in the injection preparation

4

room?

5

A. Yes. I think my reading was they'd actually already

6

installed a 24-inch lighting system that would be very close

7

to where the drip chamber is located.

8

Q. Have you had a chance to view the area with the newly

9

installed augmented lighting?

10

A. No. That's happened since we all did our inspection of

11

their death facility.

12

Q. Are you therefore able to reach any opinion concerning

13

the adequacy of the lighting in the injection preparation

14

room to monitor the IV apparatus and the lines?

15

A. They're smart people. I assume they set it up in a way

16 17 18 19 20 bright 21 22 23 24 25

they can now address this concern. The concern that I still have, though, is that these one-way mirrors that are important to them for maintaining anonymity depends on how much light is on each side of that mirror.
So I'm concerned when they turn on this new
light next to the drip chamber that in the witness area people would now be able to see into that room because now the brightest light is in, next to this IV system. And I know that the anonymity is important to the folks there.
And so I'm worried they might still be adjusting

-38-

1

light levels in various places, and I'm not sure what the end

2

result of that is.

3

Q. Dr. Heath, what connects the various segments of tubing

4

by which the IV bag is ultimately connected to the IV site

5

and catheter in the inmate?

6

A. Nowadays people use this kind of tubing called a lure

7

lock. These pieces of tubing can be separated. They come in

8

separate packages, and we attach the tubing like this. And

9

then lock this movable part to look it in place.

10

Q. If Your Honor would like a closer view, I can come up, if

11

you me to approach and carry the tubing or we can leave it

12

here.

13

THE COURT: No, that's all right. I've seen them

14

before, thank you.

15

Q. Sorry.

16

Can IV tubing, Dr. Heath, in your opinion, leak

17

when connected with lure locks?

18

A. Definitely.

19

Q. Have you had experience yourself, or witnessed yourself a

20

lure lock leaking in the course of your practice?

21

A. Absolutely.

22

Q. Are you aware of literature that documents the leaking

23

phenomenon with lure locks?

24

A. I found an article about this. I have to say I was

25

surprised somebody thought it was worthy of publication, but

-39-

1

it is such an obvious thing to all of us folks who practice

2

with these things.

3

But somebody actually to my surprise they

published

4

an article saying that this can happen.

5

Q. If you could perhaps, Dr. Heath, leave that for the

6

moment. I want you to come back to the apparatus, or perhaps

7

just turn around and have a look in your notebook at

8

plaintiff's trial exhibit 23.

9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 study 25

Is plaintiff's trial exhibit 23, Dr. Heath, the article to which you just made reference -A. That's right. Q. -- what is the journal Anaesthesia? A. They spelled in England they spell anesthesia a little differently than we do, but it's the main English or British anesthesiology publication Q. Is it a well respected journal in the anesthesiology field? A. Yes, it is. Q. Is it a peer-reviewed scientific journal? A. Yes.
MS. MULLALLY: Objection. THE COURT: I'll overrule the objection. Q. And if you could -THE COURT: Well, let me ask this, is this a
or a document that you have relied upon in forming the

-40-

1

opinions that you're expressing in this case?

2

THE WITNESS: I think it would be accurate to say

3

it bolsters my opinions this is something, any practioner, we

4

all know lure locks can leak. I was -- for the purposes of

5

this case, since the claims have been made they don't leak, I

6

was trying to find something beyond my opinion that would

7

bolster, in my opinion, some non interested party or

8

whatever, I didn't think I'd find anything because it's such

9

an obvious thing.

10

I was actually surprised to see there's an

example

11

that's very germane to the litigation about lethal injection,

12

which is that a lure lock leaked while they were using that

13

tubing to give anesthetic, and the reason they realized that

14

it was leaking is because the patient wasn't deeply

15

anesthetized as they thought they were.

16

So that's a really good example of why we need to

17

assess anesthetic depth, even though we set things up and

18

test them, it's complicated and doesn't always work right.

19

So they were inducing anesthesia and the patient wasn't

20

properly anesthetized.

21

MS. MULLALLY: Objection.

22

THE WITNESS: And they --

23

THE COURT: I'll overrule the objection. In

other

24

words, you've studied this article, the journal is one that

25

is respected in the field of anesthesiology, and what is

-41-

1

reported is consistent with your own experience and the

2

experience of other anesthesiologists with respect to leaking

3

lure locks?

4

THE WITNESS: That's exactly right.

5

THE COURT: Thank you.

6

BY MR. HUT:

7

Q. In your opinion, Dr. Heath, is there anything the State

8

of Maryland can do to minimize leakage from a faulty or

9

disconnected lure lock?

10

A. There are many things that need to be done, one needs to,

11

but the most important thing I would say is to be have the

12

full system, the full IV tubing all in the room at the

13

bedside, which is always how we induce anesthesia.

14

And also be not just hoping that everything works

15

properly, but actually testing the prisoner or the patient

16

assessing their anesthetic depth to make sure things have in

17

fact worked properly.

18

Q. Now, to follow up on the first part of your question, if

19

the apparatus were at the bedside, gurney side in this case,

20

would that mean that fewer tubing segments would be required?

21

A. Oh, absolutely. You could have you know only one

22

extension, only needs to have one attachment point, if you

23

were right there as opposed to that multiple attachment

24

points.

25

Q. If you had fewer segments and fewer attachment points

-42-

1

would that minimize the risk that something could go wrong?

2

A. It certainly reduces it. Each point is a potential

3

problem zone, and so they should not be gratuitously placed.

4

They should only be used if they have to be used.

5

Q. Now, if you could perhaps once again, Dr. Heath, step

6

down from the witness stand, with the Court's leave, and show

7

the Court the pressure infusion -- well, let me ask you, is

8

there a pressure infusion bag on the apparatus that we've

9

marked for identification as PDX 13?

10

A. Yes, there is.

11

Q. Could you show the Court what it is?

12

A. Okay. So the great majority of times when we're having

13

an IV set up, the great majority of times it's set up like

14

this with the saline bag, the drip chamber, and then the

15

tubing. But there are certain circumstances where we want to

16

get the fluids in very quickly, and we're busy. It's usually

17

trauma cases or cases where there's lots of bleeding like

18

liver transplants, big cases.

19

We'll use a pressure bag to help get the fluids

in.

20

We hang the fluid here, and this pressure bag has like a

21

pillow, inflatable pillow, and we pump that full of air.

22

There's a pressure gauge right here. That indicates when

23

we've reached the proper pressure.

24

It's pretty high pressure, 300 millimeters of

25

mercury, takes a while to get there.

-43-

1 2 3 Baker, 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

Q. Is 300 millimeters of mercury, let me ask the predicate question.
In the executions of Steven Oken and Wesley
did Maryland use a pressure infusion bag to administer its lethal injection? A. Up until now, they've used pressure infusion bags. Q. So in the Oken and Baker execution, they did? A. I'm not sure if it's all of them. I know some of them, I know Oken, they were planning to use it. I believe they used it, yes. Q. And when they used pressure infusion bag in the Oken execution, you mentioned 300 millimeters of mercury, is that the level in your understanding based on your review of the materials to which the pressure infusion bag was set? A. Yes. They initially though it was 600, but that can't be have been right. I'm sure it was 300. Q. Did you see any reference in the materials, including plaintiff's trial exhibit 4 to filling or increasing the pressure in the bag to the green line? A. Right. These pressure bags come with a couple of different kinds of devices, either a gauge like this, or a little thing kind of like a tire pressure gauge that pushes out, but, yeah, we filled them to a green line which is 300 millimeters. Q. And if I do this properly to keep the courtroom dry,

-44-

1

could you aiming the IV into this trash can? I'll bring it

2

as close as I possibly can. Can you give the Court some idea

3

of the propulsion with which the fluid is injected at that

4

pressure level of 300 millimeters of mercury?

5

A. Sure. There's no catheter on here right now. That makes

6

it -- I can do it both ways. That makes the difference. The

7

probably would be more actually accurate to have the catheter

8

on it.

9

Q. This is why I tried to make my way in the law and not in

10

medicine.

11

In addition to the fact that -- I can't stand the

12

sight of blood.

13

Q. I think they're both good choices.

14

So this is a typical catheter, there are

different

15

sizes. I think this is an 18 gauge catheter. So this is the

16

flow regulator that one can use to control the rate of flow

17

of the IV.

18

Q. Is that sometimes called a flow clamp in the materials

19

that you reviewed in connection with Maryland lethal

20

injections?

21

A. I think this would be more of a flow clamp, but again the

22

folks who are using these systems aren't using a lot of the

23

terminology properly. I can't always telling what they're

24

referring to.

25

Q. The device you initially pointed to has had a wheel type?

-45-

1

A. This has a wheel so you can vary the flow rate and the

2

blue thing has a slot you can pull off that clamps it. They

3

use them interchangeably, which isn't real right.

4

If I hold this up, you'll see how the fluid comes

5

out when you have a pressure bag on. I think it probably

6

would go, you know, all the way across the room.

7

Q. But I couldn't contain the flow across the room in the

8

trash can, I don't believe.

9

THE COURT: Now, doctor, the 300 is it

millimeters

10

of mercury, is that the force that it, I remember back in

11

high school, to move a column of mercury of 300 millimeters

12

up an inch or something like that?

13

THE WITNESS: So people measure use millimeters

of

14

mercury as they put a mercury in a tube, and if you apply

15

pressure to the bottom of the tube, the more pressure you

16

apply, the higher you'll raise it.

17

So 300 millimeters is a third of a meter, about

18

it's about a foot of mercury, mercury's very dense, so --

19

THE COURT: Good.

20

THE WITNESS: The best way to tell, if you want

21

feel this bag, you'll get a sense of how tense it is, I can

22

bring it over.

23

THE COURT: I can see.

24

THE WITNESS: Okay. It's really tight.

25

BY MR. HUT:

-46-

1

Q. Dr. Heath, did you participate in litigation concerning

2

Maryland lethal injection in connection with the then

3

contemplated execution of Steven Oken?

4

A. Yes.

5

Q. And how about in connection with the planned execution of

6

Wesley Baker?

7

A. Yes.

8

Q. Did you also participate in that litigation?

9

A. Yes.

10

Q. In those litigations, did the State of Maryland defend

11

its use of a pressure infusion bag in executions?

12

A. I remember criticizing it. I'm not sure I remember

13

exactly what all they said, if anything to the criticism, but

14

they kept using it. They didn't change their ways. So I

15

guess they felt it was whatever, they kept using it is all I

16

can say. I don't remember what they said about it, if

17

anything.

18

Q. Do you recall reviewing the deposition testimony in this

19

case of Past Team Member M?

20

A. Is he the person who first wrote out the protocol?

21

Q. He is, I believe, and if you look at the chart of

22

personnel, that's demonstrative one at the end of the book,

23

does that help refresh your recollection about the role the

24

Past Team Member M played?

25

A. Yes, that's the person I'm thinking of.

-47-

1

Q. Did you review his deposition?

2

A. Yes.

3

Q. Do you recall the justification that he gave, if any?

4

MS. MULLALLY: Objection.

5

Q. About why --

6

THE COURT: Overruled.

7

Q. About why the pressure infusion bag was included in the

8

protocol?

9

A. He basically copied the protocol from Delaware, and they

10

weren't using one, but he was advised by somebody to add one

11

in to speed things up.

12

Q. Does it refresh your recollection if I remind you to

13

testify that it was to make the rate of flow even?

14

MS. MULLALLY: Objection.

15

A. I think it would be helpful.

16

THE COURT: Overrule the objection.

17

A. It would be helpful to see the actual transcript of that,

18

if you need, they wanted a instead speedy flow of fluid.

19

Q. If hypothetically he described its purpose is to make the

20

rate of flow even, in your opinion, is that a correct

21

justification for the use of a pressure infusion bag?

22

A. It's ridiculous.

23

Q. Why is that?

24

A. I'm not sure where to start, but, first of all, there's

25

no need to make the flow of fluid even. And if there were,

-48-

1

this would be a ridiculous way of doing it. I'm not sure

2

where to start. It's so far off base I can't really attach

3

it to any good reason.

4

Q. As you understand the State of Maryland's stated intent

5

as reflected in plaintiff's exhibit 5 with respect to future

6

executions, does the state intend to cease use a pressure

7

infusion bag?

8

A. Yes. They're not going to use it anymore, at least for

9

now. That's their current plan.

10

Q. Now, earlier you showed the Court I think you described

11

as the flow regulator, the wheel that functions in part to do

12

that; is that right?

13

A. Yes.

14

Q. And does it refresh your recollection that it is referred

15

to in plaintiff's trial exhibit 4 and in the testimony as the

16

flow clamp?

17

A. I saw it referred in different ways. I can't remember

18

who used it in what ways. But I think it's -- I think we

19

know what they're talking about.

20

Q. Who, if you recall, Dr. Heath, principally operates the

21

flow clamp in the preparation room during a Maryland lethal

22

injection?

23

A. That's the Injection Team E.

24

Q. And, again, is it your recollection that he has medical

25

training?

-49-

1

A. I think one or both, one or several of them were state

2

troopers who in the distant past had something like first aid

3

training. But apart from that level of training, none of

4

them had a medical background.

5

Q. Dr. Heath, why don't you resume your seat on the witness

6

box, which I'm sure you'll be more comfortable than causing

7

you to stand there. I think I've largely concluded with the

8

apparatus.

9

And if you would take from the edge of the table

10

the notebook that contains some of the exhibits we'll be

11

looking at.

12

Directing your attention to the bottom picture in

13

the far left-hand column, the demonstrative chart of the

14

personnel, and focusing on Contractual Team A, what is his

15

role?

16

A. He's the person who actually pushes the plungers of the

17

syringes.

18

Q. Does Contractual Team A have a medical background, to

19

your understanding?

20

A. He doesn't.

21

Q. Did you review the deposition transcript and videotape

22

clips of Contractual Team A?

23

A. Yes.

24

Q. Do you recall in what room he --

25

THE COURT: I'm sorry. He does or does not have

-50-

1

medical training? I thought he didn't.

2

THE WITNESS: It's a little hard for me to keep

3

clear. Some of them had first aid training in the past as

4

part of their career, but nothing current and nothing beyond

5

that.

6

THE COURT: Good. Thank you.

7

Q. In what location does Contractual Team A stand during a

8

Maryland execution?

9

MS. MULLALLY: Objection, Your Honor. I don't

10

believe this witness can testify to things that Contractual

11

Team A rightfully should testify to. They're hearsay to this

12

witness. And he's basically telling the Court what people

13

said in their deposition.

14

We've already I think gone over the issue about

the

15

deposition designations. I think that he can testify that he

16

reviewed his deposition, and that he can answer questions

17

based on that. But I really don't think it's proper for him

18

to say what Contractual Team A testified to under oath in his

19

deposition.

20

THE COURT: Well, the reason in my view it's

21

permissible is essentially this: The doctor's been qualified

22

in three areas; anesthesiology, medicine, and then lethal

23

injection procedures.

24

In order for him to express opinions, he has

25

reviewed a field of information, which is included the

-51-

1

deposition transcripts of the people who are on the team.

2

And so he's permitted to say why, you know, the

3

basis for those opinions. So it's important for me to know,

4

if he's going to express an opinion that, for example, that

5

the medical personnel are unqualified to carry out this

6

procedure, I need to know what he's basing that opinion on.

7

And, likewise, if he's going to express an

opinion

8

that the physical logistics of the delivery system is

9

inadequate, I need to know the assumptions, what he's basing

10

his assumptions on.

11

If it turns out that his assumptions are simply

12

wrong, for example, if he has misunderstood, misperceived the

13

testimony of any of these people, in this case, we're talking

14

about a Contractual Team A, that's a matter that you can

15

clear up on cross-examination.

16

And if it turns out that he is mistaken

in his

17

factual assumptions, then that's something that I would need

18

to know, but it would be properly brought out on

19

cross-examination.

20

So that my view in ruling is that his testimony

in

21

this area was proper and admissible, and that you're

22

certainly at liberty to cross-examine on it.

23

MR. HUT: And we do intend to adduce this

evidence

24

as well through Contractual Team A and others. We are not

25

offering this witness's recollection of the locations as

-52-

1

substantive evidence. We'll do that, as the Court notes, and

2

as Miss Mullally's suggests, through the appropriate witness.

3

THE COURT: Right. That's the other point I

failed

4

to make, which I think Miss Mullally was explaining, the

5

doctor's testimony in this case is not substantive evidence.

6

So that if the doctor testifies, I read the transcript and

7

the transcript said that the Contractual Team A had a first

8

aid degree or took a first aid course back in 1985, the

9

doctor's testimony on the stand is not direct evidence of the

10

medical qualifications or disqualifications of Contractual

11

Team A, but it does come into evidence to provide the

12

assumptions on which he is testifying.

13

Mr. Hut, does that sound right?

14

MR. HUT: It does to me, Your Honor, thank you.

15

THE COURT: Thank you

16

BY MR. HUT:

17

Q. Dr. Heath, can you turn to what I suspect is the very

18

last document, or close to the last document in your book,

19

which is demonstrative 16. Do we have PDX 16?

20

Do you recognize -- well, let me ask this,

doctor,

21

was PDX 16 created by us at your request?

22

A. Yes. I had a plan that was like this one here, it didn't

23

show any locations of people, and so I drew out my best

24

understanding of where each of the personnel --

25

MS. MULLALLY: Objection.

-53-

1

A. -- are standing on a piece of paper. And then somebody,

2

on a computer, put these colorful dots and all. But all of

3

those arrows and circles and letters are what I drew out.

4

MR. HUT: And again, Your Honor --

5

MS. MULLALLY: Objection.

6

MR. HUT: -- to address what Miss Mullally may be

7

rising to say, we're not offering this in evidence. This is

8

just to illustrate in part the doctor's testimony in this.

9

THE COURT: Good. I will permit it as such with

10

that understanding.

11

BY MR. HUT:

12

Q. Direction your attention to the pink dot in the

13

right-hand corner of the preparation room as depicted, that

14

says ITE, what does that pink dot represent, doctor?

15

A. That's where Injection Team Member E is. That's my best

16

understanding of where he's located during the actual

17

injection of the drugs.

18

Q. And right next to that is a tan dot, that's -- has the

19

legend CTA. What does that signify?

20

A. So that's Contractual Team Member A. He's the person

21

who's got the syringes in his hand, and is actually injecting

22

the drugs. It's a little confusing. You would think

23

Injection Team E would be the injector, but he's actually

24

controlling that flow system in the IV tubing. Contractual

25

Team A has the syringes is injecting them.

-54-

1

Q. Moving from the dot slightly away and not in front of the

2

window, light blue circle CTF?

3

A. That's Contractual Team F, and she's a doctor who's there

4

to pronounce death.

5

Q. Did you review her deposition, doctor?

6

A. I did, yes.

7

Q. Does she have any role other than pronouncing death in

8

Maryland execution?

9

A. Well, she observes the EKG, and then based on that

10

observation, tells the folks when she believes the prisoner

11

is dead based on the EKG, and then they clear the room and

12

she goes in and actually pronounces death.

13

Q. Let me ask you this, is she involved in any way in

14

obtaining IV access?

15

A. No. She's not involved in any of the other stuff, just

16

the decision about death itself.

17

Q. Is she involved in any way in mixing the drugs?

18

A. No.

19

Q. Is she involved in any way in administering the drugs?

20

A. She has nothing to do with any of that stuff.

21

Q. Is she assigned or is she involved, too, or involved in

22

any way of monitoring the depth of anesthesia?

23

A. No. And she doesn't know how to.

24

Q. Based on her deposition testimony, as you recall it, does

25

she have any training in anesthesia?

-55-

1

A. In medical school, we spend time doing rotations where we

2

spend a couple of weeks or a month in different medical

3

specialties, and everybody spends time, or virtually

4

everybody I think spends time in the operating room learning

5

a little bit about what anesthesiology is, because as a

6

physician, many of our patients have surgery and undergo

7

anesthesia, people need to understand a little bit about what

8

that is. She had that exposure, but nothing more.

9

Q. What, if any, medical specialty does she hold?

10

A. She's an internist, internal medicine.

11

Q. As a doctor of internal medicine, would she be qualified

12

to monitor depth of anesthesia?

13

A. Not just on that qualification alone. Some internists

14

might, you know, be an attending in an intensive care unit

15

and have undergone training to do that, it would be better

16

suited for it, but she doesn't have anything like that. She

17

said she doesn't know about that area.

18

Q. Do you recall from her deposition what she testified to

19

as the duration of her anesthesiology rotation in medical

20

school?

21

A. I think she said a month.

22

Q. Are there any circumstances according to her testimony in

23

which she would monitor the depth of anesthesia of an inmate

24

during an execution?

25

A. No.

-56-

1

Q. To your understanding, and based on your review of the

2

discovery materials and deposition, does any member of the

3

execution team, other than the doctor, Contractual Team B,

4

have any medical background?

5

A. Not apart from what I was talking about before where

6

there's perhaps remote first aid training.

7

Q. Now, moving to the left on PDX 16, is a yellow dot.

8

THE COURT: Before we move, why we don't take the

9

mid-morning recess. It's quarter of 11. We'll come back at

10

11:00. Thank you.

11

(Recess.)

12

THE COURT: Please seated. Mr. Hut, whenever

13

you're ready.

14

MR. HUT: Thank you, Your Honor.

15

BY MR. HUT:

16

Q. Dr. Heath, just before the break, we were going through

17

the labels that have been placed on demonstrative number 16,

18

and I was about to ask you to explain the legend on them and

19

the significance of the yellow dot labeled ETC?

20

A. That stands for Execution Team Commander.

21

Q. And how about the dots immediately in front of what

22

appears to be on the other side of a wall from execution team

23

commander, the green dot and the lavender dot?

24

A. EC is Execution Commander as opposed to Execution Team

25

Commander. Then the PTZ is Past Team Member Z.

-57-

1

Q. And is it your understanding their contemplation was to

2

be stationed in the execution room for the scheduled

3

execution of Vernon Evans in February?

4

A. Yes.

5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 2006, 21 22 23 24 25

Q. Now, you show a red dot in two places connected with a hashed line, and both red dots bear the label CTB.
Can you explain the significance of the two red dots connected with the dashed line? A. When I was drawing this out, CTB is Contractual Team B, the woman who puts the IVs in. And what I was doing a bit of mixture of things. I was trying to depict that so she spends some time in the execution room right next to the gurney and the prisoners. She's it putting in IV's, and then in the old executions, she would leave the room and come into the door and go into the preparation room, and then she'd be somewhere in the preparing room. But there was discorded testimony about where she's located in there. So I put an arrow and a question mark. I'm not really sure where she is, how close to the wall, or the window she is.
Now, or because of the change from August of
she no longer leaves the room and goes into the injection room, the preparing room. She stays in the execution room, just showing a bunch of different things as reasonably as I can on one picture. Q. I'd now like to explore, Dr. Heath, the nature of the

-58-

1

drug Maryland has chosen, since the Court has some

2

familiarity with this from the hearing in January, and in

3

other ways, I want to do this as briefly as I possibly can.

4

In brief, as the Court knows, the plaintiff

5

contends that the drug choices are poor. And I'm thinking

6

that the Pavulon and potassium chloride in particular

7

threaten grave harm, and better drugs in any event in the

8

categories generically specified by the statute could have

9

been chosen.

10

MS. MULLALLY: Objection. Is that a question?

I'm

11

sorry.

12

THE COURT: I'll overrule the objection. Keep

13

going, please.

14

BY MR. HUT:

15

Q. Dr. Heath, can you just describe for the record, or

16

remind the Court the three drugs that are used in Maryland's

17

lethal injection and in what order and in what doses they are

18

administered?

19

A. Sure. It's like every state has now, is now doing it's

20

three drugs. First one is an anesthetic drug, thiopental,

21

also called pentothal. That's the anesthetic drug.

22

The second drug is the paralyzing drug. It's

23

called Pancurium Bromide, also called Pavulon.

24

Third drug is the drug that actually stops the

25

heart and cause death. That's potassium chloride. We mostly

-59-

1

call it potassium.

2

Q. How about the doses in which Maryland injects each of

3

these?

4

A. Maryland is intending to give three grams of thiopental,

5

the anesthetic drug, and 50 milligrams of pancuronium, the

6

paralyzing drug, although they actually talk about giving 50

7

milliquivalence, but I'm pretty sure they mean 50 milligrams.

8

And the potassium is 50 milliquivalence.

9

Q. Let me ask you, Dr. Heath, to turn in the book, if you

10

can, to plaintiff's trial exhibit 18. And let me ask you,

11

Dr. Heath, whether you recognize exhibit 18?

12

A. Yes.

13

Q. What is it?

14

A. This is the first page of the package insert for

15

thiopental or pentothal.

16

Q. If you page through the hard copy of your book at page

17

18, or tab 18, the end copy runs beyond the first page?

18

A. Yes, it's got a total of 10 pages.

19

Q. Please turn to page 2 of exhibit 18. Are you with me?

20

A. Yes.

21

Q. Do you see a line just below the top of the page that

22

says contraindications?

23

A. Yes, I do.

24

Q. What is a contraindication?

25

A. It's sort of the opposite of an indication. Indication

-60-

1

is the reason we to do something, to do a procedure or to

2

give a drug, to perform some medical act. And a

3

contraindication is a reason to not perform that act, to not

4

give a drug or do a procedure.

5

Q. Do you see just below contraindications the line that

6

states absolute contraindication?

7

A. Yes.

8

Q. What is an absolute contraindication?

9

A. So in medicine, we're always balances risks and benefits,

10

and we don't need to do we only do a procedure if it has

11

potential benefit, we have a mindful of contraindication and

12

absolute contraindications would be one we would virtually

13

never do it if the absolute contraindication applied.

14

And that would be in distinction between a

relative

15

contraindication. But we'd try not do it. But if we needed

16

to, we could go ahead and do that.

17

Q. The first absolute contraindication, absence of suitable

18

veins for intravenous administration.

19

Did I read that correctly?

20

A. Yes, you're reading that correctly.

21

Q. Do you have an understanding as to what that absolute

22

contraindication means?

23

A. I think it's pretty self-explanatory. Don't use this

24

drug if you don't have a good vein to inject it into.

25

Q. Your understanding what could happen if sodium pentothal

-61-

1

were administered to someone without a good vein, without

2

suitable veins?

3

A. If there's -- if there's leakage, what we're talking

4

about extravasation, infiltration. The drug doesn't all get

5

delivered through circulation, and some of it ends up in

6

surrounding tissue.

7

Q. What could happen in that circumstance in a lethal

8

injection procedure?

9

A. Well, first of all, the drug isn't being delivered

10

properly into the circulation, into the brain.

11

Secondly, it's in the surrounding tissue, where

it

12

can cause damage.

13

Q. Now, with respect to the first of those, it has been

14

suggested earlier in this proceeding by Mr. Oakley that if

15

the anesthesia was not successfully delivered into the

16

system, then it would surely follow that the succeeding drug

17

--

18

MS. MULLALLY: Objection. We object to what Mr.

19

Oakley said in a previous proceeding in this case

20

THE COURT: I'll overrule the objection.

21

Q. Then the hypothesis went, then the succeeding drugs also

22

could not be delivered so there's no need to worry about the

23

paralytic effects of the Pavulon and the pain effects of the

24

potassium.

25

Do you -- in your opinion, is that a correct

-62-

1

hypothesis?

2

A. No, he's wrong.

3

Q. And why is that?

4

A. Well, there are a number of ways wherein there can be a

5

problem getting the thiopental in, but you still get enough

6

on the other drugs, for example, pancuronium to cause

7

complete paralysis. He doesn't seem to know those

8

circumstances exist, and so he's making an incorrect

9

assertion.

10

Q. Now, have you read the expert reports that have been

11

supplied in this action by Dr. Thomas Scalea and Mr. Benjamin

12

Laughton?

13

A. Yes, I have.

14

Q. And based on those reports, and assuming those gentlemen

15

were to testify to the opinions reflected in the reports

16

later, is it your medical that Vernon Evans could be a person

17

described by the first of these absolute contraindications?

18

A. Well, first of all, I should say that any person can have

19

difficult IV access. So if you're asking me is he a person

20

who could have difficult IV access, yes, he is, because

21

anybody can.

22

But on top of that, he's in a class of people who

23

have a major risk factor for being problematic, IV access,

24

and problems for giving drugs to intravenously. He has a

25

history of intravenous drug abuse.

-63-

1

And then one has to elevate the concern even

higher

2

when you have, you know, credible people, skilled and

3

proficient people assess him, and be concerned that there may

4

be a problem with access, or that if access is achieved

5

peripherally, that it's going to be a delivery problem.

6

So I haven't seen Mr. Evans myself. I've never

had

7

the opportunity to assess his system, but he can't discard

8

any of those things.

9

If I were in a hospital and planned to

anesthetize

10

a patient and I had that information, that would hugely

11

influence my plan.

12

Q. Do you see the further down the page, page 2, of trial

13

exhibit 18, the line warnings?

14

A. Yes.

15

Q. Could you read the second sentence under warnings, it

16

begins "this drug should be administered"?

17

A. The one that says this drug should be administered only

18

by persons qualified in the use of intravenous.

19

Q. And why, is it your opinion that this is an important

20

warning?

21

A. Yes, thiopental's a complex drug. Intravenous

22

anesthetics tend to be complex drugs. You have to understand

23

how to use them. And that understanding comes not just from

24

book knowledge, from reading the science about them, but also

25

from having practical experience using them, sort of like

-64-

1

riding a bicycle. You would have had have done it, you had

2

have to read about it and have done it in order to be

3

qualified.

4

Q. In your opinions, what types of persons are qualified in

5

the use of intravenous drug like thiopental?

6

A. Well, I think any physician could get qualifications as a

7

practical matter, the people who almost all thiopental was

8

used by anesthesiologist, it's not used very often now, but

9 10 11 12 13 they 14 15 16 17 18 19 20 21 22 23 24 25

when it was it was almost anesthesiologists, but occasionally an intensive care unit would use it, or neurologist who wanted to induce a coma, I think they used to use it occasionally.
And a neurosurgeon working with a neurologist,
would together agree that the patient should be placed in a thiopental coma, but it's -Q. How about certified registered nurse anesthetist? A. Yes. Sorry. Also nurse anesthetists. When we use thiopental, they also used it a lot. Q. In your opinion, are the individuals who administer the thiopental during Maryland lethal direction qualify in the use of intravenous anesthesia, such as thiopental? A. They're clearly not very qualified. Q. Are you aware, Dr. Heath, of any problems that have been encountered in mixing sodium thiopental when used for lethal injection?

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1

A. Yes.

2

Q. Could you describe those?

3

A. In Missouri --

4

MS. MULLALLY: Objection.

5

THE COURT: Overruled. You may answer.

6

A. Unclear exactly what happened the persons recollection

7

was blurry about it. But there was some range in the way of

8

the thiopental was applied, and when he tried to adapt to

9

that change, he -- in mixing the powder into the solution, he

10

couldn't get it all into solution. And so he made a change

11

to the protocol in terms of how much he was giving, because

12

he couldn't get it all into solution.

13

Q. What was the change in protocol that he effected?

14

A. He reduced the amount of thiopental that was being

15

administered.

16

Q. Briefly, Dr. Heath, is what is pancurium bromide, or

17

Pavulon?

18

A. So that's a drug that interferes with the communication

19

between nerve endings and muscles. It blocks the signal that

20

goes between a nerve and a muscle, and that results in

21

paralysis of all of our muscles that we normally can control

22

of our own volition.

23

Q. Are the muscles that are paralyzed, do they include the

24

diaphragm and other respiratory muscles?

25

A. Right. Even though we don't have total control of our

-66-

1

respiratory muscles, if we try hold our breath, eventually

2

our brain will force us to take a breath if we don't want to,

3

but apart from that we have great control, using it to

4

generate speech. And pancuronium blocks those muscles

5

completely.

6

Q. If the respiratory muscles in the diaphragm are

7

paralyzed, and that is not remediated, what will happen to

8

the individual?

9

A. They can't breathe, and they will suffocate.

10

Q. And how long would it take for suffocation caused by

11

Pavulon at the doses specified in Maryland lethal injection

12

to cause suffocation, if not immediate?

13

A. That sort of a difficult question to answer. It would

14

vary from person to person. There's no -- I'm not aware of

15

any science that's been done to answer this question, so I'm

16

just going to based on first principles and common sense

17

about these drugs.

18

He'd stop breathing. Most people lose

19

consciousness. They try very hard to draw breath, but they

20

can't, go through a period of excruciating desire to inhale,

21

and they can't do it.

22

And then they start to black out for lack of

23

oxygen, and that would probably happen after a couple

24

minutes.

25

And then after further time, the heart is not --

-67-

1

does not have enough oxygen, so it would stop pumping blood

2

and then that would be death.

3

Q. Does Pavulon affect consciousness or the ability to feel

4

pain?

5

A. Not at all. It doesn't even, the brain is surrounded by

6

membranes, which we call the blood brain barrier, and Pavulon

7

really doesn't enter that. Even if it did, there's no nerve

8

muscle connection there. So Pavulon has no effect on

9

consciousness or experience.

10

Q. Let me ask you this, then, in your opinion, could it

11

occur that an individual could be suffocating from paralytic

12

effects of Pavulon while remaining aware of what was

13

happening to him and unable to signal for help?

14

A. With certainty, that's exactly what would happen if you

15

gave Pavulon to an unanesthetized person, they would become

16

paralyzed, but they would be completely conscious of that

17

experience and of the suffocation until they blacked out from

18

lock of oxygen.

19

Q. Are you aware of any instances in which that has

20

occurred?

21

A. Are you talking executions or in medical settings or

22

both?

23

Q. Either.

24

A. Well, certainly, it occurs if people are paralyzed but

25

awake during surgical procedures. Generally, they're on a

-68-

1

ventilator, so they don't actually -- they wouldn't be

2

suffocating.

3

But they're in their own form of unpleasantness.

I

4

will guess we would say they are in extreme pain. They're

5

awake and can feel the pain of surgery. Even though that

6

pain can be very great, they're completely unable to move or

7

indicate in any way they're awake.

8

Q. Is that called intraoperative awareness?

9

A. Yes.

10

Q. Does pancurium bromide, in your opinion, Dr. Heath, serve

11

as medical purpose in Maryland lethal injection executions?

12

A. None whatsoever. It serves the opposite of the medical

13

purpose. It gratuitously increased the risk of the procedure

14

being inhuman and preventing people from recognizing it and

15

doing anything about it.

16

Q. If there's no medical purpose, to what purpose, if any,

17

in your understanding, was Pavulon used?

18

A. There is a concern that witnesses would observe movement

19

during death, what we call agonal movements or terminal

20

movements, and those movements are real. They do occur in

21

many patients, and there's every reason to think that they

22

occur in some executions. They've been seen in a number of

23

execution. So I think they're a fact that they occur.

24

And the thinking is that by stopping those

25

movements, the execution will be more, you know, palatable or

-69-

1 2 it's 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21

less disturbing for witnesses. And in some jurisdictions, I can't remember if
in Maryland, it's also done to make it more psychologically tolerable for the execution staff. But I can't remember if that was articulated here or not. Q. In lay terms, are agonal and terminal movements that you mentioned things like jerking and spasms and twitching? A. Exactly, yes. Q. Do you think -- and this may be implicit in your last answer, but let me bring it out, in your opinion, does jerking or do seizures necessarily occur during all lethal injections in the absence of pancurium bromide? A. My opinion is based on speculation and conjecture, which is based on my medical knowledge and understanding of these drugs, because executions haven't been --
MS. MULLALLY: Objection, Your Honor, if his opinion is based on speculation and conjecture. I understand he has many credentials, but I don't believe he's allowed to speculate to this Court. Q. Let me rephrase the question and see if I can put this better.

22

Based on your medical knowledge and experience,

is

23

it your opinion that absent USE of pancurium bromide jerking

24

and spasms and twitching would necessarily occur in all

25

executions?

-70-

1

A. I don't think it would occur in all executions. But

2

clearly it would occur in some of them.

3

Q. Are you familiar, Dr. Heath, with principles of medical

4

ethics?

5

A. I'm not an expert in it, but all physicians get some

6

exposure to that.

7

Q. Based on --

8

A. Not during just during our training, but during our

9

practice.

10

Q. Based on your exposure during the course of your

11

practice, can you tell the Court whether medical ethics speak

12

to what physicians should do for the benefit of loved ones at

13

the time of the death of the -- impending death of a close

14

relative or a friend, when that individual about to undergo

15

death may suffer for twitching or jerking or movement?

16

A. First of all, we don't let them suffer from twitching,

17

but they sometimes exhibit it. The medical ethics speak to a

18

common situation in intensive care units, where we determine

19

that further carries futile and undignified and improper, and

20

in discussions with the family, we decide that it's

21

appropriate to withdraw supportive therapy, since that

22

therapy is keeping the person alive when we withdraw it, they

23

will die, sometimes quickly and sometimes over a period of

24

hours.

25

And many times the family wants, or usually they

-71-

1

want to sit at the bedside in the intensive care unit and

2

hold the hand. It's a very sad time and an important time

3

for everybody.

4

And we spend a lot of time bringing the family up

5

to speed, telling them what we think is going to happen. Our

6

best guess, at the array of different things that can happen,

7

they want to know how long will this take, will they suffer,

8

and we talk to them about that.

9

One of the things we tell them is that, as the

10

person's dying, especially when the heart, when the

11

circulation gets very sloppy, and the heart stops, there can

12

be these movements, agonal or terminal movements, and it's

13

important to explain to the families that these are not

14

representative of suffering or anything like that, but

15

they're just a natural thing that happens when an animal or

16

person dies.

17

Q. Based on your understanding, acquired in the course of

18

your practice, is it medically ethical in that circumstance

19

to administer a neuromuscular blocking agent like pancurium

20

bromide to the individual on his current death bed?

21

A. No, that would be against my ethics. But it's also been

22

articulated by committees that have reviewed this.

23

Q. And as with end of life loved ones, in your opinion,

24

could witnesses to an execution, or for that matter execution

25

staff, be told that there might be jerking or spasms or

-72-

1

twitching in connection with death during an execution?

2

A. Oh, yes. In some states I know they are told that, but

3

in some states they do see twitching and jerking and

4

convulsions, so they tell people ahead of time to be prepare

5

for it.

6

Q. Let's turn to potassium chloride, is it as administered

7

in Maryland lethal injection intended to cause cardiac

8

arrest?

9

A. I can't exactly speak to the intention, but it was just

10

copied, my understanding from, the Delaware protocol, which

11

was itself copied. I'm not sure I'd use the word

12

intentional, but that's the effect it achieves, it's the

13

agent that stops the heart.

14

Q. In ordinary medical usage would a large dose of potassium

15

chloride ever be administered to an unanesthetized patient?

16

A. Never.

17

Q. Why not?

18

A. First of all, it would kill them if it's given rapidly.

19

Secondly, it would, if it were high

concentration,

20

it would be agonizing.

21

Q. What is the mechanism or mechanisms by which potassium

22

chloride would inflect agonizing pain if unanesthetized while

23

administered?

24

A. It's similar how it stops the heart. The heart is an

25

electrical organ and so are nerves. The way they fire their

-73-

1

electrical signals is using ions, potassium and sodium ions,

2

to make those electrical signals.

3

And if a high concentration of potassium ions are

4

outside of a nerve cell or outside of a cardiac cell, they'll

5

interfere with electrical activity of that cell, they could

6

fire very excessively.

7

So if it's a heart cell, it means the heart

8

basically seizes up. If it's a nerve cell, it makes the

9

nerve cell fire off signals as though it were being very

10

stimulated.

11

Q. Are there nerve cells or nerve fibers on the inside of a

12

human's vein?

13

A. Yes.

14

Q. And can you describe generally the quantity?

15

A. Well, veins are richly innervated and can deliver a

16

tremendous amount of pain. I think people scream from drugs

17

that are causing burning in their vein.

18

Q. In lay terms, and perhaps you've just said it, what would

19

the administration of a large dose of potassium chloride feel

20

like to an unanesthetized individual?

21

A. Well, in these kind of concentrations that we're talking

22

about here, it would cause maximum stimulation, maximal pain

23

that the vein can deliver. I think they'd scream unless they

24

were incredibly stoic.

25

Q. Was anyone involved in Maryland execution, Dr. Heath, to

-74-

1

your understanding, to ensure that an inmate is sufficiently

2

anesthetized prior to the administration of potassium

3

chloride?

4

A. Nobody's doing that.

5

Q. Now, based on your review, Dr. Heath, of the documents

6

produced by the state here in discovery, and the deposition

7

testimony, have you acquired some familiarity with the

8

history of Maryland's lethal injection protocol?

9

A. A little bit of familiarity, yes.

10

Q. Have you reviewed the deposition testimony of Past Team

11

Member M?

12

A. Yes.

13

Q. Do you recall what Past Team Member M's involvement was,

14

if any, in the creation of the lethal injection protocol?

15

A. I think so, yes.

16

Q. What was that?

17

A. He went to Delaware, and they gave him their protocol,

18

their written protocol. And then he copied that

19

word-for-word into the - to make the initial version of the

20

Maryland protocol, and then that has since been modified.

21

Q. At the time he created the Maryland protocol in the way

22

you just described, based on your review of his deposition,

23

did he consult with any doctors?

24

A. No.

25

Q. I think you testified, but let me just establish again,

-75-

1

if I can, have you studied the history of lethal injection in

2

the United States?

3

A. I have, yes.

4

Q. What have you done to do so?

5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 drug 25

A. It's not well-documented anywhere. And so I you know corresponded with the actual individuals who, to my understanding, and to their representations, are the people who created it. Q. Based on your review of that history, do you know whether the drugs used in Maryland are used by other states? A. Yes, they are. Q. In light of the testimony that we expect to hear later in this proceeding, and I apologize if I've asked you this already, are you familiar with the Ohio protocol? A. Basic outlines, yes, you know I haven't studied it specifically for this case, but I know what its main outlines are, yes. Q. Does Ohio use the same three drugs as Maryland? A. Yes, it's basically the same thing. Q. To your recollection, based on your review of the deposition testimony of Pat Team Member M, was there any review process -- let me withdraw the question and ask it this way.
In connection with the adoption of this three-
protocol in other states before it was done in Maryland, to

-76-

1

your understanding, was there any review process by

2

additional medical doctors?

3

A. No. When I first tried to find out what was happened, I

4

assumed there would be some sort of panel of experts who sat

5

down, or committee, and talked it through and come up with

6

some good way of doing it.

7

In fact, it's the opposite. There was never any,

8

you know, people putting their heads together to talk about

9

the pros and cons of different methods and to come up with

10

what's being used now.

11

Q. Did the State of Maryland ever subject its lethal

12

injection protocol or procedures to professional reviews by

13

doctors?

14

A. Not that I can see.

15

Q. Who, Dr. Heath, is Ray Chapman?

16

A. Jay Chapman.

17

Q. Jay Chapman? Excuse me.

18

A. Jay Chapman, he's a physician who was the Chief Medical

19

Examiner in Oklahoma, when Oklahoma brought back the death

20

penalties I think in the 1970s.

21

And he was asked by a legislator, a state

22

legislator, to help him devise a method of executing people

23

by lethal injection.

24

Q. Is Jay Chapman a doctor?

25

A. Yes. He's a medical examiner, a pathologist.

-77-

1

Q. And did he devise for Oklahoma the same three-drug

2

injection as used in Maryland?

3

A. Well, what happened is he went over to the legislator's

4

office, and they took out a yellow legal pad, and he just

5

dictated the statutory language. And it's actually he just

6

mentioned two drugs. He says a continuous infusion of

7

ultra-short acting barbiturate, which is be thiopental, and

8

then a chemical paralytic. He didn't talk about three drugs,

9

just two drugs. That became -- that was adopted

10

word-for-word as the statute.

11

Q. Have you communicated with Dr. Chapman concerning his

12

views about lethal injection as practiced today?

13

A. Yes.

14

Q. Did Dr. Chapman indicate to you in any way his view of

15

whether lethal injection as practiced today is a good thing?

16

MS. MULLALLY: Objection.

17

THE COURT: I'll overrule the objection.

18

A. Yes, he did.

19

We talked about what the problems are. Yes, the

20

answer is yes.

21

Q. And did Dr. Chapman indicate whether, if he knew today or

22

if he knew at the time, he advised in connection --

23

THE COURT: Well, what did he say?

24

A. Pretty long correspondence, but if I could just say the

25

thrust of it is is that he thought this would be done by

-78-

1

people who knew what they were doing. I think at one point

2

he used the word "idiots," if he knew it was being done by

3

idiots, he wouldn't have set it up this way or wouldn't have

4

supported it, or something like that. I forget the exact,

5

exactly how he was saying it.

6

But to my mind was he thought it would be

7

professionals doing it. It didn't cross his mind that it

8

wouldn't be experts.

9

He also said, in retrospect, the choice of

10

thiopental was a mistake. I think he meant because it's not

11

being done by experts.

12

Q. Dr. Heath, as lethal injection is performed in the states

13

that use it, to your knowledge, are there physicians who

14

participate in the process?

15

A. Yes, there are, in some states.

16

Q. Can you tell the Court what you know about that

17

participation?

18

A. It's a pretty big subject.

19

Q. Let me ask it this way, have you seen any articles or

20

come across any literature that has detailed the

21

participation of individual doctors in the lethal injection

22

process?

23

A. Sure. I've read articles. I've talked to doctors who

24

have been involved. I've read depositions or transcripts of

25

physicians, lots of -- there's a lot of information about

-79-

1

that.

2

Q. Are doctors involved in states in the placement of a

3

central line?

4

A. Definitely, yes.

5

Q. What states, if you know?

6

A. Oh. Georgia, Missouri, Texas, Arkansas, Indiana. I'm

7

missing a lot. It's commonplace. I just want to make sure I

8

don't misstate anything. But it's common for central lines

9

to be needed for states to have needed central lines, and

10

they're done by doctors. Arizona.

11

Q. Based, Dr. Heath, on your review of the depositions in

12

this case, do you believe that the execution team in Maryland

13

has any medical knowledge about the drugs used in their

14

respective effects?

15

A. No. They either testified that they don't know, or they

16

say something that's flat-out incorrect. I'm not sure which

17

one is worse.

18

Q. Do the people who administer them, in your opinion,

19

understand what the drug do?

20

A. No. Same thing, they either don't know, or they've got

21

it backwards. And, again, I'm not sure which one is worse.

22

Q. And based on your review, do any of the members of the

23

team know why the drugs were selected?

24

A. No.

25

Q. Now, in your opinion, Dr. Heath.

-80-

1

THE COURT: Before we move away from that

subject,

2

I wasn't able to write fast enough.

3

This series of three questions concerning the

4

knowledge of the people administering the protocol in

5

Maryland, and the three subjects were what again, doctor?

6

You said they didn't know what the drugs do?

7

THE WITNESS: I said you get different answers.

In

8

the deposition the attorney would say can you tell me, do you

9

know what pancuronium does? Sometimes the person would say I

10

don't know. Or sometimes they would say I think it numbs the

11

body, which is terrible. That's the opposite of what it

12

does. It paralyzes the body, but leaves the body completely

13

able to sense pain.

14

THE COURT: So that the people who administer,

15

based upon the depositions that you reviewed, the members of

16

the Maryland execution team, either did not know what the

17

three drugs did medically, or they were incorrect?

18 19 they 20 21 22 23 24 25

THE WITNESS: Right. THE COURT: They either said I don't know, or
were incorrect? THE WITNESS: That's exactly right. THE COURT: Good. Thank you.
BY MR. HUT: Q. Now, Dr. Heath, as a general matter, is it your opinion that it is important for a person to have training in general

-81-

1 2 3 4 5 6 7 been 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

anesthesia if she or she is going to induce anesthesia? A. Absolutely, yes. Q. And why is that? A. Well, in the essential part of inducing anesthesia is being able to assess the anesthetic depth as it's changing, as one's proceeding through the induction.
And as one's determining the induction it has
satisfactory and complete, the assessment of anesthetic depth requires training. Q. During and after the administration of an anesthetic agent, do you and other anesthesiologists monitor the depth of anesthesia in a patient? A. Yes. Q. What do you do in order to do that? A. It's a little bit difficult to describe is what we call ineffable, how do you ride a bicycle, you say you turn the pedals and move the steering wheel, but it's really more than those things.
We're standing right at the bedside and are actually at the head of the bed, in most cases, and we have an array of monitors that are providing us with a continuous stream of information about the patient's vital signs and other status. And we're also observing what the surgeons are doing, and making assessment of how stimulating that will be. And then looking for responses that we see in those monitors.

-82-

1

And then whenever we're able, which is in the

2

majority of cases, we're assessing the patient's actual skin

3

and appearance, we can assess the moisture on their skin

4

because people who are paralyzed but awake sweat a lot,

5

Or start to sweat, and that moisture, as it comes on, can be

6

a warning sign they're getting light or not anesthetized

7

properly.

8

We look at the pupils, look for movement in

9

unparalyzed patients. And, obviously, it would be completely

10

wrong to use movement as an indicator in a paralyzed patient,

11

which most of my patients are paralyzed.

12

So, basically, we're integrating and synthesizing

13

many different streams of information and constantly

14

evaluating to come up with a real time rolling assessment of

15

where the patient the is in terms of their pain and

16

anesthesia.

17

Q. Do you look for signs that patient may not be

18

anesthetized?

19

A. Absolutely, yes.

20

Q. And what are those signs?

21

A. Things like a high heart rate, elevated blood pressure,

22

the moisture of the skin, the size of the pupils, movement,

23

lacromation, lack of formation of tears in the eyes.

24

We have monitors that look at the electrical

25

activity in the brain. They can be useful adjuncts to help

-83-

1

us assess the depth, a range.

2

Q. What does lacromation indicate, in particular.

3

A. When I see a patient forming a tea while they're under my

4

care, while they're paralyzed I'm extremely concerned that

5

they're too light.

6

Q. How, if at all, do you confirm that the requisite plane

7

or depth of anesthesia has been achieved?

8

A. Well, we never know for certain. The only -- we're just

9

-- we're using our training and skills and information to

10

come up with our best assessment of what the depth is. And

11

it's partly art, partly science. We do our best.

12

The only way we know if we do a post-operative

13

interview with the patient, we ask them what's the last thing

14

you remember?

15

They'll say I remember going to the operating

room,

16

or something like that. And we'll ask what's the next thing

17

you remember? They'll say next thing I know I was in my

18

hospital room and my sister was sitting next to me.

19

Even that doesn't prove they didn't have

awareness.

20

People can have awareness but then not remember it. That's

21

the best we can do.

22

Q. This may be self-evident, but let me ask it anyway. In

23

your opinion, is it necessary to monitor the depth of

24

anesthesia before forming a potentially painful procedure?

25

A. It's essential, yes.

-84-

1

Q. And why is that?

2

A. If you don't know what the depth is, then you can't make

3

your best educated assessment of whether it's adequate for

4 5 6 7 8 9 10 11 12 13 14 15 16 17 harm 18 19 20 21 22 23 24 25

the procedure that's about to occur. Q. With respect to your earlier testimony that the dose of thiopental used in Maryland executions is three grams, is that a relatively large dose? A. Yes, it is. Q. In your opinion, is it necessary to monitor the depth of anesthesia even when a comparably large dose is being administered? A. Absolutely. Q. Why is that? A. Because our goal is to get the right anesthetic depth. And while we do things that we think are going to lead to that state, they don't always do that.
So since it's easy to assess depth, it doesn't
the patient to do it. There's no medical cost to doing it. We do that. Q. In your opinion, Dr. Heath, must monitoring the depth of anesthesia be done by someone with appropriate medical training? A. Well, yes. Otherwise, it's not meaningful. You can't do this if you don't know how to do it. Q. In your opinion, doctor, is the selection of a

-85-

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 know 24 25

barbiturate that is described as an ultra short-acting like pentothal, is a good one for the lethal injection process? A. I agree with Dr. Chapman, the person who conceived the protocol that in retrospect, given that we what we now know how lethal injection is being practiced, it was not a good choice. Q. Why? A. Because it can wear off quickly, and there are alternatives that don't wear off quickly that take a very long time to wear off. Q. In your opinion, does the statutory prescription for ultra short-acting barbiturate affect in any way the need to maintain an adequate depth of anesthesia? A. I'm not sure what you mean. You're asking me to interpret the statute? Q. No. Let me try again.
What does the statute's prescribing an ultra short-acting barbiturate mean for the need to maintain an adequate depth of anesthesia, in your opinion? A. Well, the statute dictates whatever statutes do. It specifies, instructs that a continuous infusion of an ultra short-acting barbiturate be given.
Dr. Chapman, the person who conceived this, we
was cognizant of the short-acting properties, which is why he wanted it to be flowing, you know, continuously.

-86-

1

So if there was some problem with administration,

2

it would be less likely to wear off, because you're giving

3

more, if the IV's working properly. I'm not sure if that's

4

what you're asking about.

5

Q. I think so. Let me move to a related but different

6

subject.

7

Based on your review of the execution manual and

8

the review that you've made of the depositions, does the

9

Maryland lethal injection procedure specify that a medically

10

qualified person monitor the anesthetic depth of an inmate?

11

A. It doesn't mention anesthetic depth anywhere. It

12

certainly doesn't specify that somebody be charged with

13

ensuring that the depth is adequate.

14

Q. Based on your review of the testimony, and without regard

15

to what the manual or protocol specifies, is anyone on the

16

execution team, as you understand it, actually assigned to

17

monitor the depth of anesthesia?

18

A. Nobody's assigned to do that job.

19

Q. To your knowledge, does anyone in execution has training

20

in anesthesia?

21

A. Nobody does, except for the Contractual Team I think one

22

month in medical school.

23

Q. In your opinion, do these factors raise reasonable

24

concern about the practice of lethal injection in Maryland?

25

A. Yes, they do.

-87-

1

Q. Why?

2

A. Well, if you're going to use potassium, which is

3

extremely painful, you have to make sure that the person's

4

adequately anesthetized, unless you want to treat the person

5

worse than you treat a dog.

6

Q. At New York Presbyterian where you work, Dr. Heath, would

7

a certified nursing assistant ever be tasked or assigned with

8

monitoring the depth of anesthesia of a patient?

9

A. I'm not sure if New York State has -- whether or not New

10

York State has somebody who's termed a certified nursing

11

assistant. But I would say this, only -- the only people who

12

we would ever allow to monitor anesthetic depth is somebody

13

under general anesthesia would be an anesthesiologist,

14

attending anesthesiologist, or anesthesiologist in training,

15

or a certified registered nurse anesthetist, which is a

16

special kind of nurse who's highly and specifically trained

17

to work anesthesia field.

18

Q. And you read the deposition testimony of Contractual Team

19

B; is that correct?

20

A. Yes.

21

Q. Did you read the portion of the deposition in which she

22

described her medical training?

23

A. Yes.

24

Q. Did you read, or have you reviewed the CV of Contractual

25

Team B?

-88-

1

A. Yes.

2

Q. In your opinion, is Contractual Team B a certified

3

nursing assistant qualified to administer or monitor

4

anesthesia?

5

A. Not at all.

6

Q. I'd like to now show you a small portion of a videotaped

7

deposition of Contractual Team B. And perhaps the way do

8

this, can we move the monitors just away from the courtroom

9

so that individuals in the back are not able to see the

10

monitor.

11

MS. MULLALLY: Your Honor, the defendants would

12

object to this.

13

THE COURT: Well, we talked about this a couple

14

days ago. Can't you arrange the monitors, Mr. Thompson, so

15

that only I can see and the doctor can see?

16

THE CLERK: I can arrange so that you can see,

the

17

three monitors that are working is where counsel is, this

18

one, and yours.

19

MS. MULLALLY: Your Honor, that is not the basis,

20

I'm sorry, of the defendant's objection.

21

It's -- we're not objecting to who can see. I

22

think we've already covered that. We're objecting to that

23

being the basis. He needs to testify based upon his

24

recollection.

25

He hasn't been asked if he needs his recollection

-89-

1

refreshed in any way, and what we're concerned about is this

2

snippet of deposition will be into evidence in the case and

3

that the Court will consider it, whereas it's really, if at

4

all usable only for the witness to review if he cannot recall

5

what he had to say on this point.

6

THE COURT: Well, Mr. Hut, the purpose for

playing

7

the part of the deposition is what again?

8

MR. HUT: Well, I think it is to ask him his

9

opinion about the implications of that testimony. I think

10

that it is the usual function, Judge Legg, of an expert, to

11

provide opinions based on his understanding of the facts.

12

This testimony is part of the factual record in

the

13

case. We're not offering to put it in at this time as

14

evidence. It will either come in because Contractual Team B

15 16 17 18 19 20 21 22 23 24 25 turn

will testify consistently in their deposition or if not she will be impeached with her deposition and her prior inconsistent statement would then come in under Rule 801(a).
But I think this is -- we're not going do this in excess of -- there may be five or six times as we go through the testimony of Dr. Heath where I would like him to view the deposition and to tell the Court in his opinion what its implications are.
THE COURT: Good. I'll overrule the objection. Say again who's going to be able to see the picture?
THE CLERK: You'll see -- actually, I can just

-90-

1

off the others.

2

MR. HUT: If we turn off our three monitors, it

can

3

be left on for the witness, for Your Honor, for Mr. Thompson

4

and Miss Short, and I think this is off, anyway.

5

Is that satisfactory?

6

THE COURT: That's satisfactory.

7

(Pause.)

8

(Tape played)

9

BY MR. HUT:

10

Q. Dr. Heath, my question to you is what, if anything, in

11

your opinion, does this testimony say about Contractual Team

12

B's understanding of anesthesia?

13

A. It's very rudimentary. She asked to discuss anesthetic

14

depth. She relies on movement, things that require control,

15

voluntary movement.

16

And in most of our patients, when they're

17

paralyzed, that's the one thing you can't rely on. It will

18

completely deceive you if you try to rely upon that.

19

Q. Dr. Heath, to your recollection and understanding, does

20

Maryland's lethal injection protocol call for the injection

21

of the drugs in any particular rate or speed?

22

A. It does, yes.

23

Q. Do you recall what rate is prescribe in the protocol?

24

A. Between one to one and a half cc's per second.

25

Q. And is that the same to one to one and a half milliliters

-91-

1

per second?

2

A. That's the same thing.

3

Q. In New York Presbyterian, are drugs or fluids ever

4

injected at a fixed or prescribed rate?

5

A. I wouldn't do that for the induction of general

6

anesthesia. There are some drips that we would set up at a

7

prescribed rate, but for injecting from syringes by hand,

8

never.

9

Q. Tell the Court why you would not do that for the

10

injection of anesthesia?

11

A. We -- when we inject drugs, we're doing it at the right

12

rate for that person. It's hard to describe. It's a

13

combination of knowing about the IV, the size of the

14

catheter, whether their veins are thin or likely to rupture,

15

the pressure feeling from the syringe.

16

All we can say is we give it at the right rate.

We

17

do from experience. It's a little hard to put into words

18

better than that.

19

Q. As you're administering anesthesia, as you just described

20

it, would you vary, would you have occasion to vary the rate

21

at which you're injecting the anesthesia depending on the

22

manifestations of a particular patient?

23

A. Well, yes. If I'm injecting the drug and I start, and I

24

feel back pressure as we call it on the syringe plunger, it's

25

not advancing as smoothly as I expect, first of all, I need

-92-

1

to investigate what the cause of that is, but it would

2

influence how much pressure I'm willing to apply.

3

Q. Are you able to say whether you consider the rate of 1 to

4

1.5 cubic centimeters a second to be a fast rate of speed for

5

administration of an anesthetic drug?

6

A. It's relatively fast. Again, depends on the individual

7

person, the IV's, overall conditions.

8

Q. Would you consider it fast in a person in whom venous

9

access might be problematic?

10

A. If you're concerned, in particular, you're always

11

concerned of IV, but if you have a person where it's of

12

particular concern, you're very tentative with the injection.

13

The important thing to do is get the drug in, and moving

14

quickly is very rarely a consideration, but there are exigent

15

circumstances where we need to move quickly. But in a great

16

majority, we don't. We could never sacrifice security for

17

speed. Only in exigent circumstances would we sacrifice

18

security for speed.

19

Q. Would one to one and a half cubic centimeter, would be

20

fast for a person with intravenous drug use?

21

A. I think that would increase the chance of blowing their

22

vein. I would be much more tentative if I was concerned

23

about their venous system.

24

Q. Does the size of the IV catheter matter in determining

25

the proper rate of flow or injection for an anesthetic?

-93-

1

A. It's hard to describe this. There's -- you don't want to

2

give it too fast. You don't want to give it much too slowly,

3

but giving slowly is rarely, if ever, a problem, only a

4

problem during certain kinds of inductions do we need to do

5

it quickly.

6

But in the normal scenario, giving it too slowly

is

7

not going to be a problem, so we give it at a reasonable

8

speed for that person.

9

We would not specify a specific rate. I've never

10

told a resident give it at a half cc per second or 1 cc per

11

second or anything like that.

12

Q. Let me ask you this question, have you encountered

13

situations in which you encounter resistance to the

14

administration of anesthesia?

15

A. Where the plunger doesn't advance as easily as I was

16

expecting, absolutely, yes.

17

Q. If you're encountering resistance, would you push harder

18

on the plunger or less hard?

19

A. I would push less hard. But, first of all, I would have

20

to determine why I'm encountering that resistance. That's a

21

cardinal sign of a problem, potential problem, and so you

22

can't just ignore it and keep pushing.

23

But the best answer to your question I would

24

certainly push less hard.

25

Q. And you reviewed the deposition testimony of Contractual

-94-

1

Team A, who pushes the syringe plunger in Maryland?

2

A. I have, yes.

3

Q. Do you recall that Injection Team A testified that he

4

always pushes the drug within a certain window of time?

5

A. Right. He's aiming for that rate they're specifying.

6

Q. Do you recall whether he testified concerning whether he

7

ever varies the rate of injection to make it faster or

8

slower, depending on circumstances?

9

A. I think he's trying to keep the rate about the same, but

10

he has to push harder. He says he pushes harder if he feels

11

more resistance, because he's clock watching, in effect.

12

He's trying to get the job done in a certain amount of time.

13

Q. In your professional opinion, is pushing harder to

14

achieve the injection in a certain amount of time, if

15

resistance is encountered, the correct thing to do?

16

A. It's ridiculous. And dangerous.

17

Q. Do you recall testimony by Contractual Team A that he

18

adjust the pressure on the syringe plunger on the Baker

19

execution because the state used a smaller catheter in that

20

execution?

21

A. I recall something along the lines of that, but not to

22

the specificity that you're asking about. Give me a

23

transcript, that could help.

24

Q. Perhaps we can use a video clip for a moment, I think,

25

Your Honor to refresh the recollection of the witness. This

-95-

1

is --

2

MS. MULLALLY: Objection, Your Honor.

3

Q. Page 80, line 13.

4

THE COURT: Overruled. Go ahead.

5

(Tape played)

6

BY MR. HUT:

7

Q. Based on his description of his actions in the Baker

8

execution, do you believe that he pushed harder or less hard

9

on the syringe plunger given the use of a smaller catheter?

10

A. So overall both from him and from Injection Team E,

11

they're -- when things, when they get a counter-resistance or

12

slowdown, they fight against it. They push harder against

13

it. They tried to speed thing up.

14

And that's backwards from what one needs to do,

15

especially if you're doing this from a different room, which

16

you ought not to be doing in the first place.

17

Q. Do you recall the testimony of contractual B concerning

18

the use of a small catheter with Wesley Baker?

19

A. Yes.

20

Q. Do you know the reason she gave for use of a small

21

catheter?

22

A. I don't remember the exact wording, no. She felt it was

23

indicated, but I don't know exactly what the thinking was.

24

Q. Does it refresh your recollection if I say it was because

25

he had a history of intravenous drug use?

-96-

1

A. I have to -- I don't specifically recall that you'd have

2

to show me the transcript so I can comment for the Court. Or

3

video, something.

4

Q. Let's see if we can refresh your recollection with a bit

5

of her testimony.

6

(Pause.)

7

MS. MULLALLY: Your Honor, I'd like to make a

8

continuing objection to the playing of all of these video

9

snippets.

10

THE COURT: Certainly, that would more efficient.

11

I'll be happy to give you a continuing objection.

12

MS. MULLALLY: Thank you.

13

(Tape played)

14

MS. MULLALLY: Your Honor, I would object, then,

to

15

Mr. Hut's characterization of Baker having -- Baker having

16

been in an IV drug abuser. I don't believe there's been any

17

testimony in that snippet.

18

MR. HUT: I agree. It doesn't seem to be the

19

correct clip. We'll see if we can correct that over the

20

lunch break. I'll pass to another question.

21

THE COURT: Why don't we do this, since you're

22

moving to another subject, it's 12:10, we'll break for lunch

23

at 1:00, but why don't we just take a 10-minute recess just

24

to stretch? Thank you.

25

(Recess.)

-97-

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 speed 22 23 24 25

THE COURT: Please be seated. Mr. Hut, whenever you're ready.
MR. HUT: Thank you, Your Honor. BY MR. HUT: Q. Dr. Heath, do you recall from testimony that you have reviewed whether Injection Team E communicates with Contractual Team A if the latter pushes the drug by pressing the syringe plunger? A. Yes. There is that communication, yes. Q. If Contractual Team A is encountering resistance, do you recall what Injection Team E testifies, that Injection Team E would do with the flow clamp, that wheel that you showed the Court earlier? A. Show Injection Team E, even though he's not injecting, he's controlling the IV flow system, he has his hand on the flow manipulator the thing you can turn to control the rate of flow.
And if that's the flow that's going through the tubing, and then at the same time, the other gentleman is injecting with the syringe into that tubing.
And so Injection Team E, paradoxically, will
up the flow of fluid, if Contractual Team A says, the syringe injector says he's having a hard time injecting, he'll speed up the flow of fluid from the IV bag toward the prisoner. Q. When you say paradoxically, in your opinion is this what

-98-

1

one ought to do if one is encountering resistance?

2

A. It makes no sense at all, within the whole context of

3

this thing isn't sensibly structured, it makes -- it's a

4

further lack of sense.

5

Q. And if it turns out that the drugs were easy for

6

Contractual Team A to push, that there was relatively less

7

resistance, what does Injection Team E testify that he would

8

do with respect to the flow regulator?

9

A. Then he would slow it down.

10

Q. In your opinion, is that the correct approach?

11

A. It's all incorrect, and but, yes, but within that

12

incorrect structure, it makes further nonsense.

13

Q. Are you familiar, Dr. Heath, with the deposition

14

testimony about how Maryland went about choosing the rate of

15

speed, the one to 1.5 cc per second?

16

A. I don't recall exactly where it came from. What I

17

remember there was testimony about that.

18

Q. Let me ask you this, do you recall from the testimony

19

whether the rate of speed, 1 to 1.5 milliliters per second

20

was specified in the original lethal injection protocol?

21

A. It was not. It was added in later on.

22

Q. Is it your recollection, or do you recall how the

23

Division of Correction arrived at that particular rate?

24

A. There were conversations about it, but I don't recall the

25

exact nature.

-99-

1

Q. Let me see if I can show you a portion of the deposition

2

testimony from Past Team Member Z, and see if that reflects

3

your recollection.

4

This is from the transcript of past team member Z

5

page 44 lines 2 to 19.

6

(Tape played)

7

Q. Dr. Heath, in your opinion, would a certified nursing

8

assistant, like Contractual Team B, advise on the rate of

9

injection for anesthesia at the hospital in which you work?

10

A. It's absurd. No, she will not.

11

Q. Is a certified nursing assistant, like Contractual Team

12

B, qualified in your opinion to select a greater flow for

13

administration of anesthetics?

14

A. Not at all.

15

Q. Do you recall how Contractual Team B in her deposition

16

characterized a drug injection rate of 999 or approximately a

17

thousand milliliters per hour?

18

A. She said that was a fast rate.

19

Q. Approximately how many milliliters per second does a

20

thousand per hour or 999 an hour translate to, if you know?

21

A. That there're 3,600 seconds in an hour. So if giving a

22

thousand cc's in those 3,600 seconds, it's a little less than

23

a third of cc per second. It's much -- it's about three to

24

five times slower than what they're giving in their lethal

25

injection context in Maryland.

-100-

1

Q. Do you recall what Contractual Team B said about, or said

2

in characterizing 1 to 1.5 milliliters per second in terms of

3

whether it was fast or slow?

4

A. I don't remember her exact wording. If you can show me

5

her transcript, that would help me.

6

Q. Can we show page 91, line 8 through 91, line 12?

7

THE COURT: You may.

8

(Tape played)

9

Q. Are her answers with respect to a thousand milliliters

10

per hour and 1 to 1.5 milliliters per hour consistent?

11

A. No, she's contradicting herself. She says a thousand

12

cc's an hour is fast, but that's again between one third and

13

one fifth the rate that she then characterizes as slow. So

14

it makes no sense.

15

Q. Now, let me direct your attention, Dr. Heath, back to

16

plaintiff's exhibit 5, that's the August 16th, memorandum

17

concerning contemplated changes in the Maryland protocol that

18

we looked at earlier.

19

With respect to the change that is set forth in I

20

believe paragraph 3, on the second page of plaintiff's

21

exhibit 5, provided for the presence of an execution team

22

member, in the execution room, in your opinion, and assuming

23

that change were implemented, is it a good change?

24

A. I'm sorry. I'd have to catch up with my book here.

25

Could you repeat the question? I'm sorry.

-101-

1

Q. Let me rephrase the question.

2

Directing your attention to the change specified

in

3

paragraph 3 on page 2, which provides or contemplates the

4

presence of a person on the execution team in the execution

5

room with the inmate to monitor the IV, in your opinion, is

6

that a good change?

7

A. It's a mixed thing. On the one hand, it's better than

8

the absence of the person in the room. That's a very bad

9

situation. But to the extent that it would instill a sense

10

of false confidence that now everything has to go properly

11

and, therefore, we don't have to worry about misadventure

12

anymore, it's a bad thing.

13

And she's the wrong person to be in the room.

She

14

can be in the room, I suppose, but there needs to be

15

additional people with additional knowledge and experience.

16

And so having her -- if it gives anybody comfort,

17

then that would be a bad thing, because it would be false

18

comfort.

19

Q. As you understand the change contemplated to the protocol

20

that's set out in that paragraph, would she be assigned to

21

monitor anesthetic depth of the inmate?

22

A. No, nothing like that.

23

Q. To your understanding, is there anything in the revised

24

protocol or anything that you heard about in testimony

25

concerning any contemplated changes that would provide or

-102-

1

specify any person assigned a task of monitoring anesthetic

2

depth?

3

A. Nobody's doing that. Or at least there's no mention of

4

it.

5

Q. Does the paragraph 3 of the exhibit 5 specify the

6

qualifications of the execution team member, who is to be in

7

the execution room with the inmate?

8

A. It does not.

9

Q. Based on the inspection that you made this past summer of

10

the execution area, Dr. Heath, do you believe that the person

11

who injects the drug from the preparation room would be able

12

to communicate with a person in the execution room charged

13

with monitoring the inmate?

14

A. It would be very difficult. The person in the execution

15

room can't see through that one-way mirror, or at least they

16

couldn't where they put up this new light. I don't know what

17

the new light, how that it's going to influence the

18

properties of the mirror, then you have so you can't use

19

visual communication. There's that slot, but you can't get

20

good sound through the slot. And they're supposed to be

21

quiet anyway.

22

And then you have these lights that are -- just

23

give very minimal information and are hard for me to

24

understand exactly what they're doing as one goes through the

25

protocol.

-103-

1

Q. Can you describe for the Court how you understand the

2

lights that you just referred to, to work?

3

A. Yeah. It's a little complicated, but, basically, there's

4

a light switch in each of the two rooms, and there's a light

5

that can be either red or green in each of the two rooms.

6

And so at various times, a red light or a green light has

7

various meaning.

8

So if everybody's on the same page in terms of

9

where you are in the process, and one has the correct memory

10

of what those lights mean at that time, then they are

11

conveying certain information, like this drug is flowing, or

12

this drug is complete.

13

But they have no ability to communicate anything

14

more nuanced than that. Like I'm worried there might be

15

infiltration or the back pressure on the syringe doesn't feel

16

right, could you please feel the IV site? It's obviously

17

impossible to convey anything of that complexity this

18

context.

19

Q. Why, Dr. Heath, in your judgment, is it important to have

20

a more nuanced atmosphere, flexible system for communication

21

than is provided for by the lights?

22

A. Well, because these are exactly the kind of things that

23

can and do go wrong during the use of IV's and during the

24

injection of anesthetics through IV's. And that's why we

25

stand in the same room, and we have -- we can see the full

-104-

1

extent of the tubing, and we can see the insertion site.

2

We can touch it, which helps feel, helps give us

3

indication if it's infiltrating or not. We don't need to

4

communicate because it's ourselves doing it, either one or

5

two of us are there at the bedside doing it. So there's no

6

problem of separate rooms and between which communication

7

needs to flow.

8

Q. During the inspection you made of the execution area, Dr.

9

Heath, and before the change announced that may be

10

implemented for the next execution, did you form an opinion

11

concerning the adequacy of a level of lighting in the

12

execution room?

13

A. Yes, I did.

14

Q. And what are your opinions in that respect?

15

Let's first take the level of lighting in the

16

execution room, where the gurney's located. What was your

17

opinion based on your inspection concerning the level of

18

lighting there?

19

A. You say during the initial part where they're placing the

20

IV's? My sense of the lighting was it was perfectly fine.

21

Sometimes it's helpful to have a bright light shown on the

22

area where you're trying to get IV access, but, in general,

23

it was perfectly reasonable.

24

Then during the execution, they had turned down

25

that light a little bit and the folks in the injection room

-105-

1

are having to look through a one-way mirror.

2

So I'd say it's on the dim side, especially since

3

they're trying to evaluate IV insertion sites and look for

4

leaks and stuff like that. It's on the dim side.

5

Now, in terms of inside the actual injection room

6

itself, that's way too -- or was way too dark.

7

You never, unless you absolutely had to, tried to

8

do something complicated like induction of anesthesia or

9

administering of these drug, handling different syringes and

10

drip chambers and stuff under those circumstances. That was

11

way out of line.

12

THE COURT: I'm sorry. The light where was too

13

low?

14

THE WITNESS: Inside the preparation room.

15

THE COURT: During?

16

THE WITNESS: While they're doing the execution,

I

17

think before the witnesses come in, that's when they lower

18

the light in that room so that the one-way mirror does its

19

trick.

20

And they have to keep that light dim so it looks

21

like a mirror to the witnesses. And from that point on, it's

22

too dark for the job they're doing, that they were trying to

23

do.

24

Now they've put additional lighting in there.

25

Q. And when you say out of line, have you had opportunity to

-106-

1

view the level of lighting in the room where the injection is

2

actually made, in other state facilities?

3

A. Yes.

4

Q. How does the level of lighting in the Maryland injection

5

preparation room compare to the level of lighting at those

6

other state facilities in comparable areas of the execution

7

locale?

8

A. It was lower. So that the lowest I've seen, I don't know

9

what it is now, because they've put this other additional

10

light in place.

11

Q. Dr. Heath, in your opinion, is it important to monitor

12

the IV sites on a person that are chosen by the medical staff

13

for venous access during the induction of general anesthesia?

14

A. Yes, it is, very important.

15

Q. And why is that?

16

A. Because for the induction works properly, that's

17

dependent of the IV's working properly and IV's often don't

18

work properly, we need to be very much on top of that

19

problem.

20

Q. When you say IV's often work properly, what do you look

21

for when monitoring the IV sites?

22

A. Leaking infiltration or feeling the back pressure on the

23

syringe. We're integrating all that information because

24

we're standing right next to our patient.

25

Q. Now, I believe you testified earlier in response to

-107-

1

question from the Court that extravasation and infiltration

2

were approximately synonymous; is that right?

3

A. I think most of us -- when we're working in the OR, we

4

use the terms fairly interchangeably.

5

Q. Would you expect someone who professes familiarity with

6

establishing IV sites and determining venous access to know

7

the word extravasation?

8

A. Yeah. That's a word, that's an important medical word,

9

if you're a person who works with IV's.

10

Q. What does unfamiliarity with the word extravasation tell

11

you, if anything, about a person's supposed qualifications to

12

establish IV sites?

13

A. Well, it's not a good sign. People can know something

14

without knowing all the language about it, but in general,

15

not a positive sign, put it that way.

16

Q. Does extravasation always quickly cause visible swelling

17

at the IV site?

18

A. No.

19

Q. If someone like Contractual Team B, for example, says

20

that extravasation will always cause visible swelling, what,

21

if anything, does that tell you about her competence to

22

establish and monitor reliable IV sites?

23

A. She's getting a very rosy view of things. It would be

24

nice if there were some glaring reliable sign that

25

infiltration's occurring. That would help us to not miss

-108-

1

infiltrations, but that's not the case. Infiltration occurs,

2

we don't see it, and sometimes it's because there's not much

3

visible evidence there.

4

You need to feel, or we find out because the

drugs

5

are already starting their proper effect, or through some

6

other means.

7

There's a variety of ways it comes to our

attention

8

that we have that problem. It would be nice if some flag

9

went up on the arm saying the problem's there.

10

Q. Let's turn briefly back to the question of the monitoring

11

IV lines that goes on in each of the rooms in the execution

12

area.

13

Let me play you a portion of the deposition of

14

Injection Team E. This is from page 119, line 21 of the

15

deposition transcript to page 120, line 8.

16

(Tape played)

17

Q. Based on your inspection of the execution area, Dr.

18

Heath, is Injection Team accurate when he states that he can

19

see the administration of the IV tubing?

20

A. It doesn't comport with what I saw, and I believe that

21

the folks were trying to set things up in the way than the

22

way things are.

23

I wasn't there for the execution that he's

talking

24

about, but doesn't fit with anything that I saw at all. It's

25

opposite.

-109-

1

The arm, you can't see it properly at all, and

you

2

can't see all the tubing.

3

Q. Given the structure of a wall and IV port, is it even

4

physically impossible from where Injection Team E stands to

5

see all of the IV tubing?

6

MS. MULLALLY: Objection.

7

THE COURT: Overruled.

8 9 10 11 it's 12 13 14 15 16 17 18 19 20 21 22 23 24 25

A. No. It goes through that slot, and then it's dangling, arcing low over the floor. I tried to lean as far forward to see it. I couldn't see all of it.
And then it's going under the table, and then
going up under the arm. And I got up on my tippy toes to try to see, you know, as much as I could, and I'm fairly tall. Unless he's really really tall, then seeing, he could see something that I can't, then he doesn't have a good view of the right side. Q. Let me play another portion of the deposition testimony by Injection Team E. This time from page 122, line 21 to 123, line 4.
(Tape played) Q. To your understanding, Dr. Heath, is it Injection Team E, who is in charge of monitoring the IV line and sites from the lethal injection room to the preparation room? A. He's supposed to be in charge of that, but he doesn't, he's not doing a proper job of it based on his description.

-110-

1

Q. Based on the review that you have made of the changes

2

that Maryland proposes to make to the lethal injection

3

protocol procedures, do you believe that all of the IV tubing

4

will now be monitored during lethal injection?

5

A. I can't say for sure what Contractual Team B will be

6

located and how much she's willing to move.

7

If she were really moving around a lot, getting

up

8

and down on her knees and really checking the IV's, and she

9

knew were able to communicate with the folks in the injection

10

room exactly what they were doing and which IV they were

11

using, it might be possible. But it would require a lot of

12

hustling around. It's not laid out in the way it would be in

13

any can kind of clinical setting where we care about making

14

sure the drug gets in.

15

Q. Apart from leaks in the lines, Dr. Heath, is there

16

anything else that can go wrong with IV tubing during the

17

induction of general anesthesia?

18

A. It can disconnect at the site where it was attached to

19

the catheter. It can kink. It can have air in it. Then

20

catheter can have the problems that can happen with the

21

catheter , which I think we talked about.

22

The infiltration and extravasation and leaking of

23

the vein itself, it can block off with some material that can

24

clog it.

25

It's probably not a complete list, but those are

-111-

1

things that come to mind.

2

Q. I think you testified about extravasation of the site.

3

With respect to kinking and clogging about which you just

4

testified, have you seen examples of those in your clinical

5

practice?

6

A. Definitely, yes.

7

Q. What would be the result of those complications?

8

A. Depends. When the sequence of the induction, when they

9

occur, and when they're recognized and all of that. I can't

10

give you -- there's no one way to properly answer that

11

question.

12

Q. Can you suggest a variety of potential risks or --

13

A. From kinking or clogging?

14

Q. Sure.

15

A. If it's a complete occlusion at the beginning of the

16

injection, then you can't inject anything. That's usually

17

not a problem, because you haven't embarked upon your

18

induction.

19

Once you embark upon the induction, you're

20

committed, and you need things go smoothly and properly. If

21

they don't, you have to be able to detect and correct right

22

away.

23

So if you have an obstruction in the middle of

the

24

induction, then you're going to have to try to relieve that

25

right away, or get another IV in quickly, because now you're

-112-

1

kind of in this halfway place. It's not a good place to be.

2

Q. And can you, Dr. Heath, characterize the frequency with

3

which some of the problems you just identified had occurred

4

in your clinical practice?

5

A. I can't put a number on it, but there are -- these are

6

all things that happen that everybody's seen many times.

7

Q. Given some of the things that you described that can go

8

wrong just now, and earlier in your testimony, in your

9

opinion, how important is it to monitor IV lines and tubing

10

for during the induction of general anesthesia?

11

A. It's extremely important. We have the IV bag and the

12

tubing all laid out, so that we can visualize to the full

13

extent to where it goes into the patient. And we are

14

surveying that as we're using it.

15

Only under some exigent circumstances where we

16

couldn't do that and we had to induce anesthesia would we not

17

be surveying all of those things.

18

Q. In your opinion, Dr. Heath, in taking into account the

19

changes recently proposed in Maryland's protocol, are the IV

20

lines adequately monitored during the induction of general

21

anesthesia during lethal injection?

22

A. No. They can't be if they're doing it from a different

23

room.

24

Q. In your opinion, doctor, is it important that the -- that

25

a state's execution protocol include directions for dealing

-113-

1

with possible complications or problems that may arise during

2

execution?

3

A. It's essential unless you have a qualified person who has

4

that all in their head and can, you know, detect and then

5

correct and trouble shoot as you go along.

6

So you either have to have it in a person's head

7

who's supervising, or you have to have it written out for

8

these folks who don't really know how to handle this

9

technology.

10

Q. And just to be clear, in your judgment, is a qualified

11

person able to have everything in his or her head and trouble

12

shoot on the Maryland execution team?

13

A. Not that I'm aware of.

14

Q. Do you recall, from your review of the protocol, Dr.

15

Heath, how many IV lines are in fact set up in a Maryland

16

lethal injection?

17

A. Yes, I do.

18

Q. How many?

19

A. Two.

20

Q. Are drugs, during the execution, administered actually

21

through both lines?

22

A. Typically, not. There's a -- if there's a need to, then,

23

that probably would be done.

24

Q. Well, does the lethal injection protocol address what

25

actually would be done if a line leaked or otherwise failed,

-114-

1

and the injection had to be switched and given through the

2

second IV line?

3

A. No, sorry. It doesn't address that in the protocol at

4

all.

5

Q. Do you recall the testimony by Contractual Team A and

6

Injection Team E of the possibility of switching lines mid

7

procedure?

8

A. Yes. I recall they testified about it. I don't remember

9

their exact words.

10

Q. Perhaps we can play the clips and see if that refreshes

11

your recollection about substance of the testimony.

12

Let's first have a look at the testimony by

13

Contractual Team A. From page 52, line 9 to page 53, line 2

14

of his deposition.

15

(Tape played)

16

Q. And now let's see if we can refresh your recollection

17

about the substance of the testimony by Injection Team E, and

18

have a look at his deposition testimony on page 73, line 15,

19

to page 75, line 6 of his deposition transcript.

20

(Tape played)

21

Q. Dr. Heath, what is your opinion as to whether Injection

22

Team E and Contractual Team A are prepared to effect a switch

23

in the lines if that became necessary during the course of an

24

execution?

25

A. That is sad, they are not. They're not. They have not

-115-

1

been given what they need, the instructions, the preparation,

2

that they would need to be able to offer that under those

3

circumstances.

4

Q. In your opinion, doctor, what, if anything, does the

5

state's failure to give them the necessary instruction imply

6

with respect to the need for a written protocol addressing

7

switching of lines?

8

A. You know, they'd need to write out the scenarios.

9

They're all the foreseeable scenarios, which would warrant

10

corrective action. But, even doing that, a lot of these

11

folks haven't seen all the instructions. They don't know the

12

instructions.

13

And part of troubleshooting is having the

14

experience to formulate an ad hoc plan in response to a given

15

situation. And I'm just -- to me, I can just tell these

16

folks don't have the background that's needed to do that.

17

They need someone there who can, you know, supervise them,

18

and help them through this whole thing.

19

I can't think of all the things that could go

20

wrong, and to the point where we're confident that they've

21

got the instructions that they need.

22

Q. Let me close this line out by showing you some testimony

23

from the lethal injection officer in charge, that's

24

Contractual Team A, depicted in the center column on the DXY.

25

This is from page 83, line 5 to 12, and page 85, line 10 to

-116-

1

86, of his deposition transcript.

2

(Tape played)

3

Q. What, if anything, doctor, in your opinion, does this

4

testimony tell you about the ability of the defendants in

5

addressing a leaking line to assure that adequate dose of the

6

anesthetic is in fact injected?

7

A. Right now, the team doesn't appear to have the, you know,

8

the savviness or wherewithal to undertake tasks like that.

9

They haven't, don't seem to have thought them through,

10

planned for them, or are able to address them.

11

Q. Does the protocol that you as understand it address the

12

scenario you described just now in the deposition excerpt by

13

Contractual Team A?

14

A. No. The protocol doesn't have any discussion of how to

15

handle these foreseeable situations.

16

Q. Does the execution manual or lethal injection checklist

17

address the administration of fluids through any IV site on

18

the inmate other than peripheral site?

19

A. From what I've seen, no. It doesn't discuss central

20

access in anyway.

21

Q. In your opinion, is this a deficiency in the protocol?

22

A. Central access is sometimes necessary to establish IV

23

access both in clinical settings and in execution settings.

24

Q. Other than its failure to address central access, does

25

the protocol address what would happen if peripheral access

-117-

1

could not be obtained at all?

2

A. No.

3

Q. Contractual Team B testified that she had never been made

4

aware of what would happen if IV access, peripheral access

5

were not possible.

6

In your opinion, is that a cause for reasonable

7

concern?

8

A. Yes. She's the person who's in charge of enacting the

9

peripheral IV access, and she needs to be apprised of what

10

the overall game plan here is, and that influences her

11

ability to make informed decision about which veins she'll go

12

for, how reliable they need to be, and all of that. She has

13

to know what the overall game plan is.

14

Q. Have you seen anything in the materials you've reviewed,

15

Dr. Heath, that gives you any reason to believe that access,

16

peripheral IV access, might be a problem in connection with

17

any execution of Vernon Evans?

18

A. Yes.

19

Q. What is that?

20

A. The reports from Dr. Scalea and Mr. Laughton, and also

21

his history of having used intravenous drugs in the past, are

22

-- raised a concern. But, as I said, this is something I

23

need to be prepared for in any time where you have to get IV

24

access, and any person.

25

THE COURT: If I could stop you. It's 1. And

-118-

1

we'll take the luncheon break and then come back at 2.

2

MR. HUT: Thank you, Your Honor.

3

(Luncheon recess.)

4

(Recess.)

5

THE COURT: Please be seated, Mr. Hut, whenever

6

you're ready, sir.

7

MR. HUT: Thank you, Your Honor.

8

BY MR. HUT:

9

Q. Dr. Heath, are you familiar with a cut-down procedure?

10

A. Yes, I am.

11

Q. You brought to court with you today photographs that

12

depict a cut-down procedure, PDX 9 A, B, and C. Let's see if

13

we can -- if you can looking at those, perhaps describe to

14

the Court the cut-down procedure by reference to the

15

photographs that you brought with you?

16

MS. MULLALLY: Your Honor, we object to these

17

photographs. They're extremely gory. It's our opinion that

18

they're probative of nothing except that there was a lot of

19

blood on human skin and there's some cut flesh exposed.

20

THE COURT: Well, my understanding is these are

21

coming in. These are demonstrative exhibits?

22

And the cut-down procedure has been referenced a

23

number of times in this case in the earlier proceedings, and

24

if this illustrates what a cut-down procedure is, then it

25

would be helpful me to understand it. So I will overrule the

-119-

1

objection.

2

BY MR. HUT:

3

Q. I'd like to generally begin for a description of what

4

cut-down procedure is and use photographs to illustrate that

5

as we proceed, doctor?

6

A. So a cut-down procedure is a surgical procedure where one

7

makes an incision and opens up the tissue and extends that

8

incision till one can find the structure you're trying to

9

reach.

10

Usually, that's a vein or sometimes an artery.

So

11

it makes a difference for the skin and then for subcutaneous

12

layers and fat or muscle between the surface and the

13

structure that you're trying to reach.

14

THE COURT: Good. Thank you.

15

Q. Why don't you now explain to the Court what the pictures

16

demonstratives 9 A, 9 B, and 9 C, show with respect to a

17

cut-down procedure?

18

A. So this is a photograph from after an execution the

19

viewing of the body is still in the execution room.

20

Q. That is 9 A?

21

A. It is the one I have in front of me, I'm not sure I have

22

the names of them. It has a picture of lots of circles with

23

the numbers 5 through 9 on it.

24

Q. What do those circles indicate?

25

A. The medical examiner has circled each attempt at IV

-120-

1

access. They've been putting the catheter in through the

2

skin and either had a return of blood or not been able to

3

advance the catheter satisfactorily into the vein. So these

4

are series of failed attempts.

5 three,
6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

One can infer there's also number one, two,
and four. I don't know if you have those photographs. And eventually they abandon the peripheral access and proceed to a cut-down. Q. Now, proceeding to the next picture, which has been marked for identification as PDX 9 B, what does that show? A. That it shows the cut-down to get give orientation, that area is called the antecubital fascia, and it's the basically the front of the elbow.
You can see in the middle of that incision there, there's a little purple structure there, which I'm 95 percent sure is the vein they were cutting down to. Q. What does the bright red area depict? A. That's the tissue that we see it's between the skin and the vein. It's in this location, it's a mixture of fat and connective tissue, and the skin. I'm not sure when they cut over to the side there, they may also be into a little bit of muscle, but I can't tell from this picture. Q. Turning to PDX 9 C, would you tell us what that depicts? A. Yes. This one shows a better view. You can very well see there's a cycle on the upper right, that was attempt

-121-

1

number 1.

2

And then next to that is attempt number 2. Down

3

below the incision was attempt number 10.

4

And then finally 11 is when they went to the

5

cut-down. Now you have a better view of the vein inside

6

there.

7

Q. What is the -- or what is - -how does the vein inside

8

there look in terms of what we are seeing on the photo?

9

A. It's the purple shiny structure near the bottom of the

10

incision, about two thirds of the way down, and, yes.

11

Q. Now, are you aware that the execution team commander for

12

the Oken and Baker executions Past Team Member Z and the

13

execution team commander, both testified that Contractual

14

Team F, the physician who pronounces death, would perform a

15

cut-down, if necessary?

16

A. I recall documentation about that and discussion of it,

17

but I don't remember exactly which one of it was and exactly

18

what they said. But it was along those lines, yes.

19

Q. And let me now show you testimony on this subject from

20

Contractual Team F. This from page 69, line 17, to page 70,

21

line 24 of her deposition.

22

(Tape played)

23

Q. Dr. Heath, what do you think of Contractual Team member

24

F's testimony on cut-down procedure and whether she'd do one?

25

A. Well, she's the physician, who's there to pronounce

-122-

1 2 3 else 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

death. The great majority of physicians don't do cut-downs and, you know, aren't proficient at doing cut-downs.
I think I'd do a cut-down if there was nobody
to do it and it was a life and death situation. Otherwise, they will not do a cut-down. Q. In your opinion, doctor, is there a cause for reasonable concern about her testimony that no one ever communicated to her the expectation that she would perform a cut-down? A. Well, contrast with the documents the Department of Corrections had where they will say that was their plan to do a cut-down.
Again, I think I said before, everybody needs to know what the game plan is, and she clearly hasn't been told what that game plan is. Q. In your opinion, would Contractual Team B, the certified nursing assistant, be qualified to perform a cut-down? A. Definitely not. Q. Who would be? A. None of these folks got into a cut-down. Q. Based on your review of the expert reports of Dr. Scalea and Mr. Laughton, do you recall whether they formed any expert opinion about how venous access would have to be obtained in Mr. Evans? A. They're -- yes, I do. Q. And what was that method?

-123-

1

A. Through a central line.

2

Q. Can you describe a central line for the Court?

3

A. Yes. It's sort of a colloquial expression, but it means

4

a central, an IV catheter is placed into a central vein. We

5

think of the heart as kind of Grand Central Station, and Penn

6

Station, and everything comes or out of the heart. So the

7

large vessels that are close to the heart are considered to

8

be central veins. That would be the internal jugular vein,

9

which you can see shown on the neck there, the two larger or

10

fatter veins that are in the neck. Internal jugular veins or

11

central veins. Subclavian are the arched veins at the top of

12

the chest. Underneath, the color bone or clavicle. And

13

femoral vein is kind of an interesting one.

14

Some people would say it's not a central line,

15

because it's not close enough to the heart to constitute a

16

central line, but when we talk about central lines in

17

clinical practices, there is nobody who would say a femoral

18

catheter is a peripheral catheter.

19

It's clearly up in the large vessel. The

catheter

20

itself stands up into the abdomen. So, colloquially, it's

21

termed central line. So I think that's the best way of

22

referring to it.

23

Q. What kind of persons are qualified to place central

24

lines?

25

A. It's got to be a person who's been trained to do it, to

-124-

1

know what the complications, know how to recognize and treat

2

the complications.

3

Usually, it's physicians who, you know, do them a

4

fair amount in their practice, surgeons anesthesiologists, ER

5

physicians, radiologists who are going to catheterize people

6

to inject dye into their hearts are constantly doing central

7

lines. Intensivists, doctors who work intensive care units,

8

those are the types of physician who place central lines as

9

part of their practice.

10

Q. Can any complications occur during the placement of

11

central line?

12

A. Definitely.

13

Q. What sorts?

14

A. There's some complications that are common to all central

15

lines. Pain and bleeding can happen at any time you place a

16

central line. But there are no others that are particular to

17

the actual location.

18

So if you put a central line where you're trying

to

19

put it in the subclavian vein, that is very, very close, just

20

millimeters from the chest cavity where the lung is.

21

And if there's a perforation there, then air can

22

leave the lung and collect inside the chest cavity called a

23

pneumothorax where the column collapses because air is

24

filling the chest outside of the lung. If it's not treated,

25

it's often fatal. It's extremely distressing. You're

-125-

1

suffocating.

2

Q. Are these complications?

3

A. I was going to say there's more complications.

4

Q. Sorry. I didn't mean to interrupt.

5

A. Sorry. One of major concern is one is canulating or

6

catheterizing the jugular vein and the carotid artery is

7

right next to the internal jugular vein. And so if you -- we

8

often accidentally enter the carotid artery, that gets

9

damaged or lacerated it can do couple bad things, first of

10

all, result in a stroke if blood isn't properly delivered to

11

part of the brain as a result of that.

12

And also blood can leave the artery under

pressure

13

and swell up in the neck and people, their trachea, their

14

airway is collapsed by that slowing so they would then be

15

strangled by that effect of what you have to do is slash the

16

neck open to drain the blood or else they'll suffocate.

17

Q. Are the complications that you just described more likely

18

to occur if a central line were placed by a person with

19

insufficient training and experience?

20

A. Of course, yes. It's a complicated thing, and you have

21

to know what you're doing. The less you know what you're

22

doing, more likely you are to have a complication.

23

Q. To your understanding, Dr. Heath, is anyone on the

24

execution team qualified to place a central line?

25

A. The only person who potentially, very potentially could

-126-

1

do it is the doctor, Contractual Team F, but she herself says

2

she doesn't do those things. So she's not qualified, either.

3

Q. In order to place a central line, does the operating

4

platform on which a patient is resting have to be able to

5

tilt?

6

A. Yes. You need to believe tit the bed. So, for example,

7

if you want to put the central line in the neck on subclavian

8

site, by raising the feet and lowering the head, that makes

9

blood pool in the upper part of the body, and that distends

10

the veins and increases the chance of getting the right

11

target and therefore decreases the chance of hitting one of

12

the other structures that you don't want to hit.

13

Q. To your knowledge, does the gurney in the execution room

14

have any capability of tilting to be used to place a central

15

line?

16

A. No. I looked at that. It's not a medical gurney. It's

17

a fixed steel table, and there's no -- I could not see any

18

possible ability to tilt it in that way.

19

Q. Dr. Heath, could you turn to plaintiff's exhibit 29,

20

please, in your book?

21

A. Turn to page 3?

22

A. I'm sorry, my book seems to go from 28 to 30.

23

Q. Oh, let's then try --

24

A. Maybe I'm in the wrong place.

25

(Pause.)

-127-

1

A. I can see the screen here, if that's okay.

2

Q. Perhaps we can try to accommodate this in exhibit 30.

3

Yes.

4

Turn to exhibit 30, that will do.

5

A. I have 30.

6

Q. Directing your attention to -- well, first of all,

7

exhibit 30 is, appears to be an e-mail from Mark Dershwitz to

8

Scott Oakley.

9

Have you seen exhibit 30 before?

10

A. I have, yes.

11 object
12 13 14 15 truth 16 17 18 19 20 21 22 23 24 25

MS. MULLALLY: Your Honor, defendants would
to the display of plaintiff's exhibit 30. It's clearly hearsay. This witness -- it's the defendant's position that's being offered for the truth of the matter asserted.
THE COURT: Well, it is not received for the
of the matter asserted, but as part of the simply to show part of the raw material upon which the doctor bases his opinion, and I will receive it on that basis. BY MR. HUT: Q. Let me ask you to look at what's been marked by Dr. Dershwitz as paragraph 8. Let me read it.
"I agree that there needs to be a plan B if the execution team cannot place a peripheral IV. Most states with which I am familiar have arranged for an experienced physician to place a central IV via jugular vein in the neck

-128-

1

or femoral vein in the groin. While no procedure is

2

risk-free, using an experienced physician for this procedure

3

should satisfy a judge.

4

"An exception to this practice is Kentucky, as he

5

cites. When I was an expert for Kentucky, I told them they

6

needed a better plan B. When I testified in a hearing here,

7

I was not asked about this issue."

8

Did I read that paragraph accurately?

9

A. Yes.

10

Q. Do you agree with Dr. Dershwitz about the need for plan B

11

providing for placement of a central line?

12

A. I do, yes.

13

Q. And while we're on the subject of Dr. Dershwitz and

14

exhibit 30, could you turn to page 2 of exhibit 30, please?

15

A. Yes.

16

Q. Paragraph 22, toward the top of the page, he states,

17

quote "It is reasonable to require that when general

18

anesthesia is administered to a patient and survival is

19

desired, an anesthesiologist or nurse anesthetist perform the

20

procedure. In a judicial execution, it is reasonable for

21

paraprofessionals; e.g, nurses, EMS's, et cetera, under the

22

direction of the physician to administer the medications."

23

Did I read that accurately?

24

A. Yes.

25

Q. Do you agree with Dr. Dershwitz concerning the reasonable

-129-

1

need for paraprofessionals under the direction of a physician

2

to administer medications?

3

A. If the physician were a person who themselves had the

4

right credentials and experience and background, and were

5

there to supervise and troubleshoot and intervene, in

6

principle, I think he's being reasonable there.

7

Q. Based on the review that you have made of the materials

8

produced in discovery and the deposition testimony, have the

9

defendants in the State of Maryland arranged for a qualified

10

physician to place a central line in executions?

11

A. Not to my knowledge.

12

Q. Now, let me ask you a question or two about the

13

experience of Contractual Team B with respect to IV

14

insertions.

15

Is there any difference between establishing an

IV

16

for the purpose of administering a saline drip and

17

establishing a IV for administration to port drug or fluids

18

like anesthetics?

19

A. Yes, there is.

20

Q. And what is the difference?

21

A. It's important us to, a saline drip is, when a patient is

22

on the floor in the hospital, they're not the critically ill

23

patient, let's say they're in the hospital for treatment of

24

pneumonia and need intravenous antibiotics given them to them

25

three times a day, that they'll have the IV set up, but that

-130-

1

that IV infiltrated and wasn't recognized for an hour or

2

there would be no real harm in that.

3

Very different from a setting where you're

inducing

4

anesthesia, and you need everything to go properly, and

5

you're injecting drugs much more at a more rapid rate. And

6

if the IV fails, then you likely to have significant problem

7

on your hands.

8

Q. Doctor, at New York Presbyterian, would a -- would

9

somebody with the qualifications of a certified nursing

10

assistant be allowed to choose a vein for administering a

11

saline drip?

12

A. Again, I don't think we'd have exactly the saline, but I

13

think what we're talking about here, yes, that would be a

14

reasonable thing.

15

Q. And recognize that I'm talking about qualifications and

16

not necessarily the title, would someone with the

17

qualifications of a CNA be able to choose a vein for

18

administration of an anesthetic in New York Presbyterian?

19

A. I'll say this, if she were practicing, if she were up in

20

New York and she were working on the floor and started IV's

21

on patients and then one of those patients needed to come to

22

the operating room and they came into my care, I would may or

23

may not use the IV. Depends. Not based on who she is, or

24

anything like that, but based on my assessment of the quality

25

of the IV. So it doesn't really matter so much who does it,

-131-

1

it's a matter of my assessment of the IV itself.

2

Q. So you and a similarly situated anesthesiologist would

3

make your own assessment of the IV sight previously selected?

4

A. Right. I would not allow her to assess the IV and

5

without myself looking at it go ahead and induce anesthesia

6

in that person. I would assess it myself and see if I agreed

7

with her assessment or not.

8

Q. Do you recall the testimony by Contractual Team B

9

concerning IV insertion in the breast?

10

A. I do, yes.

11

Q. Have you ever heard of -- let me ask you this, have you

12

ever inserted yourself an IV in the breast?

13

A. I have not.

14

Q. Have you heard of that before?

15

A. I don't think I have. I certainly can't recall hearing

16

about it before. It's a very bizarre thing.

17

Q. At New York Presbyterian, would somebody with a

18

qualifications comparable to a certified nursing assistant be

19

permitted to place an IV in the external jugular vein?

20

A. Only with elbow-to-elbow supervision. I teach medical

21

students to do things, and I teach nurses to do things that

22

are more complex than that. But my hand is hovering right

23

over theirs. We're literally side-by-side. But apart, she

24

will not be allowed do it by herself.

25

Q. Do you recall testimony by Contractual Team B that she

-132-

1

personally has placed IV's into the external jugular?

2

A. Yes, I think so, along those lines.

3

Q. Does the testimony she gave about placement of IV's in

4

the breast and external jugular create any reasonable grounds

5

for concern about her ability to perform duties on the

6

execution team, in your opinion?

7

A. She said she's placed IVs in breasts hundreds of times

8

and.

9

MS. MULLALLY: Objection.

10

THE COURT: I'll overrule the objection.

11

MS. MULLALLY: Your Honor, that's a

12

mischaracterization of what she's testified to, and I must

13

object.

14

THE COURT: Well, you'll have an opportunity to

15

delve in it on cross-examination.

16

MR. HUT: Perhaps we should have a look just to

17

make sure that we're going over a the same ground of

18

testimony of contractual testimony team, beginning at page 67

19

line 5 to line 14 and page 67 line 23 to page 68 line 3 of

20

the transcript, is that available?

21

(Pause.)

22

(Tape played)

23

BY MR. HUT:

24

Q. Is that consistent with your recollection of her

25

testimony about hundreds of times?

-133-

1

A. Yes.

2

Q. Now, in her deposition, Contractual Team B also testified

3

that she was unaware of any risks associated with injecting

4

drugs at a higher rate.

5

Do you recall that?

6

A. Yes.

7

Q. Given this, what is your opinion about her ability to

8

assess the suitability of an inmate's vein for administration

9

of lethal injection?

10

A. It's pretty elementary, when you inject drugs more

11

rapidly, the risk of problem with the catheter or injury to

12

the vein wall leakage is increased, and anybody who is going

13

to be injecting drugs rapidly has to know that, or else they

14

won't be primed or prepared for that complication.

15

So it just sort of -- it doesn't make sense that

16

she would say that, and, yet, be charged with supervising

17

that.

18

Q. To your understanding, Dr. Heath, are all members of the

19

execution team provided with copies of the lethal injection

20

checklist that we saw as part of plaintiff's exhibit 4?

21

A. It wasn't -- occurred to me somebody said they didn't see

22

it. I don't know if they haven't been provided with it. I'm

23

not sure. But some of them weren't, you know, knowledgeable

24

about it.

25

Q. Let me show you now an excerpt of testimony by

-134-

1

Contractual Team A, who is responsible for pushing a plunger

2

of the syringe. This is deposition transcript at page 53,

3

line 14 through 54, line 18.

4

(Tape played)

5

Q. And, Your Honor, I think that counsel for defendants will

6

agree that the deposition exhibit 15 to which that testimony

7

referred, is in fact at trial here plaintiff's exhibit 4,

8

including the lethal injection checklist.

9

Dr. Heath, focusing on the language that

10

Contractual Team A read just there from the checklist and

11

about which he said, quote, "it just doesn't have to do with

12

what I do" unquote, who was supposed to perform the tests he

13

was referring to during the lethal injection, as you

14

understand it?

15

A. He's the person who injects the drugs. So it sort of

16

defies comprehension when you talk about injecting syringes

17

of drugs, says it doesn't have to do with what he does.

18

Q. In your review of deposition testimony, doctor, did you

19

see other evidence of confusion about the meaning and duties

20

that are set out in the lethal injection checklist?

21

A. Yes, I did.

22

Q. Did you ask that a summary of certain of those be

23

prepared?

24

A. Yes, I did.

25

Q. Let me show you what we've marked for identification as

-135-

1

PDX 6. It is the chart; that is, PDX 6, a portion of the

2

summary that you directed to be prepared to illustrate some

3

of the confusion?

4

A. Yes.

5

Q. And do you see on PDX 6 the highlighted in yellow

6

portion, which is an excerpt from a lethal injection

7

checklist that reads slow the IV to KVO?

8

A. Yes.

9

Q. By the way, what does KVO stand for?

10

A. Just an abbreviation for the expression keep vein open.

11

And it means setting up the drip chamber so if there's an

12

occasional drip, that stops blood from going back into the

13

catheter and clotting and stops the vein from clotting.

14

Q. But while the slow the IV KVO instruction along is

15

deposition testimony, just take a moment to read that excerpt

16

of testimony.

17

(Pause.)

18

Q. In substance what does the excerpted testimony say about

19

who completes the slow IV to KVO step during lethal

20

injection?

21

A. Well, B says that E does it. But E says the opposite. E

22

says that B does it. And, further, B doesn't even know what

23

it is, doesn't know what KVO means.

24

Q. Does that failure on the part of Injection Team E to know

25

what KVO means, in your opinion, cause reasonable ground for

-136-

1

concern or give rise to reasonable grounds for certain?

2

A. Again, I think it's one of the many pieces of evidence

3

that he does not have the right background to be working with

4

IV systems. He's the person who's supposed to control the

5

flow rate of the drugs.

6

And if you don't know what KVO means, it

basically

7

proves you haven't been around the environment where these

8

things are done, and so he just doesn't have the wherewithal

9

and savvy to handle the kind of things that can come up.

10

Q. Would you turn to PDX 8 A?

11

Is this another chart that you asked to be

prepared

12

to depict some of the confusion that you saw concerning the

13

operation of portions of the checklist?

14

A. Yes. Sorry. I just found it in my book.

15

Q. It should be also on the screen, I think.

16

A. Yeah.

17

Q. Do you see at the top testimony by Past Team Member Z is

18

excerpted about his understanding of the flow clamp?

19

A. Yes.

20

Q. Was Past Team Member Z correct in his testimony about

21

what a flow clamp is, or what it does?

22

A. I don't see how he can be. The flow clamp, when it's

23

closed, it stops flow. It completely occludes the tubing.

24

Q. As you understand it, was Past Team Member Z the

25

execution commander for the Baker and Oken executions?

-137-

1

A. I believe so, yes. But I don't believe he is now in

2

charge.

3

Q. Do you understand that he will be present in the

4

execution room during any execution of Vernon Evans that

5

might take place?

6

A. Yes. I think now he would be standing along with the

7

execution commander in the corner of the actual room where

8

the prisoner is.

9

Q. Directing your attention to the excerpt from his

10

deposition testimony at the bottom portion of PDX 8 A, who,

11

as you understand this, does Past Team Member Z believe was

12

responsible for adjusting the flow rate during the execution

13

of Wesley Baker in the execution of Steven Oken?

14

A. Well, he doesn't seem to recognize that it's Injection

15

Team E. He's referring to some other entity. He's not using

16

what I understand to be the official terminology. I think

17

maybe he's referring to the execution team commander who

18

would be in that injection room, that he doesn't seem to

19

understand, he doesn't know what's going on in there or who's

20

doing what.

21

Q. Now, let me direct your attention toward the front of the

22

exhibit book that we supplied to you to plaintiff's exhibit

23

8.

24

Turn, if you would, to page 13.

25

Are you with me?

-138-

1

A. Sorry. I had to catch up here. Okay. I'm with you.

2

Q. Interrogatory 14 asked defendant to, quote, "set forth in

3

any detail any problems, malfunctions or abnormalities

4

encountered in any previous lethal injection carried out by

5

defendants (including leakage of IV lines, respiration after

6

administration of sodium pentothal, and or a low postmortem

7

sodium pentothal levels)."

8

The answer after objection states, quote

"Following

9

the Tyrone Gilliam execution on November 16, 1998, former

10

Commissioner William Sandorvan and/or former Assistant

11

Commissioner Lewis Stewart reported to Assistant

12

Commissioner Randall Watson that the IV catheter that had

13

been inserted in Gilliam's left arm partially or completely

14

pulled out prior to the administration of the lethal drugs,

15

but that the lethal drugs were therefore administered through

16

the IV catheter in Gilliam's right arm, and that the IV

17

catheter that had been inserted in Gilliam's left arm

18

continued to drip saline solution onto the floor creating a

19

small puddle."

20

Did I accurately read and interrogatory and the

21

pertinent portion of the answer?

22

A. Yes.

23

Q. Have you heard or read essentially the same information

24

as defendants have set forth in verified form in their answer

25

to interrogatory number 14?

25

A. I'm sorry. I didn't understand your question.

2

same information about ongoing during the execution of Tyrone

3

Gilliam?

4

A. Yes. I was aware of this from the Oken litigation, they

5

had said in the Oken litigation that there had been no

6

problems in prior executions, but then this emerged. They

7

had to give some discovery, and the log showed this had

8

happened.

9

Then I talked to a witness, who had seen the

fluid

10

collected on the floor.

11

Q. Have any changes been made to the protocol to address a

12

problem set forth in this answer that occurred in the Gilliam

13

execution?

14

A. The protocol makes no mention of the possibility of

15

leaks; so, therefore, no changes have been made.

16

Q. Have you reviewed the postmortem thiopental levels that

17

were taken from samples following the Gilliam execution?

18

A. I have, yes.

19

Q. Do those levels suggest that Gilliam was in fact

20

adequately anesthetized during his execution?

21

A. I believe he was. Again, there are caveats surrounding

22

the use and interpretation of postmortem thiopental values.

23

It does not prove that he was anesthetized properly when he

24

got the potassium or pancuronium, but certainly strongly

25

supports that view.

-140-

1

Q. So what does it matter that the line may have leaked in

2

the Gilliam execution if adequate amounts of the anesthesia

3

made it into his veins?

4

A. Well, leaks can happen. They happen to all

5

anesthesiologists. The important thing is what you do about

6

it once you have a leak, and how you change your procedures

7

once you have had that happen.

8

And if they didn't know about leaks beforehand,

9

they surely knew them after this execution. And yet you saw

10

from the testimony they still haven't set in place the

11

necessary knowledge base to -- and plans and protocol to

12

address this. It's not just a hypothetical for them. It's a

13

real thing for them. And yet, even with that, they didn't do

14

anything about it.

15

Q. And on the subject of the postmortem thiopental levels

16

measured for Tyrone Gilliam, would you have a look at

17

plaintiff's trial exhibit 26, please?

18

Do you recognize that, plaintiff's trial exhibit

19

26?

20

A. I do, yes.

21

Q. Is that a report about the thiopental levels made from

22

the postmortem examination of Mr. Gilliam?

23

A. I believe it is, yes.

24

Q. Have a look at exhibits 25, 27, 28, please.

25

A. Okay.

-141-

1

Q. Are those similar post-mortem reports of thiopental

2

levels found upon examination in the bodies of Flynn Hunt,

3

Steven Oken, and Wesley Baker?

4

A. The report's written in different formats, but they

5

report thiopental values. Some of them report additional

6

information.

7

Q. And have you created a bar graph that summarizes the

8

information contained in those most mortem reports?

9

A. I have these exhibits here, can you refresh me on the

10

number or tell me the number,> actually, I don't know.

11

Q. I come in contact with assistance?

12

A. 11.

13

Q. It's 11, do you have it?

14

A. I found it, yes.

15

Q. Could you turn to the third page of PDX 11, which

16

contains 8 bars set out on a graph.

17

(Pause.)

18

A. Yes.

19

Q. Do you see that, doctor?

20

A. Yes.

21

Q. What information is displayed in this bar graph?

22

A. It's for executions. It shows the postmortem thiopental

23

concentration measured, and it shows the number of grams of

24

thiopental they were intending to deliver under the protocol

25

for each execution.

-142-

1

Q. Does this reflect that between the Gilliam execution and

2

the Oken execution, the dose of thiopental was increased by

3

Maryland from two to three grams?

4

A. It does, yes.

5

Q. Which inmate as depicted in the postmortem reports and

6

this bar graph show the highest level of postmortem

7

thiopental as recorded after the examination?

8

A. Hunt is the highest.

9

Q. And how many grams does Mr. Hunt receive?

10

A. He was -- the plan was to give him two grams. I don't

11

know how much he actually received.

12

Q. And which of the inmates had or recorded the lowest

13

measured thiopental level postmortem?

14

A. Steven Oken.

15

Q. How many grams does Mr. Oken receive?

16

A. Again, we don't know how much he received. He was under

17

a protocol intending to deliver three grams.

18

Q. What medical conclusion, if any, do you draw from the

19

data that you've caused to be depicted on this graph?

20

A. Well, there's -- clearly, there's inconsistency in the

21

concentration that's being measured, that is being achieved.

22

As I've said, one has to be careful interpreting

23

postmortem thiopental values. It's a tricky area.

24

But given that Mr. Oken was supposed to receive

25

more thiopental, for example, than Mr. Hunt, I'm not aware of

-143-

1

anything that can account -- I don't have an explanation for

2

effectively the tenfold difference in concentrations between

3

the two executions. The thing that could do that, it's my

4

understanding those are not in play in this -- in these

5

autopsies or these toxicologies. So, for example, Mr. Oken's

6

weight is not 8 times the weight of Mr. Hunt. And the timing

7

of these blood draws is important, but I don't have

8

information to explain why there's an eightfold difference in

9

concentration.

10

Q. What conclusion, if any, were you able to draw about the

11

postmortem thiopental level reflected for Steven Oken?

12

A. It's obvious, it's much lower than some of the other

13

executions. It's by more than a factor of two lower than the

14

next lower one, and that's a value of thiopental. That does

15

not -- doesn't look what one wants to see after an execution.

16

If it's drawn earlier, one wants to see a nice high value,

17

you know, up in the twenties or above.

18

Q. Let me ask you this question, Dr. Heath. If 10

19

milligrams per liter was the blood concentration in Steven

20

Oken, I think his nervous system at the time of the

21

administration of Pavulon and potassium chloride, can you

22

comment on the extent of the possibility that he may have

23

been conscious during the administration of one or both of

24

those drugs?

25

A. I can't put a number on it, but off the top of my head,

-144-

1

but we people use numbers as low as 7 to give a 50 percent

2

probability of consciousness. Some people use a higher

3

number.

4

If you used a number of 7, that is just an very

5

approximate guess. It could be around 10 percent. If one

6

took a value of 12 as giving you a percent of chance of

7

consciousness, then there had be a 70 percent chance of

8

consciousness.

9

Again, these are very approximate numbers.

10

Q. Numbers 7 and 12 in your answer refer to milligrams per

11

liter?

12

A. Yes. Depends on what a 50 percent value is, and

13

literature supports some range in those values.

14

Q. Let me try to bring this direct examination to a close

15

and just --

16

THE COURT: If I could ask, we're looking at

Steven

17

Oken, 10 milligrams per liter in the evident postmortem blood

18

examination to determine the concentration of the sodium

19

thiopental.

20

What is your best testimony, based upon the

21

literature, of the likelihood that Oken was conscious when

22

the second drug hit his system?

23

THE WITNESS: It's a difficult question to

answer.

24

I can't put a number on it. The literature on postmortem

25

thiopental distribution, which is a real phenomenon, I'm very

-145-

1

confident that's a real phenomenon, but details of this

2

behavior, we don't have enough information obtained as in a

3

scientific fashion to establish the values that would he need

4

to put a number on this.

5

All I can say is it compared with, so it's my

6

understanding that these values were drawn within an hour at

7

the time of death. That was the description gave by the

8

person who actually drew the blood, he described, he put an

9

outside time of an hour, so that it was within an hour.

10

This is a low value for blood that's drawn after

11

execution within an hour. But no one's done virtually all

12

the information known about postmortem thiopental comes from

13

execution in humans. There's nothing in animals. I can't

14

find anything about it. I'm just able to give you the best

15

information I've gotten from what has been done so far.

16

THE COURT: So it's a low value, but you can't

17

assign a number or percentage probability that Mr. Oken was

18

awake or aware?

19

THE WITNESS: I don't think -- I don't think it

20

would be proper to try to do that with the information that's

21

available. All I can say it is a very concerningly low

22

number.

23

THE COURT: Good. Thank you.

24

BY MR. HUT:

25

Q. I'll try to wrap this up now, Dr. Heath.

-146-

1

Yesterday in opening statements, we were told by

2

counsel for the state that in the five recent relatively

3

recent executions in the State of Maryland, everything has

4

gone properly, and that, in substance, what comes to those

5

who are well-prepared.

6

In your opinion, has everything gone properly in

7

the five previous Maryland execution by lethal injection of

8

which you're aware?

9

A. The Gilliam execution had the leaking IV, but I think in

10

all likelihood based on the thiopental value, they had

11

success in anesthetizing him. But, again, because prisoners

12

have been paralyzed, we don't know.

13

We don't know, certainly like in somebody like

Mr.

14

Oken, we have nothing to tell us he was properly

15

anesthetized. He didn't struggle or cry out, but that

16

doesn't mean anything, because he was paralyzed.

17

The thiopental value is not comfortingly high. I

18

can't be sure. I can't ask Mr. Oken if he remembered or

19

experienced anything, and that would be the only way to know

20

for sure. But it's certainly a concerning situation.

21

Q. With respect to the preparation of the execution team for

22

executions, your opinion is the Maryland execution team

23

prepared for the executions they perform?

24

A. No. They're not properly prepared at all.

25

Q. Do the participants even understand fully the protocol,

-147-

1

in your opinion?

2

A. No. I think they don't even understand how unprepared

3

they are.

4

Q. In your opinion, is Maryland's lethal injection protocol

5

sufficient to avoid the unreasonable risk of the inflection

6

of great pain to an inmate?

7

A. No. There are many steps that need to be set in place

8

that are reasonable steps that can be easily taken, and it

9

will reduce the likelihood of a misadventure in the

10

execution.

11

Q. Finally, in your opinion, are there reasons to think that

12 13 14 15 16 17 18 19 20 21 takes 22 23 24 25

such risks would be greater in the case of an execution of Vernon Evans, Junior? A. Well, again, was of his venous -- the concerns that have been raised about his venous system, one has to be particularly careful with him.
So, yes, the risks are greater, if the personnel aren't prepared to address them properly.
MR. HUT: Your Honor, that concludes my direct examination of the witness.
THE COURT: Thank you. Before Miss Mullally
over, let's take a recess until 15 minutes after the hour. (Recess.) THE COURT: Please be seated. Miss Mullally, your witness.

-148-

1

MR. HUT: Your Honor, as we advised Your Honor at

2

the pretrial, and as we've reminded Miss Mullally and Mr.

3

Pickus and with their acquiescence, we wanted to interrupt,

4

with leave of the Court, the cross-examination of Dr. Heath

5

in order to be able to present the testimony and complete the

6

cross-examination today of Dr. Scalea, who is only available

7

today.

8

THE COURT: Oh, that's right. Scalea's available

9

right now.

10

MR. HUT: Right.

11

THE COURT: Good.

12

MR. HUT: My colleague, Todd Zubler, will conduct

13

the examination.

14

MR. ZUBLER: Plaintiff calls as its next witness

15

Dr. Thomas Scalea.

16

THE COURT: Good. Thank you. Good afternoon.

17

THE WITNESS: Good afternoon.

18

(The Witness is sworn.)

19

THE CLERK: Please be seated. And if you would,

20

sir, I need you to state your name and then spell your name

21

for the record.

22

THE WITNESS: My name is Dr. Thomas Scalea, S C A

L

23

E A.

24

DIRECT EXAMINATION

25

BY MR. ZUBLER:

-149-

1

Q. Good afternoon, Dr. Scalea.

2

A. Hello.

3

Q. Could you please state for the record what is your

4

occupation?

5

A. I'm a surgeon.

6

Q. And from where did you receive your undergraduate degree?

7

A. University of Virginia.

8

Q. And from where did you receive your medical degree?

9

A. The Medical College of Virginia.

10

Q. When did you receive your medical degree?

11

A. Long time ago, 1978.

12

Q. Are you board certified?

13

A. I am.

14

Q. In what areas or specialties?

15

A. In surgery with a certificate of added qualifications in

16

surgical critical care.

17

Q. In what positions are you currently employed?

18

A. I am currently the physician in chief at the R. Adams

19

College Shock Trauma Center At the University of Maryland. I

20

am the Francis X. Kelly Professional of Trauma Surgery,

21

Director of the Program and Trauma, and the Director of the

22

Charles Mack Mathias National Study Center for trauma and

23

EMS, University of Maryland School of Medicine.

24

Q. Turning first to your position as a professor at the

25

University of Maryland Medical Center, how long have you been

-150-

1

a professor there?

2

A. Just shy of ten years.

3

Q. Are you a tenured professor?

4

A. I am.

5

Q. And as a professor, what types of students do you

6

instruct?

7

A. I teach medical students from the University of Maryland.

8

We have rotating medical students from all over the United

9

States. I teach the emergency medicine in surgery, and I

10

guess orthopedic residents from the University of Maryland.

11

We have approximately 350 emergency medicine

12

surgery and orthopedic residents from 17, I think, different

13

programs in the country, that come to shock trauma to receive

14

part of their education, and I interact with most or all of

15

them.

16

Q. Now, with respect to your position as chief of trauma,

17

what is the Baltimore shock trauma center?

18

A. Shock Trauma Center's the only freestanding trauma

19

hospital in the country. It sits on top of what almost

20

everybody would agree is the most sophisticated EMS system in

21

the country. It's a parametal system of care, parametal

22

system of care that is designed to deliver the right person

23

to the right place, in the right amount of time.

24

Within the system, approximately 85 percent of

25

patients are cared for perfectly well in local emergency

-151-

1

departments.

2

Approximately half of the other 15 percent

receive

3

care in area-wide trauma centers. And the other seven and a

4

half percent or so receive care in specially designated

5

centers.

6

The geography of the state and the investment of

7

the state in a very sophisticated helicopter system allows us

8

to bring the patient to the resources instead of doing it the

9

opposite way, bringing the resources to the patient, as

10

happens in most municipalities.

11

In that system, the shock trauma center serves as

12

the principal adult difficult resource center for injury in

13

Maryland. It serves as the designated neurotrauma center for

14

Maryland, and it sits as the designated hyperbarics center

15

for Maryland.

16

Q. So how do the patients that come to the Baltimore Trauma

17

-- Shock Trauma Center Compare, to say, the patients that

18

would go to the emergency room at another Baltimore hospital?

19

A. There are state EMS protocols that decide at least

20

loosely guide the pre-hospital providers as to who goes to an

21

emergency department. Those would be people with no

22

suspicion of injury, or serious injury based on mechanism of

23

injury, fell from a standing position, no evidence of

24

co-morbidities, not very old, not very young, and no evidence

25

of injury on exam.

-152-

1 2 3 4 with 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23

So the chances that that person would have a serious injury will not be zero, but should be a very small number.
On the other end of that, it would be a person
a very serious mechanism of injury, fell 50 feet, who has evidence of co-morbidities, cardiac disease, 80 years old and has obviously severe injuries either anatomically because you can see that their bones are broken, or physiologically, that they have evidence of low blood pressure, some other physiological derangements.
Those people get transported to the highest level of care, and that would be a person that would be brought to the shock trauma center, all other things being equal. Q. So is it fair to say that the Baltimore Shock Trauma Center receives some of the more -- most complicated emergency patients? A. That would be true. Q. And what are your duties as Physician In Chief of the Shock Trauma Center? A. The as Physician In Chief, am the administrative physician in charge of running the hospital. I provide a great deal of direct patient care, the administrative duties range from writing the call schedule for group to overseeing

24

the quality management process to sitting on a number of

25

committees.

-153-

1 I
2 3 4 5 6 7 8 9 10 11 12 hope? 13 14 15 16 17 18 19 20 21 22 23 24 25

In addition to that, I am an active educator, as
noted before, and a relatively prolific researcher. Q. So in your average workweek, approximately, how many hours would you typically devote to administrative duties? A. Maybe 20 or so, round numbers. Q. And in your typical workweek, approximately how many hours would you devote to your educational activities? A. Five or ten. Q. And in your typical workweek, approximately how many hours would you spend providing patient care? A. 70 or 80.
THE COURT: Do some of those hours overlap, I
THE WITNESS: No, sir. Q. How long have you been at the Shock Trauma Center? A. Nine and a half years. Q. And does the care that you provide to patients include assessing intravenous access in patients? A. It does. Q. Do you ever insert peripheral IV's in patients? A. I do. Q. How often do you do that? A. A few times a week, typically. Q. Compared to other doctors, how frequently do you establish IV's in patients? A. The residents do it more often than I do. I tend to do

-154-

1

the ones that in patients where people are having problems,

2

or if I happen to be the most available person, just kind of

3

depends.

4

Q. When was the last time you inserted an IV?

5

A. Yesterday.

6

Q. And under what circumstances do you insert IV's as

7

opposed to say, for example, a nurse or technician?

8

A. Well, yesterday the firsts couldn't get an IV in, so I

9

put it in.

10

Q. Is that a peripheral IV?

11

A. That was a peripheral IV.

12

Q. After you have established IV's in patients, will you

13

administer drugs and fluids through those IV's?

14

A. We will, sometimes I do. But a number of people.

15

Q. And how would drugs typically be administered through an

16

IV?

17

A. That depends. Either they are administered over a rate

18

of time, we're going to give something over 20 minutes, 30

19

minutes, an hour, or it is loaded into a syringe and pushed

20

into the IV.

21

Q. What is a central line?

22

A. A central line is an intravenous line that is inserted

23

into a more central vein. Typically, these -- that term is

24

used to describe lines that are inserted into the femoral

25

veins, the internal jugular vein, or subclavian veins.

-155-

1

Q. And do you ever insert central lines into patients?

2

A. I do.

3

Q. How often?

4

A. A few times a week.

5

Q. And under what circumstances would you personally

6

establish a central line on a patient as opposed to another

7

medical professional at the Shock Trauma Center?

8

A. When the patients come in and they're very sick, like

9

they have no blood pressure, I'm much more likely to put that

10

line in myself than would be if the patient was perfectly

11

stable.

12

It is not uncommon for us to get multiple

13

casualties at once. At that point, everybody kind of divides

14

and conquers. And that may well mean that it's me and a

15

nurse taking care of a patient, then I do everything myself.

16

Q. How would you describe the relative health of the

17

patients that you see at shock trauma?

18

A. We see a reasonable number of people with either chronic,

19

with chronic venous disease or venous incompetence.

20

Q. And what might be a cause of the venous incompetence?

21

A. Chronic venous disease from varicose veins will make

22

veins difficult to find. People that are readmitted, who

23

have been in the hospital for a long time, that have their

24

veins used because we used them, would be difficult.

25

Baltimore City is, as I understand, still the per

-156-

1

capita heroin capital of the United States, so we see our

2

share of people with intravenous drug use.

3

People who come in, who are very sick, and

4

particularly those people who are very sick from blood loss,

5

particularly if they are cold, will have very difficult

6

venous access. And some people just have lousy veins.

7

Q. Now, before coming to Baltimore Shock Trauma, where did

8

you work?

9

A. I worked at the Kings County Hospital, down state,

10

University School of Medicine in Brooklyn.

11

Q. And for how long were you there?

12

A. 13 years.

13

Q. And what was your position and role there?

14

A. I had a number. I started as a staff physician. I

15

became chief of critical care, chief of trauma, chief of the

16

university intensive care unit.

17

And my last job was that I was a professor and

18

chairman of the department of emergency medicine and chief of

19

emergency services at Kings County Hospital.

20

Q. And in your medical practice there, did you also assess

21

intravenous access?

22

A. I did.

23

Q. And did you establish peripheral IV's on a regular basis?

24

A. I did.

25

Q. And did you inject drugs in those IV's there?

-157-

1

A. I did.

2

Q. And did you establish central lines there as well?

3

A. I did.

4

Q. So for how many years in total have you been establishing

5

IV access in patients and administering drug through IV's?

6

A. 13.

7

Q. Is that 13?

8

A. 3 0.

9

Q. 0, 30.

10

Dr. Scalea, have you published any articles in

11

medical journals?

12

A. I have.

13

Q. Approximately how many?

14

A. 225 or so.

15

Q. And approximately how many of those are in peer-reviewed

16

medical journals?

17

A. 225.

18

Q. Dr. Scalea, I have put next to you a binder that I've

19

asked you to look at, which has an exhibit I'd like for you

20

to look at. It's plaintiff's exhibit 35 behind tab 35.

21

Dr. Scalea, what is this document?

22

A. It's my CV.

23

Q. And does it accurately reflect your training and

24

qualifications?

25

A. It does.

-158-

1

Q. Is there anything that has occurred since the preparation

2

of that CV that you would like to add or subtract?

3

A. It was published, I'm not sure when this was prepared,

4

but there are a few more articles that have either been

5

accepted or have been published.

6

And as of I guess as of the first of September, I

7

became the director of the National Study Center, that's not

8

on here, September first, so that's not on the CV.

9

Q. What is the National Study Center?

10

A. National Study Center, to my knowledge, is the only

11

federally mandated research center that is designed to

12

investigate underlying mechanisms of injury with a focus on

13

the epidemiologic and prevention aspects of injury, also

14

charged with investigation of physiology of injury.

15

MR. ZUBLER: Your Honor, we offer Dr. Scalea as

an

16

expert in intravenous access, intravenous administration of

17

drug and in medicine generally.

18

THE COURT: Thank you.

19

Miss Mullally, any questions, or had Mr. Pickus?

20

MR. PICKUS: This will be my witness. We have no

21

questions and no objection to the designation.

22

THE COURT: Thank you. Then I will accept Dr.

23

Scalea as an expert in intravenous access, intravenous I

24

believe you said delivery?

25

MR. ZUBLER: Administration of drugs.

-159-

1

THE COURT: Medicine, and emergency medicine.

2

Good. Thank you.

3

BY MR. ZUBLER:

4

Q. Thank you. Dr. Scalea, do you have a position on the

5

death penalty?

6

A. I think it's a complicated issue.

7

Q. Do you -- are you in favor of it or against it?

8

A. I've spent 22 years in medical practice designed to save

9

people's lives. Therefore, it is not part of my nature to

10

kill people.

11

On the other hand, a significant number of people

12

that I care for, including the number of people who die, are

13

injured by acts of senseless violence. That doesn't make a

14

lot of sense to me.

15

It is also I believe that for a number of reasons

16

that are far too complicated for me to understand, that there

17

comes a time when a person is probably no longer

18

rehabilitatable. What to do with that person becomes a

19

pretty complicated issue.

20

Q. Other than this case, have you ever been involved in any

21

other litigation regarding lethal injection or the death

22

penalty?

23

A. Not that I remember.

24

Q. And are you charging a fee for your work in this case?

25

A. No.

-160-

1

Q. How did you come to be an expert witness in this case?

2

A. Well, Mr. O'Toole called me, Mr. O'Toole is a former

3

patient, and said, hey, I'm looking for somebody that's an

4

expert that knows a lot about intravenous access that cares

5

for a significant portion of people that have poor veins,

6

particularly drug addicts, I'd like him to be willing to go

7

to death row to evaluate this person. I'd like him to be

8

willing to testify, and I would like him to do it for free.

9

Do you know anybody that's willing to do that? It was a

10

fairly short list.

11

Q. And you volunteered at that point?

12

A. Yeah.

13

Q. Volunteer may be --

14

A. I said I was willing to go. And I told him that he would

15

get my opinion, whether it made him happy or not.

16

THE COURT: Well, it sounds like, given the fact

17

you're working about 120 hours a week, you probably weren't

18

busy with anything else.

19

THE WITNESS: Well, we can squeezed it into the

20

margins.

21

Q. Your slow periods.

22

I'd like to ask you a few questions about what

23

materials you've reviewed in this case.

24

Have you reviewed any documents produced by the

25

defendants in this case?

-161-

1

A. I have.

2

Q. Do you recall what documents you've looked at?

3

A. My memory is that I looked at reports from Dr. Dutton,

4

Heath, Dershwitz and Mr. Laughton, Contractual Team B, and

5

maybe one other.

6

Q. Did you review any deposition testimony?

7

A. I reviewed depositions as well.

8

Q. Did you review the deposition testimony of the person

9

we've identified as Contractual Team B?

10

A. I did.

11

Q. And did you review any of the lethal injection protocol

12

materials?

13

A. I reviewed it, yes.

14

Q. Based on your review of those documents, do you have some

15

understanding about how Maryland's lethal injection procedure

16

works?

17

A. I have some understanding.

18

Q. And what is that understanding?

19

A. That intravenous access is established, and then in

20

series, the patient is injected with sodium pentothal,

21

pancuronium, and potassium chloride.

22

Q. Who do you understand performs the IV insertion during

23

that procedure?

24

A. A member of the Injection Team.

25

Q. Do you understand Contractual Team B to be that person?

-162-

1

A. I understand her to be certainly one of those people. I

2

don't know whether she is the only person.

3

Q. Dr. Scalea, what does it mean for an IV to infiltrate?

4

A. IV's are plastic catheters loaded onto a needle. The way

5

it works, it's supposed to work is puncture the vein, you get

6

a flashback of blood, and then you thread the catheter into

7

the venous lumen, then connect it to whatever you want to

8

inject into the patient.

9

If fluid leaves the vein, there are a number of

10

terms that are used to describe that. Infiltration would be

11

one. Extravasation would be another.

12

Q. How often in your medical practice do you see an example

13

of infiltration?

14

A. It's reasonably common.

15

Q. How often in say a month would you see it?

16

A. A few times, maybe a couple of times a week.

17

Q. When during the course of establishing an IV and

18

administering drugs can infiltration occur?

19

A. It can occur any time. Sometimes you put the IV in, and

20

it's maybe poorly placed, or it's up against the valve, or

21

the vein makes a sudden turn, and you start, or you're not

22

really in the vein, and you start to run fluid in it, and it

23

becomes immediately obvious that all is not well.

24

So that there is sudden obvious infiltration of

IV

25

fluid, or whatever it is you're putting in, into the

-163-

1

subcutaneous tissue space.

2

On the other hand, sometimes this happens much

3

later. And depending where the fluid goes, may well be

4

asymptomatic for a good period of time.

5

Q. Am I understanding correctly, after you've established an

6

IV, infiltration could occur as soon as you start a saline

7

flow?

8

A. Correct.

9

Q. And it could -- could it also occur when you inject

10

drugs?

11

A. Absolutely.

12

THE COURT: I'm sorry, doctor. I missed

something.

13

THE WITNESS: Yes, sir?

14

THE COURT: I believe that you said that often,

or

15

usually, infiltration is immediately obvious, but that it can

16

be also asymptomatic for a time?

17 occurs
18 19 20 less 21 22 23 24 25

THE WITNESS: It can be, if the infiltration
right the injection site, then it's easy to see, as long as you look for it.
On the other hand, if infiltration occurs in a
obvious place, patients may be asymptomatic for a significant amount of time.
Several weeks ago, I walked in to see one of my patients, and he held his arm up and he said, look, his arm was swollen. His IV had infiltrated. He hadn't really

-164-

1

developed symptoms. We obviously kept running fluid in,

2

because his arm got pretty swollen.

3

And then, you know, some hours later, I walked

in,

4

and he holds his arm up and he says, you know, what's the

5

matter with my arm?

6

So there's an example of somebody whose IV was

7

working for a while, and then it infiltrated, but apparently

8

it wasn't immediately obvious. The infiltration occurred in

9

a place not immediately adjacent to where the IV had been

10

placed.

11

Does that answer your question?

12

THE COURT: You did, thank you, doctor.

13

BY MR. ZUBLER:

14

Q. Does the forcible injection of drugs into a vein raise or

15

have any effect on the risk of infiltration?

16

A. Sure. You know, if you, veins are very thin walled blood

17

vessels, as opposed to arteries, which have a thick muscular

18

portion. So anything that steadily raises the pressure in

19

the vein makes them at higher risk to infiltrate or to leak,

20

or whatever term you want to use to describe that.

21

So if you put an IV in, and you just hook it up

to

22

a gravity drip, there's very -- that is dripping under really

23

no force.

24

Still sometimes veins will rupture and

infiltration

25

will occur. But if you load up a syringe full of whatever it

-165-

1

is that you want to inject and you inject it under some

2

force, there is sudden ballooning, if you will, of the vein.

3

And depending on how strong the vein is and how high the

4

pressure is, then those veins may be at risk for rupture.

5

Q. And how does the risk of infiltration compare in a

6

patient who has compromised veins, as we discussed earlier,

7

with the danger that of infiltration for a patient with

8

normal healthy veins?

9

A. It is kind of complicated issue, and I'll try to, if you

10

promise not to speak lawyer speak, I will try not to speak

11

medical speak here.

12

Q. It's a deal.

13

A. The simple answer is that it increases the risk depending

14

on the nature of the venous disease. What it is flowing

15

in the IV, where the IV is located. And particularly where

16

the IV is located in relationship to where the veins are no

17

longer healthy.

18

Q. So all of those things could affect it?

19

A. It --

20

THE COURT: If I could ask a question, doctor?

21

When we speak of compromised veins because of intravenous

22

drug use, is it that the veins themselves start to collapse

23

and are therefore visibly hard to find because they're just

24

not as big?

25

Or is it that they look just the same, but

they're

-166-

1

a lot weaker because of the corrosive effect of the

2

intravenous drug use, or is it both?

3

THE WITNESS: It's actually neither.

4

THE COURT: Neither?

5

THE WITNESS: What happens is, if you -- veins

are

6

delicate blood structures, blood vessels, and so they weren't

7

meant to be stuck. That is not how they were designed to

8

work.

9

So if you damage the wall by repeatedly sticking

it

10

with a needle, and then you inject a corrosive substance into

11

it, the walls harden actually, and ultimately the veins no

12

longer have blood flow in them.

13

Now, where that is, how that is, depends

obviously

14

on where it is you're injecting, how often it is you're

15

injecting, and --

16

Q. Where does the blood go, then?

17

A. Well, what happens is --

18

THE COURT: In the capillaries?

19

THE WITNESS: No. What happens is -- may I?

20

THE COURT: Certainly.

21

THE WITNESS: This is not a particularly accurate

22

diagram, but it will work for us.

23

So these are the superficial veins. These are

the

24

veins you can see in your hand. It's not a big surprise,

25

since most IV drug abusers are not trained phlebotomists,

-167-

1

they hit the veins that are easy to see first.

2

And so the veins that they can easily access go

3

first. So if you do it for a long time, all of the

4

superficial veins are damaged, thrombosed. There's cords in

5

them, of clotted blood. The walls get thick, and they don't

6

really support flow.

7

Normally, between the superficial veins and the

8

deep veins, are perforators, so they communicate. So blood

9

flows here. Blood flows there. Blood can flow between, but

10

ultimately, all of these empty into the axillary vein here.

11

Or, I'm sorry, here, which is a deep vein, and ultimately if

12

subclavian veins, and that's how you get blood back to your

13

heart.

14

Well, this is a situation that's not so different

15

from the freeway when it gets clogged. What do people do

16

they get off on the exit ramps. So if you've got no flow

17

here, no flow through the perforators, in order to get the

18

blood back, body develops collateral blood vessels.

19

These are typically quite small. And very

20

numerous. And so the blood find its way, it goes down the

21

arteries, into the capillaries, that's where the body unloads

22

the oxygen and the nutrients and dumps the waste back in so

23

you can breathe the CO2 out and then it kind of meanders back

24

through the collateral blood vessels ultimately to join up at

25

some place with some of the deep veins, if they haven't been

-168-

1 2 hasn't 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21

injected, too. And ultimately into the subclavian, if that
been injected, and ultimately back to the right side of the heart.
Is that clear? THE COURT: Good. Thank you. BY MR. ZUBLER: Q. I'd like to pick up where you were with the collateral veins, but before we go there, I just wanted to close out the questioning I was asking a moment ago. You identified a number of factors that would affect the risk of infiltration including the placement of an IV and so forth. But is it fair to say, all other things equal, someone who has veins damaged by intravenous drug use will have a higher probability of infiltration than someone else? A. I think that's a fair statement. Q. With respect to the collateral veins that you were discussing, what kind of flow of blood can they handle? A. Not a lot. And they are numerous, and they are small, and they don't really have the ability to expand in any real

22

way.

23

Q. If infiltration were to occur in a patient, would it --

24

would it be the collateral veins that might be the ones that

25

--

-169-

1

A. In a person with IV drug abuse?

2

Q. Yes.

3

A. Might be.

4

And if that happened, since it's deep in the

5

muscles, it might not be symptomatic, because you wouldn't

6

see it. You can't see it by looking at the arm.

7

Q. Did there come a time when you performed an examination

8

of Vernon Evans' veins?

9

A. I did.

10

Q. Do you recall when that was?

11

A. I can't give you a date.

12

Q. Was it January of this year?

13

A. It wasn't yesterday.

14

Q. How many times have you examined Mr. Evans' veins?

15

A. Just once.

16

Q. And do you recall where the examination was?

17

A. In on death row in a room, or at least adjacent to death

18

row in a room.

19

Q. How long did your examination last?

20

A. 20 minutes or so.

21

Q. And when you first met Mr. Evans, did you ask him for any

22

information about his medical condition?

23

A. We had a general conversation about his medical

24

condition. I specifically asked him if he was an IV drug

25

user.

-170-

1

Q. And what did he say to you?

2

A. That he had about a 30-year history of drug use,

3

including in jail, and that he had quit recently. I can't --

4

I don't frankly remember how many months he said it had been

5

since he'd been shooting.

6

Q. And what parts of Mr. Evans's body did you examine?

7

A. I examined both upper extremities and his lower

8

extremities up about to his knees.

9

Q. When you say upper extremities, what are those?

10

A. Arms.

11

Q. And lower extremities are?

12

A. Legs.

13

Q. Could you please describe how you examined Mr. Evans'

14

upper extremities?

15

A. First, I just looked at them. They seemed to be

16

reasonably normal. They weren't swollen in any particular

17 18 good 19 20 21 22 23 24 25

way.

I felt his pulses. He had good pulses in his

radial pulses. I then put a tourniquet on his arm and looked to
see if any veins would pop up. And then I put an ultrasound machine on the veins in his upper arm and ascertained whether the flow increased when I compressed his forearm. Q. Let's back up for a minute.
What's the purpose of using a tourniquet?

-171-

1

A. Well, pressure in veins is very low. It's two or three,

2

or zero millimeters of mercury. So if you block flow out, by

3

putting a tourniquet on, which raises the pressure in the

4

veins at the level of the tourniquet above venous pressure,

5

it occludes the veins.

6

And a simple tourniquet, you can't occlude the

7

arteries, so blood will go in, and blood will stop flowing

8

back, since it can't get out at least in the superficial

9

veins. That means they pop up, they dilate up. Then you can

10

assess whether they are, whether you're going to be able to

11

put an IV into them.

12

Q. And did you apply a tourniquet to both of his arms?

13

A. I did.

14

Q. And when you had the tourniquet applied, were you able to

15

either see or feel any usable veins?

16

A. He had a couple of small veins on the dorsum of his hand

17

that were very small.

18

Q. Anything on the upper part of his arm?

19

A. I couldn't feel anything, no.

20

Q. Or see anything?

21

A. Or see anything.

22

Q. And is that answer the same for both arms?

23

A. Yes.

24

Q. Now, you mentioned that you also examined Mr. Evans' arms

25

with an ultrasound; is that correct?

-172-

1

A. Correct.

2

Q. What kind of ultrasound was that?

3

A. It was a Doppler ultrasound.

4

Q. And could you explain how that works, and why you use it?

5

A. An ultrasound is a device, it's a little ultrasound box,

6

and it has a band that comes out, and if you put some

7

conducting jelly on it, and you listen over the blood

8

vessels, you can hear the flow in those blood vessels.

9

Q. And so in can a Doppler ultrasound reveal veins that you

10

might not be able to see?

11

A. You can demonstrate flow in them, with the ultrasound if

12

you can't see them, yes.

13

Q. And can a Doppler ultrasound also reveal that a vein that

14

you do see doesn't have venous flow?

15

A. I expect it could.

16

Q. How often do you use that a Doppler ultrasound in your

17

private practice?

18

A. We use it a few times a week.

19

Q. And what was the -- what were the results of your

20

examination with the Doppler ultrasound?

21

A. Well, what I was able to do is hear flow in the deep

22

veins up high.

23

Now, assuming there is good flow in the lower

24

veins, if you compress the forearm, that should significantly

25

increase flow through the deep veins, and you hear a whoosh.

-173-

1

So, you know, arterial flow, if you put the

Doppler

2

over the artery, it's (indicating sound), because it's very

3

rapid flow under pressure.

4

If you put the Doppler on the vein, (indicating

5

sound), because its flow under with two millimeters of

6

mercury pressure.

7

There's no -- it's a high flow, but a very low

8

pressure system.

9

If you then augment flow and suddenly increase

flow

10

in that vein, you'll hear a whoosh.

11

Q. Can you describe what you mean by augment flow?

12

A. By if you squeeze the forearm and there are good

13

superficial veins, or big deep veins, and you increase the

14

pressure in the vein, they empty quickly. So the flow in the

15

deep veins should increase, and you should be able to hear

16

that with by listening over the vein.

17

Q. And when you did that, what did you hear on Mr. Evans?

18

A. He had very poor augmentation. So the flow didn't really

19

go up much.

20

Q. And is that the same with respect to both arms?

21

A. It was the same with both arms.

22

Q. And the lack of good augmentation, what does that

23

indicate generally about?

24

A. The smaller collateral veins are not very compressible.

25

So you -- if you squeeze the arm, they don't much increase

-174-

1

flow.

2

his

What that means to me is that he has no flow in

3

cephalic and basilic system veins and probably not a lot of

4

great flow even in the deeper veins but certainly, and that

5

-- not the superficial veins, and that didn't surprise me

6

particularly since I didn't see any.

7

Q. In your opinion, based on your examination of Mr. Evans

8

with the Doppler ultrasound, do you think that the veins in

9

Mr. Evans' upper extremity could be used to administer a

10

lethal injection?

11

A. I think it's very questionable. If I had to guess, I

12

would say that the answer is no. But I certainly don't think

13

I can be confident and say that the answer is yes.

14

Q. What are some of the risks if the state couldn't obtain

15

reliable venous access during an execution?

16

A. Well, I suppose if you never got an IV in, then you

17

probably aren't going to execute him by lethal injection.

18

If you get an IV in, if it's possible to put an

IV

19

in, and then any volume of fluid is injected under pressure,

20

my concern is that those collateral veins are going to

21

rupture, because they are now being asked to augment flow to

22

increase blood flow, over a short period of time, and then I

23

think after that, everything's unpredictable. Some stuff

24

goes, some stuff stays in.

25

And I don't know that you can reliably say what's

-175-

1

going to happen after that. I don't think you can.

2

Q. Well, first of all, if the thiopental that's injected, if

3

that were to infiltrate into the skin, what would a

4

consequence of that be?

5

A. I think it would depend on how much infiltrated and how

6

much didn't. How much got into the central circulation

7

because it infiltrated. So you may get no effect. You may

8

get partial effect. It's hard to know.

9

Q. So would you say it's possible that the Pavulon and

10

potassium chloride could be absorbed into Mr. Evans' blood

11

stream and take effect even without the thiopental?

12

A. Yeah. I just don't know what will happen.

13

It's -- some of it will depend on volume. Some

of

14

it would depend on how rapidly it was injected. I don't

15

know.

16

Q. If the state were to attempt to gain venous access first

17

in the antecubital fascia area, and then if that were to fail

18

to try to use veins more distant or distal, from the body,

19

what would be the consequence of that?

20

A. It would depend what happened when, whoever was trying to

21

put the IV in the antecubital fascia, what happened.

22

If you puncture the artery instead of the vein,

the

23

artery will bleed. That will set up a situation where the

24

pressure in the tissue was now higher than it was before.

25

Remember, the pressure in the vein is two

-176-

1

millimeters of mercury. You can raise it by forcefully

2

injecting, but there will be no relative venous outflow

3

obstruction, so harder to get the stuff around.

4

If they hit the vein and go through the vein, but

5

then are unable to canulate the vein, get the catheter to go

6

into the direction up toward the shoulder, you now have a

7

hole in the vein.

8

Now you forcefully inject, you increase flow, as

9

you increase flow in that vein, you certainly -- one

10

possibility is stuff goes out instead of going up. It kind

11

of depends, hard to know.

12

Q. So if I'm understanding you correctly, that the attempt

13

to gain intravenous access in the antecubital fascia area

14

could make holes, I guess?

15

A. Correct. So I mean if you stick the vein and get into

16

the vein, and then you try to thread the catheter, I mean,

17

thread the catheter goes out the back wall, because you can't

18

really see the vein, assuming you try to hit a deep vein,

19

blindly into the antecubital fascia, then you've got two

20

holes in the vein.

21

Now, you rapidly increase flow, well, maybe some

of

22

that flow comes out the holes as opposed to going up the

23

vein.

24

Q. Is it like a leaky garden hose?

25

A. It's not so dissimilar.

-177-

1 2 3 4 5 6 7 8 9 10 11 12 13 14 veins 15 16 17

Q. We talked earlier about your examination of Mr. Evans' upper extremities, his arms. We -- I didn't mention your examination of his hand. You started to mention that. You said you -A. He had several very small veins on his hands. Q. And would those be suitable for use in a lethal injection? A. Not in my opinion. Q. Why not? A. They're very small. It's going to be hard to get an IV in reliably. I am not at all convinced that there is good drainage from those veins up through his forearm up into his upper arm.
And in some ways, you know, if you have a few
left on your hand, and then flow is limited through the forearm, it's kind of like putting the tourniquet on. Those get bigger.

18 maybe
19 20 21 22 23 24 25

So you get this false sense that these veins
usable, but they're only big because they don't empty. Only there because they don't empty. Q. So is it fair to say that if you wanted to use the hand veins for such an injection, you also need to have an appropriate level of venous flow higher up the arm for it to work? A. Correct.

-178-

1

Q. Is there a method of intravenous access that could be

2

used reliably to administer Maryland's lethal injection

3

procedure?

4

A. Central line, or perhaps a ultrasonic graphically guided

5

placed line in a deep vein up high, central line would

6

probably be the most reliable way to do it.

7

Q. What about a cut-down procedure?

8

A. I think a cut-down procedure is unlikely to be successful

9

anywhere in the hand or in the -- at the ankle. The only

10

place you could do a cut-down procedure.

11

I mean, I suppose you could cut-down on any vein,

12

so if you wanted to theoretically open his chest and put a

13

line directly into his right heart, that's a cut-down of

14

sorts. But it's kind of a big cut-down.

15

The place that are typically used for cut-downs

is

16

the saphenous vein at the ankle, and he doesn't have one.

17

The only other the place where you could, perhaps, though not

18

necessarily reliably do a cut-down, would be in his groin and

19

that would mean making a decent size incision identifying the

20

saphenous vein if it's patent, at the junction between the

21

saphenous vein and the femoral vein and canulating that, or

22

directly canulating the femoral vein.

23

Q. Who would be qualified to do -- let's all take first a

24

cut-down procedure?

25

A. Surgeon, maybe an emergency physician at the groin, a

-179-

1

cut-down.

2

Q. And ordinary internist wouldn't be qualified?

3

A. No.

4

Q. Would a certified nurse's assistant?

5

A. No.

6

Q. What about a central line?

7

A. The only people I am aware of that are -- well, let me

8

say it this way, hospital privileges are a local phenomenon

9

so hospitals give privileges. If I want to get privileges at

10

Franklin Square Hospital, the fact that I've privileges at

11

the University of Maryland doesn't mean anything. I can't

12

walk into Franklin Square and say I have privileges at

13

Maryland, let me operate here. I have to get privileges from

14

Franklin Square. Franklin Square could tell me our criteria

15

for doing this procedure is different from the criteria at

16

Maryland, or somewhere else.

17

So as far as I know, in hospitals, at least in

the

18

State of Maryland, the only people I know that are allowed to

19

place central lines are physicians and nurse practitioners.

20

Q. And with respect to the possibility you mentioned of

21

using an ultrasonic injection or ultrasonic location, I

22

guess, is maybe what you said, who in your experience has the

23

qualifications trained to do that?

24

A. You have to be pretty good with an ultrasound probe. I

25

couldn't do that because I don't know how to. I've never

-180-

1

been trained to do that.

2

Vascular surgeons are usually pretty good. You

3

know some nurse practitioners are very good. People that put

4

in pic lines, those are percutaneous lines threaded up for

5

long-term antibiotics or nutrition are good at accessing

6

deeper veins, with ultrasound guidance.

7

But you would need certainly to have some

advanced

8

practiced degree, and be specially trained in that technique.

9

Q. Is that something that a patient care technician or CNA

10

would do?

11

A. No.

12

Q. Are you familiar with Dr. Mark Dershwitz?

13

A. I read his deposition.

14

Q. And do you recall any testimony by him about the

15

possibility of venous rupture infiltration?

16

A. Yeah. He was of the opinion that that didn't really

17

happen.

18

Q. And what is your opinion of Dr. Dershwitz's testimony?

19

A. I think that it's very likely he takes care of different

20

kind of patients, perhaps than I do. Because I see venous

21

rupture. You know, we see it. It's not uncommon. It is not

22

that you scratch your head when you see it and say I've got

23

to wonder what that is, it's a fairly recognizable scenario

24

for us.

25

It may not be in the operating room at Mass

-181-

1

General, I guess, which is where he works. But it certainly

2

happens in my hospital.

3

Q. Do you know Benjamin Laughton?

4

A. I do.

5

Q. Who is he?

6

A. He is the program manager for the nurse practioner

7

program at the Shock Trauma Center.

8

Q. Is he a nurse practioner himself?

9

A. He is.

10

Q. And what is your opinion regarding Mr. Laughton's medical

11

knowledge and skill?

12

A. He's a pretty sophisticated clinician.

13

Q. Do you personally work with him on occasion?

14

A. I do.

15

Q. How often?

16

A. Few times a month, he does a lot of administrative work,

17

but he's a practicing clinician, so I work with him on the

18

wards a few times a month.

19

Q. Are you aware Mr. Laughton examined Mr. Evans' veins in

20

connection with this case?

21

A. I'm only -- only realized that because I read his report.

22

I had no knowledge that he was going to do that.

23

Q. Does he report to you at the hospital?

24

A. It's -- it probably not. In the organizational chart of

25

the hospital. But functionally, since I'm kind of the boss,

-182-

1

he does in some, in a functional way, I would say he does.

2

Q. And I believe you said you only became aware that he

3

examined Mr. Evans' veins after he did so; is that correct?

4

A. That's correct.

5

Q. Are you -- did you talk with Mr. Laughton, have you ever

6

talked to him about this case?

7

A. No.

8

Q. Are you aware that Mr. Laughton submitted an expert

9

report in this case?

10

A. I read it.

11

Q. Did you review it prior to his submission of it?

12

A. No.

13

Q. Did you review it prior to submitting your report?

14

A. No.

15

Q. And from your review of his report, how did his

16

examination compare to your examination?

17

A. My memory is they were pretty similar.

18

Q. And are you referring to the methods he used or the

19

results?

20

A. The results.

21

Q. Do you recall how the methods compared?

22

A. He used a different kind of ultrasound device. He used

23

an ultrasound with a screen on it, so now you can see, not

24

only can you hear the flow, you can see the blood vessel on

25

the screen, so-called color flow, because it's expensive

-183-

1

machines, at least they're in color, so you can watch the

2

blood flow. Therefore, you could see if the blood vessel was

3

narrowed. And I didn't use that.

4

Q. Would that tend to reveal more or less information about

5

a person's veins than a Doppler ultrasound?

6

A. It's different information. I guess it's probably

7

additional information. I think that's a fair statement.

8

Q. And do you recall what Mr. Laughton's findings were?

9

A. Yeah. My memory is he didn't find anything suitable on

10

the hands or in the lower articles, but that he was able to

11

demonstrate the flow through the deep system with his

12

ultrasound, higher up in the arm.

13

Q. And what do you make of that finding in comparison to

14

yours?

15

A. I don't think they're so different. I think they're

16

about the same.

17

Q. Does his finding of some flow in the arm affect your

18

opinion about whether the state could obtain reliable venous

19

access to Mr. Evans?

20

A. No. Because if you could hit one of those deep veins

21

higher up in the arm with ultrasound guidance, because you

22

would have to, it would be hard to hit it without ultrasound

23

guidance, I think, then that will be, if you got it in, then

24

that's reliable venous access. But you'd have to have all of

25

the knowledge and expertise to do that.

-184-

1

In most basic terms, it's no different from when

I

2

put a probe on and I could hear it, he put a probe on it and

3

he could see it.

4

Q. Now, based on your review of the documents in this case,

5

do you have an understanding about the role of Contractual

6

Team B in examining inmates subject to lethal injection?

7

A. Yeah. My understanding is that this individual is

8

responsible for ascertaining reliability of venous access and

9

then placing the IV.

10

Q. And do you understand that Contractual Team B has

11

examined the veins of Mr. Evans?

12

A. I am.

13

Q. And based on your review of her deposition testimony and

14

her expert report, what do you understand about her

15

examination?

16

A. My memory is that she thought that there were a large

17

number of usable veins, seven on one side, eight on the other

18

is my memory, though I could be off by one or two.

19

Q. What is your understanding regarding how she examined Mr.

20

Evans?

21

A. With a tourniquet.

22

Q. And do you know whether she used an ultrasound?

23

A. My understanding it was that she didn't. At least I

24

didn't see any mention of that.

25

Q. So do you have any possible explanation for how she was

-185-

1

able to find multiple, several veins on each arm, and you

2

didn't find anything?

3

A. No.

4

Q. Now, isn't it possible that a person's veins, their

5

appearance, can vary depending on his or her condition at any

6

given time?

7

A. Not that much.

8

Q. Now, based on your review of Contractual Team B's expert

9

report and deposition testimony, did you see anything that

10

caused you concern about her ability to assess intravenous

11

access?

12

A. To be able to assess intravenous access?

13

Q. Uh-huh.

14

A. No. She -- I know does that or he or she I guess does

15

that as part of his or her job, but I have no explanation,

16

and it -- I find it almost impossible to reconcile that I was

17

unable to find any, and he or she was able to find 14, 15,

18

whatever the correct number was. I can't explain it.

19

Q. Do you recall in her second deposition that she mentioned

20

that she was able to locate both the radial and ulna veins?

21

A. I do remember that.

22

Q. Do you have a professional opinion regarding that

23

finding?

24

A. Yes, she's factually incorrect.

25

Q. How do you know that?

-186-

1 2 3 4 5 6 7 8 ulnar 9 10 11 12 13 14 15 16

A. Because you can't see the radial and the ulnar veins. They're not visible from the skin. Q. What veins can you typically? A. You can see -- you can see the cephalic and basilic venous system by limiting flow through it. This is actually it's not drawn to scale. The radial and the -- veins and arteries come in matched pairs.
So you have a radial artery and radial vein,
artery, you have the ulnar vein, you have a brachial artery, you have a brachial vein. They get smaller as you get closer to the end of your extremities.
The radial artery and the ulnar artery are really small. When you work on them, you have to put magnifying blood pressures on in order to be able to actually see the inside. Veins aren't any bigger. And they are deep in the structure of your arm.

17

You can put your finger on your snuff box and

feel

18

the radial artery, but you can't see it. You can't even feel

19

the ulnar artery, or you may be able to. But there is no way

20

that you can see the radial and the ulnar vein by putting the

21

tourniquet on. It can't be done.

22

Q. Thank you.

23

Contractual Team B also testified that she

actually

24

uses the radial ulnar veins for IV insertion quote "all the

25

time" unquote. What is your opinion regarding that?

-187-

1

A. She's factually incorrect.

2

Q. And why is that?

3

A. Because you can't see them; therefore, you can't use

4

them.

5

Q. Dr. Scalea, earlier today we heard a deposition clip in

6

which Contractual Team B testified that she personally had

7

inserted IV's in the breast quote "hundreds of times"

8

unquote.

9

Does that testimony, how does that comport with

10

your medical experience?

11

A. I think I've seen one IV inserted into a breast vein. I

12

would frankly consider that below the standard of care in a

13

acute care hospital, certainly a hospital the quality of the

14

(SEALED).

15

Q. Do you recall testimony of Contractual Team B regarding

16

how often she has been able to successfully obtain IV access?

17

A. Yes. She said that she thought she had missed once or

18

twice in ten years.

19

Q. And what is your opinion regarding that testimony?

20

A. Well, we could do, I mean, she's testified that she --

21

can I write on this?

22

Q. Please.

23

A. She testified she puts 10 IV's in per shift. If she

24

works 12 hour shifts, then she works three a week. So that's

25

30 a week.

-188-

1

She works 50 hours, 50 weeks a year, that's 1500

2

IV's a year. If she's worked ten years, that's 15,000 IV's

3

she has put in, and she's missed twice.

4

So that would be a miss rate of 0.001 percent.

5

Nobody's that good.

6

Q. Not even you?

7

A. Not even me. But there is nothing that that is good in

8

clinical medicine. Nobody hits it 99.99 percent of the time.

9

Q. I'd like to show you a clip of her deposition testimony,

10

starting at page 71 of her second deposition.

11

MR. PICKUS: Your Honor, the defendants object to

12

the showing of any clips of the deposition. There have been

13

no attempt to see if this witness even remembers the

14

deposition.

15

There is nothing whatsoever in the Federal Rules

of

16

Evidence that allow the clip to be played in these

17

circumstances.

18

THE COURT: What I'll do is I'll address, because

19

it will be a number of experts, I will address ground rules

20

later and some research that uncovered all this area. But

21

for the purposes of time, I'll overrule the objection now and

22

you may show the clip.

23

Q. Page 71 of her second deposition, beginning at line 6.

24

(Pause.)

25

(Tape played)

-189-

1

Q. Based on your review of her deposition testimony,

2

including that clip, do you have a professional opinion about

3

Contractual Team B's knowledge of the risks associated with

4

IV access?

5

A. I don't agree with her. I think she's wrong.

6

Q. Do you recall testimony of Contractual Team B regarding

7

her knowledge of the term extravasation?

8

A. Not as I sit here today.

9

Q. If I told you that she didn't know what that term meant,

10

would you find that surprising?

11

A. It's a fairly common term. I mean, it's a common term

12

used in our hospital, by a number of levels of healthcare

13

providers.

14

Q. I'd like to direct you to another clip beginning on page

15

70 of her second deposition, line 15.

16

(Tape played)

17

Q. Dr. Scalea, do you have a professional opinion regarding

18

the accuracy of that testimony?

19

A. I've already said I don't think it's right, so I don't

20

think it's right.

21

Q. Do you recall testimony by Contractual Team B regarding

22

how a patient's blood pressure affects infiltration?

23

A. I do.

24

Q. What do you recall about that testimony?

25

A. She said that the reason that IV catheters backed out of

-190-

1

the vein was due to the arterial blood pressure, or fairly

2

close to that.

3

Q. And what is your professional opinion regarding that

4

testimony?

5

A. It's factually incorrect.

6

Q. Why is it incorrect?

7

A. Because there's no relationship to the blood pressure,

8

and venous catheter dislodgment. Arterial blood pressure is

9

measured by occluding the artery and measuring flow through

10

an artery. So when your heart beats, it forces blood into

11

the arterial system. You measure a systolic blood pressure

12

by blowing the cuff up to a level where it stops the flow.

13

The diastolic component is the amount of blood

14

pressure in the arteries that exist during cardiac

15

relaxation. And so a typical arterial blood pressure would

16

be, if it's good, is 110, 120 over 70, millimeters of

17

mercury, and the mean blood pressure the average blood

18

pressure of that artery about 120 over 70. 85. So 85

19

millimeters of mercury.

20

Pressure is measured by blow and resistance. The

21

arteries are big muscular walls. The blood now goes down and

22

comes around and, it's in the veins. The veins, as I said

23

earlier, do flow, work very well, but they don't have any

24

pressure in them the average blood pressure, if you will, in

25

a vein, is two millimeters of mercury. It's essentially

-191-

1

zero.

2

So the pressure has nothing to do with pushing a

3

catheter out or displacing a catheter, or any of those

4

things.

5

Q. I'd like to show you another clip, this one beginning on

6

page 102 of the first deposition, line 9.

7

(Tape played)

8

Q. Based on your professional experience, Dr. Scalea, is

9

that testimony accurate?

10

A. No.

11

Q. Why not?

12

A. Because it's a plastic catheter, but the veins are very,

13

very delicate structures. And so a venous plastic catheter

14

could damage a vein and rupture it or end up outside the

15

vein. It has nothing to do with the needle no longer being

16

in.

17

Q. I'd like to show you another clip, this one beginning on

18

page 118, of first deposition, line 13.

19

(Tape played)

20

Q. Dr. Scalea, what is your opinion regarding that

21

testimony?

22

A. She's factually incorrect.

23

Q. Why?

24

A. You don't -- dopamine is a vaso active drug. It's not

25

given through a peripheral IV.

-192-

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 just 21 22 23 24 25

There are a class of drugs that cannot be given because either of they are so caustic they damage the peripheral veins, such as high intensity nutrition, or vaso-actives, such as Dopamine and neosynephrine, and those really need to be administered through a central line vein. Q. With respect to her testimony about feeling competent to monitor an IV administering anesthesia, what is your opinion regarding that aspect of her testimony? A. I guess I'm not sure, I guess I'm not sure what that means. You put an IV, it either works or it doesn't work. She doesn't work in the operating room, to the best of my ability, to tell. There's some things that are little different in the operating room than they are in a CCU or on the floor, not at least of which is the patient's covered up, so it's a little harder to see the patient.
So we have, we don't allow, and I am not aware of any place in the state or the country, that has a person at the level of a patient care technician, monitoring intravenous access in the operating room.
THE COURT: Good. Counsel, why don't we take
a 10-minute recess and come back at 20 minutes of. (Recess.) THE COURT: Please be seated. We're ready to
continue. BY MR. ZUBLER:

-193-

1 2 last 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22

Q. I believe I have just a couple more questions. Dr. Scalea, I would like to show you just one
clip from Contractual Team B's deposition starting on page 89, line 1. And if you could turn the monitors off just to observe confidentiality. should be lines 1 through 4.
(Tape played) Q. Dr. Scalea, based on your experience, what is your opinion of this testimony? A. Epinephrine is not anti arrhythmic, unless you consider cardiac stand still. Arrhythmia -Q. What is arrhythmia? A. Irregular heart beat. Q. So you wouldn't use epinephrine to correct irregular heart beat? A. Not unless there was no heart beat at all.
MR. ZUBLER: I have no further questions. THE COURT: Thank you. Mr. Pickus, your witness, sir. MR. PICKUS: Thank you, Your Honor.
CROSS-EXAMINATION BY MR. OAKLEY: Q. Good afternoon, doctor.

23

A. Hello.

24

Q. You are currently the physician in chief at Shock Trauma;

25

is that correct?

-194-

1

A. I am.

2

Q. And Dr. Dutton is an employee at Shock Trauma, correct?

3

A. He works at the Shock Trauma center, yes.

4

Q. And you are his supervisor?

5

A. I am his clinical supervisor.

6

Q. And Mr. Laughton, or Nurse Laughton, is also one of your

7

employees at the Shock Trauma, correct?

8

A. He works at the Shock Trauma, yes.

9

Q. You also sponsor Mr. Laughton in his nurse practioner

10

agreement; is that also correct?

11

A. I believe so.

12

Q. The patients that come to Shock Trauma, you describe that

13

you get the worst of the worst, is that a fair statement?

14

A. We get a lot of very sick people, yes.

15

Q. And they all suffer from trauma, some sort of trauma?

16

A. Most of them do, yes.

17

Q. Is it fair to say that the patients you're dealing with

18

are more difficult than, say, what the average hospital deals

19

with?

20

A. Yes.

21

Q. Is it also fair to say that a lot of times the actual

22

trauma itself can cause problems to a person's veins?

23

A. No.

24

Q. Well, do trauma patients lose a lot of fluid?

25

A. The consequences of injury can make venous access

-195-

1

challenging, yes, but the trauma itself doesn't do it.

2

Q. So the consequences of trauma, which is what you deal

3

with, can make venous access difficult?

4

A. Yes.

5

Q. And how often do you personally do peripheral IV's?

6

A. A few times a week.

7

Q. Do you know how often Nurse Laughton does peripheral

8

IV's?

9

A. I don't.

10

Q. Have you put a peripheral IV in a patient with

11

compromised veins?

12

A. Yes.

13

Q. Have you successfully put a peripheral IV in a person

14

with compromised veins?

15

A. Yes.

16

Q. Do you get significant amount of patients at Shock Trauma

17

who have compromised veins for reasons not related to their

18

injuries?

19

A. We get a fair number.

20

Q. Is it possible for to you put a percentage on that number

21

for me?

22

A. We probably see 10 percent of our patients, our

23

intravenous drug abusers. I'm guessing here. I mean, so I'm

24

just, these are very much ballpark figures. We see a number

25

of people who are elderly who may have fragile peripheral

-196-

1

veins.

2

I can tell you that a little bit more

specifically

3

about 25 percent of the people that we see are over the age

4

of 65, I couldn't tell you what percentage of those people

5

have problems with their veins.

6

Q. And are there other medical situations that cause

7

problems with people's veins, such as dialysis, or other

8

situations?

9

A. Yes.

10

Q. So is it fair to say a large percentage of people coming

11

into your hospital have compromised veins?

12

A. You would need to be a little bit more specific and

13

define large.

14

Q. Is it over 50 percent?

15

A. I don't think so.

16

Q. Close to 50 percent?

17

A. I don't think so.

18

Q. Well, when you factor in the fact that they likely or

19

could suffer compromised veins as a consequence of their

20

injury, does the number take you over 50 percent?

21

A. I don't think so.

22

Q. Is it over 25 percent?

23

A. You're asking me for, I don't know.

24

Q. You said that 10 percent of your patients are IV drug

25

users?

-197-

1

A. You asked me for a number. I told you I was giving you

2

my best guest, so --

3

Q. And those patients probably have compromised veins?

4

A. I think drug users have difficult veins, no question

5

about that.

6

Q. In addition to that, elderly patients could have

7

compromised veins?

8

A. Yes.

9

Q. In addition to those, you could have people who have

10

compromised veins for medical reasons?

11

A. Correct.

12

Q. In addition to those people, you could have people

13

compromised veins solely as a consequence of their injury?

14

A. Correct.

15

Q. And is it fair to say there are people out there who just

16

have problematic veins even though --

17

A. Some people have lousy veins, no question.

18

Q. And, again, the patient you work with, is it fair to say

19

that peripheral IV's are in most situations the line of

20

choice at Shock Trauma?

21

A. Peripheral IV's are the initial line of choice.

22

Q. And is that because they're quicker and easier?

23

A. Yes.

24

Q. And when you say they're the line of choice, we're

25

comparing it to central lines; is that correct?

-198-

1

A. Correct.

2

Q. Is it fair to say that -- I'm sure there are probably a

3

few situations where you may go right to the central line,

4

but in general, you try to get a peripheral IV before going

5

to the central line?

6

A. Depends on the patient.

7

Q. Do you usually try to get a peripheral IV in before

8

getting a central?

9

A. More often than not, we try to put a peripheral IV in, or

10

they come with a peripheral IV.

11

Q. And who does peripheral IV's at Shock Trauma?

12

A. Technicians do, nurses do, doctors do.

13

Q. Are they patient care technicians?

14

A. Yeah, I -- we call them patient care technicians, yes.

15

Q. And how often do patient care technicians do peripheral

16

IV?

17

A. Every day.

18

Q. Are you satisfied with their skill level of putting in

19

IV's at Shock Trauma?

20

A. Usually.

21

Q. And you briefly talked about this, to Mr. Zubler's

22

questions, but central lines can cause some of their own

23

complications; is that fair to say?

24

A. Absolutely.

25

Q. And my understanding there's essentially three kind of

-199-

1

central lines, is that fair?

2

A. There are three sites where central lines are generally

3

inserted.

4

Q. That would be the femoral vein?

5

A. Internal jugular and subclavian vein.

6

Q. Could you tell us what the complications are for central

7

lines?

8

A. Depends on the site.

9

Q. Okay. Let's start with the femoral vein.

10

A. Femoral vein is infection and thrombosis of the femoral

11

vein, and poor placement or consequences of the poor

12

placement.

13

Q. And what are the consequences of poor placement?

14

A. The central line migrates out of the vein, and the

15

patient then gets their IV fluids outside of the vein and/or

16

bleeds into the area around the vein.

17

Q. So it sounds to me like it's the same consequences as

18

infiltration on a peripheral IV?

19

A. Can be.

20

Q. Any other complication you can think about for central

21

line?

22

A. Those are the main ones.

23

Q. How about subclavian?

24

A. Same think cardiac arrhythmias, when you put the guide

25

wire in.

-200-

1

Less risk of infection.

2

Pneumothorax or hemothorax. That means the lung

3

collapses because you puncture the lung on the way to the

4

vein or you bleed into the chest.

5

Q. And how about a central line placed in jugular vein?

6

A. About the same as subclavian though, probably a little

7

less frequent.

8

Q. And who can place a central line in Shock Trauma?

9

A. Nurse practitioners or I guess nurse anesthetists and

10

physicians.

11

Q. Okay. And if Maryland were to go to a central line

12

during its lethal injection procedure, they would need, in

13

your opinion, to have one of those two types of qualified

14

people?

15

A. Those are the people in our hospital that we believe are

16

qualified to put lines in.

17

Q. Can a normal RN do a central line, to your knowledge?

18

A. Not in our hospital.

19

Q. Can a nursing assistant, they can't do a central line?

20

A. No, they can't, not in our hospital.

21

Q. Would it surprise you if Maryland had difficulty

22

obtaining an MD to actively participate in an execution?

23

A. Would it surprise me? I guess not. I haven't really

24

thought about it.

25

Q. And when you do a central line, is anesthesia used prior

-201-

1

to the putting in of the central line?

2

A. Local anesthesia is used.

3

Q. And what exactly what kind of local anesthesia is used?

4

A. Lidocaine.

5

Q. Do you ever do a peripheral IV anesthesia before doing

6

central vein?

7

A. Occasionally.

8

Q. When would you do that?

9

A. Somebody's really very nervous, or very apprehensive, it

10

makes them feel better to get Lidocaine sometimes.

11

Q. So you would actually use general anesthesia before doing

12

the central line; is that correct?

13

A. No, that's not what I said. I said we use local

14

anesthesia.

15

Q. Well, what do you use when you use a peripheral IV prior

16

to a central line what are you administering?

17

A. I don't understand your question.

18

Q. You testified that you occasionally use a peripheral IV

19

prior to doing a central line?

20

A. Correct.

21

Q. What drug is going in the peripheral IV?

22

A. Usually IV fluids, maybe antibiotics, depends on why

23

we're putting the central line in.

24

Q. Do you ever use anesthesia through a peripheral IV prior

25

doing a central line?

-202-

1

A. General anesthesia?

2

Q. Yes. Any kind of anesthesia?

3

A. We will occasionally give somebody some pain medicine in

4

or some sedation, just depends on the patient, depends on the

5

situation, depends on the whole case.

6

Q. But as far as your examination of Mr. Evans, did you

7

review any of his medical records?

8

A. No.

9

Q. And he told you you have -- he had an IV history?

10

A. Correct.

11

Q. Now, you testified that you are fairly familiar with

12

dealing with patients who have an IV drug history; is that

13

correct?

14

A. Correct.

15

Q. And when you deal with those patients and you're trying

16

to get a peripheral IV, will you ask them what name they use

17

when they were using IV drugs?

18

A. Sometimes.

19

Q. When would you do that?

20

A. Sometimes they volunteer it, they say stick over here.

21

Sometimes if I find nothing, I ask them if you're still

22

shooting, is there a place that's useful? I don't remember

23

doing that recently. But I have in the past.

24

Q. Have you ever gotten useful information from that

25

question?

-203-

1

A. I guess I don't remember.

2

Q. So you're testifying now that you've never asked an IV

3

drug user what veins he or she didn't or did use?

4

A. Yes. The question you asked me is had I ever gotten

5

useful information. The answer is I don't remember. I

6

didn't say it didn't happen. I just don't remember a

7

situation where it happened.

8

Q. If an IV drug user is conscious, what is your practice as

9

far as asking him about what veins he may use?

10

A. I don't recall doing it, and in a long time.

11

Q. Did you ask Mr. Evans what veins he used?

12

A. No.

13

Q. Do you ask Mr. Evans if he had ever had any lapses in his

14

use?

15

A. No, I didn't.

16

Q. Did Mr. Evans indicate to you recently he stopped using

17

IV drugs?

18

A. He did, but I don't remember the answer.

19

Q. Was it in terms of days, months, or years?

20

A. Months is my memory.

21

Q. And you examined his arms up to his biceps?

22

A. Up to just to his upper biceps, up near his axilla.

23

Q. And his leg up to his knees?

24

A. Approximately.

25

Q. And his hands and feet?

-204-

1

A. Correct.

2

Q. So you did not examine his chest?

3

A. Correct.

4

Q. You did not examine his groin?

5

A. Correct.

6

Q. Did not examine his back?

7

A. Correct.

8

Q. On the upper extremities of Mr. Evans, his arms, was

9

there any swelling present in either arm?

10

A. No.

11

Q. Was there any bruising present in any arm?

12

A. No.

13

Q. Did you measure the circumference of either arm?

14

A. No.

15

Q. Did you measure circumference of either leg?

16

A. No.

17

Q. Was there any swelling in any of the legs?

18

A. Not that I remember.

19

Q. Was there any bruising in either leg?

20

A. Not that I remember.

21

Q. And as far as the ultrasound is concerned, you only use

22

that on the arms, correct?

23

A. Correct.

24

Q. And when you use the ultrasound, you could in fact see

25

some flow in the deep veins?

-205-

1

A. Yes.

2

Q. Do you have an opinion as to the health of his deep

3

veins?

4

A. He had flow in at least one of them. That's really all I

5

can say.

6

Q. And then you augmented the arms while you were using

7

ultrasound; is that correct?

8

A. No.

9

Q. What did you do while you were using the ultrasound?

10

A. The arm was out, I put the ultrasound on, I don't

11

remember elevating the arms.

12

Q. I didn't say elevate, I meant augment.

13

A. Augment, I'm sorry. I squeezed his forearm to see if the

14

flow in the deep vein that I was listening to increased.

15

Q. And you did that on both arms?

16

A. I did.

17

Q. Can you quantify what the augmentation was?

18

A. It was minimal.

19

Q. Can you quantify what that augmentation was?

20

A. 10 percent, or so, is my memory, if you want a number.

21

Q. 10 percent of what?

22

A. 10 percent of baseline flow.

23

Q. What I'm saying, can you quantify that augmentation as

24

compared to an infusion rate of fluid?

25

A. You mean cc's of fluid?

-206-

1

Q. Yes.

2

A. No.

3

Q. So you can't tell me how your augmentation compared to

4

the rate of infusion under the Maryland protocol, correct?

5

A. Correct.

6

Q. And you testified that when some of the veins become

7

damaged, thrombosed, or sclerosed, collateral is developed,

8

is that correct?

9

A. Correct.

10

Q. Is it fair to say these collaterals are more numerous

11

than the veins they replace?

12

A. Yes.

13

Q. Is it also fair to say that when this occurs, the blood

14

flow of the person remains the same?

15

A. Remains?

16

Q. The same?

17

A. Approximately.

18

Q. So the collaterals that develop are essentially carrying

19

the same load of blood in the prior veins carried; is that

20

correct?

21

A. Approximately.

22

Q. And as the blood flows around the damaged veins through

23

these collaterals, the fluid is dispersed among the

24

collaterals?

25

A. Yes.

-207-

1

Q. And if there was any pressure, the pressure would also be

2

dispersed among the collaterals; is that correct?

3

A. Yes.

4

Q. So if you had one vein and had an infusion through lethal

5

injection, the pressure would be far greater than if you have

6

collaterals where the fluid is being dispersed; is that a

7

fair statement?

8

A. I guess I don't understand what you're saying.

9

Q. Let's say we have, under the Maryland execution protocol

10

I do know it's 1 to 1.5 milliliters per second. If someone

11

has a healthy vein and traveling path to the heart is through

12

one particular vein, there would be pressure on that vein

13

from the infusion, correct?

14

A. Correct.

15

Q. If that vein is damaged and collaterals develop, the

16

infusion will be dispersed amongst the collaterals?

17

A. That's right.

18

Q. And it would be a different level of pressure on each

19

individual collateral compared to what it would have been for

20

a single vein?

21

A. I think your pressure is a function of volume and

22

compliance of the vein wall. So that the pressure in the

23

vein is dependent on how much is flowing through and how much

24

the vein can expand.

25

So if I take something that big, and I push a

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1

volume of fluid through, and it expands up, there will be

2

more flow, but maybe no more pressure.

3

If I take something and push it through the same

4

sized hole, there will be more flow and higher pressure.

5

Q. Okay. If an IV was successfully put in in Mr. Evans, it

6

would regionally be in one vein?

7

A. Correct.

8

Q. And then your testimony is at some point it would hit

9

collaterals and be dispersed, correct?

10

A. No. I'm sorry?

11

Q. Your testimony is if we did get an IV into Mr. Evans?

12

A. In his hand you're talking about?

13

Q. Well, we can use the hand for example, certainly.

14

A. Okay.

15

Q. Let's say we got an IV in his hand, originally the

16

infusion is in one vein, correct?

17

A. Yes.

18

Q. And your testimony is that his veins are likely damaged

19

and therefore collaterals have developed correct?

20

A. That's correct.

21

Q. So as the infusion travels, at some point you believe

22

that the infusion would be dispersed amongst collaterals?

23

A. Correct.

24

Q. And the rate of infusion is 1 to 1.5 milliliters a

25

second?

-209-

1

A. Correct.

2

Q. So that original vein has a certain amount of pressure on

3

it?

4

A. Okay.

5

Q. Is that -- is that your understanding?

6

A. There is a certain pressure in the vein, that's correct.

7

Q. Okay. And the volume of this fluid would be dispersed

8

amongst collaterals?

9

A. Correct.

10

Q. And the pressure would be reduced among individual

11

collaterals?

12

A. Not necessarily.

13

Q. Do you have any idea how many collaterals develop in a

14

situation like this?

15

A. No, I couldn't give you a number.

16

Q. Can you give me a range?

17

A. No, it's a significant number.

18

Q. What do you mean by significant?

19

A. 20, maybe.

20

Q. 20 maybe?

21

A. Yeah, I can't give you a number. We don't map those, and

22

I expect there are -- there is a variable number depending on

23

the person. I've never counted them.

24

Q. Do these collaterals develop simply at the point where

25

the vein is actually harmed?

-210-

1

A. It -- they form around the vein where the vein is no

2

longer carrying fluid.

3

Q. And they reconnect with the vein further up the line?

4

A. Usually, yes.

5

Q. And do you have any idea as far as Mr. Evans is concerned

6

where this collateral development occurred?

7

A. No.

8

Q. You can't tell me if it's in his hand, forearm or upper

9

arm?

10

A. I would expect it's in his forearm.

11

Q. You would expect it's in his forearm?

12

A. Uh-huh.

13

Q. Do you have any reason to believe collaterals developed

14

in his upper arm?

15

A. It's possible. It would depend on where the collaterals

16

came back into the main veins.

17

Q. And these veins that have been damaged from IV drug use,

18

is it possible they can heal?

19

A. It depend on what state of disease they are.

20

Q. So if they haven't reached a point of no return, for lack

21

of a better term, they can possibly heal?

22

A. It's possible.

23

Q. When you wrote your report in this case, you stated that

24

Mr. Evans may not have veins suitable to handle Maryland

25

lethal injection procedure; is that correct?

-211-

1

A. Yes.

2

Q. And is it fair to say, since you used the term may, that

3

he may very well have veins that are suitable for handling

4

Maryland's lethal injection procedure?

5

A. It's hard to say. I can't say yes, and I can't say no.

6

Q. You can't say he definitely would have; is that correct?

7

A. That's correct.

8

Q. What is the difference between extravasation and

9

infiltration?

10

A. I think they're largely the same thing. They both refer

11

to fluid leaving the vascular space.

12

Q. So if Contractual B in a deposition several clips were

13

played to you knew the definition of infiltration, is it fair

14

to say that she understood the concept?

15

A. Yes.

16

Q. And does extravasation and infiltration, if they're going

17

to be symptoms, are they the same symptoms?

18

A. Yes.

19

Q. What are those symptoms?

20

A. Depends on where the fluid extravasates, depends on what

21

-- depends on what fluid leaves the vein, lumen, it depends

22

on how much and over what rate.

23

Q. So all these variables, volume is a variable?

24

A. Volume is a variable.

25

Q. Is the actual toxicity, or if it's caustic is a variable?

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1

A. Yes.

2

Q. The rate is variable?

3

A. Rate and volume ought to be related.

4

Q. And what were the other variables?

5

A. The location.

6

Q. So we have infiltration at the IV site, what symptoms

7

would you expect to see?

8

A. You would see swelling. The patient would likely have

9

pain, that would be about it.

10

Q. And where are the other possible sites of

11

infiltration?

12

A. Well, if you rupture the collateral veins, then you

13

infiltrate fluid or drug in the deep spaces of the hand, I

14

would think that would be likely asymptomatic for a period of

15

time.

16

Q. And what kind of period of time are we talking?

17

A. Minutes, hours, depends on the volume. It depends on the

18

toxicity of the substance.

19

Q. And the example you gave about walking into a patient's

20

room the other day, you believe that was an as symptom make

21

extravasation or infiltration?

22

A. Yes. At least initially.

23

Q. Do you know at what point that IV infiltrated?

24

A. No.

25

Q. Hypothetically it could have infiltrated seconds before

25

you got to that room?

2

been switched to the other arm, so it hadn't happened

3

immediately.

4

Q. What hadn't happened immediately?

5

A. He didn't get symptoms immediately, because he wasn't

6

getting IV fluid in that arm at the time he had symptoms.

7

Q. Did he get the symptoms in the new arm or the old arm?

8

A. He had the symptoms in the old arm. The arm that was not

9

currently being used.

10

Q. So are you saying that he got infiltration symptoms in an

11

arm that no longer had an IV?

12

A. Correct.

13

Q. And the variability of volume, is it fair to say that the

14

larger the volume of fluid, the more likely to see symptoms

15

of infiltration?

16

A. I would say so.

17

Q. And toxicity, or causticness, is it fair that the more

18

caustic a substance is, the more likely you're going to see

19

symptoms of infiltration?

20

A. Yes, I would think so.

21

Q. And do you know anything about sodium pentothal?

22

A. In terms of how toxic it is?

23

Q. Yes.

24

A. No.

25

Q. Do you know what the pH level of sodium pentothal is?

-214-

1

A. No.

2

Q. If I told you it had a pH of approximately 11, what would

3

you say about that?

4

A. It's fairly basic.

5

Q. And basic for all of our meaning, it's an alkali?

6

A. It's an alkali.

7

Q. What would you suspect if it's got into the subcutaneous

8

tissue?

9

A. I suspect it would develop some symptoms, I don't know

10

over what period of time.

11

Q. What kind of symptoms would you expect?

12

A. Probably pain.

13

Q. When you testified that Mr. Evans may or may not have

14

suitable for handling Maryland lethal injection, you

15

previously talked about saying he did not have suitable veins

16

that could handle IV infusion for a significant amount of

17

time?

18

A. I believe that's probably true.

19

Q. And how do you define a significant amount of time?

20

A. It maybe minutes. It may be seconds. It may be minutes.

21

If you drip it in very slowly, it's possible those veins

22

would last longer.

23

Q. As you previously testified at your deposition that you

24

believed significant time was hours?

25

A. I don't remember. But I'm saying that I believe it

-215-

1

depends on the rate you infuse and the volume, and the

2

causticness of the substance as to how well, how long that IV

3

will last and whether he will get symptoms. And how big an IV

4

catheter you put in I guess also would be important.

5

Q. If there is infiltration, you testified that it is

6

possible that some of the infiltrated drug could still make

7

its way to the heart; is that correct?

8

A. I think that once the vein is ruptured and some goes in

9

and some goes out, it's hard to know what's going to happen.

10

I just don't know a way to predict it.

11

Q. Is it possible some of the fluid gets to the heart?

12

A. It is possible.

13

Q. And if there is infiltration and none of the first

14

chemicals sodium pentothal is getting to the heart, is it

15

possible the second two drugs can get to the heart?

16

A. I think it is possible. It would depend on, you know,

17

which of the collaterals ruptured, how fast you were

18

injecting the fluid. I just think that once that starts to

19

happen, it is impossible to know what's going to happen after

20

that. I just don't know what will happen.

21

Q. Did you read Dr. Dutton's deposition?

22

A. I did.

23

Q. Are you aware that he said it is unlikely that the second

24

and third drug could be successfully delivered and the first

25

drug not be delivered?

-216-

1

A. I think I remember that, yes.

2

Q. And what are your views on that statement?

3

A. I think Rick and I are probably going to disagree on

4

that, or Dr. Dutton and I will probably disagree on that.

5

Q. You believe there's a possibility the second and third

6

drugs can successfully be delivered without the first drug?

7

A. I don't know they can be completely delivered. I think

8

parts of them could be, I'm going stay again, once this

9

starts to happen, I don't know what's going to happen.

10

Q. Can you give me a percentage on how many times you've

11

seen, you've personally been involved in patients who have

12

had infiltration, or actually I'll use the word rupture, or a

13

successful IV was placed but something further up the arm

14

collateral or another vein ruptured?

15

A. It's reasonably common.

16

Q. How do you define that?

17

A. We see it a few times a week.

18

Q. And how many patients do you have a week?

19

A. In the resuscitation unit? I would see a third of them,

20

round numbers. We probably see around, let me do the math

21

here average, if the resuscitation is about 15. So we're on

22

call two point something times a week. So it's 30 something.

23

And I probably see it, of those 30 something I probably

24

personally see 30, or somewhere in the 20s, and I would say I

25

see it three or four times a week.

-217-

1

Q. And how do you know it happened?

2

A. Because the patient will ultimately develop symptoms, or

3

the drugs we give don't get effect.

4

Q. And what is the typical IV you guys are running as far as

5

volume?

6

A. When we -- depends on why we put the IV in. If we put an

7

IV in for trauma resuscitation in, when the patients first

8

get there, we would put a 16 or 18 gauge, or 16 or 14 gauge

9

IV in, if we can get one. And then we run the bags open. We

10

don't put them on pressure bag. We just let them drip by

11

gravity.

12

Q. So can you give me -- let's say you're just using fluids,

13

not medication, give me the range of the volume you might be

14

using?

15

A. If we regulate the volume it will be as low as 50 or 20

16

cc's an hour. If we put a big IV in and we just let it run

17

by gravity, in a person with normal veins, we could probably

18

get a liter of fluid in 10 or 14 minutes under gravity.

19

Q. And if a faster -- if a larger volume or faster rate were

20

used, the chances of symptoms would be higher; is that

21

correct?

22

A. I think so, yes.

23

Q. Now, you testified that Nurse Laughton did see flow in

24

the upper arms?

25

A. It's my memory, yes.

-218-

1

Q. And is that another thing you're going to have to

2

disagree with?

3

A. No. I heard flow in the arm, but in the deep veins of

4

the arm.

5

Q. And you also testified that you believed the hand, there

6

were several veins in the hand that could handle an IV,

7

correct?

8

A. Yes.

9

Q. And you also said that that, those hand veins could

10

handle a slow rate of --

11

A. I said you could put a very, put a small IV in, and they

12

would probably handle a slow rate of infusion.

13

Q. And you are aware Mr. Laughton does not even believe that

14

that a catheter can be placed in his hands?

15

Is that a yes?

16

A. Yes.

17

Q. So you disagree with Mr. Laughton on that point?

18

A. I think you could probably get an IV in him at least when

19

I saw his veins, yes.

20

Q. So is it fair to say then Mr. Laughton didn't see

21

something that you saw during your examination?

22

MR. ZUBLER: Objection. Misstates the evidence.

23

THE COURT: I'll overrule the objection.

24

A. I think Mr. Laughton, I wasn't there when Mr. Laughton

25

examined Mr. Evans. I don't know what he saw. It is all I

-219-

1

can say is I saw what I saw, and my opinion's what my opinion

2

is.

3

Q. Okay. So getting back to the possibility of seeing

4

symptoms for infiltration, one variability is volume,

5

correct?

6

A. Yes.

7

Q. And the larger the volume the more likely the symptoms,

8

correct?

9

A. I think so.

10

Q. The other variability is whether the drug is caustic?

11

A. Correct.

12

Q. Sodium pentothal is caustic, correct?

13

A. What I said is it's got a high pH, I don't know over what

14

period of time, you would develop symptoms if that

15

infiltrated subcutaneous tissue or into your deep muscles.

16

Q. And did you have rate as a separate variability?

17

A. I said volume and rate were approximately should be the

18

same thing.

19

Q. And I believe you compared, well, what do you think of

20

Maryland's rate of one to 1.5 milliliters per second?

21

A. It's about five and a half liters an hour.

22

Q. What do you think about it as a rate of infusion?

23

A. It's pretty fast.

24

Q. Compared to what?

25

A. Compared to putting an IV in and letting fluid drip in by

-220-

1

gravity.

2

Q. Okay. Do you ever have situations where you use a higher

3

rate of infusion?

4

A. We use a higher rate of infusion on machines.

5

Q. You compared Maryland's rates of infusion to your use of

6

CT scan infusion, correct?

7

A. Correct.

8

Q. What is the rate of infusions on CT scans?

9

A. It's about 4 cc's per second.

10

Q. So if Maryland is 1 to 1 and a half cc's per second, your

11

infusion of CT scans?

12

A. About twice as fast.

13

Q. Well at least twice as fast, maybe even four times as

14

fast?

15

A. Four times 1.5 would be 6.

16

Q. It's 1 to 1.5, correct?

17

A. Okay. Fine.

18

Q. So it could be as much as four times as fast?

19

A. Correct.

20

Q. And I assume at that significant difference in rate,

21

there would be a higher chance of we'll loop it all in the

22

term problems?

23

A. Yes.

24

Q. And, again, I'm going to ask you, you do not believe

25

these veins are durable for any significant period of time?

-221-

1

A. I think it's very unlikely.

2

Q. And, again, how do you define significant period of time?

3

A. It depends on what you accident veins to do. I mean,

4

I've said this four times. Depends on what you ask the veins

5

to do. If you put a very small IV in, and you drip fluid in,

6

at a very, very, very low rate, they'll last longer than if

7

you put a bigger IV in, and you try to put more fluid in.

8

Q. Is it fair to say that the longer the infusion, the more

9

likely there's a chance of a problem?

10

A. If you tried to put fluid in for three hours as opposed

11

to putting it in for three minutes, it's more likely there

12

will be a problem after three minutes, yes.

13

Q. So the converse, obviously, the shorter IV, the less

14

likely there is a problem?

15

A. The less likely, that's correct.

16

Q. And I also believe you testified that it's possible for

17

people to see different things, different veins, on a

18

different day of an examination; is that a fair statement?

19

A. I think that there is some degree of variability.

20

MR. PICKUS: That's all I have, Your Honor.

21

THE COURT: Thank you. Is there any redirect?

22

MR. ZUBLER: Nothing at this time, no redirect.

23

THE COURT: Good. Thank you, Dr. Scalea. I

won't

24

keep you long. I just had a couple questions.

25

You had mentioned possibility of using of

accessing

-222-

1

a vein using ultrasound?

2

THE WITNESS: Yes.

3

THE COURT: And which enables you to visualize

4

where the needle and the catheter are?

5

THE WITNESS: Correct.

6

THE COURT: And the veins that I believe you said

7

that can be accessed that way are in the upper arm?

8

THE WITNESS: Mr. Laughton testified that he saw.

9

I heard flow. Mr. Laughton was able to look at the vein on a

10

screen with his ultrasound machine.

11

So he would be able, or somebody would then, with

12

that skill, could look at the vein on the screen, watch a

13

needle go into the vein, and deploy a catheter into the vein.

14

It's a fairly sophisticated technique.

15

THE COURT: Can the same, I believe you

testified,

16

or correct me if I'm wrong, the same technique can be used to

17

access deep veins in the body?

18

THE WITNESS: Yeah. The only place where it's

19

really clinically applicable is in the upper extremities. So

20

that when we put these long term IV lines in, they're done

21

under ultrasound guidance up here, in branches of the deep

22

veins.

23

THE COURT: That's what I thought I heard.

24

THE WITNESS: If you're going to use, in the leg,

25

the veins are much deeper, they're not as numerous, and

-223-

1

you're talking about puncturing a huge distance. So it's

2

just not anything we do.

3

The only other way to use ultrasound to guide

4

venous access would be to use it to guide central venous

5

access, the femoral vein, subclavian vein or internal jugular

6

vein. Drug abusers will shoot up anywhere. So some of them

7

have used their femoral veins. Some of them have used their

8

jugular veins. Some of them maybe have used their subclavian

9

veins. And some of them have tried to access those veins and

10

hit arteries. So it's a complicated set of venous anatomy.

11

I have no idea of the status of Mr. Evans' deep

12

veins or how easy it would be to place a central line. I

13

haven't thought about it. Didn't try it, I have no idea.

14

THE COURT: All right. So would the bottom line

15

sense would be that, based upon your inspection of Mr. Evans,

16

that his peripheral veins are compromised, that it should be

17

possible to access either a central line or a deeper vein

18

using one of the techniques that you've discussed today.

19

But that nobody on the Maryland execution team as

20

presently constituted would be qualified in your opinion to

21

use one of those more sophisticated techniques?

22

A. As far as I know the composition of the team, I am not

23

aware that anybody is trained sufficiently to be able to do

24

anything other than to insert a peripheral IV, which, as I've

25

said now many times, I think is unreliable.

-224-

1

THE COURT: And if the execution were to begin

with

2

an attempt to access one of the peripheral veins, and there

3

was an inability do so, then they'd have to stop the

4

execution, find somebody who had the requisite qualifications

5

to come back some other day?

6

THE WITNESS: I guess that would be your option.

7

THE COURT: Good. Thank you very much for

coming,

8

doctor. And appreciate your involving yourself in this case

9

gratis. It is a real help to me and to counsel in this case

10

to elucidate these issues. Thank you.

11

THE WITNESS: You're welcome.

12

THE COURT: Good. So tomorrow, Mr. Thompson,

what

13

have you arranged?

14

MR. HUT: I didn't mean to interrupt Your Honor,

15

but I did as long as I have rise to wonder whether we could

16

possibly whether there's time since we had talked about

17

possibly.

18

THE COURT: Finishing?

19

MR. HUT: The cross-examination of Dr. Heath if

20

that's possible.

21

THE COURT: That's fine. How much longer? Where

22

are we with Dr. Heath.

23

MR. HUT: It's Miss Mullally's witness.

24

THE COURT: Good. And you hadn't started yet?

25

MS. MULLALLY: No, I have not, Your Honor.

-225-

1 2 3 just 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

THE COURT: Do you have any idea? MS. MULLALLY: I will be at least an hour. THE COURT: Good. That's fine. Why don't we
take a 10-minute recess and then come back. (Recess.) THE COURT: Please be seated. Is Dr. Heath back? Good afternoon, doctor. THE WITNESS: Good afternoon. THE COURT: Miss Mullally, whenever you're ready. CROSS-EXAMINATION
BY MS. MULLALLY: Q. Good afternoon, Dr. Heath. A. Good afternoon. Q. On September 25, 2005, you wrote a letter to a publication called the Lancet, is that correct? A. That sounds about the right. I think I wrote it quite a bit, sometime before then, sounds, I think it was -Q. Okay. Published on September 24, 2005? A. Sounds about right. Q. Okay. Now, the Lancet is a publication that is fairly well respected in the community; am I correct? A. Yes. Q. Is that a British or an American publication. A. It's British. Q. And you wrote this letter in response to a paper that had

-226-

1

been published by a doctor named -- I hope I pronounce it

2

right, Leonodis Koniaris?

3

A. That sounds right to me, I'm not sure.

4

Q. We both now how it's spelled, but pronunciation is

5

something else.

6

And Dr. Koniaris and his colleagues had published

a

7

study that they had done on a number of executed inmates in

8

the United States, and their conclusions, correct me if I'm

9

wrong, was that 43 percent of all the inmates that had been

10

executed in their study were conscious at the time of

11

execution.

12

Am I correctly summarizing?

13

A. In broad strokes, yes.

14

Q. Okay. Now, you wrote a letter, I take it you read that,

15

you read this paper, and you wrote a letter because you

16

disagreed with that; am I correct?

17

A. Correct.

18

Q. Okay. I'm going to show you -- is this showing up?

19

Focus is -- I think your letter starts right there. Can you

20

read that, doctor?

21

A. The focus is playing havoc right now.

22

Q. I have a paper copy.

23

A. That would be better. Thank you.

24

MS. MULLALLY: Your Honor, if I may approach?

25

THE COURT: You may.

-227-

1

MS. MULLALLY: I may be approaching throughout my

2

examination, if it please the Court.

3

There you are. If we could mark this as

4

defendant's Exhibit Number 1, I think Mr. Pickus is going to

5

do the marking for you, and we'll give them to you Mr. Clerk

6

at the end of the day. Thank you.

7

THE CLERK: That's fine.

8

MS. MULLALLY: Actually, it might be better if I

9

just hand out copies.

10

MR. HUT: Counsel, do you have a copy of this?

11

THE CLERK: Defendant's 1.

12

MS. MULLALLY: Defendant's 1 and a courtesy copy

13

for the Court.

14

THE COURT: Thank you.

15

BY MS. MULLALLY:

16

Q. Now, Dr. Heath, I want to ask you about a paragraph in

17

your letter starting here. Do you see that?

18

"When death ensues before equilibrium, as in the

19

case during lethal injection, postmortem passive diffusion

20

from blood into tissues can cause thiopental concentrations

21

in blood to decline. Results studied on postmortem if drug

22

infusion effects suggests that this is a likely explanation

23

for low concentrations of thiopental in blood samples several

24

hours to days after death."

25

Those are your words, aren't they?

-228-

1

A. Yes. I didn't find this, the paragraph until just as you

2

finished reading it, but that sounds right.

3

Q. Okay. And you still agree with what you put down in your

4

letter over a year ago?

5

A. I do, yes.

6

Q. Okay. So I know I'm not a doctor, but let me see if I

7

can summarize it. There's something call postmortem

8

distribution of thiopental. It is believe believed such a

9

thing exists; am I correct?

10

A. I think by most people except the authors of this paper.

11

Q. Okay. And that's not unique to thiopental because there

12

are a number of different drugs that have postmortem

13

distribution?

14

A. That's right.

15

Q. And you were shown earlier the lab results that were

16

taken after the execution of Wesley Baker, Tyrone Gilliam,

17

Flint Gregory Hunt, and Steven Oken?

18

A. Correct.

19

Q. Correct?

20

A. Yes.

21

Q. Now, looking at Wesley Baker's, okay. Just to cut to the

22

chase here, blood, heart, thiopental, 44 MG/L. What does

23

MG/L mean?

24

A. Milligram per liter.

25

Q. Okay. If Wesley Baker was a patient of yours, and I know

-229-

1

this is an execution, but if he had been a patient of yours,

2

and you wanted to determine if he was adequately anesthetized

3

at the time of the procedure, would you feel better when you

4

saw a level of 44?

5

A. If I knew that was the level at the time he underwent the

6

painful think the painful --

7

Q. Yes.

8

A. -- procedure, as a patient, yes, that's a good level of

9

thiopental.

10

Q. Okay. All right. Showing you the toxicology from Tyrone

11

Gilliam blood heart drug test thiopental 24 MG/L. Do you

12

also agree that if Tyrone Gilliam had been a patient of

13

yours, if you saw this lab result, you would be satisfied in

14

retrospect that he'd been adequately anesthetized at the

15

time of painful procedure occurred on his body?

16

A. If it was 24 at the time in his blood at that time, yes.

17

Q. Okay. All right. There we go.

18

Showing you next, it's a little hard to see

19

deceased name Flint G. Hunt, do you see that up there?

20

A. Yes.

21

Q. Blood femoral, drug test, thiopental, and it's a little

22

hard to read, but that looks like 80 MG/F.

23

Would you feel the same if Flint Hunt had been a

24

patient of yours at the time of a painful procedure that he

25

was sufficiently anesthetized?

-230-

1

A. Yes.

2

Q. Okay. Now, do you, you have seen Dr. Mark Dershwitz's

3

charts that he's prepared in anticipation of the litigation

4

in this court, correct?

5

A. Yes.

6

Q. Okay. And I suspect that you have read Dr. Dershwitz's

7

deposition?

8

A. Yes.

9

Q. And you've read the affidavit I think he submitted

10

earlier this year in this court?

11

A. Yes.

12

Q. Okay. Now, Dr. Dershwitz says that a -- it's been a long

13

day.

14

A thiopental level of 7 approximately 50 percent

of

15

the population is anesthetized and 50 percent is conscious,

16

or maybe I should say unconscious versus conscious, do you

17

accept that, or do you agree with that?

18

A. That's what he said, yes.

19

Q. Okay. Now, I think that you testified a little while ago

20

in your direct that it might have been in answer to the

21

Court's question that you believe that Steven Oken that there

22

was approximately a 10 percent chance that Steven Oken was

23

conscious at the time that the other the two drugs were

24

injected.

25

Do you recall saying that?

-231-

1

A. I wasn't trying to say exactly that, no.

2

Q. Okay. Were you trying to say around 10 percent?

3

A. Well, I'm not saying around 10 percent. Again, it's

4

predicated, when I answered your prior question, on knowing

5

what the actual concentration was at the time of the painful

6

event. So this blood is drawn sometime within an hour at

7

most of the time of the painful procedure, but --

8

Q. Okay. So the drug is drawn after the painful procedure?

9

A. The blood is drawn.

10

Q. Yes. Steven Oken, approximately at the outside an hour,

11

do you agree with that?

12

A. That's my understanding of what the gentleman said, yes.

13

Q. Okay. The gentleman being Dr. Fowler, the medical

14

examiner?

15

A. The medical examiner.

16

Q. Who took Steven Oken's heart blood?

17

Now, in your Lancet letter, one of the problems

you

18

saw with Leonodis Koniaris' study was that he didn't factor

19

in postmortem distribution; isn't that what you said?

20

A. Their data analysis was very, very sloppy. So while they

21

say they did that, I have -- I believe the exact same autopsy

22

reports that they used, and they -- their analysis was very,

23

very sloppy, and while they may say they tried to factor it

24

in, they do say that, it was a completely unrigorous, sloppy

25

attempt, and one loses any correlations.

-232-

1

Q. Okay. But in postmortem distribution, even though

2

somebody is deceased, their heart is not pumping, their

3

circulation is not going, nonetheless, certain drugs in their

4

body dissipate into the fatty tissues, they're called

5

lipophilic drugs, right?

6

A. The distribution means moving from one location to

7

another location.

8

Q. Okay. They don't rely upon the circulation to do that,

9

because, obviously, they have no circulation at that time,

10

correct?

11

A. That's correct.

12

Q. Okay. And you've looked at -- I guess you've looked at

13

all of the Maryland test results, and is it fair to say that

14

the only individual that we know of, that we know the time

15

that his blood was drawn, is Steven Oken, based on Dr.

16

Fowler's deposition?

17

A. It was my sense that was their standard practice, that

18

the way it unfolded it would be within an hour, that was just

19

sort of the outside limit. But we don't have an exact time

20

point for any of them, no.

21

Unlike many autopsies where they specify the time

22

that something was done, it wasn't done, to my knowledge, in

23

these Maryland toxicology sampling and body views.

24

Q. Because Maryland's chief medical examiner, the bottom

25

line is, they don't respond if you will to a body until

-233-

1

there's a body; am I correct?

2

Did you understand that from Dr. Fowler's

3

deposition?

4

A. I don't know what their general policy is, but in this

5

instance, they don't come until they're called, and it takes

6

a little time for them to get here, not here but to get to

7

the bedside.

8

Q. Okay. Now, these drugs, these lab results, would you

9

agree with me that these levels of thiopental in all of these

10

individuals are at the very minimum consistent with

11

unconsciousness?

12

A. Could you repeat the question?

13

Q. Do you agree with me that the lab results of all of these

14

individuals, the ones that we just went through, I will show

15

you them again if you would like to see them, would you agree

16

that these results of all four of them are consistent with

17

unconsciousness?

18

A. The Oken one is one that could be conscious or could be

19

unconscious. It's certainly possible for him to have been

20

unconscious.

21

Q. It could have been possible for him to be unconscious?

22

A. I think it's possible that he was unconscious. I do not

23

know. We don't know enough about the details of the behavior

24

of the drug to be sure. The only way we know for sure if

25

somebody was conscious or not is to ask him afterwards.

-234-

1

Q. Okay. And of, course, we can't do that in an execution?

2

A. That's right.

3

Q. Well, didn't you tell Judge Legg that there was

4

approximately a 10 percent chance, today, didn't you tell him

5

that there was approximately a 10 percent chance that he was

6

conscious?

7

A. I wasn't trying to say that. I was saying if you use

8

this, what I meant to say, if one used this blood value and

9

then it would depend on the value that one uses at 50 percent

10

value and one uses a value of 7, but the literature also

11

supports higher values, depending on which value one used,

12

that would translate to level of consciousness -- I'm making

13

off the top-of-my-head guesses 10 percent, but it could go up

14

to 60 percent, again depending on what value is used for the

15

50 percent mark.

16

Q. Well, do you disagree with Dr. Dershwitz using the value

17

of 7?

18

A. There's a variety of numbers. He took the one that is

19

the lowest one.

20

Q. Now, I notice you don't mention the variety of those

21

numbers in your Lancet letter, since the issue, of course,

22

was whether or not those executed people were conscious?

23

A. Well, yes, I guess you've noticed that. I can't dispute

24

that you've noticed it. Would you like an explanation for

25

why it's not there?

-235-

1

Q. Sure.

2

A. Okay. The article I believe is limited. I forget the

3

word length, but I think it's 300 words Lancet allows. I

4

asked to be able to have more space, and was not given it.

5

I'm not sure if 300 is the right number, but there was some

6

fixed number, and I believe we hit it within just a couple of

7

words.

8

Q. Okay.

9

A. Further, it's not exactly the point of what we were, the

10

main point that we were trying to bring up. The main thing

11

we wanted to bring up was postmortem redistribution occurs,

12

and that all of these values, or the authors didn't realize

13

it because of their sloppy analysis. In fact, all of these

14

values were taken for many hours after time of death. That's

15

the main thing we wanted to get across. There are many other

16

things if we had more space we would have put in that. We

17

had to triage, given the space allocated.

18

Q. Okay. Now, do you recall, Dr. Heath, being in this very

19

courtroom on January 27, 2006?

20

A. That sounds like the right date, January.

21

Q. It was last winter. And you remember you were Mr. Hut's

22

witness, and I believe he examined you and my predecessor,

23

Mr. Scott Oakley, examined, Judge Legg was on the bench; does

24

that ring --

25

A. Everything except for the date.

-236-

1

Q. Okay. Do you remember telling in response to Mr. Hut's

2

question, do you remember giving a value of a 5 percent

3

chance that Steven Oken was conscious at the time of his

4

death?

5

A. I don't specifically remember that. You have to show me

6

the transcript.

7

Q. Yes, would you like me to show it to you?

8

A. That would be helpful, thank you.

9

Q. If we could, counsel, do you have this?

10

It's page 45.

11

Courtesy copy for the Court. Yours is coming.

12

Dr. Heath, maybe just to refresh your

recollection,

13

if you could look at the first page, given the date, and the

14

caption of the case, is it ringing a bell here?

15

A. Yes, I'm sure this is the case.

16

Q. Okay. Now, I'd actually like for you to start on page 45

17

at lines, let's start on line 13, and if you could just read

18

through 46, 47, 48, and then on to page 49, stopping at line

19

10.

20

(Pause.)

21

A. Do you want me to read them out loud or to myself?

22

Q. Why don't you read them to yourself and then I'm going to

23

ask you some questions.

24

A. Sure. Starting on paragraph.

25

Q. Page 45, starting line 13.

-237-

1

A. Line 13, going till where?

2

Q. Going on to page 49, ending at line 10.

3

(Pause.)

4

A. Okay.

5

Q. Okay. Now, on page 45, sort of toward the end of the

6

page you state I believe in answer to Mr. Hut's question,

7

that among other things, it's medically inconceivable

8

somebody could be conscious with a thiopental level of 44.

9

Do you recall saying that?

10

A. It says that there, yes.

11

Q. But do you recall it? The reason I'm showing this is to

12

refresh your recollection?

13

A. I don't recall the exact of speaking those words, but I

14

can read the text here, and I expect that it's accurate.

15

Q. Now, 44, that was Wesley Baker's thiopental level.

16

So do you believe that it's medically

inconceivable

17

that Wesley Baker could have been conscious at the time that

18

painful drugs were administered to him during his execution?

19

A. Again, we don't know this is the concentration at the

20

time the painful drugs were given. If they get the order of

21

the drug wrong, then the thiopental could be given after the

22

pancuronium, so I can't say with certainty.

23

Q. Do you have any evidence that he was given drugs in the

24

wrong order?

25

A. None whatsoever.

-238-

1

Q. Okay.

2

A. I have no evidence that he was given drug in the right

3

order.

4

Q. Okay. And you're -- well, strike that.

5

Looking at the top the page, 46, correct me if

I'm

6

wrong, but are you saying that you know drugs can affect some

7

people some way, and other people in an less intense manner?

8

Sort of like if Mr. Pickus and I were planning go to the bar

9

after here because it's been such a stressful day, and we

10

have two martinis, and he has to drive me home because I

11

can't stand up, and he on the other hand is perfectly capable

12

of driving home, would that surprise you?

13

A. No.

14

Q. Okay. Because sometimes things affect people in

15

different ways than drugs affect one person one way and one

16

person another way, correct?

17

A. Different intensities of effects, yes.

18

Q. Okay. Now, looking at the bottom of page 48, line 23,

19

okay. You'd been looking at Dr. Dershwitz's graphs, and you

20

point out 7 is the midpoint of his curve and that half the

21

people would be conscious with a value of 7 and half would

22

not be conscious. And you state, and so it keeps going up

23

toward 10, the number declines.

24

Now, I think you did after that you did a little

25

calculation. And correct me if I'm wrong, but you stated "So

-239-

1

I have to interpolate bit to guess, but this graph would say

2

with a probability of consciousness for somebody with a level

3

of 10, but it might be somewhere around 5 percent."

4

Now, you testified today that it would be 10

5

percent.

6

A. I --

7

MR. HUT: Objection, Your Honor. There's no

8

inconsistency. I think this is describing interpretation of

9

graphs, and the earlier examination is not with respect to

10

graphs.

11

THE COURT: Well, I'll overrule the objection.

Dr.

12

Heath can explain.

13

A. I'd have to say this is the off-the-top-of-my head, I did

14

not have the graph in front of me. I was doing my best,

15

since that is what was being asked of me to estimate it, and

16

I tried to make it abundantly clear that I was just

17

estimating.

18

Q. Okay. So in January, you estimated that there was a 5

19

percent chance that Steven Oken with a thiopental level of 10

20

was conscious?

21

A. I was doing more than estimate, it's a different kind of

22

estimation. I had graphs in front of me, and I was

23

interpolating. And, again, it was a little bit of a

24

thumbnail. I didn't do a calculation, but a thumbnail mental

25

assessment or gauging or weighing.

-240-

1

Q. But, Dr. Heath, you're a very intelligent, educated, and

2

experienced medical clinician. You took a look at this

3

information, and that was the answer that you gave?

4

THE COURT: Why don't we do this, I don't mean to

5

interrupt, but I get the point --

6

MS. MULLALLY: Okay.

7

THE COURT: -- that --

8

MS. MULLALLY: Okay.

9

THE COURT: -- the testimony in January was 5

10

percent, the testimony today was something around 10 percent,

11

but you couldn't be sure, I think I understand the point that

12

you're making, and I do recall this testimony.

13

THE WITNESS: If I could say, I was referring to

a

14

graph that did have a fixed value of that 50 percent number,

15

and when I was meaning to indicate today, I'm not sure if I

16

made that clear, that number itself perhaps calling into

17

question is the wrong thing to do, but saying there are

18

different values of what people have given as to what that 50

19

percent number would be when one factors that in, it affects

20

the percentage of, that one would put on it.

21

I'm trying to give you an overall gestalt. I'm

22

doing my best. I said it's approximate.

23

Q. Dr. Dershwitz, do you find Maryland's levels to be at all

24

reassuring assuring?

25

A. My name is Dr. Heath.

-241-

1

Q. I'm sorry, Freudian slip.

2

Do you find these levels to be at all reassuring,

3

Dr. Heath, 44, 24, 80, and 10?

4

A. Again, if I knew the drugs had been given in the right

5

sequence, and these were the concentrations at the time the

6

potassium was administered, then for three of them, those are

7

numbers that are would be comforting under those

8

circumstances.

9

But the number 10 is not. And when one puts the

10

numbers together, the whole cluster of numbers absent some by

11

telling them, oh, we measured it differently or drew the

12

blood differently, or there was enormous difference in the

13

weight, which I don't believe there is, then that variability

14

is concerning. It does not speak to consistent

15

administration.

16

Q. Okay. But also once again, going back to Mr. Pickus and

17

I in our planned trip to the bar at the end of today, you

18

would -- it's possible that drugs affect different bodies in

19

different ways; isn't that true?

20

A. I think that's a fact.

21

Q. Okay. Now, I'd like to ask you some questions about

22

anesthetic depth. You state in your report -- have you

23

reviewed your expert report before you came here today?

24

A. I have, yes.

25

Q. Okay. Do you recall stating that it's important to have

-242-

1

a trained anesthesiologist present?

2

A. It would help me if you could show me exactly where I

3

said that.

4

Q. Would you like to see your report?

5

A. That will be helpful to this discussion, I have a

6

feeling.

7

Q. Okay. This page 7, paragraph G, counsel.

8

Your Honor, if I could just show this to the

9

witness --

10

THE COURT: Absolutely. Go ahead.

11

Q. -- to refresh his recollection?

12

Okay. Looking at the top sentence, does that

13

refresh your recollection?

14

A. Yes.

15

Q. Okay. And you stated that it was -- it's all the more

16

important to have a trained anesthesiologist present?

17

A. That's what I wrote, yes.

18

Q. Okay. Now, you believe, I believe you testified on

19

direct that anesthesiology is both an art and science and

20

that it takes many years of training and education to be able

21

to perform the duties of an anesthesiologist; am I correct?

22

A. I would agree with that. I think I testified along those

23

lines.

24

Q. Okay. And it's your opinion that Maryland, of course, if

25

it executes someone should have an anesthesiologist present

-243-

1

to assess anesthetic depth and to induce anesthesia?

2

A. If it's going to use potassium, yes. If you're going to

3

do it by a different method, then that might change the

4

necessity of that.

5

Q. Do you I believe you stated in your report that you found

6

it was medically unacceptable that Maryland didn't have such

7

an individual to induce anesthesia and to assess anesthetic

8

depth medically unacceptable?

9

A. If they're using potassium, yes.

10

Q. And do you believe today that it's medically unacceptable

11

not to have an anesthesia -- an anesthesiologist present

12

during a Maryland execution?

13

A. Well, somebody who's capable of assessing anesthetic

14

depth is what matters, yes.

15

Q. Okay. Do you approach -- well, let me back up and ask

16

you this, you've never participated in an execution, have

17

you?

18

A. Not of a human being, no.

19

Q. Okay. You've euthanized some animals?

20

A. That's correct.

21

Q. And you've looked at protocols in a lot of places, and

22

you've looked at what Maryland has, and am I correct in

23

stating that because you are a clinician, you approach this

24

issue from a medical perspective?

25

A. Well, no, I think that's not fully correct. It's

-244-

1 2 3 4 5 6 with 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

partially correct. Q. Okay. But what you bring with you is many, many years inducing anesthesia, assessing anesthetic depth, training residents, interns, and nurses; am I correct? A. That's part of what I bring, yes.
THE COURT: I think if I could, my familiarity
the case, I think the point that you're making, and it's a good point, is there's a difference between crafting protocol for a medical procedure, where the objective is to is to cure a person and an execution where the objective is to end life.
So that there's a fundamental difference between the two. But I think that the inquiry here is whether, you know, what medical procedures are necessary to avoid the risk of the excruciating death.
So perhaps, doctor, what's the difference in, if you could, and then I'll turn it back to Miss Mullally, between looking at these protocols with a medical eye toward, you know, preserving the patient and with the looking at them to see whether they're an acceptable execution protocol?
THE WITNESS: Well, the issue is that because of the way it's being done, because potassium is being used, a medical procedure is required, if you want it to be humane. Another medical procedure is required the placing of IV access, especially if that's going to be a central line.

25 That's

But certainly the anesthesia is necessary. -245-

1

not what's killing the person. The anesthesia is not

2

necessary in my opinion for the judicial sentence. You can

3

execute somebody without anesthesia, and it's been done many

4

times.

5

But if you're picking a way of doing it, which

the

6

Department of Corrections has, they've added in potassium,

7

not mentioned anywhere in the statute, and we know potassium

8

hurts a lot. Now you need a medical procedure to make sure

9

that it's humane.

10

The goal of that procedure is not to kill the

11

person. The goal of the anesthesia is not to kill the

12

person.

13

THE COURT: If I could ask a follow-up question?

14

In the three-drug protocol, the first drug is not painful,

15

and that's the pentothal?

16

THE WITNESS: That's right.

17

THE COURT: And the second drug is pancuronium

18

bromide is painful, correct?

19

THE WITNESS: I'm not sure it would cause pain,

but

20

agony, excruciating --

21

THE COURT: The third is potassium time is

painful

22

because of the mechanism of the scouring of the nerves and

23

the veins?

24

THE WITNESS: That's correct.

25

THE COURT: If I'm remembering correctly from

-246-

1

January a massive dose of the first drug is also lethal?

2

THE WITNESS: Correct.

3

THE COURT: So that could Maryland reform its

4

protocol simply by to an acceptable degree of acceptable to

5

you using medical standards simply by dispensing with number

6

two and number three and administering a massive dose of

7

number one, because if for some reason the dose doesn't get

8

there, the person who's being executed isn't going to suffer,

9

he just doesn't die?

10

THE WITNESS: That's exactly right. That's the

11

majority, to my understanding the majority of animal

12

euthanasia procedures are performed with a very large of

13

barbiturate and nothing after that. That's exactly right.

14

Potassium is added in, but it is not -- if they

15

give the thiopental as they're intending, it will reliably

16

produce death.

17

If they somehow fail to give it properly, then it

18

won't produce death. But if that's going to happen, they'd

19

better not be giving pancuronium and potassium. Exactly

20

right.

21

THE COURT: Good. Thank you, Miss Mullally?

22

BY MS. MULLALLY:

23

Q. Yes. Dr. Heath, I believe you stated in your expert

24

report that medical practice dictated that a person mixing

25

medications be trained to do so such as a doctor, a nurse or

-247-

1

a pharmacist, and you were concerned about the high risk of

2

error in medication mixing, correct?

3

A. That's correct. We're concerned about the errors made by

4

those personnel, by doctors and pharmacists and nurses,

5

because they clearly happen. And it's a major problem.

6

Q. Now, you're aware, are you not, that in Maryland, the

7

Department of Correction purchases Pavulon and potassium

8

chloride that are already premixed?

9

A. That's correct.

10

Q. And that Maryland purchases powder thiopental and a

11

diluent is mixed in with the powder?

12

A. Purchase it, purchase it is separate. They're not mixed

13

when it purchases them, but they have to be mixed after

14

they're purchased, after. In fact, shortly before they're

15

used.

16

Q. And you've mixed thiopental before that way, haven't you?

17

A. I've mixed it many many times, yes.

18

Q. Okay. Would you say that it's a very difficult task to

19

accomplish?

20

A. I think the mechanics of doing it can be imparted.

21

There's no reason to be imparted, but a couple of hours most

22

of practice and training. The important thing, though, is

23

recognizing when something's going wrong. One has to

24

understand what the drug is, what its chemical properties

25

are, and one has to know there's a package insert that has

-248-

1

instructions about what do when it happens. One needs to

2

have a wealth of background information in addition to just

3

the mechanics of doing it.

4

Q. So you think that someone needs a wealth of background

5

information to take diluent, put it in with the powder, shake

6

it up, and draw it out in a syringe?

7

A. To know something is going wrong, they have to rely on

8

additional information other than just the teaching of the

9

mechanical act.

10

Q. To know something is going wrong right at that stage, the

11

mixing stage?

12

A. I've seen from on the states where personnel who have put

13

-- done this improperly, so while it seems like a simple

14

thing, when it doesn't work properly, you have to be able to

15

recognize that. I could teach a five-year old to type out a

16

ten-letter word. And after a couple hours, they probably

17

would be able to do it. It doesn't mean they know what the

18

word means, or can type anything else out, or they can read

19

and write.

20

Q. Do you think --

21

A. Go ahead.

22

Q. Do you think the fact that Maryland's team practices on a

23

monthly basis and then when a warrant of execution is signed,

24

they practice on a weekly basis moving up to a daily basis,

25

do you find that at all reassuring?

-249-

1 2 3 4 5 6 7 their 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

A. Not with this group of people, it sure isn't. Q. Well, what about practices in general? A. If your practice involves supervision and flow of knowledge and wisdom experience from a person who can impart that, who's present at the practices, then it would be a good thing.
But this group of people, the totality of all
knowledge is grossly inadequate. And then spending time together is not going to increase the totality of their knowledge. If anything, it's likely to lead them astray to -- to further areas of misconception, misunderstanding. Q. Well, let me ask you this, Dr. Heath, do you recall my question to you in your deposition on August 29th, question being are you in favor of execution team members practicing on a regular basis with one another following their steps practicing an execution to prepare again and again, do you recall that question? A. I don't specifically recall your asking that, no, perhaps if you could show me the relevant area of the transcripts. Q. Counsel, page 157, line 8.
First the question, doctor. (Pause.) Q. And what was your answer, sir, you can read it out loud? A. I will reread the question, "Are you in favor of execution team members practicing on a regular basis with one

-250-

1

another following their steps, practicing an execution to

2

prepare again and again?"

3

And my answer written here is "Yes. I think that

4

for a complex endeavor like this and with very high stakes

5

and where things can have a potential to go terribly wrong

6

and where there's all the time in the world to practice, that

7

it's very important that extensive practicing is undertaken."

8

Q. Thank you.

9

Now, you are an anesthesiologist, but I think you

10

testified today earlier you're not a pharmacologist, correct?

11

A. Anesthesiology applies pharmacology. I do not have a

12

Ph.D. in pharmacology.

13

Q. Okay. Would you defer to a pharmacologist on the

14

question of a time course or the effect of a particular drug?

15

A. Perhaps. Depends what they were saying about it.

16

Q. Okay.

17

A. Because they just because they say something doesn't make

18

it true. If doesn't comport with my experience and

19

knowledge, then I would not defer.

20

Q. Do you recall stating in your deposition that you

21

considered among other people Dr. Mark Dershwitz to be an

22

expert in lethal injection?

23

A. Yeah. I think there was some discussion acknowledging

24

that to call this a field, call lethal injection a field,

25

would be making a claim about it that I'm not sure it

-251-

1

warrants. But certainly there's a group of people who spend

2

time thinking about this and reviewing material and data, and

3

he's certainly one of those people.

4

Q. Now, you believe that Pavulon provides no medical benefit

5

whatsoever to the executed inmate?

6

A. That's correct.

7

Q. Correct?

8

And you testified today that a person who is in

an

9

agonal situation, at the end of his life after say the

10

administration of a lethal dose of thiopental, that one would

11

expect to see the inmate undergo muscular contractions, you

12

mentioned jerking twitching, spastic movements?

13

A. I think those are all possibilities, yes.

14

Q. I think that you also testified today that the person

15

could have some type of seizure, let me see if that was --

16

convulsion, I think that was the word you used. Do you

17

remember testifying to that?

18

A. I don't specifically recall.

19

Q. Have you seen a convulsion before?

20

A. Have I seen a convulsion? Yes. A person that had a

21

convulsion, I have, yes.

22

Q. Okay. Tell us what a human being does when a human being

23

is having a convulsion?

24

A. They move part of their body or parts of their body, or

25

sometimes all of the parts of their body in a relatively

-252-

1

rapid to and fro jerking motion.

2

Q. And as a physician, that I guess when you witness

3

something like that, that doesn't upset you because you know

4

what's happening, correct?

5

A. Well, it's troubling because it's a dangerous state for a

6

patient to be in. And I -- unless it were an end of life

7

situation, almost all clinical settings where I'm trying to

8

preserve life and welfare of my patients, I'm troubled by

9

seeing a convulsion.

10

Q. Okay. So even you are troubled by convulsion. I take it

11

lay people, people that aren't familiar with convulsions,

12

people that don't see them on a regular basis might find that

13

to be a bit disturbing?

14

THE COURT: If I could interrupt, I think it's in

15

my view it's, and in looking at the role of the Pavulon, I

16

think it's from what I've read, it's used so that to spare

17

the members of the execution team and the witnesses emotional

18

angst, and that to that extent it is a worthwhile, it's

19

worthwhile, I don't think that Dr. Heath would dispute that.

20

I think that he's talking about with respect to

the

21

person who's being executed, the Pavulon serves no useful

22

purpose.

23

Is that correct?

24

THE WITNESS: It's correct that it is serves,

25

certainly is not at all to the benefit of the person who's

-253-

1

being executed. But when you say that I think it's

2

worthwhile that the witnesses be protected from that?

3

THE COURT: No. I meant that the -- let me

4

backtrack for a second.

5

I understood your testimony to be that the

Pavulon

6

serves no useful purpose for the person being executed, and

7

that you haven't ventured any opinion as to whether it serves

8

a useful purpose for the other people who are watching the

9

execution.

10

My understanding is that the Pavulon is

11

administered to spare them, because under law there have to

12

be witnesses, and there have to be people who carry out the

13

execution, and the more convulsions, twitching, and other

14

movements, the harder it is on them, it seems to me. So that

15

is my understanding of the subject.

16

BY MS. MULLALLY:

17

Q. Dr. Heath, I know that you're aware that Maryland has

18

changed its execution protocol, and you have had an

19

opportunity I know to review those changes.

20

And do you recall being asked whether or not any

of

21

those changes have improved Maryland's procedures at all? Do

22

you remember being asked that in your deposition on August

23

29th?

24

A. I don't specifically recall, so if you could show me the

25

transcript if it's there.

-254-

1

Q. Okay.

2

MR. HUT: Your Honor the transcript that Miss

3

Mullally has is different from are the transcript that we

4

have. We have never received from the court reporter a final

5

copy, final transcription of that deposition.

6

We have a rough, which doesn't particularly

7

correspond to what it is you're reading.

8

THE COURT: Why don't you take a look?

9

MR. HUT: And the doctor has neither reviewed nor

10

signed this, as he's permitted to do under the rulings.

11

MS. MULLALLY: Would you like to see it, Mr. Hut?

12

(Pause.)

13

MR. HUT: But I guess I'd have an objection to

14

using a rough, incomplete, unsigned transcript to impeach the

15

testimony of a witness.

16

THE COURT: Well, I will permit it.

17

Q. All right. Going back to the question, do you think that

18

any of these changes have improved Maryland's procedures at

19

all, do you remember being asked that? Right here, sir?

20

A. If I could just read what the changes are that you're

21

talking about, that overall section?

22

Q. Okay.

23

A. Starting up around here, right here.

24

Q. Okay.

25

A. Changes in the last 10 days.

-255-

1

Q. Uh-huh.

2

(Pause.)

3

THE COURT: The essential question is whether you

4

remember testifying that way during your deposition, and does

5

this refresh your recollection?

6

Q. Does this refresh your recollection, Dr. Heath?

7

A. Yes.

8

Q. Okay. And what was your response when I asked you if

9

changes had improved Maryland's procedures at all?

10

A. I think you asked me if any of the chances, not the

11

changes.

12

Q. Okay. Do any of them, do you recall your answer to that

13

question, then, if any of the changes had improved?

14

A. I think I said yes, I do.

15

Q. Now, perhaps, Mr. Hut, if you could put up plaintiff's

16

demonstrative exhibit number 6. Could you do that for me.

17

MR. HUT: I don't think I can.

18

(Pause.)

19

Q. Now, Dr. Heath, you mentioned that one person could not

20

see all of the tubing, right? Because it's on two sides of

21

the wall?

22

A. That's correct.

23

Q. But you would agree with me that people in the execution

24

room are capable of seeing the tubing on that side of the

25

port and that people in the injection room are capable of

-256-

1

seeing the tubing on that side of the port?

2

A. The people in the execution room depending on where

3

they're standing would not be able to see the full scope of

4

the tubing.

5

Q. Well I guess my question was is their capable, since

6

everybody has two eyes and two feet, is it possible, if one

7

wanted to look, one could see it?

8

A. If one were to stoop down onto the table, you know, bend

9

over and get their head lower, then they'd be able to see

10

the, yes.

11

Q. Right. And if one walked around the gurney, because it

12

might be hard to see it from one position, but walking

13

around, this not what I am looking for, I'm sorry, I'm

14

looking for the one with the dots all over the diagram of the

15

execution room.

16

A. Correct.

17

MR. HUT: 16.

18

Q. 16? There. Did you see that, Dr. Heath?

19

A. Yes. That's the diagram that I instructed that I drew

20

out the sketch, yes.

21

Q. These colored dots, are they drawn to size at all,

22

they're not -- they're just dots indicating people, correct?

23

A. Yeah. I tried to draw them again just gestalt, my best

24

drawing of how big they would be relative my recollection of

25

the size of the window, for example.

-257-

1

Q. All right.

2

A. But you're right, the person not shaped like that, a

3

person is looking from the top is more oval.

4

Q. Now, you haven't met Contractual Team A or Injection Team

5

E, have you?

6

A. No.

7

Q. Okay. And you have stood at the window and looked out,

8

and it's the three foot five, three foot window?

9

A. I forget the exact dimensions, but I remember a feel for

10

the size of the window, yes.

11

Q. But you put these dots right in front of the window. Do

12

those dots, they don't mean to imply that those two people

13

are completely blocking the window, do they? You didn't mean

14

to convey that idea, did you?

15

A. This, I don't know about completely blocking the window.

16

I think it depends on how one looks around, but I think

17

they're around 300 pound folks, I think that's what they

18

said, and that just looking at their body habitus in the

19

videos, I saw the top third of their bodies, they looked like

20

burley people. They didn't seem to be 300 pounds because

21

they were tall and lanky, and so it's just an approximation.

22

Q. All right. So it's not a conclusion you reach, and

23

there's no -- you don't have any evidence that they are

24

blocking anyone's view out of the window, do you?

25

A. I believe there was deposition testimony, I forget from

-258-

1

whom that they had a hard time seeing because of the first

2

people standing there.

3

And they're -- given their disregard for checking

4

for IV tubing leaking, and the lack of understanding about

5

what they're doing, they're occupying far too large of

6

percent of the view of the window.

7

Q. So you think they're doing that on purpose, or

8

carelessly?

9

A. I suspect they were told to stand in that location,

10

although I don't know for sure. So I think they're standing

11

there on purpose. I don't think they're standing there

12

accidentally. I don't think their intent is to block other

13

people's views, but I don't know what is in their heads.

14

Q. You don't know for certain they do block other people's

15

views, do you?

16

A. They had to obscure a large part of the view, but I don't

17

know if for certain if someone able to look around, no.

18

Q. Now, you have Contractual Team B toward the back with a

19

question mark, and there's like a little dotted path that

20

leads from her to another Contractual Team B in the execution

21

room, do you see that?

22

A. It's not a path. It's a dotted line.

23

Q. Okay. You're not implying that she sort of goes through

24

the wall, are you?

25

A. Absolutely not. When I drew that out for the person who

-259-

1

was going to create the actual slide, I said this is to show

2

that they occupied two separate places, but I was drawing

3

that line, because I wanted a viewer to easily see that's in

4

fact the same person.

5

Obviously, no person can be in two locations at

the

6

same time.

7

Q. And the arrows, looking at her red dot in the execution

8

room, there are two arrows pointing in different ways around

9

the gurney.

10

Is there any reason why you stopped the arrows

11

after just a few feet into the gurney?

12

A. I was merely trying to convey that she moves on both

13

sides, that she could -- in theory, I should have put a

14

question mark there, because there's not been any testimony

15

as to exactly how and where she would move.

16

But that my general sense is she would be

surveying

17

or checking IV's. And if she were to be remotely conscious

18

about that, that would require some moving around. But it's

19

meant to be very vague. It's not meant to in any way

20

precisely delineate exactly what she does, because I don't

21

know.

22

Q. Okay. And you have no reason to believe that she cannot

23

move entirely around that gurney, if she's careful, about

24

where she steps, because there's a line, or two lines, she's

25

-- you saw the room. There's no reason why she couldn't move

-260-

1

around?

2

A. There's no hindrance to that at all.

3

Q. Okay.

4

A. And I didn't -- if you read the arrows as implying that,

5

then I didn't mean to imply that at all.

6

Q. Okay.

7

A. I could have also sort of drawn a cloud where I thought

8

the person might be, but I think I felt that would be too

9

busy of a visual depiction.

10

Q. All right. Have you read the deposition of Dr. Richard

11

Dutton, a fellow anesthesiologist, who was an expert in this

12

case?

13

A. Yes.

14

Q. Deposed as an exert?

15

A. I believe I have, yes.

16

Q. Okay. And did you read that Dr. Dutton opine that it

17

would be extremely unlikely that the administration of

18

thiopental would be unsuccessful yet the administration of

19

Pavulon would be successful, did you read that?

20

A. If you could refresh me show me the section you're

21

talking about, that would be helpful to the discussion.

22

Q. Page 72. Line 21. Starting at line 21, the question is

23

can you think of a scenario where -- can you --

24

A. I think I can read it now.

25

Q. Because it really my question really starts there.

-261-

1

A. Do you want me to read it or turn the page?

2

Q. Just read that sentence. And then turn the page.

3

(Pause.)

4

A. Read where.

5

Q. Yeah, starting here. It's actually starting on the line

6

21 on the previous page.

7

(Pause.)

8

A. Go how far down?

9

Q. Just say to here.

10

A. Okay.

11

Q. All right. Now, you had read this prior to coming to

12

court today?

13

A. I'd read the deposition, but I can't remember focusing on

14

that part.

15

Q. And correct me if I'm wrong, but does Dr. Dutton say that

16

it would be extremely unlikely that if the thiopental

17

administration were unsuccessful that subsequent

18

administration of the Pavulon would be successful, do you

19

agree with that?

20

A. I think he's maybe talking in very narrow terms, that in

21

general that's not right, but certainly can happen that you

22

can successfully administer the pancuronium and potassium or

23

clinically effective doses of those drugs without getting all

24

the thiopental in.

25

Q. His answer because the vein is either working or it's

-262-

1

not, and your IV is either in or it's not, and it shouldn't

2

change and certainly shouldn't change in that direction, do

3

you disagree with that?

4

A. I -- to the extent that the IV can also, let's not talk

5

about where the IV is, but the results of where the IV is in

6

the vein can lead to some of the drug going into the vein and

7

some of him the drug not going into the vein. So --

8

Q. Can't that happen with all three drugs?

9

A. Yes. It could happen with all three drugs, or partially

10

delivered in the vein and partially delivered outside of the.

11

Vein, and I don't think he's thinking about that, or he's not

12

discussing that in his paragraph there, but that's definitely

13

something that we all know happens.

14

Q. Dr. Heath, now, I think it's probably been

15

well-established, in fact, the Court wanted me to move on

16

from this, three grams of thiopental in any human being is a

17

lethal overdose?

18

A. Virtually if it's successfully delivered into the

19

circulation, and if -- and if no resuscitative or supportive

20

efforts are undertaken, if you just give that dose

21

successfully, and then don't anything to the person, that

22

would be fatal.

23

Q. And I think that a clinical dose is about 110?

24

A. Of three grams which would be approximately 250 to 300

25

milligrams?

-263-

1

A. It depends what we're trying to achieve. We sometimes do

2

give three grams.

3

Q. Only in a certain type of surgery and at that time you

4

also support the circulation to keep the heart from stopping;

5

am I correct?

6

A. We're always supporting the circulation.

7

Q. Okay. But if I realize that thiopental has been replaced

8

by other drugs, but let's say we're using old fashioned

9

drugs, if were you to anesthetize a human being, you would

10

look at a dose in the range of 250 to 300 milligrams?

11

A. As my initial dosing induction for a standard size adult,

12

and putting aside a bunch of circumstances that where there

13

wouldn't be a number, that would be the dose.

14

Q. We're talking about a scenario where some of it gets into

15

the circulation and some of it doesn't?

16

A. Correct.

17

Q. But the actual amount of thiopental that's needed to

18

anesthetize a person is really a very small portion of the

19

entire dose that Maryland gives its inmates?

20

A. It's important to you understand that that dose would, if

21

it anesthetized the person, which it likely would, would only

22

anesthetize him for a very, very brief period of time.

23

In fact, that's why we give such a low dose,

24

because were when we're inducing anesthesia, we want them to

25

be able to wake back up very quickly if we're unable to

-264-

1

secure their any way and breathe for them.

2

Q. What if you gave them that low dose, you induced

3

anesthesia, and you wanted to continue using that drug, you'd

4

give him a little more, wouldn't you?

5

A. It's a totology. If I wanted to continue using the drug,

6

yes, I would continue using the drug, which means giving

7

more.

8

Q. I guess my question is, isn't it true that the scenario

9

you suggested where some of the drug reaches a circulation

10

and some of drug doesn't -- well, the actual amount that one

11

needs to be made unconscious is pretty small, compared to

12

Maryland's entire dose, isn't it?

13

A. It's -- for most people, the amount that would be

14

required to transiently bring them to unconsciousness is

15

indeed approximately in the ballpark order of at 10th of the

16

intended full dose.

17

Q. All right.

18

THE COURT: If I could ask, doctor, what would a

19

better drug if you took three drugs, you discarded number two

20

and number three, for the reasons you've testified, you

21

recognized that, you know, thiopental is a good drug for

22

knocking you out, but it doesn't last very long, so we're

23

going remove that and have a one drug protocol, what drug

24

would you use and why?

25

THE WITNESS: I'm not -- I'm not comfortable

-265-

1

specifying for purposes of an execution what drugs should be

2

used. That would be applying my medical knowledge for that

3

purpose.

4

But I will say that in trying to help, and I'm

not

5

being evasive, the euthanasia of animals using much longer

6

acting barbiturates, and there are many kinds of those, and

7

they're used for therapeutic purposes in humans.

8

THE COURT: So there's a longer acting -- there

are

9

longer acting barbiturates that would successfully, that

10

would reduce the risk of waking up premature, but also, or

11

are lethal in these higher dosages?

12

THE WITNESS: They work very well in the

veterinary

13

circumstance.

14

THE COURT: Good. Thank you.

15

BY MS. MULLALLY:

16

Q. Dr. Heath, didn't you in fact refuse to answer the same

17

question in your deposition on August 29, 2006, about what

18

the better drug were?

19

A. I'm not sure if I exactly what the question was that you

20

asked, but I wasn't comfortable in specifically proactively

21

designing the protocol, that would be used to execute a

22

person.

23

Q. And didn't you decline to answer that question because

24

you believe that it is unethical for a physician to assist in

25

a lethal injection in any way?

-266-

1

A. It's against my view of what is ethical for a physician.

2

Q. Okay.

3

A. Yes.

4

Q. Are you familiar with, is this on? There we go. With

5

the American Medical Association's position on capital

6

punishment?

7

A. I've read it before a number of times, yes.

8

Q. Okay. And I believe I asked you, I think it's right

9

there on the screen, part of it.

10

THE COURT: Is that your 16 or their 16?

11

MS. MULLALLY: Actually, Your Honor, that was 16

12

for the purposes of the deposition, so it is not my 16.

13 14 15 16 two 17 18 19 a 20 21 22 23 work 24 25

THE COURT: All right. MS. MULLALLY: But -THE COURT: You might as well put it in. MS. MULLALLY: Okay. All right. It's actually
pages, then perhaps I can approach the witness with it. Well, let me ask you this --
THE COURT: You can put it in later just give it
number, but I would like, I've been interested in seeing this document, so I would like to have a copy of it in the record. So I'll admit it.
And then you can give you and Mr. Thompson can
out a number. You can also show it to the witness on the screen.

-267-

1

BY MS. MULLALLY:

2

Q. Dr. Heath, do you agree that your participation as a

3

physician in an -- do you agree that you would not agree to

4

-- that's a bad question.

5

Dr. Heath, you would not agree to prescribing or

6

administering tranquillizers or other psychotropic agents and

7

medication that are part of the execution procedure; is that

8

correct do you see that?

9

A. I think you're reading. Do you have a hard copy of this?

10

Q. Yes, I do.

11

A. That would be a good thing.

12

Q. I'm sorry.

13

(Pause)

14

Q. I thought maybe I could learn a new technological trick.

15

I was wrong.

16

I'm sorry. Just take a look at that.

17

A. What second do you want he to look at.

18

Q. Why don't you take a minute to read the whole thing?

19

A. I know it's two pages.

20

(Pause.)

21

THE CLERK: Counsel, is this going to be number

3?

22

MS. MULLALLY: Yes. You can mark it, Mr.

Thompson.

23

Q. And correct me if I'm wrong, but I showed this to you

24

when you were being deposed on August 29th?

25

A. I recall that, yes.

-268-

1

Q. If I ask, summarizing the medical American Medical

2

Association says physician are healers and that physicians

3

should not be involved in any aspects of lethal injection

4

which include setting IV's add administering drugs,

5

prescribing drugs, pronouncing death, is there anything else

6

they say?

7

Have I missed anything?

8

A. Oh. That's pretty, you covered the broad elements of it.

9

Q. And you're a member of the American Medical Society; are

10

you not, sir?

11

A. I am, yes.

12

Q. I think you were also a member of the American Society of

13

Anesthesiologists?

14

A. Yes.

15

Q. And what is the American Society of Anesthesiologists?

16

A. it's a society of anesthesiologists based in the United

17

States.

18

Q. Okay. And were you familiar with their position on

19

lethal injection?

20

A. Would -- the ASA, American Society of Anesthesiologists

21

basically follows the American Medical Association's

22

position.

23

Q. Okay. So and I think this is a little shorter, but it

24

says physicians should not participate in executions either

25

by direct act or by performing ancillary functions. This

-269-

1

includes making recommendations about drugs to be used.

2

And that's why you don't want, you're not

3

comfortable making a recommendation about what work a better

4

drug for Maryland to use, one of the reasons?

5

A. That bolsters my personal views about this. I think

6

many, like many physicians, I didn't need to be told by the

7

AMA that I was uncomfortable with it.

8

Q. And Dr. Heath, I know that you testified earlier in the

9

day that you are opposed to the death penalty, correct?

10

A. Yes.

11

Q. Okay. And I think you've served as an expert for a

12

number of plaintiffs in the same type of lawsuit that we're

13

trying actually today?

14

A. That's correct.

15

Q. Throughout the United States and including the federal

16

government.

17

And have you ever seen a procedure or a practice

in

18

any state or with the federal government that contained an

19

acceptable form of lethal injection, anything currently in

20

practice, now?

21

A. Well, again, for animals, it's being done routinely in a

22

way that's acceptable.

23

Q. Okay. What about humans?

24

A. If you put aside the issue of assisted suicide,

25

euthanasia, just put that topic aside, there are protocols

-270-

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 states 16 17 18 19 20 21 22 23 24 25

that I've seen that where I do not know the qualifications of the -- of the physicians or medical personnel who are supervising the protocols, if there are indeed such a personnel. And so I can't comment on whether or not they're acceptable.
If the qualifications were -- were proper and the people were making use of those qualifications to ensure the execution were humane, then on principle that would be a humane execution.
So I don't know in all cases who is present, and supervising. Q. All right. Dr. Heath, I believe --
THE COURT: If I can just follow up. Is there states that have better protocols?
THE WITNESS: Sorry. There are some -- some
have many particularly egregious or concerning features of what they are doing, and other states don't have as many problems.
There's some -- in the ones where I do know a lot about what's going on, apart from in California where they were going to have anesthesiologists, I'm not knowledgeable of an attempt to execute with folks who are directly charged with assessing anesthetic depth.
THE COURT: Good. Thank you. THE WITNESS: It varies.

-271-

1

BY MS. MULLALLY:

2

Q. All right. I just have two more questions.

3

Dr. Heath, do you recall being questioned during

4

your deposition about whether or not you knew Dr. Jonathan

5

Bronner, who is the individual that wrote the letter that

6

appeared before your letter in the Lancet, and do you recall

7

my asking whether or not you agreed with Dr. Bronner?

8

A. Agree with him about what?

9

Q. I guess about --

10

A. Many things that I might differ about.

11

Q. His views of physician involvement in capital punishment?

12

A. I don't specifically recall your asking that question.

13

Q. Okay.

14

A. But I remember the general conversation.

15

Q. Let me show you your deposition to refresh your

16

recollection.

17

A. Thanks.

18

MR. HUT: Do you have a page?

19

MS. MULLALLY: Yes, I'm sorry. Page 32, starting

20

line 20.

21

And on to page 33.

22

Q. Okay. Starting at line 6, question, now is it fair to

23

say that he is a strong opponent of capital punishment and

24

your answer was?

25

A. I said "I'm not sure about that. I said I think just to

-272-

1

clarify, I think he's a very strong opponent of physician

2

involvement in capital punishment, would be a better

3

description."

4

Q. And my question was "do you agree with him?"

5

And your answer was?

6

A. My answer was "it's a little bit complicated. I think he

7

would be better to have methods of execution that don't

8

require physician involvement. I'm not sure that's exactly

9

where he's coming from, so I'm not sure I would say I agree

10

with him. He's made a number of statements, so I don't want

11

to broadly agree with him with everything he says."

12

Q. Okay. Are you stating here it's better to have methods

13

of execution that do not require physician involvement?

14

A. I think that would address -- none of us would have to be

15

here today. That would address all of these concerns, if the

16

state used a humane method that physician didn't have to

17

participate in. All of this wrangling wouldn't be going on.

18

And that would be good.

19

Q. Dr. Heath, you stated earlier that you had corresponded

20

with I guess what we would call the grandfather of the -- or

21

the god father of the lethal injection, the Oklahoma medical

22

examiner, and I think you said that you expected that there

23

would be -- that there was no review process by doctors and

24

that you had expected that a panel of experts would have been

25

consulted?

-273-

1

A. If I said that, what I was trying to say is that when in

2

a lethal injection was not something that I thought about at

3

all until about five years ago after I saw information about

4

the McVeigh execution. To any extent that I thought about it

5

I assumed it was being done in a very careful and considered

6

way, and that the folks who were doing it were properly

7

advised by people who, you know, by experts, that they

8

thought it through about all the different implications,

9

justice has been done, for like as has been done for

10

veterinary, they have panels of experts, think hard about

11

doing this, and found ways of doing it I assumed at least

12

that standard was being held for execution of humans.

13

Q. Well, aren't -- if a panel of experts convened and were

14

consulted, wouldn't that -- if they were physicians, wouldn't

15

that be under the Maryland Medical Association and American

16

Society of Anesthesiologists, wouldn't that be a type of

17

involvement in a lethal injection to be consulted and to give

18

opinions?

19

A. It would. Again. Many physicians are clearly willing do

20

that. So if you're going do this undertake this endeavor of

21

using lethal injection, I think it's when you go to get

22

advice from the pool of physicians for whom it doesn't

23

compromise their own ethical principles, I think each of us

24

as people have to decide our own ethical principles. AMA can

25

render advice about it, but it doesn't control anybody's

-274-

1

ethics.

2

Q. All right. I have one more, one last question.

3

Let me start here. Do you recall stating in your

4

deposition and I -- well, you're asking my opinion as a

5

physician about whether physicians should participate in

6

executions, I personally don't think that they should. Do

7

you remember saying that?

8

A. I don't specifically remember stating that, perhaps if

9

you show me the transcript again.

10

Q. Yes.

11

(Pause.)

12

MR. HUT: Again, Miss Mullally, page?

13

MS. MULLALLY: Oh, I'm sorry, 156. Line 4.

14

(Pause.)

15

A. The first sentence there?

16

Q. It starts here.

17

(Pause.)

18

A. This is asking me about the Morales case in California,

19

was this the case in which the Judge ultimately required the

20

presence of two board certified anesthesiologists executions

21

in California. My answer is yes. Your question "Do you

22

agree, do you support the Judge's decision in this matter?"

23

And my answer was it's a complex situation. I

24

think from the point of, and there are very different view

25

points to approach it, but from the viewpoint of trying to

-275-

1 2 3 4 5 6 7 8 takes 9 10

carry out both the law and also sort of a decent societal expectation that the execution be done in a humane and dignified way, that that was an act of wisdom on his part to require that. At the same time he's acting as a judge.
You're asking my opinion as a physician about whether physician should participate in executions, and I personally don't think they should.
So I have, it depends on what perspective one
on the judge's decision or his order. MS. MULLALLY:. Thank you. I have no further

11

questions.

12

THE COURT: Doctor, if I could, I know it's

getting

13

late, just a few more questions about the prohibitions from

14

the American Medical Association, American Society of

15

Anesthesiologists, and you may not know the answers to these

16

at all.

17

If a physician were to participate in a an

18

execution, does that mean that the AMA, or ASA kicks them out

19

of the organization?

20

A. A number of physician are publicly known to have

21

participated in executions, including very deep

22

participation, not just making suggestions but actually being

23

present, starting central lines in a case, in cases where

24

they couldn't have executed the prisoner without the central

25

line. It's a very I think intimate involvement. The AMA is

-276-

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 plus 21 22 23 24 25

aware of physicians who have done that and has not to my knowledge done anything about that.
I don't know, I know the ASA is also aware of physicians and one only has to do a Google search to find the names of physicians who have participated, there was a New England Journal of Medicine article where a physician gave his name and talked about his participation. I'm not aware of any of these people having any, anything happen to their medical license or anything like that.
THE COURT: Because as you pointed out, there's a sophisticated analytical argument here, and that is, if the society's gone to lethal injection because it appears to be more humane, than after another alternatives, such as firing squad or the gas chamber or hanging or the guillotine or any number of methods that have been used, but it is a procedure that it's a medical type procedure, whether it's a medical procedure and if the physician won't be involved in it, if they won't involve themselves in it, then there's nobody to build the best possible mousetrap.
So there's nobody to design the best protocol,
there's nobody to carry out the protocol, all of which increases the risk that the inmate who's being executed will suffer, will suffer.
So but these organizations that they're not governmental bodies, if you violate their norm, all they can

-277-

1

do is kick you out. They can't take your license away,

2

correct?

3

THE WITNESS: (The witness nodded affirmatively.)

4

THE COURT: And just for the record you're

nodding,

5

but certainly it's clear that these prohibitions have a

6

chilling effect?

7

THE WITNESS: I think the main effect they have

is

8

making so that most physicians who are participating don't

9

want it to be known, as I think these folks who were involved

10

in the executions, and I think we should be very respectful

11

of their -- I don't think they should come to any harm of a

12

any kind as a result of the decisions that they have made.

13

Some physician are, their names are now known because they

14

voluntarily release them, or it's been found out by the press

15

through investigation and stuff like that.

16

And I'm not aware of anything negative happening

to

17

those folks. I think it is sort of unfortunate for them they

18

didn't want their names to come out they made a decision that

19

it was a private decision.

20

But the ASA specifically I talk about, the

21

American Board of Anesthesiologists which is the group that

22

could remove board certification, they could take away my

23

board certification if they felt I'd done something that

24

warranted that. I was told they specifically discussed

25

whether to take action against a board certified

-278-

1

anesthesiologist who participated, and they decided not to do

2

that. I guess it's a known individual, but as a general

3

proposition, if they found out a board certified

4

anesthesiologist participated, what would they do about that,

5

the decision was they would not do anything about it.

6

THE COURT: I think it's -- I think you'd agree

if

7

you are just a board certified anesthesiologist with a

8

mortgage to pay, you'd have to think long and hard about

9

whether you wanted to embroil yourself in this case, because

10

there's a large potential downside, if you violate these

11

standards, you know, you may be left alone, and then you may

12

end up having some sanction imposed against you, and you just

13

don't know what's going to happen.

14

THE WITNESS: So far it doesn't look that way.

15

Many physicians have participated, no one knows about it, and

16

the ones where people do know about it, nothing's happened to

17

them, that I'm aware of, I think I will have seen that if

18

something had happened to them, so in the past at least.

19

From what I can tell in the future, I think again

20

these are recommendations from these organizations, but they

21

have no clout. And it's an individual can decide to

22

participate and nothing is going to happen to them, and we

23

know that many physicians are willing to participate both

24

from surveys and physicians are found to do this including

25

here in Maryland.

-279-

1

THE COURT: Good. Thank you. Any more question?

2

REDIRECT EXAMINATION

3

BY MR. HUT:

4

Q. Your Honor, I have nothing following up on Miss

5

Mullally's question. I have one question following up on

6

Your Honor's colloquy with Dr. Heath.

7

Dr. Heath, in your opinion, if Maryland were to

8

offer a significant sum of money to a physician or physicians

9

or certified registered nurse anesthetists to participate in

10

lethal injections, do you think that the State could find

11

some number of physicians or CRNA's to participate?

12

A. I've had conversations with colleagues about this matter,

13

and thus my sense is, yes, if they were well reimbursed for

14

this, there are people who would do it.

15

MR. HUT: Thank you. I have no further questions

16

of the witnesses, Your Honor.

17

THE COURT: Thank you.

18

Doctor, thank so much for coming. And Mr. Hut do

19

you anticipate that the doctor might be coming back in the

20

future?

21

MR. HUT: I think it is quite possible that he

may

22

for rebuttal purposes.

23

I don't, I know that he has taken a lot of time

on

24

this and other litigation matters does not have a whole lot

25

of vacation time, so I don't think he's going to be coming to

-280-

1

sit in the courtroom. Or we're going try to figure out how

2

he might be able to monitor the proceedings. It's possible

3

that we may want to have him back live in our rebuttal case

4

if we have one.

5

THE COURT: Well, two things.

6

One, if you want Dr. Heath to monitor, and we're

7

not you know we have the technological problem where Mr.

8

Thompson would attempt to solve it.

9

And, second, because I've had an opportunity to

see

10

Dr. Heath, I might entertain I'd have to hear from both

11

sides, whether he might testify in rebuttal if it were short,

12

you know, via telephone. So I'd have to think about that.

13

And of course if we operated under that rule, that would

14

apply to their experts as well, because there's a significant

15

cost in flying people here. Good. Look forward to seeing

16

everyone tomorrow at 9:30.

17

(Proceedings concluded)

19 19.5 20

I, Jacqueline Sovich, RPR, CM, do hereby certify that the foregoing is a correct transcript from the stenographic record of proceedings in the above-entitled matter.

22
23 23.5

___________________________________________________ Jacqueline Sovich Official Court Reporter

-281-

DATE

4

1 2 3 4 5 6 7 8 8.5 9 10 10.5 11 12 13 14 15 16 17 17.5 18 18.5 19 20 21 21.5

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND/NORTHERN DIVISION VERNON EVANS,
Plaintiff CIVIL NO. 06-149
Vs. Mary Anne Saar, et al,
September 20, 2006 Defendants ______________________________/ DAY THREE (UNREDACTED - PORTIONS OF PROCEEDINGS ARE UNDER SEAL INCLUDING BENCH CONFERENCES AND ARE NOT TO BE RELEASED WITHOUT COURT ORDER)
TRANSCRIPT OF BENCH TRIAL BEFORE THE HONORABLE BENSON E. LEGG,
UNITED STATES DISTRICT CHIEF JUDGE APPEARANCES: On behalf of the Plaintiff: Stephen Hut, Jr, Esquire Todd Zubler, Esquire Kalea Clark, Esquire Anne Harden Tindall, Esquire Stephanie Katherine Wood, Esquire On behalf of the Defendant: Laura Mullally, Esquire Philip Pickus, Esquire

23 24 24.5

REPORTED BY: Jacqueline Sovich, RPR, RMR, FOCRR Official Court Reporter

-1-

1

(PROCEEDINGS)

2

THE COURT: Good morning. Please be seated. This

3

is a continuation; namely, the third day of the trial of

4

Evans versus the State.

5

The first day, Monday, was taken up with opening

6

statement in the afternoon.

7

Day two, Tuesday, included the testimony of Drs.

8

Heath and Scalea, both called by the plaintiff, Mr. Evans.

9

The witnesses today, and tomorrow, are either

10

employees or agents of the State, whose identities will

11

remain confidential. In order that their identities may be

12

protected, they will testify in a courtroom that has been

13

closed and sealed so that they will be seen only by

14

individuals who are involved in the handling the case and who

15

are covered by the protective order that has been signed

16

between the plaintiff's attorneys and the plaintiff and the

17

attorneys for the State.

18

This trial is, of course, a public proceeding, and

19

so that the public aspects of the trial may be preserved,

20

there is a live audio feed that has been established between

US1DOCS 5856268v1

21

this courtroom, 7 A in the Garmatz building, the U.S.

22

Courthouse in Baltimore, and another courtroom in the

23

building; namely, courtroom 3 D.

24

In 3 D, there is a courtroom deputy to supervise

25

things and also a member of the IT staff to make sure that

-2-

1

the feed is working properly.

2

A couple of questions have been asked of court

3

personnel. The first is and can we record the proceedings?

4

Reporters, members of the public have tape recorders, so the

5

question is can we record what's going on in the feed?

6

And, second, could we broadcast the feed using our

7

cell telephones? And the answer is no. The feed may not be

8

recorded, and the feed may not be rebroadcast.

9

The second question is can we obtain a tape

10

recording of the proceedings at the end of the day? And the

11

answer is, again, no. But you can obtain a transcript of the

12

proceedings by contacting the Court Reporter, Jackie Sovich,

13

who will be happy to provide one, within whatever time

14

parameter is consistent with the fact that she's spending,

15

you know, eight hours a day in court taking down the

16

proceedings.

17

So you can't rebroadcast, can't record, can't take

18

pictures, won't get a tape. But you can get a transcript by

19

contacting Ms. Sovich.

20

Good. Mr. Hut, whenever you're ready, sir.

21

MR. PICKUS: Your Honor, I have a preliminary

22

matter I need to discuss with the Court.

23

THE COURT: Yes, sir.

24

MR. PICKUS: May I ask the feed to the reporters be

25

turned off for this matter?

-3-

1

(SEALED)

US1DOCS 5856268v1

US1DOCS 5856268v1

17

(UNSEALED)

18

THE COURT: Good. This ends the sealed portion of

19

the hearing. We are about to begin with the direct

20

examination of a gentleman identified as injection team E.

21

Beginning with the direct examination by Mr. Evans' lead

22

attorney, Mr. Hut.

23

Mr. Hut, whenever you're ready.

24

DIRECT EXAMINATION

25

BY MR. HUT:

-18-

1

Q. Good morning, sir.

2

A. Good morning.

3

Q. My name, as the Court indicated is Steven Hut. I am one

4

of counsel for the plaintiff in this action. We've not met

5

before; is that correct?

6

A. No.

7

Q. I want to reiterate the Court's words about the

8

confidentiality with which we want to treat your identity.

9

If at any time during this examination you believe that I am

10

trenching close to information that would disclose for people

11

to understand your identity, please say so, and we will go

12

into a more closed mode.

13

We still may want to pursue those questions, but

14

we'll do it without the audio feed that's taking place.

15

Do you understand that?

16

A. Yes.

17

Q. Now, we may actually start with something, I think these

18

are permissible questions, and that do not disclose

19

confidential information.

20

For the record, sir, by whom are you employed?

21

A. State of Maryland.

22

Q. And any particular department or division for the state

23

of Maryland for which you work?

24

A. Division of Correction.

25

Q. And what is your function or are your duties for the

-19-

1

Division of Correction?

2

A. Correctional officer.

3

Q. Are you a member of the execution team, sir?

4

A. Yes.

5

Q. And are you a member of the portion of the execution team

6

that is sometimes identified as the Injection Team?

7

A. Yes.

8

Q. For how long have you been an employee of the Maryland

9

Division of Corrections?

10

A. Approximately 14 and a half years.

11

Q. And what were your duties, perhaps if you can take them

US1DOCS 5856268v1

12

over time. What were your first duties at the division?

13

A. Originally, I was hired as a correctional dietary officer

14

back in '92. '97, early '97, I switched over to a

15

correctional out at the Maryland House of Corrections Annex.

16

And in '99, I was transferred to the Maryland State

17

Penitentiary, known as MTC then.

18

And that's where I currently work.

19

Q. As a correctional dietary officer, was that -- did that

20

involve responsibilities in the prison kitchen?

21

A. Yes, sir.

22

Q. And that was at the House of Detention Annex?

23

A. Yes.

24

Q. Were you involved in the execution of Steven Oken?

25

A. Yes.

-20-

1

Q. Were you involved in the execution of Wesley Baker?

2

A. Yes.

3

Q. Let me see if I can understand what your duties are, or

4

were in connection with both of those executions. Could you

5

describe those generally for us, please?

6

A. Describe them? Up until the moment of the execution, I

7

really did not have contact with those two individuals.

8

Q. Let me see if I can help you out.

9

Did you operate in connection with both of those

10

executions the flow clamp on the IV apparatus?

11

A. Yes.

12

Q. And let me show you what we have marked as Plaintiff's

13

Exhibit 15.

14

May I approach, Your Honor?

15

THE COURT: You may.

16

Q. This is a piece of tubing, exhibit 15, still in its

17

glassine case, that was produced to us this morning pursuant

18

to subpoena.

19

And I want to sort of be clear for the benefit of

20

the court reporter who's taking this down in words, but if

21

you could look at this and describe or tell me if you see the

22

flow clamp and describe what it looks like with this exhibit?

23

A. Yes. This is an administration set. The flow clamp is

24

the piece, it's got a balloon, a wheel, this piece here

25

(indicating).

-21-

1

Q. And it's the light blue with the clear plastic wheel?

2

A. Yes, yes.

3

Q. Okay. Thank you very much.

4

THE CLERK: Counsel, the feed can't hear the

5

witness. If you could move a little closer to the mike?

6

There you go.

US1DOCS 5856268v1

7

BY MR. HUT:

8

Q. Now, I have placed on the easel in the courtroom, sir, a

9

schematic diagram of the execution area. This was a diagram

10

that the state produced to the plaintiff in the discovery

11

process here.

12

Does that look approximately the way the execution

13

area looks as a schematic rendering?

14

A. Yes.

15

Q. And during the execution of Mr. Oken and Mr. Baker, were

16

you in the preparation room portion of the execution area?

17

A. Yes.

18

Q. And that is where you operated the flow clamp; is that

19

right?

20

A. Yes.

21

Q. Now, did you have any other responsibilities in

22

connection with the Oken and Baker executions?

23

A. I set up the room, the two tables.

24

Q. The room you referred to is, again, the preparation room?

25

A. Preparation room.

-22-

1

Q. Did you mix the drugs?

2

A. On Oken, I assisted.

3

Q. And whom did you assist?

4

A. I don't know.

5

Q. That's a fair comment.

6

We have, let me give you two pieces of paper that

7

will assist in identifying some of your, the team members.

8

The first that I want to hand to you, and I'm also

9

going to hand a copy to the Court's law clerk, for the

10

Court's convenience, is what has been marked as plaintiff's

11

exhibit 87.

12

This is a list of what we've called the generic

13

identifiers, and they're two parts of the list. The first

14

part has individual names with the identifier. And then I

15

think the second page has the identifier that translates to

16

the names.

17

So, for example, I think if you go down to your

18

name, you'll see that we've got it designated as Injection

19

Team E. And then, for example, on the next page, if you went

20

to Injection Team A, you will see the name of the individual

21

whom I understand is the one who you may have assisted in

22

mixing drugs for the Oken execution.

23

Do you see that?

24

A. Yes. Injection Team A.

25

Q. Is that right, it was Injection Team A?

-23-

1

A. Yes.

US1DOCS 5856268v1

2

THE COURT: And so the record is clear, this

3

plaintiff's exhibit 87 is subject to the protective order,

4

and is to be maintained under seal. So that these names are

5

not disclosed to the public.

6

Q. The other document that may assist you, and will be

7

available to do that, throughout your testimony, sir, is what

8

we've identified as PDX 1, which is a chart that was prepared

9

under the supervision of one of the plaintiff's witnesses,

10

that contains photos of the individuals, if we could can have

11

PDX 1 up? And this, too, has been designated confidential,

12

and will not be disclosed to any members of the public.

13

MS. MULLALLY: Objection.

14

THE COURT: I'll overrule the objection.

15

Q. So if you'd like, if you need to see pictures to help

16

identify somebody, that's the purpose of this chart.

17

And is injection team A accurately depicted as the

18

up top individual in the middle column?

19

A. Yes.

20

Q. All right. During the execution of Steven Oken, did you

21

insert the syringe or syringes containing the drugs used in

22

the lethal injection into the Y port on the IV apparatus?

23

A. Yes.

24

Q. And did you do that as well in the execution of Wesley

25

Baker?

-24-

1

A. Yes.

2

Q. Did you actually press the plunger on any of these

3

syringes?

4

A. No.

5

Q. The individual who did that is called whom, as a generic

6

identifier, either consult plaintiff's exhibit 87, the list,

7

or the set of pictures on the chart?

8

A. Contractual Team A.

9

Q. Did you also monitor the IV bag and the drip chamber in

10

connection with the execution of Mr. Oken?

11

A. Yes.

12

Q. Did you also do that in connection with the execution of

13

Mr. Baker?

14

A. Yes.

15

Q. And during the inserting of the syringe and the

16

monitoring of the bag and the drip chamber, was that all

17

conducted from the preparation room?

18

A. Yes.

19

Q. Do you ever go to the execution room during an execution?

20

A. No.

21

Q. And from the preparation room, did you also monitor the

22

IV lines that extend to sites on the inmate?

23

A. Yes.

24

Q. Did you do that for both executions?

25

A. Yes.

US1DOCS 5856268v1

-25-

1

Q. Now, by reference to the chart in front of you on the

2

easel in the courtroom that depicts the execution area, can

3

you tell me approximately where you stood?

4

Well, let me do it this way. If we could get PDX

5

16 up on the screen, and do you see, you're looking at the

6

screen next to you in the -- or on the computer right in

7

front of you, sir?

8

A. Yes.

9

Q. All right. This is a blow-up of a portion of the

10

execution area including the preparation room.

11

We put this together based on what we understood to

12

be the testimony given in depositions, by members of the

13

team.

14

Do you see the pink circle in the preparation room

15

in the upper right-hand corner of that room?

16

A. Yes.

17

Q. And we have put the label ITE in there, which the witness

18

who created the diagram understood to stand for Injection

19

Team E, which is your identifier.

20

Is that the approximate position in the preparation

21

room at which you stood for the execution of Steven Oken?

22

A. Yes.

23

Q. And for the execution of Wesley Baker?

24

A. Yes.

25

Q. And this is depicted in front of what I believe has been

-26-

1

identified as a window. Do you stand right in front of the

2

window?

3

A. Yes.

4

Q. And to your right is a small gray rectangle. Does that

5

small gray rectangle represent the IV stands, or stand,

6

excuse me.

7

A. Yes, it would be in there.

8

Q. I'm sorry, I didn't hear.

9

A. Yes, it would be in that area, yes.

10

Q. Now, to your immediate left on this diagram, we have

11

placed -- I'm sorry. To the immediate left of the pink

12

circle, we've placed a tan circle that says Contractual Team

13

A. I'm sorry, CTA, which the witness who created this

14

understood, stood for Contractual Team A. And is that the

15

position in which Contractual Team A stood during the

16

execution of Steven Oken?

17

A. He would be to the right of me on this layout. Not to

18

the left, to the right.

19

Q. Contractual Team A stands closest to the IV apparatus?

20

A. Or side by side, both standing right next to it. He

21

would be to my right.

22

Q. Contractual Team A does not stand in front of the window?

US1DOCS 5856268v1

23

A. Yes, he does.

24

Q. He does stand in front of the window?

25

A. Yes. We're staggered.

-27-

1

Q. You -- the indication of the circle where you stand is

2

correct; is that right?

3

A. Yes.

4

Q. Contractual Team A stands to your right between you and

5

the IV apparatus?

6

A. Beside me.

7

Q. But in front of the window?

8

A. In front of the window, but we are staggered.

9

Q. All right. Sir, let me show you what's been marked as

10

plaintiff's exhibit 74. I've corrected, it's deposition

11

exhibit -- I'm sorry, it's not deposition exhibit, it's

12

plaintiff's trial exhibit 73.

13

May I approach, Your Honor?

14

THE COURT: You may.

15

BY MR.HUT:

16

Q. Do you recall, sir, that you were deposed in this

17

proceeding on or about June second of this year?

18

A. Yes.

19

Q. Were you asked during that deposition to place marks on a

20

schematic of the execution area similar to the one that is

21

before you on the computer screen?

22

A. Yes.

23

Q. And do you see the E in approximately the middle of the

24

what's diagramed as the window in plaintiff's exhibit 73?

25

A. Yes.

-28-

1

Q. Did you affix the E to plaintiff's exhibit 73 during your

2

deposition to indicate where you stood?

3

A. I don't recall. I know I marked something. That does

4

not look like my writing, but I did mark something equivalent

5

to this.

6

Q. In any event, on plaintiff's exhibit 73, there is an A

7

written immediately to the right of E both standing before

8

the window; is that correct?

9

A. Yes.

10

Q. And immediately to the right, there's a designation IV;

11

is there not?

12

A. Yes.

13

Q. Which is consistent with the depiction of the small gray

14

rectangle that you thought was the IV apparatus on the chart

15

that we had up or the diagram that we had up on the screen a

16

moment ago, PDX 16, correct?

17

A. Repeat that?

US1DOCS 5856268v1

18

Q. Sure. PDX 16?

19

A. Down in the corner you got the legend, drug tray and IV

20

set up.

21

Q. Precisely.

22

A. Yes.

23

Q. And the circle is the IV set up, and the rectangle is the

24

drug tray?

25

A. Correct. And as I stated, the drug tray is in front of

-29-

1

the window, and we are at an angle to one another. He's

2

roughly 12 inches behind me at an angle to that tray,

3

standing in front of the window.

4

Q. To your right?

5

A. Correct.

6

Q. But what does that tell us about where the pink circle

7

has been placed on this particular demonstrative, would seem

8

to me that if you're both standing in front of the window,

9

the pink circle ought to be drawn a bit further to the left,

10

wouldn't it?

11

A. Well, if you ask me, the pink circle's a little bit

12

bigger than this diagram here. Like I said, we're at an

13

angle from one another, directly in front of the window. I

14

am directly beside the drug tray, is at an angle to the drug

15

tray.

16

Q. And you two are the two people that stand in front of the

17

window in the preparation room during an execution, right?

18

A. And others, yes.

19

Q. Others stand in front of the window?

20

A. The commander, also.

21

Q. The commander stands in front of the window, and that

22

would be the execution team commander?

23

A. Yes.

24

Q. Now, Contractual Team F, who is the physician, does she

25

also stand in front of the window or near her window?

-30-

1

A. I don't know where she's standing in the room at the

2

time.

3

Q. Is if she states that she stands quite close to the

4

window, perhaps slightly to the left of it, with the EKG in

5

front of her, you don't have any reason to dispute that, do

6

you?

7

A. No.

8

Q. Okay. Now, did you, sir, plan to -- or was it your

9

understanding that you were to participate in the execution

10

of Vernon Evans that had been scheduled for last February?

11

A. Yes.

12

Q. Is it your understanding that if and when the state has

US1DOCS 5856268v1

13

authority to execute Vernon Evans and that execution take

14

place, that you would participate in that execution?

15

A. Yes.

16

Q. Is it your understanding that you would participate by

17

performing the same goals and functions that you performed in

18

connection with the deposition of Steven Oken?

19

A. That's possible.

20

Q. Did you say that's possible?

21

A. That's possible.

22

Q. Are the other possibilities?

23

A. I could have another detail that evening, yes.

24

Q. By another detail, you mean a detail off of the execution

25

team?

-31-

1

A. No. On the execution team, another detail in the room.

2

Q. What other detail might you have?

3

A. I could be keeping the times, recording times. I could

4

be asked to do that. There's several other things that could

5

be done that I would be asked to do.

6

Q. Have you ever kept the recording times during the

7

previous execution?

8

A. No when.

9

Q. Have you ever practiced keeping the recording times?

10

A. It's simply writing the time down on a piece of paper.

11

Q. But you've never practiced it, have you?

12

A. No.

13

Q. The individual who kept the recording times in the

14

execution of Mr. Oken and Mr. Baker is designated Injection

15

Team C; isn't that correct?

16

A. Yes.

17

Q. And she's called the injection recorder, correct?

18

A. That I don't know. I don't know her title.

19

Q. That's not your title, is it?

20

A. Excuse me.

21

Q. That's not your title, is it?

22

A. No, no.

23

Q. And have you ever practiced the recording?

24

A. No.

25

Q. Is it safe to assume, Mr. E, that if you were to

-32-

1

participate in any scheduled execution of Mr. Evans, that you

2

would be located at approximately the same place as you are

3

depicted in, or on the chart that's up on the screen, PDX 1?

4

A. Yes.

5

Q. As a member of the execution team, do you favor capital

6

punishment?

7

A. Are you asking do I agree with it?

US1DOCS 5856268v1

8

Q. Yes.

9

A. Yes.

10

Q. Have you taken basic first aid courses offered by the

11

Division of Correction?

12

A. Yes.

13

Q. How many of those?

14

A. We get them yearly, about 15, 16.

15

Q. And in those courses, the C column is basic CPR and

16

rescue breathing; isn't that right?

17

A. Yes.

18

Q. Other than that, you've never received any medical

19

training, have you, sir?

20

A. No.

21

Q. And you'd never been trained in IV insertion; is that

22

right?

23

A. No.

24

Q. And you've never been trained in phlebotomy, have you?

25

A. No.

-33-

1

Q. Nor in pharmacology?

2

A. No.

3

Q. Or in anesthesiology?

4

A. No.

5

Q. Besides these first aid courses that take up CPR and

6

rescue breathing, you have no other medical experience at

7

all, do you?

8

A. No.

9

Q. Can you tell the Court the purpose of the flow clamp that

10

you identified a moment ago as part of plaintiff's exhibit

11

108?

12

A. It's to control the flow of the IV.

13

Q. Does it control the amount of the saline solution that

14

goes through the lung?

15

A. Yes, it does.

16

Q. Do you sometimes refer to the flow clamp as the open and

17

close valve?

18

A. Yes.

19

Q. Let's see if I can understand what happens with a flow

20

clamp from beginning the execution by lethal injection to the

21

end of it.

22

There comes a time when one of the members of the

23

execution team hooks IV lines to the inmate; is that right?

24

A. Contractual, yes.

25

Q. We don't need to know the individual's name or identifier

-34-

1

for now.

2

US1DOCS 5856268v1

After that occurs, are the IV bags passed through a

3

passage, a small passage between the preparation and the

4

execution room?

5

A. Yes.

6

Q. Are they passed to you at that point?

7

A. Yes.

8

Q. You put them on the metal IV stand; is that correct?

9

A. Yes.

10

Q. Do you then start a slow drip?

11

A. That's already started.

12

Q. That's already been started?

13

A. Yes.

14

Q. The slow drip is done with what you call sugar water; is

15

that right?

16

A. Saline, sugar water, yes.

17

Q. Is one of your responsibilities to ensure that the flow

18

of the IV fluid is continuous?

19

A. Yes.

20

Q. Now --

21

THE COURT: If I could just, interrupt and ask a

22

question.

23

Mr. E, so that the drip has started, let me get my

24

terminology here, that Contractual Team B inserts the IV, and

25

starts the drip so that the drip is already started before

-35-

1

the IV bag is passed through the portal that separates the

2

two rooms; is that correct?

3

THE WITNESS: Yes.

4

THE COURT: Good, thank you.

5

BY MR. HUT:

6

Q. Now, you said in response to my question and to the

7

Court's, that the drug are started at a slow drip. But you

8

actually don't know what it means to run the IV line in a

9

slow drip, do you?

10

A. In medical terms, no.

11

Q. And you don't know where the phrase slow drip came from,

12

do you?

13

A. No.

14

Q. And you would not be able to tell, would you, Mr. E, if

15

the saline were running too fast, would you?

16

A. Other than looking on the administration set's window,

17

no.

18

Q. Now, while the drugs are being administered, through the

19

mechanism of Mr. Contractual Team A depressing the plunger on

20

the syringes, you watch the clock, don't you?

21

A. That's one of the things I do, yes.

22

Q. And you watch the number of cc's, that's cubic

23

centimeters of the drug, that are flowing out of the syringe,

24

correct?

25

A. From time to time, yes.

-36-

US1DOCS 5856268v1

1

Q. And based on how many cc's are flowing, you may have to

2

open up or close the flow clamp a little, right?

3

A. We have never run into that problem on the last two

4

executions, so, no, I don't. It could be a possibility.

5

THE COURT: If I could ask another question, so I

6

can visualize this.

7

When the IV drip is started, you can monitor the

8

flow by seeing how much of the saline solution flows from the

9

bag into is it called the drip chamber?

10

THE WITNESS: Drip chamber.

11

THE COURT: Drip chamber. Good.

12

And my understanding is that the level of the drip

13

chamber will always be constant?

14

THE WITNESS: Correct.

15

THE COURT: So what you're really looking at is to

16

see how many drops are coming into the drip chamber?

17

THE WITNESS: Yes.

18

THE COURT: When the plunger is pushed not by you

19

but by CTA, the how do you go about visualizing the flow of

20

the drugs from the syringe into the IV system?

21

THE WITNESS: When the syringe is hooked into the

22

line, we have a digital clock up on the wall, I will give

23

them the time I need, anywhere from a minute to a minute and

24

a half on the first syringe.

25

And I will occasionally look up at the clock and

-37-

1

let him know whether it's on time, whether he needs to pick

2

you it up, pick up the pace or slow it down.

3

THE COURT: So you can see the syringe that he's

4

pushing?

5

THE WITNESS: Yes, sir.

6

THE COURT: And by you know how much time he has to

7

inject the contents of that first syringe, and you can see

8

the progress that he's making by monitoring the progress of

9

the plunger from one side of the syringe to the other?

10

THE WITNESS: Yes.

11

THE COURT: Good. Thank you.

12

BY MR. HUT:

13

Q. And depending on what needle size was used, whether it

14

was larger needle or a smaller needle, you might have to slow

15

the drip down, or you might have to speed the drip up,

16

correct?

17

A. That's a possibility, yes.

18

Q. And you've said that; have you not?

19

A. Yes.

20

Q. But if there are no problems, you don't do anything at

21

all with the flow clamp while the drugs are administered,

22

correct?

23

A. No.

US1DOCS 5856268v1

24

Q. You don't do anything?

25

A. If it's flowing properly, and there's no problems, no.

-38-

1

Q. Now, you do use the flow clamp, though, if the drugs

2

prove to be easy or hard to administer when Contractual Team

3

A pushes on the plunger?

4

A. On Oken and Baker, we have not had to modify that at all.

5

Q. But if it's hard for him to push, you open it a little

6

more, don't you?

7

A. If he said it's really hard to push, it's proper we could

8

do that.

9

Q. And if it's too easy, you would close the clamp a little

10

bit, wouldn't you?

11

A. You would slow it down, yes.

12

Q. Now, at the end of the administration of each drug, the

13

lethal injection checklist instructs you to open the flow

14

clamp to wide open.

15

Let me ask this question before I ask that one.

16

You know what the lethal injection checklist is, don't you?

17

A. Yes.

18

Q. And you've read it?

19

A. Yes.

20

Q. Not all members of the team do read it, don't they?

21

A. I can't answer for them.

22

Q. You don't know whether Contractual Team A has read it, do

23

you?

24

A. I do not know.

25

Q. That check -- according to that checklist, at the end of

-39-

1

the administration of each drug, you're supposed to open the

2

flow clamp to wide open, right?

3

A. Correct.

4

Q. And it's your guess that what that means, open to wide

5

open, is that you move the valve so that it is all way open?

6

A. I guess, yes. Yes.

7

Q. And to do that, you move the flow clamp only about the

8

length of a pencil lead, an 8th of an inch?

9

A. Roughly, yes.

10

Q. And then you slow it back down for the preparation of the

11

next drug, correct?

12

A. Correct.

13

Q. But you don't know what determines the rate at which the

14

saline or sugar water is flowing, do you?

15

A. Just consistent drip.

16

Q. So you don't know, Mr. E, whether the rate of flow is

17

determine by the drugs being pushed through the IV or the

18

saline or both, do you?

US1DOCS 5856268v1

19

A. No.

20

Q. And you don't know whether it's possible for an IV to go

21

bad if fluids are injected at a high rate, do you?

22

A. I do not know.

23

Q. And when you monitor the IV lines connected to the

24

inmate, which I think you indicated was one of your

25

responsibilities, you look for drippage, correct?

-40-

1

A. Yes.

2

Q. And you look to see that the line is not backing up,

3

right?

4

A. Yes.

5

Q. You monitor for fluid backing up, by making sure that it

6

isn't running on the floor, correct?

7

A. It's one of the ways, yes.

8

Q. So dripping and backing up are pretty much the same

9

thing?

10

A. I wouldn't know if they were the same thing, but I look

11

for both of those, yes.

12

THE COURT: So that if I can interrupt, you're

13

looking, one of the things you're looking for is to see if

14

there are any leaks in the IV line by looking to see if it's

15

-- if anything is dripping from the IV line, correct?

16

THE WITNESS: Yes.

17

THE COURT: And the other thing that you're

18

monitoring visually is what?

19

THE WITNESS: The syringe.

20

THE COURT: The syringe just to see what?

21

THE WITNESS: To see if it's flowing properly, if

22

it's a smooth flow. If it was backing up, he wouldn't be

23

able to push it.

24

THE COURT: Right. Good. So what you're looking

25

for is you're looking at the travel of the plunger from left

-41-

1

to right?

2

THE WITNESS: We're from the back to forward, yes.

3

THE COURT: Back and forward?

4

THE WITNESS: Yes.

5

THE COURT: Good. Thank you sir.

6

THE WITNESS: Yes.

7

BY MR. HUT:

8

Q. But you really don't monitor the lines, do you, Mr. E, to

9

see if there's a twist in them?

10

A. Physically looking at the lines.

11

Q. You say you're not looking at the lines?

12

A. No. I'm physically looking at the lines, if there was a

13

twist or kink, obviously, it wouldn't flow.

US1DOCS 5856268v1

14

Q. But you glance at the lines, that's about what you do,

15

right?

16

A. No, I look at them.

17

Q. Do you recall that you were deposed under oath in this

18

proceeding, correct?

19

A. Yes.

20

Q. Do you recall that took place on about June second?

21

A. Roughly, yes.

22

Q. You were under oath during the deposition, correct?

23

A. Yes.

24

Q. You raised your right arm and swore to tell the truth?

25

A. Yes.

-42-

1

Q. You were told that if you had trouble understanding the

2

question that you should ask for some further explanation,

3

right?

4

A. Yes.

5

Q. And then after the deposition was concluded, you got a

6

transcribed copy of it, didn't you?

7

A. Yes.

8

Q. And you read it, make sure accurate?

9

A. Yes.

10

Q. You signed it, even, didn't you?

11

A. Yes.

12

Q. In fact, if I may approach, Your Honor?

13

THE COURT: You may.

14

Q. Is that your signature on the last page of what I believe

15

to be the certified transcription of the deposition at page

16

195?

17

A. Yes.

18

Q. And you actually signed it with your real name, didn't

19

you?

20

A. Yes.

21

MS. MULLALLY: Your Honor, if I could object right

22

here. I'm not objecting to anything that Mr. Hut is doing.

23

since Injection Teams E's signature of his given name is on

24

that deposition, if for some reason it goes into evidence, or

25

is even marked and kept by the clerk, I would ask that

-43-

1

somehow that deposition that the signature line be redacted

2

so that it doesn't show his name.

3

MR. HUT: I was not intending to offer, this is

4

something by way of impeachment, was just going to show the

5

videotape of the testimony.

6

THE COURT: Good. Now, the purpose for showing or

7

for referring to the deposition is for the purpose of

8

demonstrating a prior inconsistent statement, correct?

US1DOCS 5856268v1

9

MR. HUT: That's correct.

10

THE COURT: Good. If you would simply inform Miss

11

Mullally, do you know what section?

12

MR. HUT: No, I don't.

13

THE COURT: If you would tell Miss Mullally to look

14

at what section that you're going to access, in the world of

15

prior inconsistent statements, I sometimes or what I usually

16

do is to have counsel asserting that there's an

17

inconsistency, show the section to counsel representing the

18

witness, to see if there is general agreement that there

19

might be an inconsistency. If there's a dispute, then I'll

20

take it here up at the bench.

21

MR. HUT: This is page 122 line 21 to 123 line 4.

22

(Pause.)

23

MS. MULLALLY: I've read it, Your Honor, I don't

24

believe there's any inconsistency.

25

THE COURT: Good. Why don't I look at it up here

-44-

1

at the bench.

2

MS. MULLALLY: Do you want counsel at the bench?

3

THE COURT: Yes, please.

4

(At the bench)

5

MR. HUT: 122, line 23, Your Honor.

6

THE COURT: Good. Thank you.

7

(Pause.)

8

THE COURT: 122 or 22?

9

MR. HUT: 122.

10

THE COURT: Line?

11

MR. HUT: Line 21.

12

THE COURT: 21. The question is "You mentioned

13

before that you monitor the IV lines for leaking, do you

14

monitor for anything else?"

15

Answer, "Just the leaking:

16

"Do you look to see if there is a twist in them at

17

all? "

18

Answer, "I mean I glance at the line. I don't, I

19

glance at the line. That's about it. And I haven't had any

20

problems."

21

Well, good. So once you've done that, in my view,

22

this is arguably inconsistent because of the definition of

23

glance. Once you -- well, the thing to do first is to ask

24

him at your deposition didn't you testify that you just

25

glanced at the line? If he says no, I can't remember, then

-45-

1

you can show him, you can even read it into the record.

2

MR. HUT: I was just going to ask him whether he

3

was asked the following question and gave the following

US1DOCS 5856268v1

4

answer and let it go at that way. Okay. Thank you.

5

(Open court)

6

THE COURT: Mr. Hut, you may continue.

7

BY MR. HUT:

8

Q. Thank you, Your Honor.

9

At your deposition on June second under oath, Mr.

10

E, on the subject of what you do to monitor the lines, were

11

you asked the following questions and did you give the

12

following answers: 122, line 21.

13

THE COURT: Now, does Mr. E have a copy?

14

MR. HUT: He does not, but I'm happy to supply him

15

one, Your Honor. Mr. E, we're about to play the videotaped

16

portion of the deposition on the computer screen in front of

17

you. You may follow along, if you wish, and the computer

18

also shows text underneath the picture.

19

But I'm handing you a copy of the transcript, you

20

may follow along at page 122, line 21.

21

THE COURT: Just for the modification, just for a

22

prior inconsistent statement, I'm not sure we need the

23

playing of the tape.

24

You can simply show him and ask him here's, didn't

25

I ask you this question, and didn't you give me this answer,

-46-

1

and then that's -- that speeds things up.

2

Q. May I read the question, Your Honor?

3

THE COURT: You may.

4

Q. Question, "You mentioned before that you monitored the IV

5

lines for leaking, do you monitor them for anything else?"

6

Answer, "Just the leaking."

7

Question, "Do you look to see if there's a twist in

8

them at all?"

9

Answer, "I mean I glance at the line. I don't -- I

10

glance at the line. That's about it. I haven't had any

11

problems."

12

Did you give that testimony, Mr. E?

13

A. Yes, I did.

14

Q. Okay. You don't have responsibility for insuring that

15

the inmate is adequately anesthetized, do you? It's -- we're

16

right to the next question, sir.

17

A. Somewhat, yes.

18

Q. Well, then let me ask you, since you have the deposition

19

in front of you, if you turn to page 123, line 9.

20

THE COURT: Well, I think, let's find out first

21

what the witness assumes his responsibility to be. So you

22

may answer that question.

23

A. Well, my responsibility is just I monitor the lines, make

24

sure that the syringe is flowing smoothly, and you know look

25

at the clock. It's very hard to explain sitting here. It's

-47-

US1DOCS 5856268v1

1

a very small room. It's -- I mean, I basically I look at the

2

lines, the lines are right in front of me, I look at the

3

syringe, I look at the clock.

4

THE COURT: But I take it you're not responsible

5

for making a physical examination of the inmate, such as

6

checking his pulse, you know, looking into the pupils of his

7

eyes.

8

THE WITNESS: No, sir.

9

THE COURT: Checking his respiration or anything

10

else?

11

THE WITNESS: No, I'm not responsible for that.

12

THE COURT: But you do have a responsibility for

13

part of the delivery system by which the drug are delivered

14

to the inmate?

15

THE WITNESS: Yes, part of the process, yes.

16

THE COURT: Good. Thank you.

17

BY MR. HUT:

18

Q. But you don't look at the inmate to determine whether you

19

think just visually he looks sedated or anesthetized, do you?

20

A. I mean, in glancing at the lines, looking at the lines,

21

I'm going in a -- he's right in front of me, he's five feet

22

away I'm going to see him.

23

So but I do not, you know, monitor what he is doing

24

as far as his you know movements, stuff like that. You can

25

see it, it's light in front of me. But I'm not there

-48-

1

specifically to monitor that.

2

Q. I would like to show the witness a statement I believe to

3

be in variance at deposition, 123, 9 to 123, 12.

4

THE COURT: Thank you. Miss Mullally, why don't

5

you take a look at it?

6

(Pause.)

7

MS. MULLALLY: Your Honor, I object.

8

THE COURT: Do you want me to take a look at it?

9

MS. MULLALLY: Yes.

10

THE COURT: I'd be happy to.

11

(At the Bench)

12

MR. HUT: This is at page 123 line 9 to 123, 12.

13

I'm sorry, to -- yeah, 123 line 12.

14

THE COURT: The testimony in the transcript is "Are

15

you at all responsible for making sure that the inmate is

16

adequately anesthetized?"

17

Answer, "I just monitor the line and monitor his

18

arm, so, no."

19

Question, "What do you look for when you monitor

20

the line and monitor his arm?"

21

"Just make sure there is no leakage, dripping,

22

whatever you want to call it. "

23

In my view, that testimony is not inconsistent with

24

the testimony that the witness has given here today, which I

US1DOCS 5856268v1

25

understand to be that he monitors the delivery system, but

-49-

1

that the inmate is right in front of him, so in if he noticed

2

something, he will notice it. But because his responsibility

3

was the delivery system. So I don't see that this is

4

inconsistent.

5

(Open court)

6

BY MR. HUT:

7

Q. And you don't monitor, either, to make sure that the

8

inmate is not in pain, do you?

9

A. I wouldn't know whether he was in pain, you know.

10

Q. In fact, whether he was in pain wouldn't concern you,

11

would it?

12

A. I would not be able to tell that, whether he was in pain

13

or not.

14

Q. And if you saw that the inmate was in pain or agony you

15

wouldn't even do anything about it, would you?

16

A. If I seen the person strapped to the table sit up or do

17

something out of the ordinary the commander's standing next

18

to me, I would notify him, let him know he's also looking at

19

the inmate, but I would let him know.

20

Q. But you can't make the judgment whether he -- whether he

21

was in agony, can you?

22

A. No.

23

Q. So you don't know if he's in agony, you can't make that

24

judgment?

25

A. No.

-50-

1

Q. And you don't know whether it's anyone else's job to make

2

that judgment?

3

A. No, I do not.

4

Q. You just know that it's not yours, right?

5

A. Correct.

6

Q. Now, is it your position, Mr. E, that you're able to see

7

every inch of the IV tubing from where you stand in the

8

preparation room?

9

A. For the most part, yes. What is underneath the sheet,

10

yes.

11

Q. Miss Mullally, page 119 lines 21 to 25.

12

(Pause.)

13

Q. Actually, Mr. E, I'd like you to look at it, but put it

14

down for now, please.

15

(Pause.)

16

MS. MULLALLY: I don't object.

17

Q. At your deposition, Mr. E, were you asked the following

18

questions, at page 119, line 21, and did you give the

19

following answers?

US1DOCS 5856268v1

20

Question, "Are you able to see all of the IV tubing

21

from where you stand?"

22

Answer, "Yes."

23

Question: Every inch of it?"

24

Answer, "Yes."

25

Were you asked those questions and did you give

-51-

1

those answers?

2

A. Can I look?

3

Q. Absolutely.

4

A. 119.

5

Q. Page 119, line 21. Through line 25.

6

A. Yes, that's how I answered the question.

7

Q. And you say that you can see both sites equally well from

8

where you stand in the preparation room, right?

9

A. Yes.

10

Q. Even though one of them is farther away from you?

11

A. Yes.

12

Q. And you reaffirm that testimony here today under oath,

13

right?

14

A. Yes.

15

Q. You don't know, Mr. E, do you, whether there is anything

16

on the IV setup that prevents the drug from moving backwards

17

up the line, do you?

18

A. No, I do not know.

19

Q. You never heard of such a thing, have you?

20

A. I do not know.

21

Q. You have heard of a lure lock, though, right?

22

A. Correct.

23

Q. But you don't know what one does, right?

24

A. No.

25

Q. Now, let me ask you some questions about your

-52-

1

responsibilities in connection with mixing the drugs in

2

preparation for an actual execution.

3

If I understood your earlier testimony, assisting

4

in mixing the drugs in preparation for an execution is one of

5

your responsibilities; is that so?

6

A. It could be, yes.

7

Q. And it was for Mr. Oken?

8

A. Yes.

9

Q. It was not for Mr. Baker?

10

A. No.

11

Q. You practice that, do you?

12

A. Yes, we do.

13

Q. And when you practice, though, you don't practice mixing

14

the real drugs before an execution, do you?

US1DOCS 5856268v1

15

A. No.

16

Q. And that's because, as you understand it, it's too

17

expensive?

18

A. I don't know the reason.

19

Q. Page 147, line 17 through 24, Miss Mullally.

20

(Pause.)

21

MS. MULLALLY: No objection.

22

BY MR. HUT:

23

Q. When you were deposed, Mr. E, were you asked the

24

following questions, and did you give the following answers?

25

This is at page 147, line 17, sir.

-53-

1

Question, "The one that is a mixture, what do you

2

mix together?"

3

Answer, "A powder and a liquid."

4

Question, "Do you do that yourself?"

5

Answer, "I have."

6

Question, "During practices?"

7

"No, you don't mix them during practices. It's too

8

expensive."

9

Were you asked those questions, and did you give

10

those answers?

11

A. Yes.

12

Q. Now, you state that you have done the mixing yourself,

13

right, in that testimony?

14

A. With someone else, yes.

15

Q. Well, when you were asked do you do that yourself, you

16

said "I have."

17

You didn't say there that you did it with someone

18

else, did you?

19

A. No. There's a gray area there, but I do it with someone

20

else, yes.

21

Q. So you've never done it by yourself; is that right?

22

A. No.

23

Q. Do you think that one of the responsibilities you may

24

have with any execution that may be scheduled with Mr. Evans,

25

that you might do it yourself?

-54-

1

A. No.

2

Q. Now, you label the syringes in preparation for an

3

execution, right?

4

A. I have, yes.

5

Q. And you do that with colored tape and a marker?

6

A. Correct.

7

Q. And you practice drawing liquid into a syringe prior to

8

the execution, correct?

9

A. Yes.

US1DOCS 5856268v1

10

Q. And practice, you're doing that with colored water,

11

correct?

12

A. Yes.

13

Q. Colored water simulates the drugs which are too expensive

14

to use in practice, right?

15

A. Yes.

16

Q. Colored water corresponds to the identifying name that

17

you give the drugs, for example, sodium thiopental, in

18

practice, is substituted for by water colored red, correct?

19

A. Each is clearly marked. I don't know the specifics on

20

the names of the drug, but each one's clearly marked. It's

21

checked and double-checked.

22

Q. Okay. So each drug has its own unique color that

23

identifies it in practice?

24

A. Yes, it.

25

Q. What are the three colors?

-55-

1

A. Red, green, and a blue.

2

Q. And do you know what, without necessarily the regard for

3

the names of the drug, do you know what those colors

4

correspond to in terms of the order in which the drugs are

5

administered?

6

A. Red, green, and blue, one, two, three.

7

Q. Okay. Can you tell us the names of the drugs?

8

A. Offhand, no.

9

Q. Okay. And you don't know what the drugs do, do you?

10

A. No, I do not.

11

Q. Now, although, in practice, you use colored water coded

12

the way you just described. The actual drugs that are used

13

during execution aren't colored at all, are they?

14

A. No, they're not.

15

Q. They're clear, right?

16

A. Correct.

17

Q. And so at the execution is the only time that you perform

18

with clear liquids, correct?

19

A. Yes.

20

Q. And I think you also testified earlier, when I asked you

21

to describe your responsibilities in connection with lethal

22

injection executions, that one of those is putting the

23

syringes containing the drugs into the Y port for

24

administration, right?

25

A. Yes.

-56-

1

Q. And as part of that process, you prepare a backup syringe

2

for each drug, right?

3

A. Yes.

4

Q. And you prepare three syringes for the first drug, right?

US1DOCS 5856268v1

5

A. Yes.

6

Q. Two syringes for the next drug?

7

A. Yes.

8

Q. And two syringes for the last drug, correct?

9

A. Yes.

10

Q. And there are only three, correct?

11

A. Correct.

12

Q. That you might use a backup syringe if it dropped on the

13

floor; is that correct, Mr. E?

14

A. I've not run into that problem yet.

15

Q. But except for that, you don't know of any other reason

16

why a backup syringe might be used, do you?

17

A. There could be several reasons.

18

Q. Can you think of any?

19

A. Not offhand, no.

20

Q. And none has been mentioned to you, have they?

21

A. No.

22

Q. And you've never used a backup syringe during training,

23

have you?

24

A. I can't recall.

25

Q. You can't recall one way or the other, or you don't

-57-

1

recall that you ever did?

2

A. I mean, going back several years, it's a possibility.

3

Q. But you don't recall that you ever did so, did you?

4

A. No.

5

Q. And you don't know whether a backup syringe would be used

6

if there was a leak in the IV tubing, do you?

7

A. That's not my decision.

8

Q. You don't know?

9

A. It's not my decision.

10

Q. Miss Mullally, page 75, line 5 through 6.

11

(Pause.)

12

MS. MULLALLY: Your Honor, the defendants object.

13

THE COURT: Good. If I could see the transcript,

14

please?

15

Mr. E, would you like some water?

16

THE WITNESS: I've got some, thank you.

17

(At the bench)

18

MR. HUT: 75 lines 5 through 6, Your Honor.

19

THE COURT: Thank you.

20

(Pause.)

21

THE COURT: Well, I think isn't this consistent

22

with what Mr. E testified, that he doesn't, wouldn't know

23

what the backup would be used for; therefore, if the question

24

is would you use if an IV leaked, said I don't know

25

MR. HUT: He just said in response to that exact

-58-

US1DOCS 5856268v1

1

question, it's not his decision, and I asked him again you

2

don't know, you know, he said it's not my decision. I'd like

3

the admission that he doesn't know, which I think is accurate

4

testimony.

5

THE COURT: Well, he said here in court today they

6

didn't know.

7

MR. HUT: But in response to the narrower question,

8

Your Honor, whether he would use one if it leaks, he now says

9

it's not his decision. He's just not testifying consistently

10

with what you just observed, is his testimony earlier in this

11

very courtroom today.

12

THE COURT: Well, my view it is consistent, because

13

he doesn't know, because it's not his decision. So --

14

MR. HUT: All right.

15

THE COURT: -- my view is it's not inconsistent.

16

(Open court)

17

THE COURT: Let me ask this, sir, just to make sure

18

I understand it adequately.

19

Let's assume we're at an execution and you prepared

20

the backup syringes, and for some reason, the IV line sprung

21

a leak, so that -- and there's a puddle of fluid on the wall

22

or on the floor.

23

Is it correct that you would not be the person who

24

would decide whether the line would be fixed and one of the

25

backup syringes would be used, somebody else would make that

-59-

1

decision; is that correct?

2

THE WITNESS: That's correct.

3

THE COURT: And would who make that decision?

4

THE WITNESS: The commander.

5

THE COURT: Good. And you would do whatever you

6

were instructed to do, correct?

7

THE WITNESS: Correct.

8

THE COURT: Good. Thank you.

9

Mr. Hut, go ahead.

10

BY MR. HUT:

11

Q. Now, you don't know the name of the first drug used, do

12

you, Mr. E?

13

A. Offhand, no.

14

Q. And you don't know what that first drug does in a lethal

15

injection aside from that it puts you to sleep, do you?

16

A. No.

17

Q. But you don't really know what it means to be put asleep

18

in that context, do you?

19

A. No.

20

Q. And you don't know whether the second and third drugs

21

used are painful, do you?

22

A. No, I do not.

23

Q. Now, I'd like to show you, if I may, a document that has

24

been marked and previously used labeled plaintiff's exhibit

25

4.

US1DOCS 5856268v1

-60-

1

You have seen plaintiff's exhibit 4, Mr. E?

2

A. Yes, I have.

3

Q. But you've never actually read it before, correct?

4

A. I've briefed through it. I didn't -- I perused through

5

it, yes.

6

Q. You've never read it front to back, have you?

7

A. No.

8

Q. And you haven't even sort of reviewed it before, have

9

you?

10

A. Yes, I've reviewed it before.

11

Q. Miss Mullally, page 68, lines 1 and 2.

12

(Pause.)

13

Q. And 3 and 4.

14

THE COURT: I'm sorry, pages 6.

15

MR. HUT: Page 68, lines 1 through 4.

16

(Pause.)

17

THE COURT: I'm not sure we have a page 68.

18

MR. HUT: I have a copy.

19

MS. MULLALLY: Your Honor, I object.

20

THE COURT: Is this the Bates stamp number?

21

MR. HUT: No, I'm in the deposition.

22

THE COURT: Oh.

23

MR. HUT: I'm sorry.

24

THE COURT: Good. Okay.

25

(At the bench)

-61-

1

MR. HUT: This is on the subject whether he's

2

reviewed it, which he says he has.

3

MS. MULLALLY: Well, he did review it when it was

4

showed to him.

5

MR. HUT: All right. I'll withdraw, I take the

6

point.

7

(Pause.)

8

THE COURT: I think he's testified that, well, it's

9

arguably inconsistent, so you can read it. I think it's

10

arguably inconsistent.

11

(Open court)

12

BY MR. HUT:

13

Q. Mr. E, is it your testimony that, prior to your

14

deposition, you had reviewed plaintiff's exhibit 4?

15

A. Let me clarify that. I assumed when they were

16

questioning me, when they were referring to the manual that

17

they were referring to the instructional sheet, we go off of

18

at our meetings.

19

Q. So let me clarify. That's useful.

20

What's the instruction sheet that you go on at your

US1DOCS 5856268v1

21

meetings? Is that the material in the back that begins with

22

Bates stamp Evans 0 0 0 3 5 9 2, it's a numeric code at the

23

bottom?

24

A. 0 0 3 5 9 0.

25

Q. All right. So from 3 5 9 0 to the end, of plaintiff's

-62-

1

exhibit 4, that you had reviewed before?

2

A. Yes.

3

Q. And you had reviewed it before your deposition?

4

A. Not immediately before the deposition, but I have gone

5

over it.

6

Q. Right. But the rest of it, you'd never actually read it

7

before, right?

8

A. The first section?

9

Q. Yes.

10

A. No.

11

Q. Okay. Now, let me ask you to turn to the part on the

12

back that you say you have reviewed before. Do you see the

13

number at the bottom of Evans 0 0 3 5 9 5?

14

A. Yes.

15

Q. And if you look up the page, just slightly under halfway

16

down the page, do you see line 11 A, Mr. E?

17

A. Yes.

18

Q. And that line says "slow the IV line to KVO," correct?

19

A. Yes.

20

Q. And I read that correctly, didn't I?

21

A. Yes, you did.

22

Q. Now, you believe that the person responsible for doing

23

that is Contractual Team B, right?

24

A. Yes.

25

Q. And, in fact, you don't even know what it means to slow

-63-

1

the line to KVO, do you?

2

A. Just keep vein open, that's all I know. I don't know the

3

medical terms.

4

Q. I didn't catch the answer, I apologize.

5

A. Keep the vein open, but I don't know the medical terms,

6

no.

7

Q. Well, have you -- have you learned more about what that

8

means since your deposition?

9

A. Excuse me?

10

Q. Have you learned more about what that means since your

11

deposition?

12

A. No more than I knew before, that it was a slow drip,

13

that's all I know.

14

Q. Did you ask anybody what KVO stood for after your

15

deposition?

US1DOCS 5856268v1

16

A. No.

17

Q. You testified at your deposition you didn't know what it

18

means?

19

A. In medical terms, no, I don't.

20

Q. You said what does it mean to slow the line to KVO, that

21

I don't know, didn't you?

22

A. Yes.

23

Q. Now, if you would turn to the next page 5 of 7 that's

24

Bates stamped Evans 0 3 5 9 6, toward the bottom of the page,

25

I think it's the fourth entry from the bottom, do you see one

-64-

1

that says quote "60 cc syringe coded number one, (color code

2

red is inserted and locked into Y port, flow clamp opened,

3

and the medication administered at the rate of approximately

4

1 to 1.5 ML per second, syringe is removed.) "

Did I

5

read that entry accurately?

6

A. Yes, you did.

7

Q. Now, you testified earlier, I believe, that you don't do

8

anything with the flow clamp unless there is a problem

9

encountered with pushing the drug, correct?

10

A. On the two prior, I have not had to, no.

11

Q. So even though the checklist here says flow clamp opened,

12

you don't do anything with the flow clamp at this point,

13

right?

14

A. It's already opened.

15

Q. So it's already opened, and you therefore don't need to

16

open it?

17

A. Correct.

18

Q. Now, on page 6 of 7, Bates stamp Evans 0 0 3 5 9 7, the

19

8th line down from the top reads quote "Number 3 color coded

20

blue syringe removed, and the IV continued to run wide open

21

for 10 seconds and reduced to KVO."

22

To complete this task, you do exactly the same

23

thing with the flow clamp as you did the other two drugs,

24

which is to slow the flow down to a drip, right?

25

A. Yes.

-65-

1

Q. Do you notice that this line has slightly different

2

language than is used to describe the step after

3

administration of the other two drugs. This line doesn't

4

contain, or that is -- I'm sorry.

5

The other two lines that we just looked at don't

6

contain the words and reduce to KVO; isn't that right?

7

A. No, it's not worded that way.

8

Q. I'm sorry?

9

A. No. It's not -- it's not worded that way, you're

10

correct.

US1DOCS 5856268v1

11

Q. But you don't know what the inclusion of that language

12

means, do you?

13

A. No.

14

Q. And you don't know if the inclusion of that different

15

language means that you're actually supposed to do something

16

different to account for the different language, do you?

17

A. No.

18

Q. And turning, if you would, Mr. E, to page 2 of 7, that's

19

Evans 0 0 3 5 9 3.

20

(Pause.)

21

Q. Well, let me withdraw that question.

22

(Pause.)

23

Q. In fact, let me ask you to look -- the reason I couldn't

24

find it, it is not on that page, two pages ahead to a page

25

that's Bates stamp numbered Evans 0 0 3 5 9 1.

-66-

1

The top of the page says "lethal injection

2

checklist contents of syringes," do you see that?

3

A. Yes.

4

Q. Under the drug number 2, do you see that, it's called

5

Pavulon or pancuronium bromide?

6

A. Yes.

7

Q. By the way, does that in any way refresh your

8

recollection as to the name of that drug?

9

A. Yes.

10

Q. Okay. And do you see the quantity listed?

11

A. Yes, I do.

12

Q. Can you read the quantity for me?

13

A. Two syringes, 50 cc per syringe.

14

Q. No. Actually the parenthesis under Pavulon?

15

A. Five 10 cc's?

16

Q. Yes. Continue. Keep going, five 10 cc?

17

A. Right.

18

Q. And then?

19

A. And there's a 10 EM, MEQ, or G? In each syringe.

20

Q. And the amount of potassium chloride in the next three

21

lines says, one 50 ccs, one 50 cc ampule of 50 MEQ?

22

A. Yes.

23

Q. Do you don't know what it stand for?

24

A. No, I didn't.

25

Q. If I told you it stands for milliequivalents, it doesn't

-67-

1

refresh your recollection?

2

A. No.

3

Q. You don't know why the quantities are specified there, do

4

you?

5

A. No, I do not.

US1DOCS 5856268v1

6

Q. Let me, and now, show you, I want go back for a moment,

7

Mr. E, if I may, to the floor plan, and one that was shown

8

you at your deposition, and that you fixed some letters to.

9

And so let me for that purpose --

10

MS. MULLALLY: Is there a number on that?

11

MR. HUT: Plaintiff's exhibit 74.

12

MS. MULLALLY: Okay. Thank you.

13

THE CLERK: This is 48.

14

MR. HUT: Exhibit 48 I'm advised is the correct

15

number.

16

Can we put up 48 on the screen, then?

17

BY MR. HUT:

18

Q. I ask you now, Mr. E, to look at the computer screen in

19

front of you, and we'll try to blow up that area a bit. Does

20

that look more like your handwriting, marks in front of the

21

window?

22

A. It could be, yes.

23

Q. And do you recall that you were asked at your deposition

24

to place an "X" at the place where you stood?

25

A. Yes.

-68-

1

Q. And you then were asked to place an A at the point where

2

Contractual Team A stood?

3

A. Yes.

4

Q. You placed an A slightly to your right and a step or so

5

in back of you; is that right?

6

A. Yes.

7

Q. And that's consistent, isn't it, with the description

8

that you gave me earlier?

9

A. Yes.

10

Q. You placed an indication immediately to your left, EKG,

11

does that stand for EKG machine?

12

A. Yes.

13

Q. And that's the place where, as you will recall, the EKG

14

machine is placed, correct?

15

A. Yes. It's on that wall near the window, yes.

16

Q. Now, doesn't Contractual Team F, the physician, stand in

17

front of the EKG machine throughout the administration of the

18

injection?

19

A. I'm not paying attention to where she's standing.

20

Q. So you know where the machine is, you're just not sure

21

where the doctor stands, right?

22

A. Yes.

23

Q. And immediately to the left to the machine, you've placed

24

the designation CTR, which by which you mean Execution Team

25

Commander; is that correct?

-69-

US1DOCS 5856268v1

1

A. Yes.

2

Q. Okay. Thank you.

3

(Pause.)

4

Q. Now, at the same time as you were asked to indicate where

5

you stood and where Contractual Team A stood, and indicated

6

where the commander stood during lethal injections, you were

7

also asked to mark the place where Contractual Team B stood;

8

isn't that so?

9

A. Yes.

10

Q. And you marked the placement of team B in plaintiff's 48

11

with the capital letter B, didn't you?

12

A. Yes.

13

Q. And the B on plaintiff's trial exhibit 48 is the B that

14

you placed at your deposition to indicate where Contractual

15

Team B stood, correct?

16

A. That's where I placed it, yes.

17

Q. And that's where you believe she stands, right?

18

A. Once again, there's a gray area in that room. It's hard

19

for me to explain how that's all set up. Very hard.

20

Once the execution was completed, yes, that's where

21

I noticed she was standing after it was over. Where she is

22

during the execution, I do not know.

23

MR. HUT: Page 116, Miss Mullally.

24

THE COURT: If I could interrupt and ask a

25

question, Mr. E?

-70-

1

I take it that during the actual execution itself,

2

and let's define execution to mean the beginning of the

3

injection of the first drug.

4

THE WITNESS: Okay.

5

THE COURT: She is not in the execution room, but

6

she is in the preparation room, correct?

7

THE WITNESS: On the prior two, yes.

8

THE COURT: I'm sorry?

9

THE WITNESS: On the last two executions yes, yes,

10

she is.

11

THE COURT: But I'm just stating what my assumption

12

is so you can tell me if I'm wrong. I assume that she's not

13

told during the execution you have to stand, you know, right

14

here on this spot. She's perfectly free to be anywhere she

15

wants to in that room, and look through the window or not

16

look through the window if she chooses, correct?

17

THE WITNESS: She could stand where she chooses to

18

stand, yes.

19

THE COURT: Good. Thank you.

20

BY MR. HUT:

21

Q. You would agree, Mr. E, that while there's no set area

22

for those people, you remember her standing generally back by

23

the wall, right?

24

A. Once it was over and I turned around, that's where I seen

25

her standing, yes.

US1DOCS 5856268v1

-71-

1

Q. You didn't see her standing at the window, did you?

2

A. During the execution, I'm focused on one thing, and it is

3

nobody else in that room. I'm doing what I'm doing.

4

Q. Do you remember testifying -- do you remember, of course,

5

since we have this marking that you made on plaintiff's

6

exhibit 48, that you were asked to indicate where she stood,

7

right?

8

A. Once again, there was a gray area and all that

9

questioning about that. That's --

10

Q. Well, did you ever, did you testify that there was a gray

11

area --

12

A. Yeah.

13

Q. -- at your deposition?

14

A. I don't believe so, no.

15

Q. No, you didn't. And you knew if you didn't understand a

16

question, or you thought there was a gray area, you could ask

17

for clarification, didn't you?

18

A. Yes, I did.

19

Q. You didn't say where you were placing the designation for

20

Contractual Team B was only after the execution was

21

completed, did you?

22

A. No.

23

Q. In fact, you were asked where she stood while the drugs

24

were being administered, weren't you?

25

A. I don't recall.

-72-

1

MR. HUT: All right. May I refresh the witness's

2

recollection, Your Honor?

3

THE COURT: You may.

4

MR. HUT: May I do so with the videotape clip, or

5

would you prefer that I do it with the transcript?

6

THE COURT: Just the transcript.

7

Q. Could you turn, please, Mr. E, to page 116 and line 25.

8

A. Okay.

9

Q. Would you read lines 125 -- sorry. Line 25 on page 116

10

through line 11, sorry, 12, on page 117?

11

A. Question, do you know where --

12

Q. You don't have to read it aloud. Why don't you just read

13

it to yourself?

14

A. Oh, okay.

15

(Pause.)

16

A. Okay.

17

Q. Now, you were asked, does that refresh your recollection,

18

Mr. E --

19

A. Yes.

20

Q. -- that you were in fact asked -- let me finish the

US1DOCS 5856268v1

21

question.

22

You were asked where she was standing while the

23

drugs were being administered, correct? That's what it says

24

on line 16 and page 117?

25

A. Yes.

-73-

1

Q. And you said back in this area indicating, and you were

2

asked then to place a Mark, capital letter B, where you had

3

indicated, right?

4

A. Yes.

5

Q. And you were asked, or you said there's no set area for

6

these people, and you were asked do you remember her standing

7

generally by the back wall, and you said, yes, in that area?

8

A. Yes.

9

Q. And that was your best recollection on June second, 2006,

10

wasn't it?

11

A. Yes.

12

Q. And is there any reason why your recollection today is

13

any better than your recollection on June second, 2006?

14

A. No.

15

Q. And have you had discussion with anybody, including

16

counsel, about where it was that Contractual Team B stood

17

since your deposition?

18

A. No.

19

Q. So this is your best recollection?

20

A. Yes.

21

Q. All things considered, isn't it?

22

A. Yes.

23

Q. And by this, I mean the testimony that you gave at

24

deposition, right?

25

A. Yes.

-74-

1

Q. Okay. Now, I would like to show the witness, if I may

2

approach, Your Honor, plaintiff's exhibit 47.

3

Your Honor, and Mr. E, and Chief Judge Legg, I'm

4

about to get into some aspects of Mr. E's background to some

5

extent personal history.

6

I don't -- I don't believe that this is unduly

7

identifying material, but I caution Mr. E, that if you

8

believe it is, so indicate, or your counsel should indicate,

9

and you may request His Honor to further close the courtroom

10

and take us off the speaker.

11

MS. MULLALLY: Counsel, we don't have a 47. We go

12

from 46 to 48.

13

(Pause.)

14

MR. HUT: I'm getting one for the witness.

15

THE COURT: Good. Now, you're going to ask about

US1DOCS 5856268v1

16

the information on the CV, correct, Mr. Hut?

17

MR. HUT: I'm going to begin there, Your Honor, and

18

then I'm going to get into other arguably personal

19

information.

20

THE COURT: What you should do is not state the

21

names of the educational institutions which are listed in the

22

CV, as a starter.

23

MR. HUT: Very well, Your Honor.

24

THE COURT: Or the year of matriculation or

25

graduation.

-75-

1

MR. HUT: All right. I think I can do it on those

2

ground rules. If I can't, I hope I have the presence of mind

3

to signal before I tread. But I will obviously do my best to

4

abide by the Court's ground rules.

5

BY MR. HUT:

6

Q. Mr. E, can you tell us just to confirm for the record

7

what plaintiff's exhibit 47 is?

8

A. It looks like a brief resume.

9

Q. And did you prepare it for use in this case?

10

A. Yes. I gave the information to someone, yes.

11

Q. You gave the information to Injection Team A, I believe?

12

A. Yes.

13

Q. And he typed it up?

14

A. That's correct.

15

Q. Correct?

16

And you were asked about it at your deposition,

17

correct?

18

A. Yes.

19

THE COURT: Now, this is not going to come into the

20

public record, correct?

21

MR. HUT: I see no reason why it need to, Your

22

Honor. I'm happy to have the Court treat it as under seal.

23

THE COURT: Good. It is under seal because, for

24

one thing, you have some corrections in there with initials.

25

So this, plaintiff's exhibit 47, is to be received into the

-76-

1

record under seal.

2

BY MR. HUT:

3

Q. Now, on the subject of the corrections that were made,

4

were those handwritten corrections made at your deposition,

5

Mr. E --

6

A. Yes.

7

Q. -- if you recall?

8

A. Yes.

9

Q. You noticed that a change needed to be made to the date

10

of your high school graduation, correct?

US1DOCS 5856268v1

11

A. Yes.

12

Q. And so you made that change, right?

13

A. Correct.

14

Q. And then after you noticed that, you were asked at your

15

deposition whether you had any further changes that you

16

wanted to make, right?

17

A. Yes.

18

Q. And you replied that you had no further changes, correct?

19

A. I don't recall. But obviously I made another change.

20

Q. You anticipated my next question. So and a few minutes

21

later, you were asked about the listing in your resume that

22

said AA certificate under the listed college, right?

23

A. Yes.

24

Q. And when you were asked about the AA certificate, you

25

then indicated that you didn't know anything about an AA

-77-

1

certificate, right?

2

A. Correct.

3

Q. And because the fact is, you never received an AA

4

certificate, correct?

5

A. That is correct.

6

Q. And you didn't even know what an AA certificate stood

7

for, right?

8

A. That is correct.

9

Q. Now, you had given Injection Team A the information that

10

he typed up in your resume, hadn't you?

11

A. Verbally, yes.

12

Q. And you allowed at your deposition that you didn't know

13

really what an AA certificate was, that you might have said

14

AA when talking to Injection Team A?

15

A. It's possible that he had brought it up.

16

Q. You didn't really know whether you had said AA or whether

17

he had just assumed that you'd gotten an AA because it was

18

sort of the lowest ranking certificate on the totem pole; is

19

that right?

20

A. That's possible.

21

Q. Is that what happened?

22

A. That's possible.

23

Q. Well, let me see if I can refresh your recollection, Mr.

24

E. Why don't you turn to page 20 of your deposition, which

25

is out where this line of examination starts, and look at

-78-

1

line 4 through 9.

2

Don't read it aloud, just have a look at it.

3

(Pause.)

4

Q. And see if that refreshes your recollection.

5

Essentially, you testified that Injection Team A

US1DOCS 5856268v1

6

assumed that it was the lowest certificate on the totem poll,

7

and they came up with AA.

8

Does that refresh your recollection that's what you

9

said?

10

A. Yes.

11

Q. Okay. Now, right to the right of the entry AA

12

certificate, which you then crossed out, appears a date,

13

September of a year that we won't mention, right?

14

A. Yes.

15

Q. But, in fact, the date September, the year we're not

16

going to mention, has no relevance at all, does it?

17

A. No.

18

Q. All right. Now, you've been fired from jobs before

19

haven't you?

20

A. I believe so, yes.

21

Q. You've been -- that's happened to you more than once?

22

A. That I do not. I mean, you're talking years ago. I'm

23

sure I've been fired before, yes.

24

Q. You just didn't remember whether it was one or two,

25

right?

-79-

1

A. Don't recall.

2

Q. You don't remember one way or the other, right?

3

A. No.

4

Q. Okay. The only job that you specifically remembered

5

being fired from is a -- let me do this generically, if I

6

can, so let's not mention it, but it is a supplier and

7

service provider of automotive parts and supplies of national

8

renown; is that fair?

9

A. Correct.

10

Q. And you were fired from there because the owner had

11

accused you of a lot of things, right?

12

A. I indicated in my deposition that I didn't know why I was

13

fired. I was never given an explanation on why.

14

Q. Okay. In the course of your employment at that employer,

15

though, the owner accused you of doing lots of things, didn't

16

he?

17

A. Not to me, no.

18

Q. Did he make those accusations to somebody else and you

19

found out about them?

20

A. Not that I know of, no.

21

THE COURT: Well, if I could see counsel, please?

22

(At the bench)

23

THE COURT: Good. Now, we are in the federal rules

24

of, we're blocked from --

25

In the Federal Rules of Evidence, the 600 rules

-80-

US1DOCS 5856268v1

1

that govern the circumstance under which a witness can be

2

impeached by, for example, specific instances of conduct,

3

evidence of conviction of a crime, and if I could have a

4

proffer as to what we're getting into now?

5

MR. HUT: Sure. I believe the relevant rule, Your

6

Honor, is 608(b).

7

THE COURT: I have it.

8

MR. HUT: There are two issues here. One is the

9

principle one that I propose to get into and I need not spend

10

much time on this previous employment incident.

11

There are disciplinary incidents. One at least one

12

of which, two of which I believe were described as quite

13

serious. One of which involved mistreatment, seriously

14

unprofessional treatment of a witness.

15

MS. MULLALLY: A witness?

16

MR. HUT: Sorry, of an inmate.

17

These are relevant, I believe, highly so, in two

18

respects.

19

The first respect is that I believe in and of

20

itself it is material to his propensity for future ability to

21

perform a job of great sensitivity, in much the same way as

22

sort of the future propensity of a parent to provide adequate

23

care is relevant to a custody proceeding.

24

But the more grill, the more material Your Honor I

25

think is we have testimony from past team commander, I'm

-81-

1

sorry, Past Team Member Z, who was the team execution

2

commander at prior executions, we have testimony also from

3

execution commander both to the effect that the information

4

about at least one of these disciplinary incidents was in his

5

view material, and he would have wanted to know it prior to

6

selecting Mr. E for the team.

7

THE COURT: Well, let's go through the first. The

8

first incident that you're putting forward under Rule 608(b)

9

is involves the conduct he may have committed and led him to

10

be terminated by a prior employer, correct?

11

MR. HUT: Yes. 608(b), no, this is -- 608, the

12

information in 608(b) I think only goes to his truth telling

13

or not at his deposition. The prior employer conduct is

14

simply -- is simply firing and seems to me it was material to

15

-- that should have been known by the person who selected him

16

for the team. It was a prior employer.

17

I think the very way that the evidence will show

18

that he was extremely unforthcoming about things that had to

19

do with this incident.

20

And that reflects I think his general

21

unforthcomingness in the way he probably treated his

22

supervisors, who may or may not have made appropriate

23

inquiries about his past.

24

THE COURT: Well, when? Can you tell me the date

25

on which that he was dismissed from the prior employment?

US1DOCS 5856268v1

-82-

1

MR. HUT: I don't know it. I don't think he knew

2

it.

3

MS. MULLALLY: I think what we do know it was long

4

before he even became an employee of the department of

5

correct, and he's been at DOC for 16 years

6

MR. HUT: It certainly was before. I don't know

7

that we have any idea that it was long before, unless you

8

know.

9

MS. MULLALLY: I think it was.

10

THE COURT: But whatever it was, the general

11

principle behind Rule 608 is that you can ask, but you're

12

bound by the answer of the witness, so you have asked why I

13

was dismissed from the prior employment, he's answered that

14

he wasn't told why he was dismissed, so that ends it.

15

MR. HUT: I think I should.

16

THE COURT: That has to do with the with 608(b),

17

which has to do with specific instances of conduct to

18

impeach.

19

Let's move onto the second one.

20

MR. HUT: If I could just address that for a

21

minute, though, Your Honor, I would have thought, and do

22

think that I'm entitled to impeach him not with anything

23

collateral except his prior sworn testimony in the

24

proceedings in which he said he was accused of a lot of

25

things. So he knows to that extent.

-83-

1

THE COURT: Well, the --

2

MR. HUT: I can't call a witness, and I can't use

3

another document.

4

THE COURT: The thing is, you only get to get into

5

it if he was dismissed for some wrongdoing that entrenches on

6

his truthfulness as a witness.

7

And you're bound by the witness's answer.

8

So that if he was dismissed for, let's say, forging

9

a check, that would be a crimin falsity, so if he were

10

dismissed for forging a check. If the answer is no, then

11

you're bound by that answer.

12

Now, even if he says I was, and we're only on

13

608(b) now, even if he says that I was accused of a lot of

14

things, or I don't really know, that's not necessary to say I

15

was accused of a lot of things, that's irrelevant unless he's

16

willing to admit that he was accused of and actually did

17

commit an act of crimin falsity.

18

And from what I've heard the witness, you know, I

19

think that you can -- what we'll do is we'll ask him in a

20

minute, I'll ask him were you dismissed for fraud or some

US1DOCS 5856268v1

21

kind of failure to tell the truth? If he says no, then

22

that's the end of it under Rule 608(b).

23

We then move on to the second issue, and that is

24

whether or not the protocol and the procedures of the

25

Department of Corrections are inadequate because the

-84-

1

supervisors failed to smoke out, as it were, and learn the

2

circumstances under which he was terminated from his

3

employment before he joined the Department of Corrections.

4

In my view, with respect to that is that it's

5

simply too old. So I don't believe that it's sufficiently

6

probative to be part of this case, because, by definition, it

7

would have occurred, you know, over ten years ago.

8

MR. HUT: I agree with that. I was not proffering

9

the prior employment incident on that theory of relevance.

10

THE COURT: Good. So let me then complete, if I

11

could, talk to the witness. You can ask the witness to come

12

around here.

13

MR. HUT: All right. Just so that I -- there's no

14

misimpression about what's coming, I do want to get into four

15

incidents of discipline --

16

THE COURT: All right.

17

MR. HUT: -- that were admitted.

18

THE COURT: I haven't -- we're just going to close

19

the door on them.

20

MR. HUT: In the past decade?

21

THE COURT: We're going to just close the door on

22

prior employment.

23

Mr. E, if you could come around here so I can ask

24

you a question, please?

25

MR. HUT: This is outside the audibility of the

-85-

1

people outside the room.

2

THE COURT: Nice to see you.

3

THE WITNESS: Nice to see you.

4

THE COURT: Here's the issue. In connection with

5

your termination from this employer, I take it that the

6

termination was over ten years ago, would that be correct?

7

THE WITNESS: Much longer than that, yes.

8

THE COURT: Much longer?

9

THE WITNESS: Yes.

10

THE COURT: And in connection with your

11

termination, do you admit that you were guilty of conduct

12

involving not telling the truth, such as fraud or falsehoods?

13

THE WITNESS: No.

14

THE COURT: Good. So you deny that?

15

THE WITNESS: Oh, absolutely.

US1DOCS 5856268v1

16

THE COURT: Good. Thank you.

17

(Open court)

18

THE COURT: Good. It is a little bit afternoon.

19

We're now back on the record.

20

We'll now take a recess until 12:15 and then come

21

back, if I could, counsel would remain in the courtroom, and

22

you may take a breather, sir.

23

(Witness excused)

24

(UNDER SEAL)

US1DOCS 5856268v1

18

(END SEALING)

19

MR. HUT: Thank you, Your Honor.

20

BY MR. HUT:

21

Q. Sir, I have only one more.

22

THE COURT: Just if I could say, for the record,

23

apologize for the delay to those who are in courtroom 3D, t

24

we were discussing evidentiary matters, and we're now ready

25

to resume live.

-98-

1

BY MR. HUT:

2

Q. Thank you, Your Honor.

3

Sir, I have one or two questions further.

4

Mr. E, in your mind, you actually don't report to

5

anyone on the execution team, do you?

6

(Pause.)

7

A. No.

8

Q. And that's because the injection room is really a room

9

without a rank, right?

10

A. Correct.

11

MR. HUT: I have no further question of the

12

witness, Your Honor.

13

THE COURT: Thank you.

14

Miss Mullally?

15

MS. MULLALLY: Yes, Your Honor.

16

CROSS-EXAMINATION

17

BY MS. MULLALLY:

18

Q. Now, Injection Team E, I'd like to ask you some questions

19

about the syringes that are used to administer the lethal

20

drugs.

21

I think you testified that there were three

22

different colors, the red syringes for the first drug, the

23

green syringes are for the second drug, and the blue syringes

24

are for the third drug?

25

A. Correct.

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1

Q. And that there are three syringes prepared for the red

2

drug, two for the green drugs, and two for the blue drugs?

3

A. Correct.

4

Q. And that when the red drug, the first drug is

5

administered, two of those syringes are administered?

6

A. Correct.

7

Q. And that when the green drug is administered, one of the

8

syringes is administered?

9

A. Correct.

10

Q. When the blue drug is administered, one of the syringes

11

is administered?

12

A. Correct.

13

Q. And that leaves a backup of one syringe for each drug?

14

A. Correct.

15

Q. Now, one of the things that you do during set up is that

16

you actually label the syringes?

17

A. Correct.

18

Q. And that would be during a practice and during the

19

previous two executions of Steven Oken and Wesley Baker?

20

A. Correct.

21

Q. Now, when you are labeling a drug, and whether it's a

22

practice or an execution, do you do them all at once? Or do

23

you do them in order, the red one first, followed by the

24

green one, followed by the blue one?

25

A. In order.

-100-

1

Q. Is there -- are you doing this on your own, or are there

2

people in the vicinity who are watching what you were doing,

3

checking to see that you were doing it accurately, and then

4

checking again to make sure that everything is done according

5

to the checklist?

6

A. That is correct.

7

Q. And one of the people that actually helps mix the drugs

8

and helps also to set up the drugs up is someone called the

9

OIC, the officer in charge?

10

A. Correct.

11

Q. And do you know that person to be by his identifier to be

12

Injection Team A?

13

A. Yes.

14

Q. And you've worked with Injection Team A to set up the

15

syringes to mix the thiopental and to put the syringes on the

16

table?

17

A. Yes.

18

Q. And isn't it true that when the syringes are put on the

19

table, they are put on in the order in which they will be

20

used?

21

A. That's correct.

22

Q. In other words, red is closest, followed by green,

23

followed by blue?

24

A. Correct.

25

Q. And the reason that they're put in order is because you

US1DOCS 5856268v1

-101-

1

don't want to make a mistake, you want to use them of course

2

in the correct manner, correct?

3

MR. HUT: Objection, Miss Mullally's leading. I

4

don't think she should.

5

THE COURT: I'll permit her to lead. Although the

6

witness is identified with the execution team, this is

7

cross-examination, and it will speed things up.

8

Q. Now, the team meets regularly to practice, I take it, the

9

whole group of you?

10

A. Yes.

11

Q. And every person on the team has at least one backup,

12

some people have more than one backup?

13

A. Yes.

14

Q. And the practice is when there is not a pending warrant

15

of execution, a practice occurs, practices occur

16

approximately one time per month?

17

A. Yes.

18

Q. And when an execution, a warrant execution is imminent,

19

you begin to practice once per week?

20

A. Yes.

21

Q. And once an execution has received a date, you practice

22

every day; do you not?

23

A. Correct.

24

Q. Now, what would you do if a syringe of a drug were

25

dropped on the floor?

-102-

1

A. Notify the commander.

2

Q. Okay. Is that the execution team commander?

3

A. Yes.

4

Q. And he's in the room with you?

5

A. Yes.

6

Q. In fact, he's close by to you?

7

A. To my immediate left. Yes.

8

Q. Now, you and Contractual Team A are at the window, you're

9

side by side, you're staggered, but you're inches apart; is

10

that correct?

11

A. Correct.

12

Q. Now, I know -- well, given the sizes of the two of you,

13

are you -- would you happen to know whether or not you're

14

blocking anyone's view out of that window who might also be

15

in the room?

16

A. No, I can't answer.

17

Q. Okay. Are you taking up the whole area of the window?

18

A. No.

19

MS. MULLALLY: Nothing further, Your Honor.

20

THE COURT: Thank you.

US1DOCS 5856268v1

21

Mr. Hut, anything else?

22

REDIRECT EXAMINATION

23

BY MR. HUT:

24

Q. Mr. E, when was the last time you had a practice?

25

THE COURT: I'm sorry, had what?

-103-

1

Q. Had a practice?

2

A. The 11th of this month. 11th or 12th of this month.

3

Q. This is September?

4

A. Yes, sir.

5

Q. Before that?

6

A. I want to say June.

7

Q. So you skipped the months of July and August, took the

8

summer off, right?

9

A. Due to this case, yes.

10

Q. The window in front of which you stand, you'd agree that

11

that's approximately three by three?

12

A. Give or take, yes.

13

MR. HUT: No more questions, Your Honor.

14

THE COURT: Thank you. Mr. E, before you go, I

15

just had a couple questions to ask you, and you may not have

16

thought about it, so you're entirely free not to answer them

17

if you can't give a meaningful answer.

18

As I understand it, the middle drug, the second

19

drug, is given to paralyze the inmate so that he does not

20

move, doesn't have any spasms, twitching, convulsion during

21

the administration of the lethal injection.

22

I was looking to see, my understanding is that this

23

is desirable because it cuts down on the emotional impact of

24

the execution on the witnesses and also on the members of the

25

execution team.

-104-

1

And so I was looking to see what kind of whether

2

that middle drug is necessary, so I was looking to see what

3

kind of impact you think that it would have on the members of

4

the execution team and/or the witnesses if the person being

5

executed were to move, twitch during the actual

6

administration of the lethal drugs. Apparently, that's a

7

natural reaction when a person is dying.

8

Would that be hard to take, or not hard to take, or

9

you not prepared to answer that at this time?

10

THE WITNESS: I'm prepared to answer it. I -- I

11

don't know what each drug, each individual drug is

12

specifically for.

13

I mean, I've never run into a problem on the two

14

that I've been involved with, that, you know, once the inmate

15

is strapped down, I did not foresee any problems whatsoever

US1DOCS 5856268v1

16

as far as movement, twitching, I didn't notice anything.

17

And, like I said, I'm probably five feet from the

18

inmate.

19

THE COURT: But if that were to occur, if there

20

were movement and twitching, would that have a bad

21

psychological effect on the members of the execution team?

22

Do you think?

23

THE WITNESS: I can only speak on my behalf. I

24

mean, obviously, if he's going into convulsions or something

25

of that nature, obviously, that would be of concern.

-105-

1

But that would be totally up to the team commander,

2

you know, what's to be done next.

3

THE COURT: Good. Thank you very much, sir, for

4

coming. You are excused. And I think that there may be a

5

lunch waiting for you.

6

Mr. Thompson says there is.

7

Good. Why don't we do this, why don't we excuse

8

the witness. I'd like to talk to counsel about an

9

evidentiary ruling briefly, and then we'll recess for lunch.

10

THE COURT: Thank you for coming, sir.

11

THE WITNESS: Thank you.

12

(Witness excused)

13

(UNDER SEAL)

4

(UNDER SEAL)

US1DOCS 5856268v1

4

(END SEAL)

5

THE COURT: Thank you. The next witness, who has

6

been called by the plaintiff, is Contractual A, and he has

7

been sworn in.

8

If you would, please?

9

DIRECT EXAMINATION

10

BY MS. TINDALL:

11

Q. Good afternoon.

12

I want to reiterate what Judge Legg said, we're

13

very concern with preserving anonymity during these

14

proceedings, when necessary for me to refer to you, I will be

15

using your generic identifier Contractual Team A.

16

And to facilitate our discussion, if you'll look at the

17

notebook that is just to your left, there is a document first

18

toward the back behind a tab number 87. And this is a list

19

of generic identifiers.

20

The first page has various members of the execution

21

team, listed by name, with their generic identifier after it.

22

The second page contains the same people, is that

23

the order's reversed. Here they're listed alphabetical and

24

the name follows.

25

And so to the extent that during our discussion you

-111-

1

need to refer to a member of the execution team, please take

2

your time to glance at this list and make sure that we don't

3

use their names in our discussion, either?

4

A. Yes, ma'am.

5

Q. Sir, the Maryland Division of Corrections has hired to

6

you perform a particular job during lethal injections; is

7

that right?

8

A. Yes, ma'am.

9

Q. And what is that job?

10

A. I'm with the execution team, and my job to let the

11

liquids escape from the needle, syringe, in a line.

12

Q. And do you believe the title of your position to be

13

inspection specialist?

14

A. Yes, ma'am.

15

Q. And were you the injection specialist for the Baker

16

execution?

17

A. Yes, ma'am.

18

Q. And also for the Oken execution?

19

A. Yes, ma'am.

20

Q. And were you planning to be the injection specialist for

21

the execution of Vernon Evans had it gone forward in February

22

of this year?

23

A. Yes, ma'am.

24

Q. As you understand them, are your duties as the injection

25

specialist to push the drugs through the syringe in 60

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US1DOCS 5856268v1

1

seconds; would that be a fair statement?

2

A. For the first shoot, yes.

3

Q. And then for the? Excuse me, for the first?

4

A. The first push.

5

Q. And for the second push, it would be 50 seconds?

6

A. 50 seconds, yes, ma'am.

7

Q. And the third would also be 50 seconds?

8

A. Yes, ma'am.

9

Q. During the time that you're pushing the drugs, is your

10

focus on getting the liquid out of the syringe in those

11

desegregated times?

12

A. Yes, ma'am.

13

Q. Do you know why the rate at which the drugs are injected

14

matters?

15

A. I don't.

16

Q. When you're injecting the drugs, do you monitor the

17

inmate at all?

18

A. He's with -- excuse me. He's within my view.

19

Q. But do you monitor him?

20

A. Monitor? Do I have him hooked up to a machine? Do I

21

look at him? What is the question?

22

Q. Are you -- in doing the job that you've been assigned, is

23

it your understanding that part of that job is to look at the

24

inmate at all?

25

A. My job is to let the liquids in that needle escape within

-113-

1

60 seconds, 50, and 50. That's my job.

2

Q. And that's the full extent of your job?

3

A. That's what I do.

4

Q. Do you look at the IV tubing at all?

5

A. I've seen it.

6

Q. But that's not part of your job?

7

A. It's not my job.

8

Q. The syringes that you push into the tubing, you don't

9

actually screw them into the line, do you?

10

A. I do not.

11

Q. And if you could look at the list of generic identifiers

12

behind tab 87, please?

13

(Pause.)

14

Q. And on the first page, at number 12, the gentleman listed

15

is Injection Team E, is he the one who hooks the syringes

16

into the line?

17

A. Exhibit 87?

18

Q. Uh-huh.

19

A. And the question again?

20

Q. If you'll look down, you know, on the first page here,

21

there are names listed in alphabetical order. If you'll look

22

down at the 12th name listed, there's a person's name, who I

23

won't read, and then the generic identifier follows Injection

24

Team E.

US1DOCS 5856268v1

25

Is he the person who twists the syringe into the

-114-

1

line?

2

A. He is.

3

Q. And he stands next to you during the injection?

4

A. Yes, he does.

5

Q. And if you'll look, there's a diagram here of the

6

execution area. Does that represent, or does that look like

7

the area in which you conducted executions?

8

A. Yes, ma'am.

9

Q. And do you --

10

MS. MULLALLY: We're not getting the document.

11

Okay. I'm sorry.

12

Q. And do you see the area labeled the "preparing room"?

13

A. Yes, ma'am.

14

Q. And is that where you -- where you're standing when

15

you're injecting the drug?

16

A. Yes, ma'am.

17

Q. And there's a window in that room that looks onto the

18

execution room; is that right?

19

A. Yes, ma'am.

20

Q. And you stand at that window while you're pushing the

21

drugs?

22

A. I do.

23

Q. Do you know what Injection Team E is doing while you're

24

pushing the drug through the syringe?

25

(Pause.)

-115-

1

Q. Could you give a verbal answer?

2

A. I'm thinking. I just know that I ask him for a time

3

where he wants me go to the secondhand on the clock, be it 5,

4

10, 20, and we agree and confirm that that would be the time

5

that I'm pushing forward.

6

Q. But while you're actually pushing, you don't know what

7

he's doing with the line?

8

A. I have no clue.

9

Q. And I may have asked this, I apologize if I'm repeating

10

myself, you stand next to Injection Team E at the window; is

11

that correct?

12

A. Yes. He's to the left and front of me.

13

Q. When you inject the drugs, you get different levels of

14

resistance on the syringe, correct?

15

A. I have.

16

Q. And I believe you testified at your deposition that you

17

got more resistance on the syringe during the Baker execution

18

than you did during the Oken execution?

19

A. I did.

US1DOCS 5856268v1

20

Q. But regardless of that resistance, you always try to

21

empty the first syringe in 60 seconds; is that right?

22

A. Still go for the goal of 60 seconds.

23

Q. And if you're getting more resistance, you have to push

24

harder to do that, correct?

25

A. Yes.

-116-

1

Q. And Injection Team E trained you in pushing the drugs; is

2

that right?

3

A. Yes.

4

Q. Did he -- he showed you how to sort of get in a zone

5

where you sort of push those drugs in 60 seconds making sure

6

the fluid is out of the syringe; is that accurate?

7

A. He showed me along with a team how to form my job.

8

Q. And he showed you how to get a smooth flow on the

9

syringe?

10

A. Has occurred with the monthly practices that we have.

11

Q. And would you say that Injection Team E has really shown

12

you a lot?

13

A. It's pretty -- it's pretty easy to do. He showed me a

14

lot. He showed me how to do it. And, with practice, that's

15

what I do.

16

Q. Do you ever prepare the syringes?

17

A. Never.

18

Q. And you don't know who does?

19

A. I have no idea.

20

Q. When you walk in the room, the syringes are already laid

21

out for you?

22

A. Everything's prepared.

23

Q. While you're administering the drugs, focusing on the

24

clock, you don't know who was in the room with the inmate, do

25

you?

-117-

1

A. I -- I don't.

2

Q. I believe you testified that you stand right at the

3

window in the preparation room, correct?

4

A. Yes, ma'am.

5

Q. And as you administer the drugs, you block a fair bit of

6

that window, don't you?

7

A. I stand in front of that window. What I block, I don't

8

know, because it would be behind me. I have a good view.

9

Q. And is it your understanding that, to do your job, you

10

have to stay at that window?

11

A. I don't have to stand at that window to do my job.

12

Q. Have you ever stood anywhere else?

13

A. No.

14

Q. And the man we referred to earlier as Injection Team E,

US1DOCS 5856268v1

15

he stands immediately to your left; is that right?

16

A. To my left and just a little ahead of me.

17

Q. And if you could look back at the list of generic

18

identifiers?

19

On that first page, if you will look down to the

20

number 19, there's a name and then the generic identifier

21

Contractual Team B?

22

A. Yes, ma'am.

23

Q. And Contractual Team B, she inserts the IV's during an

24

execution; is that right?

25

A. Yes, ma'am.

-118-

1

Q. And then she comes into the preparation room where you're

2

standing; is that right?

3

A. She's in that same room.

4

Q. And while you're pushing the drug, she's somewhere behind

5

you?

6

A. Somewhere behind me.

7

Q. If you could look in that notebook behind the tab

8

exhibits, there's a number 4. And this has already been

9

marked as plaintiff's exhibit 4.

10

A. Where are we looking again, please?

11

Q. Pardon?

12

A. Where am I looking again for this?

13

Q. There's a tab that reads "exhibits," and then tab number,

14

4 and then there's a document behind that.

15

A. Okay.

16

Q. Please glance through this document and tell me if you

17

recognize it.

18

A. Go ahead, ma'am.

19

Q. Have you -- you might need to turn a couple pages.

20

Have you seen this document before?

21

A. I don't have a copy of it. I don't recall seeing it.

22

Q. Do you recall possibly having seen it for the first time

23

at your deposition?

24

A. Yes, ma'am, could be.

25

Q. And if you could turn toward the back of the document, if

-119-

1

you'll look at the bottom right, there are a series of

2

numbers, Evans 0 0, I'm looking at the page marked Evans 0 0

3

3 5 9 1.

4

(Pause.)

5

A. Yes, ma'am.

6

Q. Do you see the very top line where it reads "lethal

7

injection checklist"?

8

A. Yes, ma'am.

9

Q. And right below that contents of syringes?

US1DOCS 5856268v1

10

A. Go ahead, ma'am.

11

Q. A couple items down, do you see where the document reads

12

sodium pentothal 4.5 grams, under contents?

13

(Pause.)

14

A. 4.5 grams, yes, ma'am.

15

Q. Do you know what sodium pentothal is?

16

A. I do not.

17

Q. Sodium thiopental, do you know what that means?

18

A. I do not.

19

Q. Just below that section, do you see the words Pavulon and

20

then in par then recess pancuronium bromide?

21

A. I see it.

22

Q. Do you know what Pavulon is?

23

A. I do not.

24

Q. Pancuronium bromide?

25

A. I have no idea.

-120-

1

Q. And just below that language, the words potassium

2

chloride, do you see that?

3

A. I do.

4

Q. Do you know what potassium chloride is?

5

A. I do not know.

6

Q. Do you know if any of the drugs used in lethal injections

7

paralyze the inmate?

8

A. I do not know.

9

Q. Does the second drug numb the body?

10

A. That's my understanding.

11

Q. By that do you mean no pain and --

12

A. I don't know that. I know what I was told, and they say

13

that it numbs the body. I don't know that.

14

Q. I'd like to talk about some of the equipment used during

15

executions.

16

If you'll turn five pages in that document to the

17

page that reads at the bottom Evans 0 0 3 5 9 6?

18

(Pause.)

19

A. Yes, ma'am.

20

Q. And four steps up from the bottom, do you see the step

21

that reads 60 cc syringe coded number 1, color coded red is

22

inserted and locked into the Y port, flow clamp opened, and

23

the medication administered at the rate of approximately 1 to

24

1.5 milliliters per second, syringe is removed.

25

Do you see that?

-121-

1

A. Yes, ma'am, I do.

2

Q. And did I read that correctly?

3

A. I wasn't reading along with you.

4

Q. Okay. Do you see that language?

US1DOCS 5856268v1

5

A. I see that language.

6

Q. Do you know what Y port is?

7

A. I'm learning. I think it's a Y that ports into a line,

8

but I have no training of it.

9

Q. And you did not know what that was at your deposition in

10

May, did you?

11

A. Right.

12

Q. And you don't know what the flow clamp mentioned here is,

13

either, correct?

14

A. I'm learning. With practice, we're learning.

15

Q. But you didn't know that at your deposition in May,

16

either?

17

A. I do not know those things.

18

Q. And so you did not know those things for the past two

19

executions; is that correct?

20

A. It wasn't my job.

21

Q. This step that I just read, you've heard someone read

22

this language during executions, right?

23

A. Yes, ma'am.

24

Q. But you don't pay a lot of attention to it?

25

A. It means nothing to me.

-122-

1

Q. If you'll turn the page, and at the very top of that

2

page, do you see the step that reads the execution team

3

commander shall light the green light in the execution room

4

indicating number 2 color coded green is being administered?

5

A. I see that.

6

Q. Does this have anything to do with your job during lethal

7

injections?

8

A. It has nothing to do with what I do when the needle is --

9

when I have my hand on the needle. I have nothing to do with

10

that. I push when I'm told to push.

11

Q. So you don't watch for the green light?

12

A. I've seen it on occasion in the past three years.

13

Q. But you don't watch for it, during executions?

14

A. It's not my job.

15

Q. You're not sure who does watch that green light, are you?

16

A. That's not my job.

17

Q. You don't know what a pressure infusion bag is, do you?

18

A. Only that I've learned what it is in the past three

19

years.

20

Q. Did you know what a pressure infusion bag was at your

21

deposition in May?

22

A. No.

23

Q. So you've learned that in the past few months?

24

A. A lot of questions came up since the deposition.

25

Q. Back to this page that we were looking at before, do you

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US1DOCS 5856268v1

1

see this step, about a third of the way down the page, that

2

reads number 3 color coded blue, syringe removed, and the IV

3

continued to run open, wide open for 10 seconds and reduced

4

to KVO, do you see that step?

5

A. I do see that.

6

Q. Do you know what KVO means?

7

A. I do not know.

8

Q. And you've never heard it mentioned?

9

A. I might have.

10

Q. You testified at your deposition, however, that you'd

11

never heard that phrase?

12

A. KVO?

13

Q. KVO?

14

A. I'm not sure what that means.

15

Q. And you'd never heard it where your deposition in this

16

case; is that right?

17

A. I don't think that I've heard it before. I hear a lot of

18

things in the last three years. I don't recall that

19

specifically.

20

Q. During lethal injections, you push the medications or the

21

drugs from the syringe and that goes into the IV tubing,

22

which in turn goes into the inmate, correct?

23

A. That's my job.

24

Q. You don't know if there are one or two lines of IV

25

tubing, do you?

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1

A. I do not.

2

Q. And you've never heard anyone on the execution team

3

discuss switching from one line to another?

4

A. I don't know that.

5

Q. You've never heard that?

6

You've never heard anyone discuss that before?

7

A. Changing a line? I don't know that -- that they change

8

the line or not.

9

Q. Am I right that there is one extra syringe made of each

10

drug?

11

A. Yes, ma'am, that's what I see on the table.

12

Q. But you've never seen an extra syringe used in practice,

13

have you?

14

A. I never have.

15

Q. And you don't know what the extra syringe is for?

16

A. I don't.

17

Q. And you don't know what a reason for using one would be?

18

A. I just never happened.

19

Q. You had an interview before you joined the execution

20

team, correct?

21

A. I did.

22

Q. And you interviewed with the execution team commander and

23

some other folks; is that right?

24

A. I did.

25

THE CLERK: Counsel, if I could interrupt you just

US1DOCS 5856268v1

-125-

1

a second? Judge, 3 D hung their phone up. I need to

2

reconnect with them.

3

(Pause.)

4

THE CLERK: Go right ahead.

5

BY MS. TINDALL:

6

Q. At the interview we were just talking about, you were

7

basically asked if you were up for the job; is that about

8

right?

9

A. That's correct.

10

Q. And it was short and sweet?

11

A. It was.

12

Q. And your current business is septic services?

13

MS. MULLALLY: Objection.

14

THE COURT: Well, it's not medically related.

15

MS. MULLALLY: I'm sorry. My objection has to do

16

with what her question and his response. It's not

17

objectionable, but I want to bring it to the Court's

18

attention.

19

THE COURT: Good. What I was trying to do is just

20

find out, seems to me what would be relevant is that his

21

current position is not medically related at all.

22

MS. TINDALL: Yes, that's right. I do not have to

23

name the business, no.

24

THE COURT: That's correct; is it not?

25

That what you're doing, your regular job, is not

-126-

1

medically related?

2

THE WITNESS: Has nothing to do, right. No, sir.

3

THE COURT: Great.

4

BY MS. TINDALL:

5

Q. And you were employed in your current non medically

6

related job when you were interviewed to be a member of the

7

execution team, correct?

8

A. That's correct.

9

MS. TINDALL: And, Your Honor, I believe now I have

10

some questions here that we may want to discuss without the

11

live feed.

12

THE COURT: Good. So what we will do, then, we

13

will, since we're going to discuss an evidentiary point, is

14

to have the witness return back to the witness room, and to

15

discontinue the feed.

16

THE CLERK: 3D, don't hang up, we're just putting

17

you on mute.

18

(Pause.)

19

(UNDER SEAL)

US1DOCS 5856268v1

18

(SEAL ENDED)

19

(Witness resumed the stand.)

20

THE COURT: Welcome back, sir.

21

THE WITNESS: Yes, sir.

22

THE COURT: I just wanted to establish, let's go

23

back on the feed.

24

Good. And this is Judge Legg. I've ruled on the

25

evidentiary point. We're now back with Contractual Team A.

-135-

1

And sir, I want to just simply make sure that the fact that I

2

just know this is on the record, and that is you not an

3

employee of the State of Maryland including the Department of

US1DOCS 5856268v1

4

Corrections; is that correct?

5

THE WITNESS: That's correct.

6

THE COURT: So that you are a private business

7

person, who is under contract with the State, to perform a

8

service or services in connection with the execution,

9

correct?

10

THE WITNESS: That's correct.

11

THE COURT: The service or services that you have

12

been retained to perform are those that you have described

13

this afternoon?

14

THE WITNESS: Yes, sir.

15

THE COURT: Good. Thank you.

16

BY MS. TINDALL:

17

Q. Sir, we were talking about the interview you had before

18

becoming a member of the execution team.

19

As a part of that interview, you were not asked for

20

any -- to provide any professional or educational references,

21

were you?

22

A. No, ma'am.

23

Q. And you were not asked if you'd ever been fired or asked

24

to resign?

25

A. Can I have that question again, please?

-136-

1

Q. During the interview, did any member of the interview

2

panel ask you if you had ever been fired from a job or asked

3

to resign from a job?

4

A. I was not asked that.

5

Q. And when you became a member of the execution team, prior

6

to that, you didn't have any experience administering fluids

7

through a syringe, did you?

8

A. I did not.

9

MS. TINDALL: I have no further questions.

10

THE COURT: Thank you.

11

Miss Mullally, your witness.

12

MS. MULLALLY: No questions.

13

THE COURT: Thank you. Thank you very much for

14

coming, sir. You are free to go.

15

THE CLERK: Do you want to cut the feed while I

16

bring in the other witness?

17

THE COURT: Yes. The feed will be cut temporarily

18

while the next witness is brought in, and we'll will review

19

the ground rules for confidentiality.

20

MR. HUT: Actually, Your Honor, we were intending

21

to call now yet another member of the execution team. But

22

prior to the luncheon break, Miss Mullally requested that, if

23

we could, we would put one of our experts, Mr. Benjamin

24

Laughton, on as early in the afternoon as we could, so that

25

she could attend to some necessary business later in the day.

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1

He is here, and we're prepared do that.

2

THE COURT: Good. Let's have him, then.

3

MR. HUT: The witness will be presented by my

4

colleague, Miss Clark.

5

THE COURT: Good. And he's not sequestered,

6

correct?

7

MR. HUT: Correct.

8

THE COURT: Good. So what we'll do is let's go

9

back on the feed, Mr. Thompson. This is Judge Legg. The

10

counsel have agreed that the next witness, who will testify,

11

is Benjamin a Laughton, Mr. Laughton is here in court. He is

12

not sequestered, which means that anyone who would like to

13

rejoin us in courtroom 7 A is free to do so for Mr.

14

Laughton's testimony.

15

Good. Mr. Laughton, if would you come forward,

16

please?

17

(Witness is sworn)

18

THE CLERK: Please be seated. Sir, if you would, I

19

need you to state your name and then spell your name for the

20

record.

21

THE WITNESS: My name is Benjamin Kendall Laughton,

22

B E N J A M I N, middle name Kendall, K E N D A L L, last

23

name, L A U G H T O N.

24

THE CLERK: Thank you.

25

THE COURT: Miss Clark, whenever you're ready.

-138-

1

DIRECT EXAMINATION

2

BY MS. CLARK:

3

Q. Good afternoon.

4

Mr. Laughton, what is your occupation?

5

A. I'm a nurse practioner.

6

Q. And did you go to college?

7

A. Yeah. I went to college several times. I initially

8

attended Earlham, E A R L H A M in Richmond, Indiana, where I

9

received a Master of Arts in human relations and social

10

relations.

11

In 1995, I attend Johns Hopkins University School

12

of Nursing, where I got a Bachelor's in Nursing, and in

13

finishing in 1999.

14

I attended Johns Hopkins University where I got a

15

Master's in Nursing.

16

Q. Backing up to your Bachelor's in nursing, what does a

17

Bachelor's nursing qualify you to do?

18

A. Nursing. And there's kind of a echelon of what nurses,

19

qualifications of nurses.

20

They commonly refer to a term as registered nurse,

21

and that refers to someone who's passed the nursing state

22

boards.

23

Historically, that doesn't mean that you've

24

finished a bachelor's program or even an associates degree.

US1DOCS 5856268v1

25

It simply means that you've attended a program that prepared

-139-

1

you for nursing.

2

Currently, to the best of my knowledge, in order to

3

become a nurse, you need to obtain either an Associate's

4

Degree in nursing or a Bachelor's in nursing, both of which

5

give you the RN certification after you pass your certifying

6

exam, which allow to you function as a bedside nurse.

7

THE COURT: Can I ask, to be a registered nurse,

8

one must achieve either an Associate's Degree or a Bachelor's

9

Degree in nursing and pass a test from the state?

10

THE WITNESS: That's correct. Actually, the

11

requirement of an Associate's Degree or Bachelor Degree is a

12

relatively new requirement.

13

Historically, there were programs in the State of

14

Maryland called diploma programs where people would basically

15

work at a hospital, receive some additional training, be a

16

nurse trainee, and then when they're finished with that

17

program, they will become an RN, but they wouldn't have a

18

degree associated with it.

19

THE COURT: So to be an RN, one must have this

20

educational component plus obtain a license from the state?

21

THE WITNESS: That's correct.

22

THE COURT: Does one attain the license by passing

23

a test or simply demonstrating your qualifications?

24

THE WITNESS: That's an licensing exam called

25

NCLEX, if I remember correctly.

-140-

1

THE COURT: Good. And what's the difference

2

between a registered nurse and a certified nursing assistant?

3

THE WITNESS: A certified nursing assistant is

4

essentially someone who has taken a short training program,

5

and this is actually pretty recently that the board has

6

substituted a certified nursing assistant. I believe it's a

7

certification test.

8

To be honest, I'm not an expert in what it takes

9

for a certified nursing assistant to become certified.

10

THE COURT: Good. But is it fair to say that the

11

at least the credentialing process is less stringent for a

12

certified nurse assistant than it is for a registered nurse?

13

THE WITNESS: Oh, that would be generous to say.

14

Certified nursing assistant essentially takes a short course

15

and it encompasses a lot of -- to the best of my knowledge, a

16

lot of patient care, responsibilities, turning the patient,

17

bathing a patient.

18

To my understanding, there is not a procedural

19

component to that. And there's not a -- there certainly is

US1DOCS 5856268v1

20

no, for example, nursing administer medicine. Very commonly,

21

nursing assistants finishing their certification cannot do

22

that.

23

THE COURT: Cannot administer medicine?

24

THE WITNESS: They cannot, correct.

25

THE COURT: And administer medicine means?

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1

THE WITNESS: Give a patient medication either by

2

oral route or by any other route.

3

THE COURT: Good. Thank you.

4

Miss Clark?

5

BY MS. CLARK:

6

Q. Mr. Laughton, I believe you testified your Bachelor's in

7

nursing qualified you as a bedside nurse in addition to as an

8

RN; is that correct?

9

A. That's correct.

10

Q. And what's the difference between a registered nurse and

11

a bedside nurse?

12

A. I use the terms interchangeably. Perhaps it's not

13

completely correct. When I -- any registered nurse is able

14

to perform nursing care at the bedside.

15

And by that I mean follow doctor's orders regarding

16

medication administration, perform routine care for a

17

patient.

18

Registered nurses also, though, perform a lot of

19

other functions. They're registered nurses are who are in

20

public health, there are registered nurses who do research.

21

Q. And as an RN and bedside nurse, were you able to

22

administer drugs for IV's?

23

A. Yes.

24

Q. Were you able to establish intravenous access?

25

A. Yes.

-142-

1

Q. And I believe you testified that you also received your

2

master's degree in critical care advanced program; is that

3

correct?

4

A. Yes, that's right.

5

Q. And what does your Master's degree qualify you to do?

6

A. A Master's in nursing alone is just an indication of

7

advanced education. The Master's degree that I pursued

8

prepared you to take a certifying exam, a licensure exam,

9

that's administered by, and in my case, the American Nurses

10

Credentialing Center, which allows you, once you pass this

11

exam, you can function as a nurse practitioner.

12

Q. And so after receiving your Master's degree, you became

13

what's known as a certified registered nurse practioner?

14

A. I finished my Master's degree. I took the certifying

US1DOCS 5856268v1

15

exam, and then I became, that's correct.

16

Q. Are you trained in using an ultrasound?

17

A. Yes.

18

Q. And what type of training in ultrasound have you

19

received?

20

A. My training in the use of a two-dimensional ultrasound, I

21

initially received training in, if I remember correct, the

22

year 2000, before I was employed at the Shock Trauma Center,

23

I went there to take a course in the use of ultrasound to

24

assess trauma patients. That was my first introduction.

25

And in that, I learned a little bit about the

-143-

1

functioning of the machine, as well as how to evaluate a

2

patient who's just undergone trauma for hidden blood

3

somewhere inside their body.

4

After that, I was employed at Johns Hopkins Bayview

5

Medical Center. And a component of my job there was on the

6

team that put in central lines for the hospital. One of the

7

tools we use to put in central lines, and really the tools we

8

use for our clinical practice, was a two-dimensional

9

ultrasound machine.

10

So I received some training there from the

11

attending physicians there, and from the other nurse

12

practioner, who worked there, and used the ultrasound in

13

daily practices for a number of years.

14

Toward the end of my employment there, I went to

15

the Gulf Coast Ultrasound Institute in St. Petersburg,

16

Florida. I took a course there on two-dimensional

17

echocardiography, and that essentially is using the same

18

ultrasound machine, but it uses it to look at the heart. And

19

because of where the heart is positioned in the chest, you

20

can get images of heart function in real time using that.

21

Q. And so in your practice at Johns Hopkins Bayview, did you

22

actually use an ultrasound to assist with assessing venous

23

access in patients?

24

A. Yes, many times.

25

Q. And what is your current job?

-144-

1

A. I'm the clinical program manager for a group of nurse

2

practitioners at RM Kelly Shock Trauma Center.

3

Q. And how long have you held that position?

4

A. I think I got a job there in November of 2004.

5

Q. And what are your responsibilities in that job?

6

A. When I first was employed there, I -- the majority of my

7

job was in clinical care.

8

I worked with a group of residents, fellows, and an

9

attending surgeon caring for patients after they're admitted

US1DOCS 5856268v1

10

to the trauma center.

11

Over the nearly two years that I've been there, my

12

own role has evolved. We increased the number of nurse

13

practitioners, and I started performing more administrative

14

functions.

15

I currently am involved with clinical care patients

16

about 20 percent of my time there. The rest of the time is

17

doing administrative things.

18

Q. Do you have any responsibilities related to peripheral IV

19

insertion?

20

A. I don't have any direct responsibilities relating to

21

that. The bedside nurses are initially responsible for

22

placing peripheral IV's.

23

The nurse practioner as a whole and me included as

24

one of them are a resource to go to should they have problems

25

placing peripheral IVs. And so we then assess a patient and

-145-

1

either place an IV or choose some other course of action.

2

Q. So if one of the nurses had difficulty establishing

3

peripheral IV access in a patient, you would be one of the

4

resources that they would use?

5

A. Yes, that's correct. And I would say, also, I'm one of

6

the resources that the nurse practitioners use as a group

7

should they have problems with vascular access.

8

Q. And do you have any responsibilities related to the

9

insertion of central lines?

10

A. At present on my clinical days, should a patient need a

11

central line, it certainly would be -- it's not uncommon

12

that I would perform that procedure.

13

But having said that, given the number of now that

14

I'm only doing about 20 percent clinical, the total number of

15

central lines that I'm inserting isn't terribly high.

16

I guess, in the past two years, I've had to place

17

numerous central lines, a number of which I can't really

18

guess at.

19

But I've also acted as resource for other staff

20

members there and teaching them how to do it.

21

Q. And do you have any responsibilities related to the

22

assessment of the suitability of an IV for administration of

23

drugs?

24

A. Again, inserting a central line, that's something that

25

bedside nurses have primary responsibility for. We, meaning

-146-

1

nurse practitioners, are called if there's questions

2

regarding the suitability of a peripheral IV.

3

Q. Do you know Dr. Thomas Scalea?

4

A. Yes.

US1DOCS 5856268v1

5

Q. Who is he?

6

A. He's the director and physician in chief of the Shock

7

Trauma Center.

8

Q. Would you consider him to be your boss?

9

A. In that he's the director of the trauma center, he's my

10

boss. I don't believe there's any direct line reporting.

11

Q. And do you have something called a nurse practitioner

12

agreement with Dr. Scalea?

13

A. Yes, I do.

14

Q. What does that mean?

15

A. Essential to the practice of a nurse practioner in the

16

State of Maryland is an agreement they make with the

17

physician. It's typically a physician that they work with.

18

It basically identifies them as a resource that you can use

19

should you have questions in your practice.

20

Q. Would you feel comfortable disagreeing with Dr. Scalea at

21

the hospital?

22

A. I disagree with him regularly, yeah.

23

Q. And would your relationship with him affect your ability

24

to give truthful testimony here under oath?

25

A. It would not.

-147-

1

Q. What was your job prior to the current one?

2

A. Prior to my employment at the RM Kelly Shock Trauma

3

Center, I was employed at Johns Hopkins Bayview Medical

4

Center.

5

Q. And during what time period approximately did you hold

6

that job?

7

A. I want to say I started in -- I guess as I started there

8

in March of 2001.

9

Q. And you held that job until some time in 2004?

10

A. Until November, 2004.

11

Q. What were your primary job responsibilities?

12

A. I was hired by the physician group there to work with the

13

critical care faculty Paul Freeswick, and Dr. Freeswick was

14

the intensivist for the surgical intensive care unit.

15

So I was hired to assist him in providing critical

16

care. My responsibilities included providing critical care

17

for the surgical intensive care unit.

18

There is a burn intensive care unit that I

19

cross-covered, meaning if they needed help with caring for a

20

patient, they would call me.

21

Also, I while I was there, I would assist with

22

patients on the regular surgical floor, who became ill and

23

needed critical care services.

24

And then finally myself and another nurse

25

practioner developed a central line venous access service,

-148-

US1DOCS 5856268v1

1

whereby patients in the hospital who needed elective central

2

lines placed, they would consult our service and we would

3

place them.

4

Q. With respect to your responsibilities in the critical --

5

THE COURT: If I could ask, is this at Shock

6

Trauma, or were you talking about your earlier experience at

7

Bayview?

8

THE WITNESS: This is at Bayview we're discussing.

9

THE COURT: Thank you. I assume that at Bayview

10

you were putting in central lines all the time?

11

THE WITNESS: That would be correct.

12

THE COURT: Good. Thank you.

13

BY MS. CLARK:

14

Q. With respect to your responsibilities in the critical

15

care unit, did you have any responsibilities relating to

16

intravenous access and IV insertion?

17

A. Yeah. Again, placing peripheral IVs was like at Shock

18

Trauma in the domain of the bedside nurse.

19

However, in the intensive care unit, should there

20

be difficulty of placing peripheral IV, I will be the initial

21

resource for the nurses.

22

And given that the intensive care unit was -- had

23

really permanent staffing of myself and one other physician,

24

it was something I was called on to do quite a bit.

25

Q. And you mentioned that you developed a central venous

-149-

1

access service at Bayview. Did you have any responsibilities

2

related to intravenous peripheral intravenous access with

3

respect to that service that you developed?

4

A. It was not uncommon that we would be consulted to place a

5

central line, and upon interviewing the care providers and

6

the patients, we would determine that peripheral access is

7

really the best thing for the patient. And so in those

8

cases, I would assist with placement of the peripheral venous

9

access, yeah.

10

I guess I should also go back and complete my

11

answer to your earlier question. While in the critical care

12

unit during the day, which is when I was typically there,

13

should the patients need central venous access, which is a

14

relatively common occurrence in an intensive care unit, I was

15

the first call provider to place those.

16

Q. Is it fair to say that, when you were at Bayview, you

17

inserted central lines on a regular basis?

18

A. Yeah. Well, at Bayview, I would insert central lines

19

nearly every day, sometimes as many as nine day.

20

Q. Is it also fair to say, when you were the Bayview, you

21

inserted peripheral IVs on a fairly regular basis?

22

A. Yes, that's the case.

23

Q. Does your practice also involve making determinations

24

whether peripheral venous access could be obtained or whether

25

a central line was necessary?

US1DOCS 5856268v1

-150-

1

A. Yeah. Typically, that we would with work in the critical

2

care unit, a bedside nurse would ask me, would tell me they

3

couldn't find peripheral access in a patient. And depending

4

on the patient needs, I would evaluate them for peripheral

5

venous access. And if that wasn't available, then I would

6

put the central line in.

7

Q. And did you use an ultrasound to aid you in making those

8

determinations?

9

A. Yes.

10

Q. All of the time, or sometimes?

11

A. Sometimes. It's actually -- an ultrasound is useful in

12

patients that have difficult peripheral venous access and

13

that you can't see or feel their veins. And for surgeon

14

types of central venous access, it's very useful.

15

Q. And generally, since becoming a nurse in 1996 --

16

THE COURT: If I could stop you to make sure I

17

understand that?

18

I take it that period during which you were

19

establishing central lines on a regular basis was when you

20

were at Bayview, correct?

21

THE WITNESS: That's right.

22

THE COURT: That was from when to when?

23

THE WITNESS: 2002 to 2004. I worked there for

24

three years total.

25

THE COURT: And during that time, you established a

-151-

1

central line service, meaning that you basically were a

2

resource to other nurses and doctors at Bayview on the

3

establishing central lines?

4

THE WITNESS: That's right.

5

THE COURT: Is it in the protocol for establishing

6

intravenous access, does one first try the peripheral veins?

7

THE WITNESS: It's not quite as cut and dry as

8

that. There are times when patients need the central lines

9

despite already having ample peripheral venous access. And

10

there are also sometimes when patients have both.

11

An example would be if you were getting an

12

especially caustic medication or medication that is essential

13

to sustaining life, it's common practice that you would get

14

that delivered via central line.

15

So in those cases, I guess, it wouldn't follow that

16

algorithm.

17

THE COURT: Good. So that if the medicine were

18

caustic, meaning that it would do harm to the veins, or cause

19

pain, then a central line would be used to avoid those

20

problems, correct?

US1DOCS 5856268v1

21

THE WITNESS: Right. Go ahead. I'm sorry.

22

THE COURT: And if the medicine was central to or

23

necessary to preserve life, and you absolutely positively had

24

to make sure that you had a good hook up, it's good to go

25

direct to the central line?

-152-

1

THE WITNESS: That's correct.

2

THE COURT: But for a something that falls outside

3

of those two, is the normal methodology to try first with the

4

peripheral veins?

5

THE WITNESS: Yeah, I think you could say that.

6

There are some other instances where you might need

7

a central line where a peripheral IV wouldn't be usable.

8

Oftentimes, patients who are sent home and need home

9

antibiotics will get some sort of central line placed,

10

because it's impractical for them to get a new IV every time

11

they need a medication.

12

There are times when patients need high volumes of

13

fluid that are greater so than what you can get through a

14

peripheral IV. In those cases, they would get a central

15

line.

16

THE COURT: Good. And does the ultrasound, I want

17

to ask this, you said you went to the Gulf Coast Ultrasound

18

institute, was that while you were at Bayview?

19

THE WITNESS: While I was at Bayview, I went there.

20

THE COURT: And you mentioned something about

21

something two dimensional, does that mean that you don't have

22

a picture associated with it?

23

THE WITNESS: There are -- so ultrasound is a

24

technology where sound is projected toward something and

25

bounces off, and then is interpreted by -- historically,

-153-

1

there's a crystal. I'm not a physicist, so I can't give you

2

the details of that.

3

The first type of ultrasound used was Doppler,

4

which projected sound waves at basically in the case of blood

5

vessels, moving particles, moving red blood cells, and that's

6

reflected back.

7

So the speed by which those red blood cells are

8

passing the probe gives you a different sound.

9

So a vein would have kind of a slow hollow sound,

10

whereas an artery, because it's moving quickly with the heart

11

rate, you'd get a sound that corresponds with the heart rate

12

and be a faster harsher sound.

13

Two dimensional ultrasound takes it a step farther.

14

It takes the sound waves and interprets them such that it can

15

tell density of material. I can give you a picture of the

US1DOCS 5856268v1

16

density of that material.

17

So when I say two-dimensional, it comes up like a

18

picture. So if I'm holding a probe and put it on the skin,

19

it gives me a slice basically right through the tissue that

20

I'm looking at in two dimensions of the density of that

21

probe.

22

Does that make sense?

23

THE COURT: It does. Now, the Doppler effect,

24

that's the effect that makes a train whistle sound different

25

when it's coming toward you and when it's receding?

-154-

1

THE WITNESS: Correct.

2

THE COURT: And, apparently, they use this Doppler

3

effect in some way to provide the pictures?

4

THE WITNESS: Right.

5

THE COURT: Now, so that the two-dimensional

6

sonogram that you've talked about, the sound is obviously

7

useful because you can hear whether things are flowing,

8

correct?

9

THE WITNESS: In the two-dimensional ultrasound

10

that I'm talking about, you don't use -- you have the option

11

of using Doppler technology where you hear the sound.

12

But, for the most part, I will say most people who

13

use it for finding veins don't use that component. They

14

mostly just use the visual component.

15

THE COURT: And what does the visual show you?

16

THE WITNESS: A nice ultra sounds shows you

17

differences in tissue densities through the arm. I will use

18

an arm for example.

19

So if there is a fluid-filled object, it will

20

appear as black. So a vein or an artery would both appear

21

very dark black.

22

Other tissue have different kind of densities, so

23

you get kind of a scattered appearance, and sometimes there's

24

fat which on first glance looks like it might be

25

fluid-filled.

-155-

1

The true test is when you take the ultrasound probe

2

and compress these structures, veins, because they're

3

relatively low pressure, compress very easily. Arteries,

4

because they're under higher pressure, take more force to

5

compress. And other structures simply don't compress at all.

6

THE COURT: Now, what tells you when you look at

7

the ultrasound whether blood is moving at a good rate through

8

the vein?

9

THE WITNESS: When using an ultrasound, you can

10

basically tell the size of the vein and how easily it is

US1DOCS 5856268v1

11

compressed.

12

You could use a Doppler component to analyze the

13

flow of blood through the vessel, although that is -- that's

14

not something I typically did in my practice.

15

THE COURT: I assume that, particularly at Bayview,

16

you saw lots of veins that have been compromised by heroin

17

use?

18

THE WITNESS: That's correct.

19

THE COURT: Correct?

20

What do they look like when you look at them

21

through your Doppler ultrasound?

22

THE WITNESS: When you say compromised, I would say

23

the majority of veins that are compromised by heroin use,

24

essentially, when you stick a needle in a vein, repeatedly,

25

over time, it becomes -- the walls become thicker. And often

-156-

1

after injecting caustic substance, the vein actually becomes

2

thrombosed and is no longer visible.

3

THE COURT: Thrombosed means what?

4

THE WITNESS: Thrombosed means clotted off. So

5

folded, it could mean there's a blood clot there, but when I

6

was using, it I meant it could be, it's no longer.

7

THE COURT: So it closes up?

8

THE WITNESS: Correct.

9

THE COURT: And heroin, I take it, is a caustic

10

substance?

11

THE WITNESS: Yes. I guess I should say as it's

12

mixed, as does most people on the street

13

THE COURT: So it essentially destroys the vein?

14

THE WITNESS: That's correct.

15

THE COURT: Now, is it possible to have a vein, if

16

I think of a vein going up my arm, is it possible to have

17

part of the vein look good, but then to have a blockage where

18

it had been thrombosed, or will that thing just look bad

19

throughout?

20

THE WITNESS: No. So I guess your question is, if

21

one part further down your arm toward your fingers, you would

22

able to see the vein.

23

But then the vein would be thrombosed further up.

24

THE COURT: Right. Let's say I destroyed the vein

25

farther up, would the lower extremity look good?

-157-

1

THE WITNESS: It's possible, yeah, it's common.

2

THE COURT: That's common?

3

THE WITNESS: Yeah.

4

THE COURT: But the blood wouldn't be flowing

5

normally through the vein because it was a kink in the garden

US1DOCS 5856268v1

6

hose?

7

THE WITNESS: Right. There are a -- the body is

8

amazing in its ability to adapt. And typically, as people

9

injure their veins, the body creates other tributaries for

10

the blood to flow through around the normal path the way it

11

would go.

12

So it's possible to have a patent or open vein

13

distal or further down away from the body and then have it --

14

rather than go its normal course, have it branch out into

15

kind of these tributaries.

16

THE COURT: Now, there are two models, at least I

17

could visualize for such a vein that has a kink in it further

18

up. One is that it has blood in it, but the blood isn't

19

moving away.

20

And the second would be it has blood in it, and the

21

blood is actually moving, because when it gets up to the

22

obstruction, it moves out into the smaller vessels around the

23

blockage and then on its way through the rest of the vascular

24

system.

25

Is that what happens?

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1

THE WITNESS: Yeah. It's all based on pressure.

2

So if you have a blockage, then the pressure created by the

3

blockage would the back pressure would force the blood into

4

these smaller veins. It's a different animal altogether if

5

blood isn't flowing, and that happens very rarely.

6

THE COURT: So from what we've been talking about,

7

the blood, because of the obstruction, is flowing, it's

8

probably flowing at a slower rate than it would be if the

9

vein was good throughout?

10

THE WITNESS: Well, if you can imagine blood

11

flowing up the arm, normally would flow up a major river, but

12

instead the river got dammed, and all these tributaries are

13

branching out from it, the speed of the blood through the

14

tributaries is kind of an independent thing.

15

It really has -- in fact, probably if you know you

16

have a number of smaller vessels, the blood may actually be

17

moving slightly quicker through them. But I'm not really

18

sure, quick or slower, but either way, it -- I guess the

19

speed of the blood moving through the vessel is not such a

20

critical thing in this case.

21

THE COURT: Because the number of smaller

22

tributaries may have taken up the slack and allowed the blood

23

to flow as fast as it would --

24

THE WITNESS: That's correct.

25

THE COURT: -- had the vein not been compromised?

-159-

US1DOCS 5856268v1

1

THE WITNESS: That's correct.

2

THE COURT: Now, good. I think I'm on the right

3

track. Thank you.

4

Miss Clark?

5

BY MS. CLARK:

6

Q. Mr. Laughton, you've discuss the insertion of central

7

lines. Are you permitted to do that procedure by yourself?

8

A. Yes, I am.

9

Q. And what sort of training or education did you need to

10

get in order to be able to do that?

11

A. There's two components to that. The board of nursing

12

requires that you submit an addendum to your written

13

agreement with the physician stating that you received

14

special training in placement of a central line, and that

15

you've had a number of them observed by someone who is

16

willing to testify or willing to state that you're competent

17

at them.

18

And then there's a separate component involving

19

hospital credentialing. And hospital credentialing is

20

typically, typically if the director of a department is

21

willing to sign off and say you're able to do a procedure,

22

you're allowed to perform them.

23

Q. And apart from the two jobs that we've discussed since

24

becoming a nurse in 1996, have you held any other jobs in

25

which you inserted peripheral IV's on a regular basis?

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1

A. I -- since I became a nurse in 1996, I officially was

2

employed at Johns Hopkins Bayview Medical Center in the

3

emergency department as a bedside nurse.

4

I worked there until I guess it was in March of

5

2000 when I got a job as a nurse practioner. It was a busy

6

emergency department.

7

And so we -- it was essentially me responsible to

8

place peripheral IVs in the patient you care for so, I put in

9

thousands of IV's.

10

Q. Would you also monitor the patency of the IVs?

11

A. Yes, that is part of my responsibility.

12

Q. What exactly does that mean?

13

A. If after you've inserted an IV into someone's vein,

14

monitoring the patency means ensuring or monitoring the IV

15

and the fluids or medicine flowing through the IV are going

16

into a vein that's open essentially and unrestricted.

17

Q. In those jobs since 1996, have you also regularly

18

administered drugs through IV's?

19

A. That was a core component of what I did as a bedside

20

nurse.

21

Q. And since becoming a nurse 1996, have you held any jobs

22

in which you've drawn blood for patients?

23

A. Also in -- actually, in all of my jobs. I've drawn blood

24

from patients.

25

Q. Is there a difference between drawing blood and inserting

US1DOCS 5856268v1

-161-

1

a peripheral IV?

2

A. There's a big difference. In inserting an IV,

3

essentially, you have to get not only the tip of a needle,

4

but the plastic catheter surrounding the tip of the needle

5

inside a blood vessel, and then you have to advance this

6

plastic catheter into the blood vessel, not through the blood

7

vessel wall.

8

The phlebotomy, or drawing blood, essentially is

9

taking a needle and inserting it into a blood vessel such

10

that blood comes back and you can draw blood.

11

So I would say, as a rule, drawing blood from

12

someone is much easier than placing an IV.

13

Q. So is it possible that you'd be able to draw blood from a

14

patient even if you could not insert a peripheral IV into

15

them?

16

A. Yes, it's very common.

17

Q. Have you ever been disciplined at a job?

18

A. While I was a bedside nurse at Johns Hopkins Bayview,

19

shortly after my employment there, I had received additional

20

training to provide advanced cardiac life support, and a

21

component of that training was inserting artificial airways

22

or endotracheal intubating of patients.

23

I was a bedside nurse in the resuscitation room at

24

Bayview. A patient came in and needed to be endotracheally

25

intubated. The attending or chief physician on call at the

-162-

1

time, knowing that I had just recently finished my

2

certification, turned to me and asked if I'd like do the

3

procedure. I agreed, said, sure I'd love to. I attempted to

4

perform the procedure. The attending physician assisted me

5

with it.

6

After all was said and done, my nursing supervisor

7

informed me that that was beyond my scope of practice as a

8

bedside nurse.

9

I essentially agreed that it was, and that was the

10

extent of that.

11

Q. And were there any professional ramifications to that

12

episode?

13

A. No. I think it got put in my sealed permanent record,

14

and that disappeared after a year. But I've never, no.

15

MS. CLARK: May I approach?

16

THE COURT: You may.

17

(Pause.)

18

BY MS. CLARK:

19

Q. Mr. Laughton, I'd like to direct your attention to a

20

document that I just have handed to you and that has been

US1DOCS 5856268v1

21

marked as plaintiff's trial exhibit 70?

22

A. Okay.

23

Q. Do you recognize this document?

24

A. It's my resume.

25

Q. And does it accurately reflect your training and

-163-

1

qualifications?

2

A. Yes.

3

MS. CLARK:. Your Honor, we would like to offer Mr.

4

Benjamin Laughton as an expert in venous access and

5

intravenous administration of drugs.

6

THE COURT: Thank you.

7

Miss Mullally, any questions?

8

MS. MULLALLY: No, Your Honor.

9

THE COURT: Thank you. Then I'm happy to accept

10

Mr. Laughton as an expert in those two subjects.

11

BY MS. CLARK:

12

Q. Mr. Laughton, have you ever testified as an expert

13

before?

14

A. No, I haven't.

15

Q. Do you have a position on the death penalty?

16

A. I think, like most people, my position is complicated,

17

and it changes depending on -- it's evolved as my thinking

18

evolves.

19

I would to further explain, I have no -- in

20

principle, the death penalty, I have no problem with the

21

death penalty.

22

I think it's tragic that we should need it, and I

23

guess I am troubled that minorities -- that who the death

24

penalty is administered to seems to be not a representational

25

sample of people.

-164-

1

Q. Are you being compensated for your testimony today?

2

A. No, I'm not.

3

Q. So you're doing this without a fee?

4

A. That's correct.

5

Q. And why did you agree do this without a fee?

6

A. When I was approached to testify, I -- my thought it was

7

that I guess I believed that people should get the best

8

representation possible, regardless of their ability to

9

compensate people.

10

So if I was asked to represent someone who was --

11

that is unable to compensate me, then I would be happy to do

12

so.

13

And I also thought it was -- would be a great

14

opportunity for me to kind of introduce me to the role of the

15

expert witness and the Court system.

US1DOCS 5856268v1

16

Q. And how did you get involved in this case?

17

A. I was initially contacted by one of the defense attorneys

18

whose name, I'm sorry, I don't remember.

19

Who initially asked me if I'd be willing to testify

20

in this case. He conferenced called in another attorney from

21

your firm, I believe, and that's how it started.

22

Q. Based on your experience, how do you make the

23

determination of whether to place a peripheral IV or a

24

central line?

25

A. That is a relatively complex decision tree.

-165-

1

If a patient needed a medicine only intermittently,

2

that wasn't terribly important to them, and peripheral IV

3

would be the choice.

4

If a patient needed quick IV access, it's much,

5

it's much easier to place a peripheral IV.

6

So, for example, most of the patients who come into

7

trauma because they need to -- to Shock Trauma because they

8

need IV access, quickly often peripheral venous access is the

9

initial choice.

10

Again, if the IV wasn't going to require, or wasn't

11

required for life-sustaining medication, that would be

12

another choice.

13

If a patient needed a venous access to administer

14

caustic medication, or it was a life-sustaining medication,

15

or they needed high volumes of this, those would all be

16

things directly toward placing in the central line.

17

Q. So there are different considerations for establishing a

18

peripheral IV for the purpose of administration a saline drip

19

versus administering a drug or fluid?

20

A. Yes. There are definitely differences.

21

Q. You mentioned before in some of your jobs, all of your

22

jobs, you have at times monitored patency of IV's; is that

23

correct?

24

A. Yes. That's correct.

25

Q. In your experience, what are the signs that an IV is

-166-

1

patent?

2

A. That, again, is somewhat -- there's no, you know, red

3

light that comes on if an IV is not patent. So there's a

4

variety of factors you feed to take into consideration.

5

I guess flow against gravity of fluids through the

6

IV.

7

There's back pressure on the syringe while

8

injecting into the IV.

9

There's the appearance of the arm.

10

There's, you know, oftentimes you can get blood to

US1DOCS 5856268v1

11

flow backwards through an IV indicating that it is in fact in

12

the vein. Although you know each of these things, I've seen

13

them be true in patients that have IV's that have been

14

infiltrated.

15

So, for example, flow with gravity of a drip.

16

I've seen patients who have had IV's infiltrated

17

but nevertheless there a good flow into basically their body,

18

despite the fact that the IV wasn't in the vein. I would say

19

that's true for all of the individual warning signs.

20

Q. So you mentioned sometimes that you see swelling and that

21

can be a sign that an IV is not patent; is that correct?

22

A. Yes, it's one of the many things. I wouldn't say that

23

that is something that you always see, but yes.

24

Q. So is it possible that an IV would not be patent, but

25

there would be no visible signs?

-167-

1

A. That's happened frequently -- I would say I wouldn't say

2

frequently, but not infrequently in my practice.

3

Q. Have you reviewed some documents produced by the

4

defendants in this case?

5

A. Yes.

6

Q. Did you review Maryland's lethal injection procedure?

7

A. I did.

8

Q. Did you also review the August changes to the procedure?

9

A. I did.

10

Q. And did you review the two depositions taken of

11

Contractual Team B?

12

A. I did.

13

Q. And did you also review the affidavit of Contractual Team

14

B?

15

A. Yes.

16

Q. Did you review the expert report of Contractual Team B?

17

A. Yes.

18

Q. Based on your review of all these documents, do you have

19

an understanding about how Maryland's lethal injection

20

procedure works?

21

A. I have a basic understanding, yes.

22

Q. And what's your basic understanding?

23

A. My basic understanding is that a prisoner is brought into

24

the execution chamber. Peripheral venous access is

25

established in the left and right arm.

-168-

1

This -- somehow this venous access is connected to

2

an IV bag, which is kept in a separate room.

3

Drugs are then administered through this in a

4

separate room through this IV bag into the prisoner.

5

Q. And based on your review of the documents that I

US1DOCS 5856268v1

6

mentioned, do you have an understanding about what

7

Contractual Team B's role is on the execution team?

8

A. My understanding is that she is the lead person to place

9

venous access in these patients.

10

Q. Does she do any sort of examination of the inmate prior

11

to the execution?

12

A. I've read a document where she examined him or where she

13

described examining him prior to execution, yes.

14

Q. What do you understand to be the purpose of that

15

examination?

16

A. My understanding is that she examines him to assure that

17

the patient has veins, or has veins which can be accessed for

18

lethal injection.

19

Q. And has contractual team B, based on your review of these

20

documents, has she conducted an examination of plaintiff

21

Vernon Evans?

22

A. Yes, she has.

23

Q. And do you have an understanding about her examination of

24

Mr. Evans in January, 2006?

25

A. I understand that she went and put a constricting or a

-169-

1

tourniquet, what she called a constricting band on Mr. Evans'

2

arms, and examined him for obvious peripheral access sites in

3

his arms.

4

Q. Do you know if she used any other equipment?

5

A. The only other equipment, I can't recall whether she

6

actually used an alcohol pad to wipe the patient's arm, but

7

it's my understanding she did.

8

Other than that, she didn't.

9

Q. And which portions of his body did she examine?

10

A. To the best of my recollection, she examined his upper

11

extremities.

12

Q. Meaning?

13

A. Left and right arm.

14

Q. And what's your understanding of her findings?

15

A. I understand that she found I want to say five sites for

16

venous access in one arm and more than five sites in the

17

other.

18

Q. Would it refresh your recollection to take a look at her

19

exert report?

20

A. Yes, that would be great.

21

Q. If you refer to the binder that I handed up to you, the

22

expert statement of Contractual Team B is marked for

23

identification only as plaintiff's exhibit 105.

24

May I approach?

25

THE COURT: You may.

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US1DOCS 5856268v1

1

(Pause.)?

2

A. I'm sorry, Miss Clark. Are you referring to her -- not

3

her deposition, but her expert report, right?

4

Q. Yes. Behind the tab in the binder, it's the second tab

5

to the back.

6

A. All right.

7

Q. Contractual Team B expert report?

8

A. Yes.

9

THE COURT: And, Miss Clark, this is marked as

10

what, please?

11

MS. CLARK: It's marked for identification as

12

plaintiff's exhibit 105.

13

THE COURT: Thank you.

14

BY MS. CLARK:

15

Q. And Mr. Laughton, if you, -- if I could direct you about

16

six paragraphs down, I believe in that paragraph Contractual

17

Team B describes her examination of Mr. Evans?

18

A. Yes.

19

Q. And based on your review of that paragraph, how many IV

20

sites did she locate in the right arm?

21

A. It appears to be seven.

22

Q. And how many IV sites did she locate in the left arm?

23

A. Eight.

24

Q. Did there come a time when you examined the veins in Mr.

25

Evans' upper extremities?

-171-

1

A. Yes. I did examine the veins of Mr. Evans.

2

Q. And what was the purpose of your examination?

3

A. I was asked to examine Mr. Evans' upper extremities to

4

verify the findings of Contractual Team B.

5

Q. And did you examine both his right and left upper

6

extremities?

7

A. That's correct.

8

THE COURT: If I could interrupt, since we're going

9

into that area, why don't we take just a brief recess until

10

4:00?

11

(Recess.)

12

THE COURT: Please be seated. Miss Clark, whenever

13

you're ready.

14

BY MS. CLARK:

15

Q. Mr. Laughton, I believe we were talking about your

16

examination of Mr. Evans.

17

Did you examine both Mr. Evans' right and left

18

upper extremities?

19

A. I did.

20

Q. And approximately how long did your total examination

21

last?

22

A. Estimate should be 30 minutes.

23

Q. Did you use any medical equipment to examine Mr. Evans?

24

A. I brought a portable two-dimensional ultrasound with me

25

to examine his arms.

US1DOCS 5856268v1

-172-

1

Q. Did you also use a constricting band?

2

A. I did, yes.

3

Q. And what is the purpose of the constricting band?

4

A. Again, this is the artery and veins and human body are

5

all about pressure. So if you want to distend a vein, you

6

need to occlude its flow at a higher level so it will back up

7

and kind of fill out the veins.

8

Q. So does a constricting band often aid at the

9

identification of veins for the insertion of a peripheral IV?

10

A. Yeah, it's an essential component.

11

Q. And you also mentioned that you used a portable

12

two-dimensional ultrasound machine?

13

A. That's right.

14

Q. And what is the purpose of the ultrasound machine?

15

A. An ultrasound machine will give you a visual

16

representation of the densities of the structure within the

17

arm.

18

So as related to obtaining peripheral venous

19

access, a ultrasound machine will let you look at a structure

20

that you think is a vein and determine whether it's a vein or

21

not.

22

And it will also let you look at the extremity, in

23

this case, an arm, in general, and find veins that you

24

wouldn't be able to find just through inspection or

25

palpation.

-173-

1

Q. So it's possible that an ultrasound could reveal veins

2

that could not be visualized or palpated?

3

A. Yes, that's commonly the case.

4

Q. And it's also possible that ultrasound could disclose non

5

viability of a vein that might look viable when simply

6

visually and palpated?

7

A. Yes. It's actually very common in day-to-day in

8

patients, when you examine someone's arm, you'll find

9

something that feels like a vein, but upon closer inspection

10

or after putting a needle in there, you find that it's a

11

tendon or a piece of fat or it's something else entirely.

12

And ultrasound will allow you to, without actually

13

sticking a needle in someone, determine whether that is a

14

vein.

15

Q. And could you describe briefly the process that you use

16

when you use an ultrasound to locate veins?

17

A. Typically, I will examine, apply a constricting band and

18

examine the patient without the ultrasound to see if anything

19

is obvious.

20

I'll use my hand to feel for veins in the body, in

US1DOCS 5856268v1

21

the arm.

22

After that, I'll take an ultrasound probe, and I'll

23

begin to examine. I normally start a couple of inches above

24

the what's called the antecubital fascia, but it's the pit on

25

the other side of the elbow.

-174-

1

You use the ultrasound, then, as another kind of

2

screen to look into the arm, and then you take the probe as

3

you're looking and you press on it.

4

And so essentially you look for the black

5

structures, which are fluid filled, and then you attempt to

6

compress them to see if they're arteries, veins, or neither.

7

So you start, I normally start a couple inches above

8

antecubital fascia, and I examine the full arm, both in the

9

ventral and dorsal aspects, top and bottom of it.

10

Q. And does the ultrasound that you use to examine Mr.

11

Evans, does that record an image?

12

A. The one that I use does not record images, no.

13

Q. But it does have a screen that you can view an image

14

while you were examining the patient, correct?

15

A. That's right. It's -- it kind of projects the findings

16

in real time on what essentially is a tiny black and white

17

monitor.

18

Q. Starting with Mr. Evans' right arm, could you describe

19

generally how you examined it?

20

A. In his right arm, I placed a constricting band around it.

21

I visually inspected and palpated his arm. I inspected and

22

palpated his hand, and then I took the ultrasound machine and

23

examined his arm.

24

Q. Starting first with your examination, using only the

25

constricting band on the right arm, did you examine the

-175-

1

antecubital fascia area on Mr. Evans' right arm?

2

A. I did.

3

Q. Could you describe again what exactly the antecubital

4

fascia is?

5

A. Opposite side of the elbow. You can call it the elbow

6

pit, if you want.

7

Q. With respect to the antecubital fascia area, what are

8

your findings using only constricting band?

9

A. I could visualize no veins.

10

Q. Did you find any of the veins mentioned by Contractual

11

Team B in her affidavit or expert report?

12

A. I did not find any in the patient's antecubital fascia.

13

Q. Did you -- using own the constricting band, did you find

14

any veins at all in the right antecubital fascia area?

15

A. No.

US1DOCS 5856268v1

16

Q. Did you examine Mr. Evans' right for arm?

17

A. I did.

18

Q. And using only the constricting band, what were your

19

findings with respect to Mr. Evans' right forearm?

20

A. Mr. Evans didn't have any visible superficial veins. He

21

didn't have any visible veins with the exception of -- he had

22

a network of very small skin veins, which were spider webbed

23

in appearance, which were over the surface of his hand.

24

Q. And could those, the spider web of veins that you just

25

mentioned, could those be canulated?

-176-

1

A. No. Those are, as we were discussing earlier, when you

2

have a major blood vessel occluded collateral or tributary

3

vessels take over the blood flow. So they're small blood

4

vessels that everybody has running through their skin.

5

Sometimes will increase in size to the point that you could

6

see them to accommodate this flow back up in the arm.

7

Q. And for the edification of all of us lay people, what

8

exactly does canulate mean?

9

A. I'm sorry. Canulate means to put a tube inside, in this

10

case putting an IV catheter inside a vein.

11

Q. So with respect to Mr. Evans' right forearm, using only

12

constricting ban, did you find any of them mentioned by

13

Contractual Team B in her affidavit or expert report?

14

A. I did not.

15

Q. Did you find any veins at all?

16

A. Other than these very small veins, I did not.

17

Q. Did you also examine Mr. Evans' right hand?

18

A. I did.

19

Q. And with respect to Mr. Evans' right hand, what were your

20

findings?

21

A. Mr. Evans had a number of metacarpal veins, which were

22

easily identifiable.

23

Q. Do you think it would be difficult to canulate these

24

veins?

25

A. I think that it would be difficult to canulate those

-177-

1

veins. I mean, it's not as easy putting an IV in someone

2

like me, who, you know, is relatively healthy.

3

Q. Are you aware that Dr. Scalea's expert report said it

4

would be possible to canulate these veins?

5

A. I read that, yeah.

6

Q. Is that statement recognizable, in your opinion, that it

7

would be difficult to canulate these veins?

8

A. No. It's clearly possible to canulate those veins.

9

Q. So your opinion and Dr. Scalea's statement in his expert

10

report are not inconsistent?

US1DOCS 5856268v1

11

A. That's correct.

12

Q. In your opinion, could these metacarpal veins that you

13

identified in the right hand be used for the administration

14

of a lethal injection?

15

A. I -- no. They do not.

16

Q. Why not?

17

A. Metacarpal veins, or the veins in this gentleman's hand,

18

or most people's hands, they're relatively thin walled.

19

They're tortuous, meaning they're very wiggly, or they follow

20

irregular course. They have a number of valves in them. And

21

valves are structures which exist inside a blood vessel,

22

which stops blood from flowing backwards.

23

All these things make canulating them difficult.

24

But, beyond that, they make them less reliable for in -- for

25

tolerating injections of important medications or fluids.

-178-

1

Q. And after examining Mr. Evans right upper extremity,

2

using only the constricting band, did you then apply the

3

ultrasound?

4

A. I did.

5

Q. In which portions of Mr. Evans right upper extremity did

6

you examine with the ultrasound?

7

A. I examined his antecubital fascia and portions of his

8

forearm.

9

Q. What was the purpose of examining Mr. Evans' right arm

10

with the ultrasound?

11

A. I guess the purpose was to evaluate for veins which

12

weren't immediately visible.

13

Q. And did your ultrasound examination of Mr. Evans' right

14

arm and forearm reveal any veins that could be used for a

15

lethal injection?

16

A. I'm sorry. Because, you know, memory, sometimes I get

17

the right and left side confused. But I -- I don't recall

18

any, no. The answer to that would be no.

19

Q. Would it assist you to look at a copy of your expert

20

report?

21

A. That would be great, just to jog my memory, but I --

22

Q. Believe behind tab 71 in your binder is plaintiff's

23

exhibit 71, which is a copy of your expert report?

24

A. Thank you. Thank you. Yeah, I can.

25

Q. So --

-179-

1

A. After reading this -- thank you for providing it -- I'm

2

reminded that there were no veins in his right upper

3

extremity that could be canulated.

4

Q. Did you find any veins at all?

5

A. Yeah. With an ultrasound, you can see relatively deep

US1DOCS 5856268v1

6

into the tissue. So I found a vein that was beneath the

7

brachial artery in the antecubital fascia.

8

Q. And did you see or feel this vein when you were only

9

using the constricting band?

10

A. No. It would be impossible to identify this vein using

11

only the constricting band because it's beneath the artery.

12

Q. Could you canulate this vein?

13

A. You do not canulate this vein. In order to get to it,

14

you'd have to -- it's underneath an artery.

15

So in order to get a needle inside the vein, you'd

16

have go through an artery, and that would cause extensive

17

damage.

18

Q. And when you, turning now to Mr. Evans' left upper

19

extremity, did you use the same general examination process

20

that you did on the right arm?

21

A. Yes, I did.

22

Q. So you began using only the constricting band?

23

A. That's correct.

24

Q. Is that right?

25

With your examination of his left upper extremity

-180-

1

using only the constricting band, did you examine the

2

antecubital fascia area?

3

A. Yes, I did.

4

Q. What your findings?

5

A. I found no -- on visualization, I found no veins which

6

identified no veins.

7

Q. And in addition to visualization, did you also feel the

8

area?

9

A. Yes. I'm sorry, also I couldn't -- I could feel or

10

palpate no veins after putting the stand, look at the

11

antecubital, there was no evidence of veins that could be

12

canulated for venous access.

13

Q. What does palpate mean?

14

A. Touch, apply pressure to. So sometimes in some people, a

15

vein will be under the surface so that you can't immediately

16

visualize it. But upon feeling their arm, you can feel the

17

give of the vein, and indicate to you that it's there.

18

Q. And with respect to the left antecubital fascia, did you

19

find any of the veins mentioned why contractual team B in her

20

affidavit or expert report?

21

A. I didn't find any, no.

22

Q. Did you find any veins at all in the left antecubital

23

fascia?

24

A. Upon inspection and palpation, I did not, no.

25

Q. Turning your examination of Mr. Evans' left forearm using

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US1DOCS 5856268v1

1

only the constricting band, what were your findings?

2

A. My findings were again I found no veins.

3

Q. Did you find any of the veins mentioned by Contractual

4

Team B in her affidavit or expert report?

5

A. No, I didn't. There again the spider web network of

6

extremely small venules, or whatever you'd like to call them

7

but there were no surface, no veins that could be canulated.

8

Q. So the venules could not be canulated, in your opinion?

9

A. Right. Similar to the other arm, they're microscopic.

10

Q. So you did not find any veins at all in the left forearm

11

using only the constricting band?

12

A. That's right.

13

Q. Did you examine Mr. Evans' left hand using only the

14

constricting band?

15

A. Yes, I did.

16

Q. And what were your findings?

17

A. Mr. Evans had a number of metacarpal veins evidenced in

18

right and left hand.

19

Q. And, in your opinion, could these metacarpal veins be

20

used for administration of a lethal injection?

21

A. Very similar to what I said about the other side, that

22

they wouldn't be appropriate for administration of lethal

23

injection.

24

Q. Similar to the right hand, would it be in your opinion

25

somewhat difficult to canulate these veins?

-182-

1

A. Again, very similar situation, it would be difficult, but

2

not impossible to canulate these veins.

3

Q. After examining Mr. Evans' left upper extreme using only

4

the constricting band, did you then examine him using the

5

ultrasound?

6

A. I did.

7

Q. And what portions of Mr. Evans left upper extremity did

8

you examine using the ultrasound?

9

A. I examined his antecubital fascia and the part of the

10

forearm.

11

Q. And did you find any veins at all using the ultrasound?

12

A. Using the ultrasound, I found a cephalic vein, which runs

13

up, if your hand is facing up, it runs up the outside of your

14

arm. This was underneath subcutaneous tissue, and there's

15

some evidence of skin scarring throughout.

16

Q. And did you visualize or palpate this vein using only the

17

constricting band?

18

A. No, it was not visible. And the vein was -- when

19

examined with an ultrasound, machine the vein was full and

20

clearly distended.

21

So if it were ever going to be visible, I would

22

have been able to -- I'm confident I would have been able to

23

visualize it using just the constricting band.

24

But because I couldn't, I'm confident to say that

25

it would never been visible.

US1DOCS 5856268v1

-183-

1

Q. You mentioned that you could not visualize it using only

2

the constricting band, could you palpate it?

3

A. I could not, no.

4

Q. And why couldn't you see or palpate this vein?

5

A. Mr. Evans has a fair amount of subcutaneous tissue, and

6

that's fat, and fascia, and skin and -- I'm sorry.

7

Skin isn't subcutaneous tissue, but over to the

8

point that it makes it impossible to see.

9

Q. And in your opinion could this vein be canulated?

10

A. There are -- in my 10-year career as a nurse, there have

11

been -- there have been times that you could -- that you will

12

attempt to blindly put an IV in shun.

13

So if someone comes to the emergency room, and

14

they're in extremis while someone's obtaining central venous

15

access, it's possible, you can take a needle on blindly

16

insert it in places where you know a vein would be. It is

17

conceivable you could put an IV into this vein through blind

18

canulation or with the use of an ultrasound machine.

19

Q. And what would happen if you tried to canulate this vein

20

and were unsuccessful, could you keep trying until you

21

accessed it?

22

A. The ones you put a needle inside a vein and are

23

unsuccessful in canulating it, there is -- there's a hole on

24

the side. And since this is all about pressure blood will

25

leak out of the vein and make it impossible for use for

-184-

1

further attempts.

2

So essentially, if you attempted to place an IV in

3

this vein, if you weren't successful, you wouldn't be able to

4

make further attempts at that time.

5

Q. Would you be able to access it higher up on the vein?

6

A. In a hypothetical, you could.

7

In a hypothetical vein, you could access the vein

8

higher up, where this vein was in Mr. Evans, the vein dove

9

underneath his subcutaneous tissue and fascia to the point

10

that it couldn't be accessed higher up.

11

Q. In your opinion was this the only vein in the right and

12

left arms that could possibly be canulated?

13

A. That's correct. I'm sorry. I should clarify that.

14

That's the only vein you -- you could canulate the

15

veins in the hand, but, however, I don't think that, for

16

reasons that we've already discussed, they're suitable for

17

this purpose.

18

Q. And you mentioned that, aside from blind canulation of

19

this vein, it's possible that one might be able access it

20

with aid of an ultrasound?

US1DOCS 5856268v1

21

A. Sure, that's possible.

22

Q. And would someone need training in accessing a vein deep

23

in the tissue with aid of ultrasound in order to do that?

24

A. Yeah. You need training in use of ultrasound, which is a

25

technical machine that you need to learn how to use. But

-185-

1

also you'd need experience in using, in coordinating your

2

motion with the ultrasound machine to get something inside.

3

Q. Are you aware that Dr. Scalea examined Mr. Evans' veins

4

in connection with this case?

5

A. I am.

6

Q. Are you aware that in January Dr. Scalea filed a

7

declaration in this case regarding his examination of Mr.

8

Evans?

9

A. Yes.

10

Q. Have you reviewed that declaration?

11

A. I have.

12

Q. Did you review it prior to your examination of Mr. Evans?

13

A. No, I didn't.

14

Q. Did you review it prior to reaching your opinions

15

regarding your examination much Mr. Evans?

16

A. No, I reviewed it well after.

17

Q. Did you review it prior to finalizing and submitting your

18

expert report in this case?

19

A. No.

20

Q. Are you aware that Dr. Scalea also submitted an expert

21

report in this case?

22

A. I am.

23

Q. Did you review that expert report at any time prior to

24

performing your examination of Mr. Evans?

25

A. No.

-186-

1

Q. Did you review that report at any point prior to forming

2

your opinions and finalizing and signing your report in this

3

case?

4

A. No.

5

Q. Have you since reviewed that expert report?

6

A. I have.

7

Q. Were you aware of any of Dr. Scalea's findings with

8

respect to Mr. Evans before you examined Mr. Evans?

9

A. Not before I examined him, no.

10

Q. Did you talk with Dr. Scalea about Mr. Evans or this case

11

prior to your examination of Mr. Evans?

12

A. No, I did not.

13

Q. Did you talk with Dr. Scalea about Mr. Evans or this case

14

prior to the submission of your report?

15

A. No, I did not.

US1DOCS 5856268v1

16

Q. At any time before you formed your opinions, did you know

17

what conclusion Dr. Scalea had reached?

18

A. No, I did not.

19

Q. Have you ever discussed your findings with Dr. Scalea?

20

A. I have not.

21

Q. Have you ever discussed Dr. Scalea's findings with Dr.

22

Scalea?

23

A. No.

24

Q. Have you discussed this case with Dr. Scalea?

25

A. Either at one time when I was in his office and I said

-187-

1

thank you for referring me to, or referring the defense team

2

to me, and he reply (mumbling), that was the end of it.

3

Q. Did Dr. Scalea's findings in any way influence your

4

findings?

5

A. No, they did not.

6

Q. Do your findings and opinions with respect to Mr. Evans'

7

veins comport with the findings of Contractual Team B?

8

A. No, they're very different.

9

Q. Can you think of any reason why you and Contractual Team

10

B would have such contrary findings?

11

A. I truly cannot.

12

Q. Can there be variability in one's ability to find veins

13

in a patient depending on conditions such as heat or cold or

14

relative hydration of the patient?

15

A. Sure.

16

Q. And is that a possible explanation for the difference

17

between your findings and Contractual Team B's findings?

18

A. I would argue that it's not. Because upon examination of

19

Mr. Evans, I guess the -- yeah, upon examination of Mr.

20

Evans, the veins that I could locate, for example, in his

21

hand were fully distended and were easy to find.

22

The veins that I located under ultrasound were

23

fully distended and full, and there's no evidence in any of

24

that, any of either my visual and a palpitation -- a

25

palpation, or examination of the ultrasound that he was

-188-

1

dehydrated or.

2

Q. Based on your review of the Contractual Team B's two

3

depositions, her report and her affidavit, did you see

4

anything that caused you concern about her ability to assess

5

intravenous access?

6

A. I guess I was a little -- I was taken aback at the

7

bravado in which she represented herself and the -- her

8

reported success rate, and her reported experience.

9

All those things I think made me question against

10

her testimony.

US1DOCS 5856268v1

11

Q. Do you recall Contractual Team B's deposition testimony

12

that she had inserted IV's in the breast hundreds of times?

13

A. I do recall that.

14

Q. What is your professional opinion of this testimony?

15

A. I -- you know, in the years that I've been a nurse, I've

16

seen an IV in the breast, perhaps once, and so it -- I don't

17

-- I don't see how that could be true.

18

Q. Do you recall Contractual Team B's testimony that she had

19

personally inserted IVs in the external jugular all by

20

herself?

21

A. I do recall her testimony that she inserted IV's in the

22

external jugular.

23

Q. And what is your professional opinion of this

24

representation?

25

A. It is outside the scope of practice for an RN to insert

-189-

1

IVs in the external jugular.

2

It is, therefore, clearly outside the scope of

3

practice of a certified nurse's assistant to insert an IV in

4

the external jugular.

5

That's -- I won't say that -- yeah, I won't say

6

that it's never ever been done by a, nurse but I will say

7

that it's clearly against standards of practice.

8

Q. Do you recall Contractual Team B's testimony that

9

infiltration is always visible?

10

A. I do recall that.

11

Q. What is your professional opinion of this testimony?

12

A. I know that not to be true.

13

Q. So, in your experience, infiltration is not always

14

accompanied by visible manifestation?

15

A. That's correct.

16

Q. Do you recall Contractual Team B's testimony that she

17

could visualize and palpate the radial and ulnar veins in

18

each of Mr. Evans' right and left arms?

19

A. I do recall that.

20

Q. What is your professional opinion of this testimony?

21

A. The radial and ulnar veins are veins that are deep within

22

the tissue that run along the radius and ulna, which are two

23

bones in the arm.

24

It's impossible to visualize or palpate these

25

vessels.

-190-

1

Q. And do you recall contractual team B's testimony that she

2

uses the radial and ulnar veins for peripheral IV insertion

3

all of the time?

4

A. I do recall that, yes.

5

Q. And what is your professional opinion?

US1DOCS 5856268v1

6

THE COURT: I'm sorry, if you could just - -I'm

7

about two behind you, if you could give me a minute?

8

Q. Sure.

9

(Pause.)

10

THE COURT: Good. The last point is what, Miss

11

Clark? Disagrees with? I'm up to the ulnar and radial

12

veins.

13

MS. CLARK: You say you have two questions with

14

respect to radially and ulnar?

15

THE COURT: I have done there.

16

MS. CLARK: All right. So you've done both of

17

them?

18

BY MS. CLARK:

19

Q. Mr. Laughton, just to clarify one aspect of your

20

testimony relating to your examination of Mr. Evans' right

21

arm and forearm using only the constricting band --

22

A. Yes.

23

Q. -- did you both visualize and palpate those areas?

24

A. Yes, I did.

25

Q. Do you recall contractual team B's statement that she and

-191-

1

two other individuals completed their examination of Mr.

2

Evans in about 10 minutes?

3

A. I do recall that, yeah.

4

Q. In your professional opinion, do you think an exam could

5

have been responsibly and professionally performed by three

6

individuals in a total of 10 minutes, each of whom visualized

7

and palpated a total of 15 veins?

8

A. Not in Mr. Evans, no.

9

MS. CLARK: I have no further questions.

10

THE COURT: Thank you.

11

Miss Mullally, your witness.

12

MS. MULLALLY: Thank you, Your Honor.

13

CROSS-EXAMINATION

14

BY MS. MULLALLY:

15

Q. Mr. Thompson, will this thing work if I need it?

16

THE CLERK: Yes, it will.

17

Q. Mr. Laughton, did you get a medical history from Vernon

18

Evans at the time that you examined him?

19

A. I did not.

20

Q. Did anyone give you any information about Mr. Evans'

21

medical condition prior to your examination of him?

22

A. One of the attorneys had mentioned that he was an

23

injection drug user historically.

24

Q. Okay. Do you know how the attorney -- do you know, did

25

the attorney examine him to see if there were signs that he'd

-192-

US1DOCS 5856268v1

1

been an IV drug user?

2

A. No. I'm sorry. I don't know the answer to that.

3

Q. Okay. Do you know, did you know that Vernon Evans has

4

been incarcerated since 1984?

5

A. No, I did not.

6

Q. Did you find it interesting that, well, let me ask you

7

this, did you ever wonder about how he could regularly use

8

drugs, illegal drugs, in a prison, with a needle since 1984?

9

A. Yes. I guess when I was told that Mr. Evans had a

10

history of injection drug use, I wasn't told when he had used

11

it.

12

And I guess, in further answer to your question,

13

I'm not the terribly surprised to hear that, no.

14

Q. You're not terribly surprised to hear that he's used

15

drugs consistently in prison since 1984?

16

A. Well, I don't know the factuality of that, but I know

17

that people do have access to injection drugs even when

18

they're incarcerated.

19

Q. Okay. Do you know how someone who is incarcerated could

20

have access on a daily basis?

21

A. No.

22

Q. To IV drugs?

23

A. I really don't.

24

Q. And to the equipment?

25

A. No, I don't.

-193-

1

Q. Don't you need a needle to use an IV drug?

2

A. Yes.

3

Q. Okay. And did you ask him about his drug abuse?

4

A. I did not.

5

Q. But you could have asked?

6

A. I suppose I could have, yes.

7

Q. And you look at his arms, and you looked at areas where

8

healthy people have veins?

9

A. Sure.

10

Q. Okay. And I take it you didn't see any needle marks or

11

tracks of Vernon Evans' arms, did you?

12

A. I don't recall any, but to be honest. Yeah, I don't

13

recall seeing any.

14

Q. Well, wouldn't this be something significant if you had

15

seen it before you had been told by an attorney that he had a

16

history of drug abuse?

17

A. I suppose I -- it would have been significant, sure.

18

Q. Okay. But you didn't see it, and you don't recall seeing

19

it, and your report, I believe, doesn't have any reference to

20

that?

21

A. My report does not have any reference to that.

22

Q. Okay. On either his arms or his hands?

23

A. That's correct.

24

Q. But you've been a nurse practioner and a nurse at a

25

pretty busy trauma center, Johns Hopkins, Bayview?

US1DOCS 5856268v1

-194-

1

A. Yes, that's right.

2

Q. And you work at Shock Trauma now. And is it fair to say

3

that patients at both of those places, you probably had a

4

significant portion of intravenous drug users that would come

5

in as patients?

6

A. Intravenous drug users came to both Bayview and Shock

7

Trauma.

8

Q. Okay. So certainly you're familiar with what a needle

9

mark looks like?

10

A. Yes.

11

Q. Did you ask him any questions about any previous say

12

medical treatment that would compromise his veins?

13

A. I did not.

14

Q. If he were your patient, wouldn't you, and you needed to

15

get IV access, wouldn't you ask someone a question about have

16

you had any medical treatment, have you, do you have any

17

chronic diseases, that as a result of which you had a number

18

of IVs?

19

A. I was asked to validate Contractual Team B's testimony.

20

That was the extent of my exam.

21

Q. Well, let me ask you this, when you went to visit him and

22

you examined him, did you treat him differently from the way

23

you would treat a patient?

24

A. When I went to examine him, I went to examine him for the

25

purpose of assessing him for peripheral veins for IV access.

-195-

1

When I examine a patient, I examine them for the purpose of

2

getting them better, so there is a difference in my exams,

3

yes.

4

Q. All right.

5

Would you agree with Dr. Scalea that it's always

6

best to start with the peripheral IV?

7

A. No. I wouldn't agree with that.

8

Q. You don't agree with that at all?

9

A. I don't agree that it is always best to start with a

10

peripheral IV.

11

Q. Well, do you agree that that's the easier and quicker way

12

to gain venous access in a patient?

13

A. Yes. As I testified, in patients where time is an issue,

14

then its oftentimes the fastest way, but that would really

15

depend on whether they had available peripheral veins. There

16

Certainly are patients where it's faster to obtain

17

central venous access because they have no peripheral venous

18

access.

19

Q. Okay. Now, on some of your patients, do you recall being

20

asked in your deposition if you've ever asked a patient to

US1DOCS 5856268v1

21

point out a usable vein?

22

A. I'm sorry, can you say that again?

23

Q. Do you recall being asked when you were deposed on August

24

16, 2006, do you recall being asked if you've ever asked a

25

patient to point out a usable vein?

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1

A. I recall you asking me that, yes.

2

Q. And do you recall your response?

3

A. I have asked patients to point out usable veins to me,

4

yes.

5

Q. And you have asked patients to point out a usable vein

6

because sometimes in those patients you were concerned about

7

gaining venous access, and this patient could help, in other

8

words?

9

A. Yes.

10

Q. Now, you wrote a report in anticipation of this trial,

11

didn't you?

12

A. Yes, ma'am.

13

Q. And you signed your report?

14

A. Yes, ma'am.

15

Q. And I believe you state in your report that it is your

16

opinion, based upon your examination of Mr. Evans, that his

17

veins are extremely damaged.

18

Do you want to know what paragraph that is?

19

A. I found it, thank you.

20

Q. Okay.

21

A. That is in my report.

22

Q. Okay. But your physical examination of Vernon Evans was

23

only of his arms and hands; was it not?

24

A. That's correct.

25

Q. And, in fact, you didn't examine his neck or his feet, or

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1

his ankles, or his lower extremities at all, his head or his

2

neck, correct?

3

A. I did not examine him for central venous access or

4

peripheral access in anything other than his arms.

5

Q. Okay. But your report says that his veins are extremely

6

damaged.

7

Does your report encompass all of his veins or just

8

the ones that you examined?

9

A. My report only encompasses the veins which I examined.

10

Q. Would you like to correct your report?

11

A. I suppose I just did. I just said that it's referring to

12

the veins in his extremities --

13

Q. All right.

14

A. -- where I examined him.

15

Q. Now, you didn't use an ultrasound device to examine the

US1DOCS 5856268v1

16

veins in the back of Vernon Evans' hand, correct?

17

A. That's correct.

18

Q. And is that because they were visible to sight and you

19

could touch them?

20

A. That's correct.

21

Q. And you believe that they'll be difficult to canulate.

22

Does that mean that it would be impossible to

23

canulate those veins?

24

A. No, it doesn't mean that.

25

Q. And how ever attempted a procedure that you believed to

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1

be problematic, but you attempted it nonetheless?

2

A. Sure.

3

Q. About how many times?

4

A. It's happened many, many times.

5

Q. Okay. And did you do that because that was the best

6

course you decided that that was the best course to go to,

7

best path to take?

8

A. Yes.

9

Q. When you were a nurse in the trauma center and now that

10

you're at Shock Trauma, I take it that many of your patients

11

arrived either by helicopter or by ambulance?

12

A. That's correct.

13

Q. And didn't you -- do you recall being asked how many of

14

them already had an IV established at the time that they

15

arrived?

16

A. I recall you asking me that, yes.

17

Q. Do you recall testifying that 75 to 85 percent of those

18

people already had an IV established?

19

A. I believe I testified 75 to 85 percent of the people for

20

whom obtaining IV access was indicated by the paramedic

21

protocols had IV access established.

22

Q. So, in other words, those paramedics out in the field

23

were establishing IV's?

24

A. That's correct.

25

Q. Now, do you recall testifying the different locations

-199-

1

that you've actually placed IV's?

2

A. I recall that testimony in my deposition, yes.

3

Q. Do you recall testifying that you had placed IV's, of

4

course, in the antecubital fascia, but also in the forearms,

5

the hands, the external jugular, the lower extremities, and

6

you mentioned the medial malleolus of the ankle?

7

A. Yes, I remember that.

8

Q. So you personally have placed IV's in all of those

9

unorthodox locations in what ten years, in the past ten

10

years?

US1DOCS 5856268v1

11

A. Yes. As a bedside nurse, I was limited to the number of

12

places I could place a peripheral IV.

13

But as a nurse practioner, my latitude is a little

14

bit greater, so I could place them in some more unorthodox

15

locations.

16

THE COURT: Miss Mullally, if you could say these

17

other places?

18

MS. MULLALLY: Antecubital region, forearms, hands,

19

external jugular, and --

20

THE COURT: Slow down, please.

21

MS. MULLALLY: External jugular.

22

THE COURT: I'm sorry. Antecubital. Next one is

23

what?

24

MS. MULLALLY: External jugular. Lower

25

extremities. Including the medial malleolus of the ankle.

-200-

1

THE COURT: All right. Any others?

2

BY MS. MULLALLY:

3

Q. Well, you mentioned today that you've placed an IV in a

4

breast, is that a woman's breast?

5

A. No, I never testified to that.

6

Q. You've seen an IV placed in a woman's breast?

7

A. Probably once in my career. I should clarify, also, the

8

testimony, the medial malleolus is a bony prominence in the

9

ankle. The vein is above, so it would be a misstatement to

10

say I put an IV in the bone.

11

Q. Thank you for correcting me.

12

Now, when you place a central line, I believe you

13

have -- your curriculum vitae says you've placed over a

14

thousand --

15

THE COURT: If I could just go back to one thing?

16

These -- we talk about the antecubital and I believe it was

17

your opinion that Mr. Evans had no veins that could be

18

accessed in the antecubital region, correct?

19

THE WITNESS: Well, none that could be accessed

20

without blind attempts or ultrasound, that's correct.

21

THE COURT: Well, I think it was the cephalic vein

22

could only be accessed through blind canulation through use

23

of an ultrasound?

24

THE WITNESS: That's my opinion, yeah.

25

THE COURT: And a certified nursing assistant would

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1

not have the training requisite to do that, correct?

2

THE WITNESS: They would not have the training,

3

right.

4

THE COURT: Now, let's go, then, to the external

5

jugular.

US1DOCS 5856268v1

6

THE WITNESS: Allow me to clarify. I'm sure

7

certified nursing assistants have attempted to blindly

8

canulate blood vessels before, and that is that necessarily

9

outside the scope of practice.

10

You take an arm, put an needle in it where you

11

think the vein is. If you're lucky and blood comes back,

12

then you've canulated. That's something a certified nursing

13

assistant would be allowed to do.

14

THE COURT: Were believe you said only in an

15

emergency situation?

16

THE WITNESS: That's true.

17

THE COURT: External jugular, I believe that you

18

said a certified nursing assistant could not, within the

19

parameters of what they're allowed to do, access an external

20

jugular.

21

Is that true?

22

THE WITNESS: Witness that's outside the scope of

23

practice of nursing, so certified nurse's assistants have to

24

operate within the parameters of the nurses who are

25

supervising them, so it would be therefore out of their scope

-202-

1

of practice, also.

2

THE COURT: What about the lower extremities?

3

THE WITNESS: No. I think that most likely falls

4

to institution or hospital policy. The problem with lower

5

extremities is that they are so distant from the central

6

circulation that -- and so that when you -- they're less

7

optimal for IV access. Because really when you give a drug,

8

what you want it to do is go up the peripheral veins and to

9

the central veins, go through the heart and then be

10

distributed through the rest of the body.

11

So it takes a much longer time for that to happen

12

from the lower extremities.

13

THE COURT: Good. Now, somebody who's a certified

14

nursing assistant would not have the training, would not be

15

qualified to do a central line; is that correct?

16

THE WITNESS: That's correct.

17

THE COURT: But somebody with your training could

18

do a central line?

19

THE WITNESS: A nurse practioner, who has been

20

approved by the board and credentialed by a facility, could

21

place a central line.

22

THE COURT: Good. Thank you.

23

Miss Mullally?

24

BY MS. MULLALLY:

25

Q. Yes. Now, in the central lines that you've placed, isn't

-203-

US1DOCS 5856268v1

1

it painful for a patient to have a central line placed?

2

A. Central lines can be very easily and painlessly inserted,

3

or can be quite an ordeal. And it's often difficult to

4

predict before you start out how it will play out.

5

Q. Well, because it's difficult to predict, you want your

6

patient to be as comfortable as possible?

7

A. You typically use a local anesthetic prior to placing a

8

central line.

9

Q. Have you ever used a general anesthetic?

10

A. I've never used a general anesthesia for the sole purpose

11

of putting in a central, a traditional central line.

12

I've assisted surgeons in placing tunneled, more

13

permanent central lines and for those cases, because there's

14

a lot of incision and dividing of tissue. You do normally

15

use a general anesthetic.

16

Q. And is that general anesthetic in a situation like that

17

induced through peripheral IV?

18

A. It really depends on whether the patient has a peripheral

19

IV or not. Sometimes they'll -- there have been cases where

20

patients have -- have problematic or difficult peripheral IV

21

access that inhaled gases can be used to make the patient not

22

induce general anesthesia, but certainly make the patient

23

drowsy to the point that they would tolerate intravenous

24

access.

25

Q. Now, you have clinical days every so often, but you do a

-204-

1

fair amount of administrative work in your current position?

2

A. That's correct.

3

Q. And when was your last clinical day?

4

A. It was last week, I believe, it was.

5

Q. Can you give me a date?

6

A. I believe it was last Tuesday.

7

Q. Did you place any peripheral IV's last Tuesday?

8

A. No.

9

Q. And what about the clinical, the clinical day before

10

then?

11

A. Yeah. I would say that I typically will place peripheral

12

IV at Shock Trauma once a month, once every other month.

13

Q. All right. So have you placed one at all in September?

14

A. In the month of September, I have not, no.

15

Q. Okay. So today's September 19th.

16

Do you recall stating in your deposition that

17

Maryland's rate of administration of its lethal drugs of 1 to

18

1.5 milliliters per second is not a high rate of

19

administration?

20

A. I do recall that, yes.

21

Q. And do you agree with that? Do you still agree with

22

that?

23

A. I would say that's not a terribly rapid rate of

24

administration.

25

Q. You have some, I suppose, it's fair to say some concerns

US1DOCS 5856268v1

-205-

1

about how the death penalty is meted out in this country?

2

A. I think that's fair to say.

3

Q. Do you have any ethical concerns as a nurse practioner

4

about how -- about the death penalty --

5

MS. CLARK: Objection, beyond the scope of direct

6

examination.

7

THE COURT: I'll overrule the objection.

8

A. Can you say that question again, please?

9

Q. Do you have any ethical concerns as a nurse practioner

10

about lethal injection?

11

A. You mean outside of my personal feelings, but as a

12

professional?

13

Q. Yes.

14

A. No.

15

THE COURT: I'm sorry, no?

16

THE WITNESS: No, I don't.

17

Q. Would you be willing to participate in a lethal injection

18

as a nurse practioner?

19

A. Perhaps I didn't understand your earlier question. I

20

guess my -- no, I would not.

21

And that is because I as a nurse practioner feel my

22

primary duty is to support life.

23

Q. Okay. So then you don't disagree with the -- have you

24

ever seen this statement from the American Nurse's

25

Association?

-206-

1

MS. CLARK: Objection. This exhibit was not

2

designated on defendant's exhibit list.

3

THE COURT: Well, I think I'll permit it. I've

4

received these exhibits from the American Medical Association

5

and from the Anesthesiologists Association, so I'm content to

6

have one from the American Nurse's Association, too.

7

BY MS. MULLALLY:

8

Q. Were you familiar at all with the position of the

9

American Nursing Association?

10

A. No, I was not.

11

Q. On lethal injection?

12

A. No, I was not.

13

Q. Would you be surprised that the American Nursing

14

Association States that it is unethical for nurses to

15

participate at all in any part of a lethal injection?

16

A. You're asking me if I'm surprised that they have that?

17

Q. Yes, are you surprised?

18

A. I suppose not.

19

Q. Well, essentially you agree with it?

20

A. I'm sorry, say that again?

US1DOCS 5856268v1

21

Q. Essentially, you agree with the American Nurses

22

Association's position?

23

A. My position is that I wouldn't participate.

24

Q. All right. And my question is, do you agree with their

25

position?

-207-

1

A. I don't agree with the position that any nurse shouldn't

2

participate. But, to be honest, I really haven't given it a

3

lot of thought.

4

Q. Okay. And are you a member of the American Nurse's

5

Association?

6

A. No, I'm not.

7

Q. Do you believe that nurses should be reasonably be guided

8

by important issues, their position on important issues such

9

as this one?

10

A. My feeling is that death penalty, lethal injection, is

11

something that is very personal and people's beliefs, and so

12

I guess I wouldn't advocate someone be guided by an

13

organization regarding this.

14

Q. But you don't disagree with it, do you?

15

A. I'm sorry? I don't disagree with what?

16

Q. With the American Nurse's Association's position?

17

A. No, I suppose not.

18

Q. Okay.

19

THE COURT: Could you give this a number, please?

20

MS. MULLALLY: Yes. I think it's been marked by

21

Mr. Clerk as defendant's number 5.

22

THE CLERK: Yes.

23

MS. MULLALLY: Okay.

24

THE COURT: Thank you.

25

MS. MULLALLY: I have no more questions of this

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1

witness.

2

THE COURT: Good. Thank you. If I could ask you,

3

Mr. Laughton, are you a member of the American Nurse's

4

Association?

5

THE WITNESS: No, I'm not.

6

THE COURT: Do you know if a nurse were to violate

7

this stricture, the nurse would be sanctioned by or thrown

8

out of the organization?

9

THE WITNESS: Well, the American Nurse's -- I'm

10

sorry, the American Nurse's Association is a professional

11

body, but it doesn't actually regulate certification or

12

licensure in a state.

13

So they would not be able to say us to that we

14

could not practice as nurse in the State of Maryland.

15

They could, they would recommend that someone

US1DOCS 5856268v1

16

wouldn't -- in this case they would recommend that someone

17

wouldn't participate in lethal injection, but they -- it

18

would be up to the State Board of Nursing to censure them.

19

THE COURT: Good. Thank you.

20

Miss Clark?

21

MS. CLARK: We have no further questions.

22

THE COURT: Thank you. Thank very much for coming,

23

I appreciate your willingness to come and share your

24

expertise on gratis as it were.

25

I appreciate your willingness to participate in

-209-

1

this case, and I know counsel for both sides do as well. You

2

are excused, sir.

3

THE WITNESS: Thank you.

4

THE COURT: Good. I believe that is the our last

5

witness for today. Tomorrow we'll begin again at 9:30.

6

(Proceedings concluded)

7

to make, then he has to subject himself to being called as

8

a witness and being examined on it.

9

So it's something to think about. I haven't solved

10

it. And I look forward to seeing you all tomorrow at 9:30.

11

Thank you.

12

(Proceedings concluded)

14 14.5 15

I, Jacqueline Sovich, RPR, CM, do hereby certify that the foregoing is a correct transcript from the stenographic record of proceedings in the above-entitled matter.

17 18 18.5

___________________________________________________

Jacqueline Sovich

DATE

Official Court Reporter

US1DOCS 5856268v1

1 2 3 4 5 6 7 8 8.5 9 10 10.5 11 12 13 14 15 16 17 17.5 18 18.5 19 20 21 21.5

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND/NORTHERN DIVISION VERNON EVANS,
Plaintiff CIVIL NO. 06-149
Vs. Mary Anne Saar, et al,
September 21, 2006 Defendants ______________________________/ DAY FOUR (UNREDACTED - PORTIONS OF PROCEEDINGS ARE UNDER SEAL INCLUDING BENCH CONFERENCES AND ARE NOT TO BE RELEASED WITHOUT COURT ORDER)
TRANSCRIPT OF BENCH TRIAL BEFORE THE HONORABLE BENSON E. LEGG,
UNITED STATES DISTRICT CHIEF JUDGE APPEARANCES: On behalf of the Plaintiff: Stephen Hut, Jr, Esquire Todd Zubler, Esquire Kalea Clark, Esquire Anne Harden Tindall, Esquire Stephanie Katherine Wood, Esquire On behalf of the Defendant: Laura Mullally, Esquire Philip Pickus, Esquire

24 25 25.5

REPORTED BY: Jacqueline Sovich, RPR, RMR, FOCRR Official Court Reporter

-1-

1

(PROCEEDINGS)

2

THE COURT: Please be seated. Is there any

3

preliminary business that we need to take care of before the

4

first witness is called?

5

MR. HUT: Not from the plaintiff, Your Honor.

6

THE COURT: Good. We're a little bit delayed this

7

morning because of the need to make sure that the hookup

8

worked properly, and it now does.

9

So we need to get the witness.

10

MS. MULLALLY: Not our witness. Who are we

11

calling?

12

MS. WOOD: Your Honor, we call the person known as

13

Contractual Team F.

14

THE COURT: Good. Thank you.

15

(UNDER SEAL)

US1DOCS 5856271v1

13

(END SEAL)

14

THE COURT: This is Judge Legg. I apologize for

15

the delay, but some time was needed this morning to make sure

16

we had a proper hookup between this courtroom and courtroom 3

17

D.

18

The preliminaries have now taken care of, and

19

seated in the witness box is contractual team F, who will now

20

be examined by plaintiff's counsel. If you would, please.

21

DIRECT EXAMINATION

22

BY MS. WOOD:

23

Q. Good morning. I'm Stephanie Wood, counsel for the

24

plaintiff.

25

What I've placed beside you is a binder of

-4-

1

documents that at certain points I will ask you to refer to

2

them. There's no need to look at them at the moment.

3

Did we swear in the witness?

4

THE COURT: We need to do that.

5

THE CLERK: Please stand and raise your right hand.

6

(The Witness is sworn.)

7

THE CLERK: Would you state your generic name?

8

THE WITNESS: Contractual Team member F.

9

THE CLERK: Thank you.

10

BY MS. WOOD:

11

Q. As the Court has already discussed, I don't plan to get

12

into details that might identify you, but if you feel

13

concerned, please of course let us know, and we'll proceed as

14

the Court has indicated.

15

To begin with, can you please look at document

16

behind the tab 87? This is a generic identifier where we

17

have listed individual's names and their generic identifier?

18

A. (The witness nodded affirmatively.)

19

Q. Can you please look at line 74? Does that correctly

20

identify you?

21

A. Yes.

22

Q. Okay. Are you an internal medicine doctor?

23

A. Yes.

24

Q. Have you discussed this case with any of the other

25

members of the execution team?

-5-

1

A. No.

US1DOCS 5856271v1

2

Q. Are you -- do you current have a role in executions by

3

the Lethal Injection Team of Maryland?

4

A. Yes.

5

Q. Are you the physician who pronounces death?

6

A. Yes.

7

Q. Did you pronounce death at the executions of Steven Oken

8

and Wesley Baker?

9

A. Yes.

10

Q. Do you plan to participate in the next execution in

11

Maryland?

12

A. Not at this time.

13

Q. Have you been asked to participate in the next execution

14

of Maryland?

15

A. No.

16

THE COURT: If we could stop for a minute, are we

17

having technical problems? We're good?

18

THE CLERK: We're good.

19

Q. Is it customary for you to be asked in advance if you'll

20

participate in an upcoming execution?

21

A. Yes.

22

Q. Is pronouncing death the only duty you perform in

23

executions?

24

A. I look at a heart monitor while the procedure is being

25

carried out.

-6-

1

Q. And it is that in relation to your role in pronouncing

2

death?

3

A. Yes.

4

Q. Other than looking at the heart monitor and pronouncing

5

death, are those the only two functions you play in the

6

execution?

7

A. Yes.

8

Q. Okay. If you can look for a moment in the binder, there

9

is a document that's been marked as plaintiff's exhibit 10.

10

It's a floor plan of the execution here that has been

11

produced to us by the state.

12

Do you recognize this document?

13

A. Yes.

14

Q. To the best of your knowledge, is this an accurate

15

depiction of the execution area?

16

A. Yes.

17

Q. Okay. Can you please look at the second page marked

18

Evans 7 7 0? Do you see the separation between the execution

19

room and the preparation room?

20

A. Yes.

21

Q. Actually, I directed you to the wrong page. Could you

22

please turn to the first page? Okay.

23

So between the execution room and the preparation

24

room, is that shade area, is that a window?

25

A. Shaded areas, oh, right here, yes, it is.

US1DOCS 5856271v1

-7-

1

Q. Do you stand near the left-hand corner of that window

2

during executions?

3

A. Near there, yes.

4

Q. Your understanding is that the woman who inserts IV's is

5

a certified registered nurse anesthetist, right?

6

A. Well, it was clarified during my deposition --

7

Q. How was --

8

A. -- that that was not her title.

9

Q. Was that clarified after the deposition?

10

A. No, during the deposition with you.

11

Q. Did the woman who inserts the IV, did she originally tell

12

you she was a certified registered nurse anesthetist?

13

A. I thought she said that. I later feel I misunderstood

14

what she said to me.

15

Q. Does this woman who inserts the IVs, she does not monitor

16

the anesthesia of the inmate, does she?

17

A. Not that I'm aware of.

18

Q. Okay. If you could turn to the document behind tab 87.

19

I'm sorry, 86?

20

This is the new exhibit, which I'll hand to the

21

courtroom deputy, after my examination.

22

This document is titled "Maryland Division of

23

Correction Policy for the Execution Team Members," dated

24

July, 2004.

25

And to give some context, I'm going to read, and if

-8-

1

you could follow along, item one under purpose, it says "To

2

establish policy and procedures for the recruitment,

3

selection, training, readiness, and performance evaluation of

4

the members performing the various execution-related duties."

5

Did I read that correctly?

6

A. Yes.

7

Q. Okay. Have you seen this document before?

8

A. No. Only during the deposition.

9

Q. And at the deposition, was this the first time you'd seen

10

this document?

11

A. Yes.

12

Q. And you participated in the Baker execution, as you

13

previously testified, correct?

14

A. Yes.

15

Q. Was the Baker execution in December, 2005?

16

A. I don't remember the date.

17

Q. Does that sound about right?

18

A. It could be.

19

MS. MULLALLY: Objection. Your Honor, I think at

20

this point this is the plaintiff's witness, and she's being

21

led, and there's been no request nor a ruling by the Court

22

that it is appropriate in this case.

US1DOCS 5856271v1

23

THE COURT: Well, I'll overrule the objection.

24

We'll operate under the same rules that we did with the

25

previous witnesses, who are members of the execution team.

-9-

1

Q. Thank you, Your Honor.

2

So this document is dated 2000 -- July, 2004; is

3

that correct?

4

A. Yes.

5

Q. So if the Baker execution occurred in December, 2005,

6

this document was created prior to the Baker execution, does

7

that seem logical?

8

A. It seems logical.

9

Q. Okay. I'm going to direct you three pages into the

10

document to the section describing the role of the physician.

11

And it's on page marked Evans 3 1 0 8.

12

Could you please read the line under 3 A?

13

A. "We will develop a pool of two physicians to make the

14

pronouncement of death and, if needed, assist the IV lines

15

team member in establishing the IV lines including a cut-down

16

procedure, if necessary."

17

Q. Do you assist with the IV lines during executions?

18

A. No.

19

Q. Have you ever been told to assist with the IV lines

20

during executions?

21

A. No.

22

Q. Is it your understanding that you're currently the only

23

doctor on the execution team?

24

A. Yes.

25

Q. Can you perform a cut-down procedure, if necessary?

-10-

1

A. No.

2

Q. Have you ever been told to perform a cut-down procedure?

3

A. No.

4

Q. Were you ever told you might perform a cut-down procedure

5

for Vernon Evans?

6

A. No.

7

Q. If you were asked to perform one, would you feel

8

comfortable performing a cut-down procedure?

9

Q. No?

10

A. No.

11

Q. If you received sufficient fresher training on the

12

cut-down procedure, would you be willing to do it?

13

A. No.

14

Q. Can you establish a central line during an execution, if

15

one proved necessary?

16

A. I haven't done a central line in years, so I would say

17

no.

US1DOCS 5856271v1

18

Q. If someone asked you to perform a central line for the

19

execution team, would you feel comfortable?

20

A. No.

21

Q. You don't monitor the inmate's anesthesia, do you?

22

A. No.

23

Q. It's just not part of your duties, is it?

24

A. No.

25

Q. And as we talked about earlier, you stand in the window

-11-

1

of the preparation room, right?

2

A. I don't stand in the window.

3

Q. Or you stand near the window, excuse me.

4

A. Right.

5

Q. So you're not in the execution room?

6

A. No.

7

Q. Correct?

8

A. No.

9

Q. Do you agree that you personally would not undergo

10

surgery in a hospital if the anesthesiologist were monitoring

11

you from the location where you stand with the view that you

12

have during the execution?

13

A. I'm going ask to have you repeat that.

14

Q. Would you personally not undergo surgery -- I'm sorry.

15

I'll simplify the question.

16

Would you undergo surgery in a hospital if the

17

anesthesiologist were monitoring you from the location where

18

you stand during the executions with the view that you have

19

during the executions?

20

A. No.

21

Q. If you were asked to participate in the next execution,

22

would you?

23

A. No.

24

Q. And why is that?

25

A. I feel my identity is compromised now, I would not

-12-

1

participate.

2

MS. WOOD: Thank you, Your Honor.

3

THE COURT: Good.

4

MS. WOOD: I'm sorry, Your Honor.

5

THE COURT: The document that you've been

6

examining, what is it?

7

MS. WOOD: It's a document produced by the state,

8

behind tab 87, it's in a binder I handed to your clerk, and I

9

plan to give it to the courtroom deputy after my examination.

10

THE COURT: Do I have it here in the list of

11

exhibits?

12

MS. WOOD: It's plaintiff's exhibit 86, Your Honor.

US1DOCS 5856271v1

13

THE COURT: Good. Thank you. If I could review it

14

for a moment?

15

(Pause.)

16

THE COURT: Good. Thank you.

17

BY MS. WOOD:

18

Q. I'm sorry, Your Honor, I have one last question.

19

So at this time, there is no one to pronounce death

20

at the next execution?

21

A. I don't know that.

22

MS. WOOD: Thank you, Your Honor.

23

THE COURT: Thank you. Miss Mullally, your

24

witness.

25

MS. MULLALLY: Thank you, Your Honor.

-13-

1

CROSS-EXAMINATION

2

BY MS. MULLALLY:

3

Q. Now, I believe you were asked by Miss Wood if you

4

pronounced death in the Oken and Baker executions, and you

5

did; did you not?

6

A. Yes.

7

Q. When you pronounce death, you started with a heart

8

monitor, you watched its tracings, and then when you believed

9

that the inmate was deceased, you went out and actually

10

looked at the body and signed some papers?

11

A. Right.

12

Q. So you looked at Steven Oken's body?

13

A. Yes.

14

Q. And you looked at Wesley Baker's body?

15

A. Yes.

16

Q. Did you see any signs of infiltration when you looked at

17

their bodies?

18

A. Infiltration of IV?

19

Q. Yes. At the IV sites?

20

A. No. I can't say that I did.

21

Q. Did you see -- were you made aware of any problems with

22

the IV lines, either in the preparation room where you were,

23

or outside in the execution room?

24

A. During?

25

Q. During the execution of either Oken or Baker?

-14-

1

A. No.

2

Q. You didn't see any puddles or anything like that, any

3

twisting or kinking?

4

A. I don't recall seeing that, no.

5

Q. Do you recall being asked in your deposition what sort of

6

person would be qualified to assess the suitability of a

7

patient's veins for IV's?

US1DOCS 5856271v1

8

A. You mean during the deposition?

9

Q. Yes. I can show you your deposition --

10

A. Okay. That will help.

11

Q. -- to refresh your recollection?

12

A. That would help.

13

(Pause.)

14

MS. MULLALLY: Counsel, do you have her deposition?

15

MS. WOOD: Yes, thank you.

16

BY MS. MULLALLY:

17

Q. I'm handing you that. If you could turn to page 144?

18

144, line 8. The question from Miss Wood.

19

I believe the question was, in your opinion, who

20

would be better qualified to assess the suitability of a

21

patient's veins for intravenous injection, a certified

22

nurse's assistant or a physician and chief of Shock Trauma?"

23

Do you recall being asked that question?

24

A. Yes.

25

Q. What was your answer?

-15-

1

MS. WOOD: Objection, lacks foundation, beyond the

2

scope.

3

THE COURT: I'll overrule the objection.

4

Q. You can answer.

5

A. Okay. Do you want me to read what's here?

6

Q. Sure.

7

A. What I stated?

8

I said someone who has -- doesn't matter on the

9

title, it's someone who has started IVs that has the

10

experience in doing it.

11

Q. Thank you.

12

Now, the EKG machine is located in the preparation

13

room to the left of the window, correct?

14

A. Yes.

15

Q. And you're watching the tracings on the EKG machine

16

during the execution?

17

A. Yes.

18

Q. And what do the tracings means? For what purpose are you

19

using that machine?

20

A. To determine when the heart rhythm is not compatible with

21

life.

22

Q. And during the execution, I take it you're watching that

23

machine very carefully?

24

A. Yes.

25

Q. Okay. Now, if you were made aware of a problem, any

-16-

1

problem, what, if anything, would you do about the problem,

2

something that you felt was going wrong about an execution?

US1DOCS 5856271v1

3

A. Notify the team leader or the person in the room near to

4

notify the team leader.

5

Q. When you're watching the heart monitor, do you know where

6

the woman who starts the IV's located?

7

A. It just depends during the timeframe. I'm not always

8

aware of where she is the whole time.

9

Q. Let me ask you this, do you know, does she have an

10

assigned space where she's supposed to stand in that room?

11

A. I'm not aware that she has an assigned place.

12

Q. Okay. Has anyone said there in your presence you're not

13

standing where you're supposed to be standing?

14

A. No, I've not heard that.

15

Q. Is she free to move about the room, as far as you know?

16

A. As far as I know.

17

Q. Okay. If you wanted to look out the window during the

18

execution, how would you do that?

19

A. I'd just lean over and look.

20

Q. Okay. Would there be anything obstructing your view?

21

A. No. I'd just have to lean in, and I look, and I often do

22

that.

23

Q. Now, have you -- you're an internist, I take it you have

24

inserted IV's?

25

A. Yes.

-17-

1

Q. Many times?

2

A. Yes.

3

Q. Is it difficult?

4

A. Depends on the patient's veins.

5

Q. Okay. And have you ever treated patients with a history

6

of intravenous drug abuse?

7

A. Yes.

8

Q. And what would you do if you needed to start an IV for

9

someone with a history of intravenous drug use, how would you

10

go about it?

11

A. First, I would examine the patient and look at their arms

12

and to see if they had any veins there I thought could be

13

canulated with an IV without difficulty.

14

Q. Okay. And where on a patient's anatomy would you be

15

looking for a vein?

16

A. Usually the forearms, sometimes the arm.

17

Q. Have you ever gone beyond the arm?

18

A. During certain emergent situations I've used a femoral

19

vein.

20

Q. Have you ever seen an IV that's inserted anywhere other

21

than the arms and the femoral vein just in your years?

22

A. Oh, yes, central lines, yes, central lines, yes.

23

Q. What about an IV, have you ever seen an IV in a jugular

24

vein?

25

A. Yes.

-18-

US1DOCS 5856271v1

1

MS. WOOD: Objection, Your Honor. They have not

2

established this witness as an expert witness.

3

THE COURT: Well, I will permit it. Miss Mullally

4

would be entitled to call contractual F in the defense case,

5

and to avoid having to have Contractual Team F appear twice,

6

I will permit it, although it's beyond the scope of the

7

direct examination.

8

BY MS. MULLALLY:

9

Q. Okay. You can answer.

10

A. I'm sorry.

11

Q. The question was, have you ever seen an IV inserted by

12

anyone else in a place other than the femoral vein or the

13

arms?

14

A. Yes.

15

Q. And about how many times?

16

A. Many.

17

Q. Am I correct, is this correct that an EKG machine works,

18

you can see the tracings because there are leads put on the

19

intracostal spaces between the ribs on a human's body?

20

A. Yes, the EKG, yes.

21

Q. You don't, you didn't put those leads on Steven Oken or

22

Wesley Baker, someone else did?

23

A. Yeah, someone else did.

24

Q. And did you have any indication that the leads weren't

25

appropriately placed?

-19-

1

A. No.

2

Q. You were getting a tracing?

3

A. Yes.

4

Q. And if you were not getting a proper tracing, what would

5

the machine do?

6

A. It just varies. Sometimes it will be artifact,

7

interference. Sometimes it won't be any tracing, and you

8

know something is wrong.

9

Q. All right. So if there were something wrong with the

10

machine, you would know as a physician watching the tracings?

11

A. Right.

12

MS. MULLALLY: I have no further questions of this

13

witness. Thank you, Your Honor.

14

THE COURT: Thank you. Miss Wood?

15

REDIRECT EXAMINATION

16

BY MS. WOOD:

17

Q. Thank you.

18

Were you asked to look for infiltrations during

19

executions?

20

A. No.

21

Q. Were you ever asked to look at the IV lines during

22

executions?

23

A. No.

US1DOCS 5856271v1

24

Q. Were you ever asked to look for infiltration while

25

pronouncing death?

-20-

1

A. No.

2

Q. And none of these duties are part of your job; is that

3

correct?

4

A. Not that I'm aware of.

5

Q. Do you regularly attend the practice sessions of the

6

execution team?

7

A. What do you mean by regularly?

8

Q. Do you attend the regularly held practice sessions for

9

the execution team?

10

A. I don't. I've only been asked to go once for each --

11

each time. So I don't know about any others.

12

Q. Okay. So you've only gone once, to one dry run, although

13

you've participated in two executions?

14

A. No, one dry run per execution.

15

Q. So two total dry runs?

16

A. That I can remember. It might have been a little more,

17

but at least that many.

18

Q. Okay. You took a deposition on May 31, 2006, correct?

19

A. Yes.

20

Q. And were you sworn under oath at that deposition?

21

A. Yes.

22

Q. And did you understand you needed to give accurate

23

testimony?

24

A. Yes.

25

Q. Was there any reason why you could not give accurate

-21-

1

testimony during that deposition?

2

A. No.

3

Q. And you had a chance to review the deposition; is that

4

correct?

5

A. Yes.

6

Q. And did you sign the deposition?

7

A. Yes.

8

Q. I'd like to direct counsel to page 68, line 20. To 24.

9

MS. MULLALLY: Your Honor, I don't -- the

10

defendants do not believe this is a prior inconsistent

11

statement. We believe it's a consistent statement.

12

THE COURT: My understanding is it's consistent

13

that the witness stated that she attended one dress rehearsal

14

for each execution, and that's what she's saying here in the

15

deposition. Unless I'm reading it wrong, she says one dry

16

run.

17

MS. WOOD: Okay. I was directing the Court, well,

18

trying to direct the Court'S attention to her statement that

US1DOCS 5856271v1

19

there could have been more, she just didn't remember.

20

THE COURT: Well, that's not inconsistent. You

21

could try to refresh her recollection with this statement,

22

but it's not a prior inconsistent statement, in my mind.

23

MS. WOOD: Thank you, Your Honor.

24

One last question for the witness.

25

BY MS. WOOD:

-22-

1

Q. Are you an expert in monitoring IV sites, establishing IV

2

sites, assessing IV sites?

3

A. No, I wouldn't call myself an expert.

4

MS. WOOD: Thank you. No further questions.

5

THE COURT: Ma'am, before you go, I had few

6

questions to for you, if you don't mind.

7

My understanding is that your role in the lethal,

8

on the Lethal Injection Team is a rather limited one, and

9

that your duty was to monitor the EKG and then pronounce

10

death when death had occurred, correct?

11

A. Correct.

12

Q. And that you did not have any assigned role in connection

13

with administering the drugs, monitoring the IV line, making

14

sure that a proper canulation had taken place, performing a

15

cut-down procedure, accessing veins, performing a central

16

line, or essentially any operator medical task; is that

17

correct?

18

THE WITNESS: That's correct.

19

THE COURT: Now, now, I believe your testimony was

20

also that you would not feel, you're an internist, rather

21

than a surgeon, and that you would not feel comfortable

22

either performing a cut-down procedure or accessing the

23

central line, correct?

24

THE WITNESS: Correct.

25

THE COURT: So that if there was a problem during

-23-

1

an execution, in accessing a peripheral vein to administer

2

the IV, then you would not be a resource to the team to

3

perform either the cut-down or the central line, correct?

4

THE WITNESS: Correct.

5

THE COURT: Now, you were asked questions about

6

other places in the body where a vein might be accessed other

7

than the arms, and can -- in terms of medical standards, can

8

all of them be accessed by a -- I'm trying to get the right

9

terminology.

10

If you could help me, Contractual Team B is?

11

MS. MULLALLY: Certified nursing assistant.

12

THE COURT: Good. Certified nursing assistant. I

13

think you mentioned the jugular vein and places in the groin.

US1DOCS 5856271v1

14

Can a certified nursing technician or?

15

MS. MULLALLY: Assistant.

16

THE COURT: Assistant, the person with those

17

qualifications able to do that?

18

THE WITNESS: No.

19

THE COURT: No?

20

You had mentioned in connection with, or one of

21

your answers was that if something went wrong during the

22

execution, the scope of your responsibility would be to

23

notify the team leader, correct?

24

THE WITNESS: Yes.

25

THE COURT: But since you're the only medical

-24-

1

person on the execution team, if something went wrong of a

2

medical nature, there's nobody who could really do anything

3

about it; is that correct?

4

THE WITNESS: About establishing a central line or?

5

THE COURT: If there's a medical problem, nobody is

6

-- really sort of a medical emergency medical problem, if

7

things go wrong, you might notify the team leader of the

8

problem, but there are no qualified medical personnel to

9

solve the problem?

10

THE WITNESS: Depends on what the problem is.

11

Certain things I can address. But I would feel it would not

12

be in my role as the clinician to participate in the actual

13

procedure other than my role as pronouncing death.

14

It's not that I could not respond. But my role

15

would then, I think, will change, would have changed, if I

16

was asked to do other than what I had anticipated doing.

17

THE COURT: Right. Good. Thank you.

18

The other thing I wanted to ask you about would be

19

the accessing of the peripheral veins. If I -- I don't want

20

to misinterpret your testimony, but you have established IVs

21

many, many times as part of your training and practice,

22

correct?

23

THE WITNESS: Yes.

24

THE COURT: That would include establishing IVs on

25

someone who had a had history of intravenous drug abuse and

-25-

1

therefore had compromised veins; is that correct?

2

THE WITNESS: Yes.

3

THE COURT: So the fact that a person has been a

4

heroin user and has compromised veins does not preclude in

5

all cases the establishment of a properly flowing IV?

6

THE WITNESS: Right.

7

THE COURT: But I take it that the converse is

8

true, that there are patients who, because of intravenous

US1DOCS 5856271v1

9

drug abuse, do have drugs that simply don't work for

10

canulating an IV?

11

THE WITNESS: Correct.

12

THE COURT: So part of the assessment that would

13

have to be made in determining whether an inmate was a

14

suitable candidate for lethal injection by a peripheral vein

15

in the arms would be to assess those veins, correct?

16

THE WITNESS: Correct.

17

THE COURT: Now, for the person with the these

18

credentials, I want to make sure I don't want to

19

mischaracterize it, is it accurate to stay that the only

20

place under medical standards that a person with those

21

qualifications would be qualified to insert, or to canulate,

22

an IV would be a peripheral vein in the arms or the hands?

23

THE WITNESS: Yes.

24

THE COURT: So if we're thinking about a lethal

25

injection and the arms and the hands are the sole candidates

-26-

1

dates, the arms and hands would have to be evaluated before

2

the lethal injection to see if there was a suitable vein,

3

correct?

4

THE WITNESS: Correct.

5

THE COURT: Now, my understanding is that there are

6

what I would think I was superficial veins in the arms and

7

hands, and then there are deeper veins, correct?

8

THE WITNESS: Correct.

9

THE COURT: Would it be accurate to say that, for a

10

person with these qualifications, the only set of veins that

11

you could be reliably expected to canulate with her

12

background and experience would be the superficial veins and

13

not the deeper veins?

14

THE WITNESS: Okay. I want to say correct, but

15

when you say deeper veins, there's a little difference when

16

we say superficial. Some are right at the surface, and okay,

17

we can call those superficial, and when you say deeper, I

18

don't know if you mean going deeper below the skin surface

19

or.

20

THE COURT: There's been some testimony about some

21

deeper veins in the arms, that one can access using an

22

ultrasound machine.

23

THE WITNESS: Oh, okay. Right. I understand what

24

you mean. Okay.

25

THE COURT: So that the B would not be qualified to

-27-

1

canulate these deeper veins that would require an ultrasound

2

machine to find, correct?

3

THE WITNESS: Correct, yes, sir.

US1DOCS 5856271v1

4

THE COURT: And counsel, there was a name of a

5

particular kind of vein we were talking about yesterday?

6

MS. MULLALLY: It's in my notes. I think it's

7

began with the cephalic.

8

MS. WOOD: Cephalic.

9

THE COURT: Yes. Thank you.

10

Would B have the requisite qualifications and

11

experience to access the cephalic vein?

12

THE WITNESS: She might.

13

THE COURT: She might? All right.

14

And is that a vein that can be canulated without

15

using the ultrasound?

16

THE WITNESS: My understanding is yes.

17

THE COURT: And have you ever canulated a cephalic

18

vein?

19

THE WITNESS: Not that I can remember. Not off the

20

top.

21

THE COURT: Now, my understanding is also there are

22

a number of tools that can be used to evaluate the veins in

23

the patient's arms. And the first is by putting on a

24

constricting band, and then taking a look, and also feeling

25

the arm to feel the veins.

-28-

1

Then the second way is to utilize the first method

2

but also to use an ultrasound?

3

THE WITNESS: Yes.

4

THE COURT: So the first question would be, have

5

you ever used these ultrasound machines to assess the

6

viability of veins?

7

THE WITNESS: No.

8

THE COURT: So you work, would you have any opinion

9

on whether using the ultrasound gives a better picture of the

10

suitability of the vein or not?

11

THE WITNESS: No. I just know that she's had at

12

least one procedure, particular procedure for a certain type

13

of line to actually be able to canulate it, canulate the

14

deeper vein.

15

THE COURT: Good. And I did want to, just so the

16

record's clear in fairness to you, you are an internist, not

17

a surgeon or an anesthesiologist, correct?

18

THE WITNESS: Correct.

19

THE COURT: Good. Thank you. Any other questions,

20

Miss Wood?

21

MS. WOOD: Yes, Your Honor.

22

REDIRECT EXAMINATION

23

BY MS. WOOD:

24

Q. As the Court just reiterated, you're an internal medicine

25

doctor, correct?

-29-

US1DOCS 5856271v1

1

A. Yes.

2

Q. Do you regularly establish IV's for anesthesia?

3

A. No.

4

Q. If you can't see the deep vein, the cephalic vein that's

5

located deep, you can't visualize it, you can't palpate it,

6

can a CNA try and access that vein?

7

A. Let me correct something. When I think about the

8

cephalic vein, I might be incorrect where I'm thinking it's

9

located at this point. So let me clarify what I've said

10

regarding the CNA, and I'll just say I do not know if she can

11

do that or not.

12

Thank you.

13

MS. WOOD: Thank you, Your Honor.

14

No further questions.

15

THE COURT: Thank you.

16

Miss Mullally, anything else?

17

MS. MULLALLY: No, Your Honor.

18

THE COURT: Ma'am, Thank you very much for coming.

19

Or I should say, doctor, and you are excused, and thank you

20

for participating.

21

And this gentleman here is going to make sure that

22

you leave the building safe and sound. Thank you.

23

Good. Mr. Hut?

24

MR. HUT: The next witness would be Injection Team

25

C, who would be examined by my colleague, Miss Geraghty.

-30-

1

2

THE COURT: Good morning, if you could come right

3

this way, please, and take a seat. We need to be on private.

4

(UNDER SEAL)

19

(END SEAL)

20

THE COURT: good. We're now back to broadcasting.

21

The witness on the stand is Injection Team C, who will be

22

questioned first by Ms. Geraghty representing Mr. Evans.

23

We have to swear her in.

24

(The Witness is sworn.)

25

THE CLERK: And be seated. Speak directly into

-32-

1

toward the mike and state your generic identity for the

US1DOCS 5856271v1

2

record, please.

3

THE WITNESS: Excuse me, can you repeat that?

4

Injection Team member C.

5

DIRECT EXAMINATION

6

BY MS. GERAGHTY:

7

Q. Thank you. Miss C, my name is Ms. Geraghty. We are

8

going do our best to make sure we comply with the

9

confidentiality order that's in place in this case.

10

And to do that, it might be helpful for you have a

11

binder right next to you, and you night want to grab it.

12

Behind tab 87 in that binder is a list of people's

13

names, and right next to the list is the generic identifier

14

which we'll be using today.

15

You'll notice at the first page has the people's

16

name in alphabetical order. Second page has generic

17

identifiers in alphabetical order, and behind that I've

18

included plaintiff's PDX 1 a cheat sheet for you to use.

19

It's got pictures of people on it we may be discussing along

20

with their generic names.

21

Miss C, where are you currently employed?

22

A. Maryland House of Correction Annex.

23

Q. What's your job title there?

24

A. Correctional officer 5, excuse me. Correctional officer

25

4.

-33-

1

Q. Are you at all involved in lethal injections in the State

2

of Maryland?

3

A. Have I been involved?

4

Q. Yes, ma'am.

5

A. Yes.

6

Q. Are you a member of the execution team?

7

A. Yes.

8

Q. And were you a member of the execution team for the

9

execution of Steven Oken?

10

A. Yes.

11

Q. And were you also a member of the execution team for the

12

execution of Wesley Baker?

13

A. Yes.

14

Q. And were you planning on participating in the scheduled

15

execution of Vernon Evans this February?

16

A. Yes.

17

Q. What role do you play during lethal injection?

18

A. Recorder.

19

Q. Can you explain to me what that means?

20

A. During the course of the procedure, you have a list of

21

step-by-step procedures. And what I do record the time that

22

each procedure is completed from the start to the end time

23

going to the next step.

24

Q. Okay. So is it your job to observe what the team members

25

are doing during the execution?

US1DOCS 5856271v1

-34-

1

A. It's not my job, but it's something in comes to you that

2

you naturally, do because you have to observe everyone, so

3

you have to get a correct reporting time.

4

Q. Okay. Have you spoken with any of the team members who

5

have testified in this case?

6

A. In reference to?

7

Q. In reference to your testimony or their testimony?

8

A. No, we just talked in general.

9

Q. Talked in general about this case?

10

A. Yeah, a little bit.

11

Q. In the future, until the conclusion of this case, we

12

would advise you not to speak with any of the other execution

13

team members until we're done here.

14

A. Okay.

15

Q. You'll know there's large board set up in the front of

16

the courtroom today. That's plaintiff's demonstrative PDX 2.

17

Does that appear to be a fairly accurate rendering

18

of the execution area?

19

A. Yes.

20

Q. And it should also be on your no screen now. Do you note

21

on there there's a room labeled as the execution room?

22

A. Yes.

23

Q. And there's a room on there labeled the preparation room?

24

A. Yes.

25

Q. And while the chemicals are actually being injected into

-35-

1

the inmate during an execution, you stand in the preparation

2

room; is that right?

3

A. Yes.

4

Q. And do you remember during your deposition in this case

5

making some handwritten notations on a diagram that looks a

6

lot like this one?

7

A. Yes.

8

Q. Okay. If you could turn in your binder to tab 78,

9

please?

10

Are you there?

11

A. Yes.

12

Q. Does this appear to be the document on which you made the

13

handwritten notations during your deposition?

14

A. Yes.

15

Q. You'll notice that in front of the area that is marked in

16

this diagram as a window between the preparation room and the

17

execution room, there's a big letter C right in front of the

18

window.

19

Do you see that?

20

A. Yes.

21

Q. And do you remember that you had labeled that as where

22

the clock is?

US1DOCS 5856271v1

23

A. Yes.

24

Q. You also marked where Injection Team E stands with an E,

25

and if you want to flip back, I'm not sure if you recall who

-36-

1

he is, but if you want to flip back to the generic

2

identifiers, feel free.

3

A. Yes.

4

Q. Do you recall that's where you placed where Injection

5

Team E stands?

6

A. Yes.

7

Q. And you marked also where Contractual Team A stands

8

during an execution?

9

A. Yes.

10

Q. So if you're facing the window, E is just to the left of

11

A?

12

A. Yes.

13

Q. And apparently I forgot to mention, this has been marked

14

as plaintiff's exhibit 78 for the record.

15

So this diagram shows Injection Team E and

16

Contractual Team A just slightly to the right of the window

17

but really during an execution they're standing right in

18

front of the window; is that right?

19

A. No.

20

Q. Where do they stand?

21

A. Slightly to the right where they're all on the diagram.

22

Q. Do you recall giving a deposition in this case?

23

A. Yes.

24

Q. Were you under oath during the deposition?

25

A. Yes.

-37-

1

Q. You were sworn in by a court reporter like you were

2

today?

3

A. Yes.

4

Q. You were asked to say so if you couldn't understand a

5

question?

6

A. Yes.

7

Q. You were asked if there was any reason why you could not

8

give truthful testimony?

9

A. Yes.

10

Q. Did you have a chance to review the deposition after you

11

were finished?

12

A. Yes, I did.

13

Q. And did you sign it?

14

A. Yes.

15

Q. I just asked you whether or not they stood slightly to

16

the right of the window or in front Miss Mullally. I would

17

refer you to page 53, lines 18 to 21. I'm sorry. Mr.

US1DOCS 5856271v1

18

Pickus.

19

(Pause.)

20

MS. GERAGHTY: Does the Court need a copy?

21

THE CLERK: Did you put it in the binder?

22

MS. GERAGHTY: No, I have one.

23

(Pause.)

24

MR. PICKUS: Your Honor, this is my witness. The

25

state does not believe this is an inconsistent statement.

-38-

1

THE COURT: If I could be directed to the line,

2

please, and page?

3

MS. GERAGHTY: Of course. Page 53, lines 18

4

through 21.

5

THE COURT: My view is it's not inconsistent,

6

either, so I'll sustain the objection.

7

BY MS. GERAGHTY:

8

Q. Now, Injection Team E and Contractual Team A are the only

9

two people who stand right in front of the room during the

10

execution?

11

A. The doctor stands on the other side.

12

Q. Does she stand -- you've marked her on the exhibit with

13

the DR?

14

A. Yeah, but I marked her to the left of the window.

15

Q. And she's really not right in front of the window, she's

16

just slightly to the left; is that correct?

17

A. Yes.

18

Q. And if you remember, during your deposition, you marked

19

your exhibit with the letter Z, where you stand while the

20

drugs are being injected; is that correct?

21

A. Yes.

22

Q. So you stand right behind E and A, or slightly to the

23

center?

24

A. Slightly to the center between the doctor and E and A,

25

where I have a visual.

-39-

1

Q. Now, I know things have changed a bit recently, but

2

during the last two executions that you attended, Contractual

3

Team B also stood in the room with you while you -- during

4

the injection of the drug?

5

A. Yes.

6

Q. And she stood at the back wall of the room?

7

A. Yes.

8

Q. Directly next to the door?

9

A. No. That -- yeah, right next to the phone and the door

10

up against the wall.

11

Q. And you've marked on plaintiff's exhibit 78 with a B

12

where she stands during an execution?

US1DOCS 5856271v1

13

A. Yes.

14

Q. And she probably would not have a very clear view of the

15

window there, would she?

16

A. No.

17

Q. And that's because Injection Team E and Contractual Team

18

A, the doctor and you are standing in front of the window?

19

A. In view of the window, yes.

20

Q. So would she have walked up to the window at any time

21

during the executions?

22

A. No.

23

Q. Once Contractual Team B inserted the IV through the Baker

24

and Oken executions, she moved from the execution room to the

25

preparation room, correct?

-40-

1

A. Yes.

2

Q. And then once she had done that, she's pretty much

3

finished?

4

A. Yes.

5

Q. Does she have any other jobs to do?

6

A. Stand by in for observation, if there's a leak.

7

Q. Has someone told you that?

8

A. No.

9

Q. That's just your assumption?

10

A. Yes.

11

Q. Is there any movement at all in the preparation room

12

while the drugs are being injected?

13

A. Any movement?

14

Q. Do people move around at all?

15

A. No.

16

Q. You attend execution practices, don't you?

17

A. Yes.

18

Q. And during an execution practice, you'd never witnessed

19

an IV line leaking, have you?

20

A. No, I have not.

21

Q. Now, you know that lethal injections are carried out

22

using three drugs?

23

A. Yes.

24

Q. And has it been explained to you before the second drug

25

that's used is used to paralyze the inmate?

-41-

1

A. I have been told that, yes.

2

Q. Taking just hypothetically the situation where the

3

Department of Corrections or the supervisors in charge of

4

that execution took away that drug so the inmate wasn't

5

paralyzed, if someone told you that the inmate might move

6

around or jerk during an execution, but that it wouldn't hurt

7

the inmate in any way, do you think you would still be able

US1DOCS 5856271v1

8

to do your job without getting too upset?

9

A. I mean, say that again?

10

Q. If the inmate wasn't paralyzed during the execution, but

11

they had told you during your practices that you might be

12

prepared, you might have to be prepared to see the inmate

13

moving around a bit while he's being executed, do you think

14

you could still do your job?

15

A. I don't know. That would be something you'd have to

16

think about.

17

Q. Why is that?

18

A. Because that's -- I mean, I'd never seen nobody move, so

19

I couldn't say whether I would or whether I wouldn't.

20

Q. Do you think if you were prepared at every practice for

21

that possibility, you'd be ready do it on the execution day?

22

A. I'd have to be prepared for anything.

23

MS. GERAGHTY: Thank you. I have no further

24

questions.

25

THE COURT: Thank you. Mr. Pickus, your witness,

-42-

1

sir.

2

MR. PICKUS: Just very brief question, Your Honor.

3

CROSS-EXAMINATION

4

BY MR. PICKUS:

5

Q. Miss C, you've been involved in two executions?

6

A. Yes.

7

Q. And that was for Mr. Baker and Mr. Oken?

8

A. Yes.

9

Q. How often does the execution team practice?

10

A. Quarter.

11

Q. Quarterly?

12

A. Yes.

13

Q. And it's not monthly?

14

A. It's not monthly. It depends on whether or not there's a

15

pending execution on that dictates the practices.

16

Q. What happens when there's a pending execution?

17

A. Pending execution, we move it up to month, and then as

18

the timeline comes closer, it will be a daily thing.

19

Q. And during the course of the two executions you've

20

participated in, do you make preparation in advance of the

21

execution?

22

A. Advanced as in?

23

Q. Three, three to four hours before the execution?

24

A. Yes.

25

Q. Are the drugs prepared prior to the execution?

-43-

1

A. Yes.

2

Q. Are they placed in the syringe prior to the execution?

US1DOCS 5856271v1

3

A. Yes.

4

Q. And are the syringes color coded?

5

A. Yes, they are.

6

Q. And is it red, green, and blue?

7

A. Yes.

8

Q. Are the syringes placed in the proper order?

9

A. Yes.

10

Q. And that order is red, green, and blue?

11

A. Yes.

12

Q. To your knowledge, is there a backup syringe for each

13

drug?

14

A. Yes, it is.

15

Q. How many, is there one backup?

16

A. One backup for each drug.

17

Q. Are you able to observe what's happening in the injection

18

room during the course of an execution?

19

A. Yes.

20

Q. And if you saw something going wrong or somebody in the

21

execution team doing the wrong thing, what would you do?

22

A. I would stop the team member and at the same time with

23

the commander being there, he would get the same information.

24

Q. Are you referring to the execution team commander?

25

A. Yes.

-44-

1

Q. So you would notify both the person who was making the

2

mistake and the execution team commander?

3

A. Yes.

4

Q. Now, based on the testimony of where people stand in the

5

room, are you able to see out of the window?

6

A. Yes.

7

Q. The two executions that you participated in, Mr. Baker

8

and Mr. Oken, did you see anything go wrong?

9

A. No.

10

MR. PICKUS: That's all I have, Your Honor.

11

THE COURT: Thank you. Are there other questions?

12

MS. GERAGHTY: No other questions, Your Honor.

13

Thank you.

14

THE COURT: Thank you very much for coming.

15

Ma'am, you are excused, and this young lady will

16

make sure that you leave the building safe and sound.

17

THE CLERK: The next witness.

18

MR. HUT: The plaintiff's next witness is Injection

19

Team A to be presented by Miss Clark.

20

THE COURT: Good. Thank you.

21

(UNDER SEAL)

US1DOCS 5856271v1

12

(END SEAL)

13

(The Witness is sworn.)

14

THE CLERK: Be seated. Would you speak directly

15

toward the mike and state your generic identity for the

16

record, please?

17

THE WITNESS: I am Injection Team A.

18

DIRECT EXAMINATION

19

BY MS. CLARK:

20

Q. Good morning, Mr. A. I'm not sure if you remember me,

21

but I'm Kalea Clark. I'm one of the attorneys for the

22

plaintiff in this case. I echo the concerns raised by the

23

Court. We want to protect your identity consistent with the

24

protective order. And to assist in doing that, I would

25

direction your attention to what has been marked as

-47-

1

plaintiff's exhibit 87. There's a binder right next to you

2

on the witness stand.

3

If you look behind tab 87, you will see a list of

4

generic identifiers similar to the ones you used at your

5

deposition. I'd ask that you refer to that, to the extent

6

that you need to mention any current or former member of the

7

execution team.

8

A. Okay.

9

Q. A number of execution team members testified yesterday or

10

today. Have you talked with any of them about their

11

testimony?

12

A. No.

13

Q. Where are you employed?

14

MS. MULLALLY: Objection. Could we use a generic

15

here?

16

MS. CLARK: Certainly.

17

MS. MULLALLY: If I could have a second with Miss

18

Clark.

19

THE COURT: Perhaps you can lead on this issue.

20

(Pause.)

21

BY MS. CLARK:

22

Q. Mr. A, are you a correctional officer?

23

A. Yes.

24

Q. And do you currently have a role in Maryland executions?

25

A. Yes.

-48-

1

Q. And what is that role?

2

A. I am the OIC.

US1DOCS 5856271v1

3

Q. And does OIC stand for officer in charge?

4

A. Yes.

5

Q. What are your responsibilities as the officer in charge?

6

A. My responsibility is to make sure that each member of the

7

team knows their roles during the execution.

8

One of my other responsibilities is to make sure

9

that we have all the necessary equipment needed to carry out

10

an execution.

11

Q. And do you assist in setting up the equipment?

12

A. Yes.

13

Q. And do you assist in preparing or mixing the drugs for

14

executions?

15

A. Yes.

16

A. Yes.

17

Q. Do you assist with the IV insertion on the inmate?

18

A. Yes.

19

Q. And did you participate in the Oken execution?

20

A. Yes.

21

Q. And did you participate in the Baker execution?

22

A. Yes.

23

Q. Were you the lethal injection officer in charge for both

24

of those executions?

25

A. Excuse me?

-49-

1

Q. Did you serve as the lethal injection officer in charge

2

for both the Oken and Baker executions?

3

A. Yes.

4

Q. Were you planning to participate in the execution of

5

Vernon Evans scheduled for this past February?

6

A. Yes.

7

Q. And would that have been as the lethal injection officer

8

in charge?

9

A. Yes.

10

Q. I'd like to direct you to the diagrams up on the easel,

11

which we've marked as PDX 2.

12

Is this an accurate diagram of the execution area?

13

(Pause.)

14

A. Yes.

15

Q. And there are two rooms designated on this diagram, the

16

execution room and the preparation room. In which room were

17

you located during the administration of the lethal

18

injection?

19

A. In the preparation room.

20

Q. Mr. A, you have no training in anesthesiology; is that

21

correct?

22

A. That's correct.

23

Q. And you have no training in pharmacology?

24

A. That's correct.

25

Q. Is one of your jobs during an execution to monitor the

-50-

US1DOCS 5856271v1

1

inmate during the administration of the lethal injection?

2

A. Yes.

3

Q. Did you do that during the Oken execution?

4

A. Yes.

5

Q. Did you do that during the Baker execution?

6

A. Yes.

7

Q. During entire administration of the lethal drugs?

8

A. Yes.

9

Q. But weren't you in and out of the preparation room during

10

the execution of Wesley Baker?

11

A. No.

12

Q. You had your deposition taken in this case on May 16th

13

why Mr. Hut, correct?

14

A. Yes.

15

Q. And you were told to state if you didn't understand a

16

question, correct?

17

A. Correct.

18

Q. And Mr. Hut asked you question about your role in the

19

execution team, correct?

20

A. Correct.

21

Q. And before you answered those questions, you raised your

22

right hand and were sworn by the court reporter to tell the

23

truth, correct?

24

A. Correct.

25

Q. At some point after your deposition, you had a chance to

-51-

1

review the deposition, correct?

2

A. Yes.

3

Q. And you signed it?

4

A. Correct.

5

Q. Miss Mullally, I direct your attention to page 47, lines

6

1 through 14.

7

MS. MULLALLY: Your Honor, I feel a little foolish,

8

but I am unable to remember what the witness said last.

9

Perhaps the Court could take a look at it and make a

10

determination.

11

THE COURT: My understanding was the issue was

12

whether -- well, let me ask, during the execution itself,

13

sir, are you in the preparation room or the execution room?

14

THE WITNESS: During the execution?

15

THE COURT: Yes, sir.

16

THE WITNESS: I'm in the preparation room.

17

THE COURT: Good. And I think, so, Miss Clark, the

18

point that you want to make is?

19

MS. CLARK: I asked, he testified that one of his

20

duties was to monitor the inmate during the administration of

21

the lethal drugs. And he testified I believe that he did so

22

during the Oken execution.

23

THE COURT: Yes.

US1DOCS 5856271v1

24

MS. CLARK: Again for the Baker execution, and I

25

asked whether it did it for the entire, and he said yes, and

-52-

1

I said weren't you in and out of the room during the

2

execution, and he said no.

3

THE COURT: Good. That's what I thought. Let's

4

see. So during. It says on Baker's I was in and out the

5

room the whole time during the execution. In and out of

6

which room? The lethal injection room. So some of the time

7

during the administration in the injection you were in the

8

lethal injection room, and sometime you were outside it?

9

Correct.

10

And was that your testimony and what does that

11

mean?

12

THE WITNESS: What that mean is during the

13

administration of the drugs, I was inside the preparation

14

room. Before then I was in and out of the preparation room.

15

Q. Didn't you testify that some of the time during the

16

administration of the injection you were in the lethal

17

injection room, and sometimes you were outside it?

18

A. I'm not sure. I have to read exactly what that says.

19

THE COURT: Good. You can show A the deposition.

20

Q. Is this your signature?

21

A. Yes, it is.

22

(Pause.)

23

Q. Have you had an opportunity to review your testimony?

24

A. Yes, I have.

25

Q. And did you -- during your deposition, were you asked

-53-

1

that question and give that answer?

2

A. Yes, I did.

3

Q. Turning your attention back to the binder that I handed

4

to you earlier, behind tab 87, plaintiff's exhibit 87, are

5

you familiar with Contractual Team A and Injection Team E?

6

(Pause.)

7

THE COURT: Now, is this the pictures or just the

8

words?

9

MS. CLARK: I just want to verify that he knows

10

Contractual Team A and Injection Team E.

11

THE COURT: So you might want to show the pictures.

12

(Pause.)

13

A. Yes.

14

Q. And contractual team A and Injection Team E are the two

15

members of the team who are stationed in and front of the

16

window between the execution room and the preparation room,

17

correct?

18

A. That is correct.

US1DOCS 5856271v1

19

Q. And Injection Tea, E and Contractual Team A stood at the

20

window at the executions of Steven Oken and Wesley Baker,

21

correct?

22

A. That is correct.

23

Q. Referring back to the -- are you familiar with the

24

individual identified as Contractual Team B?

25

A. Yes.

-54-

1

Q. What is her role during executions?

2

A. Her role is she administers the IV, and she also stays

3

inside the execution room after the IV has been administered

4

and during the execution.

5

Q. And the designation of her as staying in the execution

6

room after the placement of the IV and during the

7

administration of the drug, that's a new development since

8

August, correct?

9

A. That is correct.

10

Q. And contractual team B told you that she's a registered

11

nurse, correct?

12

A. No, that is not correct.

13

Q. Miss Mullally, I direct your attention to page 76, lines

14

1 through 7 of Injection Team A's deposition.

15

MS. MULLALLY: No objection.

16

BY MS. CLARK:

17

Q. Your Honor, can we play the clip, or were you rather I

18

read it?

19

THE COURT: If you could read it or just it to Mr.

20

A.

21

BY MS. CLARK:

22

Q. Mr. A, if you could turn to page 76 of your deposition

23

transcript, and I will read lines 1 through 11.

24

Question "Is Contractual Team B a registered nurse

25

or a certified nurse's assistant?"

-55-

1

Answer, "From my understanding she's a registered

2

nurse."

3

Question, "What's the basis of that understanding?"

4

Answer, "From my understanding, she works at a

5

hospital."

6

Question, "Did she ever tell you personally that

7

she was a registered nurse?"

8

Answer, "Well, I don't get into her personal life.

9

She just tells me she's a nurse."

10

During your deposition, were you asked those

11

questions and gave those answers?

12

A. Yes.

13

Q. During an execution, Contractual Team B establishes two

US1DOCS 5856271v1

14

IV lines in the condemned inmate, correct?

15

A. That is correct.

16

Q. But only one line is used to administer the lethal drugs?

17

A. That is correct.

18

Q. If a problem is discovered with the first line, such as a

19

leak, the execution team would switch to the second line; is

20

that correct?

21

A. That's correct.

22

Q. And once the switch to the second line was effected,

23

Injection Team E would continue to administer the same

24

syringe that he had personally pushed into the first line,

25

correct?

-56-

1

A. That is not correct.

2

Q. Miss Mullally, I direct you to page 85, lines 1 through

3

13.

4

(Pause.)

5

MS. MULLALLY: No objection.

6

BY MS. CLARK:

7

Q. Mr. A, if you could turn to page 85 of the transcript?

8

And I'll read starting on line 1.

9

Question, "And exactly how did you turn the IV off

10

or shut the line off?"

11

Answer, "On the IV line, there's a little clip

12

right there, some with a clamp you just push, and some just

13

has one you roll down. On this certain one, you roll it

14

down. So you roll it on, you shut it off, you stop the flow

15

from flowing into that arm. You unhook the medicine, you

16

hook it into the next line, and you continue from there."

17

Question "So you hook up the medicine that had

18

begun to be administered into the failed line into the new

19

line; is that correct?"

20

Answer, "That's exactly."

21

Mr. A, did you answer those questions and give

22

those answers during your deposition?

23

A. Yes, I did.

24

Q. You practice for lethal injections, correct?

25

A. Excuse me?

-57-

1

Q. You practice for lethal injections, correct?

2

A. Correct.

3

Q. And you know that the lethal injection is carried out

4

using three drugs?

5

A. Correct.

6

Q. And has it been explained to you that the inmate is

7

paralyzed as a result of one of the drugs that are used?

8

A. Correct.

US1DOCS 5856271v1

9

Q. If the Division of Corrections decided not to use that

10

drug that paralyzes the inmate and someone explained to you

11

that because that drug was no longer being used, the inmate

12

might jerk or move during the execution, would you still be

13

able to do your job?

14

(Pause.)

15

A. I can't answer that question.

16

Q. Why not?

17

A. For the simple reason why, because I'm not trained in

18

that field to answer that particular type of question.

19

Q. But if the inmate was moving or jerking a bit during the

20

execution and you were -- and you knew that might happen, do

21

you think you would still be able to carry out your duties on

22

the execution team?

23

A. But I don't know that might happen.

24

Q. But if it were to happen, would you still be able to

25

carry out your job, do you think?

-58-

1

A. I can't answer that.

2

Q. If you were able to practice for that, would you still be

3

able to do your job?

4

A. But we don't practice for that.

5

Q. But if were you to practice for that, could you still do

6

your job?

7

MS. MULLALLY: Objection. We've been over this,

8

Your Honor. He doesn't know.

9

THE COURT: All right. I'll sustain the objection.

10

I think the issue is this, if you take a look at these, this

11

is, you know, I'm not a doctor so I'm going to give you my

12

understanding.

13

If you take a look at the three drugs, the first of

14

the drugs is intended to knock, the inmate out, to put him to

15

place. It's an anesthetic.

16

The second of the drugs is intended to paralyze the

17

inmates, so they can't move.

18

And a third of the drugs is intended to stop the

19

inmate's heart and actually to accomplish the death.

20

The reason for the second drug is to spare the

21

members of the execution team and the witnesses the site of

22

an inmate who may twitch, jerk, or even convulse during the

23

execution.

24

One of the medically -- apparently one of the

25

problems with the second drug is that if the inmate is

-59-

1

paralyzed, he can't make any sign or cry out if in fact he's

2

experiencing pain.

3

So one of the things that the State might do would

US1DOCS 5856271v1

4

be to dispense with the second drug. That way, if the inmate

5

were experiencing pain, he could let everybody know, and then

6

the execution could be halted until the problem was fixed.

7

In weighing whether to do that, the State would

8

have to take into consideration the effect on the execution

9

team and also on the witness's psychological effect of the

10

inmate moving during the administration of the drugs

11

themselves.

12

So I think what Miss Clark was attempting to get at

13

was not sort of a medical question, or procedural question,

14

but really asking you if you can answer it as a human being,

15

would it be hard on you emotionally if you were to see the

16

inmate twitch, jerk, or even convulse?

17

You don't even have to answer that question if

18

you're not prepared to answer it, but I think that's what the

19

question was aiming at.

20

THE WITNESS: Okay.

21

THE COURT: Can you answer the question?

22

THE WITNESS: If she asks me my own personal

23

feelings about that?

24

THE COURT: That's right.

25

THE WITNESS: Okay. I can't say how I would react

-60-

1

about that if I'd seen it.

2

THE COURT: Good. Thank you.

3

MS. CLARK: Thank you, Your Honor. I have no

4

further questions.

5

THE COURT: Good. Thank you.

6

Miss Mullally, your witness.

7

CROSS-EXAMINATION

8

BY MS. MULLALLY:

9

Q. Thank you, Your Honor.

10

Now, Mr. A, as the officer in charge, it's

11

important to you that the execution is set up properly and

12

according to the checklist; isn't it?

13

A. That's correct.

14

Q. And you're familiar with when the times when things

15

should be put together and set up, and when things should be

16

prepared, essentially you're aware of the whole continuum of

17

the execution?

18

A. That's correct.

19

Q. You confirmed that all the equipment, the proper

20

equipment is present, that the drugs are present, and that I

21

think that the drugs you confirm that the drug are not past

22

their expiration date?

23

A. That's correct.

24

Q. And if the drugs are past their expiration date, they're

25

discarded, aren't they?

-61-

US1DOCS 5856271v1

1

A. That's correct.

2

Q. And I believe you have a key to the drug box, or you're

3

-- you're given a key to the drug box prior to an execution?

4

A. That is correct.

5

Q. And you take the controlled drugs out of the drug box

6

because they're locked in the box?

7

A. That is correct.

8

Q. Now, I believe that you have some experience in the

9

military?

10

A. That is correct.

11

Q. And when you were in the military, you did in fact have

12

the opportunity to place some IVs?

13

A. That is correct.

14

Q. And in the last two executions, and indeed during the

15

practices, don't you go with Contractual Team B into the

16

execution room while she places the IVs, either in the

17

practice arm during practice, or in the bodies of Oken and

18

Baker during their last two executions?

19

A. That is correct.

20

Q. And you've observed her placing IVs in the arms, in the

21

practice arm and in the actual arms of Oken and Baker?

22

A. That is correct.

23

Q. Okay. Did she have any problem placing IV's in Steven

24

Oken or Wesley Baker, while you were there?

25

Did you see her have any problems whatsoever?

-62-

1

A. No.

2

Q. Do you know why there's a practice arm, why the execution

3

team uses a practice arm?

4

A. The institution uses a practice arm to make sure that

5

everybody knows, understands how to properly to do an IV.

6

Q. Okay. So this practice arm, is it the size of a real

7

arm, approximately?

8

A. Approximately, yes.

9

Q. And is it in fact placed on the gurney during the

10

practices?

11

A. Yes.

12

Q. And does it in fact have some sort of -- it has channels

13

to approximate veins?

14

A. Yes.

15

Q. So when you place an IV into that practice arm, you're

16

actually placing it into the arms approximation of a real

17

vein?

18

A. Yes.

19

Q. And is there some type of blood that goes through that

20

arm, it's not blood but something that looks like blood so

21

that you can see the flashback when you place the IV in?

22

A. Yes.

23

Q. And you've observed Contractual Team B and others during

24

practice do this with the arm?

US1DOCS 5856271v1

25

A. Yes.

-63-

1

Q. And it's you know, you don't, during practices, you don't

2

use a use a real human, and because you don't, the arm is the

3

next best thing to use?

4

A. Yes.

5

Q. Now, there's a person, I'll call her the checklist

6

keeper, do you know who I'm referring to? She's the person

7

who calls out the checklist?

8

A. Yes.

9

Q. And isn't it true that when an execution occurs and

10

indeed during practices, the team acts according to the

11

checklist?

12

A. Yes.

13

Q. And the checklist is a series of steps. There are quite

14

a few of them, that the team goes through to make sure that

15

everything is done at the proper time and in the proper

16

order?

17

A. Yes.

18

Q. What does this expression mean to you, if anything?

19

Check, recheck, and check again?

20

A. That's what we do once we check everything, lay

21

everything out, we check, make sure we have everything out

22

there, and we go back and check, and then we recheck again.

23

Q. Did you ever, do you ever recall having a drill where

24

there was a problem with an IV site during the drill?

25

A. Yes.

-64-

1

Q. And what -- was that intentionally or was there actually

2

a problem with the practice arm?

3

A. Intentional.

4

Q. Okay. And why would you have an intentional problem like

5

that? Why does the team need that?

6

A. Well, during the execution, just in case something goes

7

wrong with the vein they are pushing the drug through, they

8

have to move to the second line.

9

Q. All right. And was that -- that was the purpose of

10

having a problem with the line?

11

A. Yes.

12

Q. And what was the problem that was -- that was raised

13

during the practice intentionally, do you recall what it was?

14

A. Not right offhand.

15

Q. Okay. What was the result of the problem, did you -- did

16

the team switch to the other arm?

17

A. Yes.

18

Q. And does the team -- actually, aren't there two arms that

19

can be practiced on?

US1DOCS 5856271v1

20

A. Yes, there are two arms, but we only use one.

21

Q. Okay. Now, I take it you have mixed the first drug, the

22

thiopental?

23

A. Excuse me?

24

Q. You've mixed thiopental before, the actual drug?

25

A. Yes.

-65-

1

Q. Was it difficult?

2

A. No.

3

Q. Were there directions that you followed, written

4

directions?

5

A. Yes.

6

Q. Were they packaged directions?

7

A. No, they're on the box.

8

Q. Okay. So they're on the book. Was it difficult?

9

A. No.

10

Q. Now, the other two drugs, the second drug and the third

11

drug, do you have to mix anything?

12

A. No.

13

Q. Before you put them in the syringes?

14

A. No.

15

Q. Each drug is placed in a syringe and a number and a color

16

code is written on each syringe?

17

A. Yes.

18

Q. And then aren't those drugs placed in order on the table?

19

A. Yes.

20

Q. With the first drug first, red, second drug second, third

21

drug third?

22

A. Yes.

23

Q. And has there ever been any problem with someone

24

switching the order of the drugs and their placement on the

25

table?

-66-

1

A. No.

2

Q. As far as you know, has the red drug ever mistakenly been

3

placed in the green syringe or the blue drug placed in the

4

red syringe, or anything like that?

5

A. No.

6

Q. Do you allow anyone who's not authorized to pick up any

7

one of those syringes during practice or during an actual

8

execution?

9

A. No.

10

Q. Do you watch the syringe once they're mixed and laid in

11

place?

12

A. Yes.

13

Q. If you perceived a problem, any problem with the

14

execution, what would you do?

US1DOCS 5856271v1

15

A. First thing I would do is notify the execution team

16

commander.

17

Q. Is he in the room, the room where the drug are pushed,

18

the preparation room during the practices and during an

19

execution?

20

A. Yes.

21

Q. And you notify him because he actually controls a set of

22

lights that can be a red and a green light that can be

23

flicked on in other room to stop an execution, correct?

24

A. Correct.

25

Q. And in addition to your being the officer in charge in

-67-

1

practices and in an actual execution, you've attended

2

something I think you call it a pre-execution meeting, prior

3

to an actual execution?

4

A. That is correct.

5

Q. And you attended this meeting for Baker and Oken prior to

6

their execution, and I believe you actually attended a

7

meeting for Evans even though his execution in fact did not

8

occur in February?

9

A. That is correct.

10

Q. And the purpose of the pre-execution meeting is to

11

discuss what will happen and how it will happen so that

12

everybody is prepared?

13

A. That is correct.

14

Q. During the practice -- you attend practices for

15

executions?

16

A. Yes.

17

Q. Don't they last approximately two hours or so, depending

18

on who's running the practice?

19

A. Yes.

20

MS. MULLALLY: Thank you. Nothing further, Your

21

Honor.

22

THE COURT: Thank you.

23

Miss Clark, anything else?

24

REDIRECT EXAMINATION

25

BY MS. CLARK:

-68-

1

Q. Is there any sort of rank among the team members in the

2

preparation room during an execution?

3

A. No.

4

Q. Do you report to anyone in the preparation room?

5

A. Yes.

6

Q. So there is someone in charge?

7

A. Yes, the execution team and commander.

8

Q. In your role as officer in charge, do any of the other

9

team members report to you?

US1DOCS 5856271v1

10

A. Yes.

11

Q. And referring to PDX 1, which is up on your screen, which

12

team members report to you?

13

A. Injection Team E and Injection Team C.

14

Q. Would you be surprised to know that Injection Team E

15

testified there's no rank in the room, and he doesn't report

16

to anyone?

17

A. No.

18

MS. CLARK: Thank you. I have no further

19

questions.

20

THE COURT: Miss Mullally, anything.

21

MS. MULLALLY: No, Your Honor.

22

THE COURT: Good. Sir, thank you very much for

23

coming. You are excused. This young lady is going to make

24

sure you get out of the building safe and sound.

25

Is there any other witnesses to be called who will

-69-

1

testify under the sequestration order?

2

MR. HUT: No, Your Honor.

3

THE COURT: Good. Now, what's next?

4

MR. HUT: Next is the videotaped deposition of Past

5

Team Member M.

6

THE COURT: Good. So this videotaped deposition is

7

under the sequestration order, correct? I forget what we

8

decided do.

9

MR. HUT: It is, but what I thought the Court

10

decided do yesterday was to play it in the courtroom, we will

11

turn off the monitors here, Your Honor can look at the

12

monitor, the Court and deputy clerk's law clerk can but the

13

video will not be broadcast to the back, only the audio.

14

THE COURT: Good. It is 11:25. It's about 11:27.

15

Let's take a recess until a quarter of. And that way the

16

people who are in courtroom 3 D can come up here, if they

17

wish to do so, and we can terminate the feed down to 3 D.

18

Good. Thank you.

19

(Recess.)

20

THE COURT: Please be seated, Mr. Hut, whenever

21

you're ready, sir.

22

MS. CLARK: Your Honor, plaintiff will now be

23

presenting the video deposition clips of past team member M,

24

the who drafted the Maryland's first lethal injection

25

protocol based on Delaware.

-70-

1

For ease of the reference during the deposition,

2

two exhibits will be referred to, the numbers are 96 and 97.

3

And these exhibits have now been marked as trial

4

exhibits. 96 is trial exhibit 46, and 97 is trial exhibit

US1DOCS 5856271v1

5

43. And they're contained in the binder that was handed up.

6

THE COURT: Thank you.

7

Just so that the record is clear, that the

8

courtroom has been set up so that I can see the video and

9

I'll be able to hear the audio. But that none of the

10

monitors that are facing toward the public gallery will have

11

the video, although everyone will be able to hear the audio.

12

MS. CLARK: Your Honor, it's our intent to give the

13

court reporter a list of the designations that we played at

14

the conclusion of the clips, if that's agreeable to the court

15

reporter and the Court.

16

THE COURT: Certainly.

17

MS. CLARK: we'll now be playing video deposition

18

of the execution commander, and I don't believe there are any

19

deposition exhibits referred to during this deposition.

20

THE COURT: Thank you.

21

(Tape played)

22

MS. TINDALL: The next claims will be August 24,

23

2006 of Execution Team Commander. There will be one exhibit

24

mentioned, it's deposition exhibit 101, which corresponds to

25

trial exhibit 5.

-71-

1

THE COURT: The Execution Team Commander is a

2

different person from the Execution Commander?

3

MS. TINDALL: Yes.

4

THE COURT: So the record's clear about that.

5

The exhibit that you're, the exhibit number is what

6

please?

7

MS. TINDALL: Trial exhibit 5.

8

THE COURT: Good, thank you. Let me get it.

9

(Pause)

10

THE COURT: Good. Thank you.

11

(Tape played)

12

THE COURT: I'm sorry, who will stay now?

13

MS. TINDALL: He testified that it would be

14

Contractual Team B or Contractual Team D or Contractual Team

15

E.

16

THE COURT: So B, who else?

17

MS. TINDALL: Or D or E on the Contractual Team?

18

THE COURT: Or D. And who's D?

19

MS. TINDALL: If you'll look at exhibit, trial

20

exhibit 87, there will be a name associated with his generic

21

identifier.

22

THE COURT: If you'll hold on.

23

(Pause.)

24

THE COURT: So that's Contractual Team B, I know

25

who she is. Let's let me find D. Is that Doctor D?

-72-

US1DOCS 5856271v1

1

MS. TINDALL: No, Contractual Team D and

2

Contractual Team E.

3

On the second page the numbers of the team are

4

listed alphabetically by their generic identifier which might

5

make it easier to find these individuals.

6

THE COURT: And what are the background of

7

Contractual Team D, is that what kind of he medical

8

personnel?

9

MS. TINDALL: I believe both of these individuals

10

are EMT's.

11

THE COURT: So Contractual Team B, Contractual Team

12

D, and the third person is.

13

MS. TINDALL: Contractual Team E.

14

THE COURT: And E is a what, please?

15

MS. TINDALL: I believe contractual E is an EMT.

16

MS. MULLALLY: They're both emergency medical

17

technicians.

18

THE COURT: Good. Thank you.

19

(Tape played)

20

THE COURT: I'm sorry, if you could explain the

21

lighting to me now? I'm confused.

22

MS. TINDALL: Yes, Your Honor. There was an

23

additional light added to the preparation room, the testimony

24

was that it was a 24-inch florescent tube mounted 4 feet from

25

the floor.

-73-

1

Previously, there was a light bulb in that room,

2

and this testimony is that it would be an addition of the

3

florescent light, the light bulb that had been in the lethal

4

injection room will be removed.

5

THE COURT: So there's going to be an additional

6

light in the prep room, and the witness testified that the

7

additional of the light in the prep room eliminates the need

8

to have a light in the execution room?

9

MS. TINDALL: No. He testified that it eliminated

10

the need -- previously to the addition of this light, there

11

had been a light bulb in the preparing room, also called the

12

lethal injection room, that remained on during executions,

13

during administration of drugs.

14

With the addition of this florescent light, he

15

testified that the light bulb that had previously been left

16

on would be no longer necessary.

17

THE COURT: Good. Thank you.

18

(Tape played)

19

(The preceding deposition excerpts played are as

20

follows: Past Team Member M July 18, 2006

21

29: 12-14

22

30: 14-17

23

38: 9-12

24

38: 16-22

25

39: 3-8

US1DOCS 5856271v1

-74-

1

42: 22-43: 1

2

46: 23-25

3

47: 3-12

4

47: 18-48: 3

5

56: 10-24

6

57: 10-24

7

58: 20-59: 3

8

59: 8-12

9

60: 9-14

10

66: 21-23

11

67: 4-21

12

68: 10-24

13

73: 20-25

14

74: 9-22

15

75: 17-76: 3

16

76: 7-19

17

76: 23-88: 8

18

78: 23-77: 8

19

78: 14-21

20

79: 2-5

21

79: 17-19

22

88: 10-89: 3

23

90: 9-1

24

Execution Commander 6-9-06:

25

25: 1-12

-75-

1

52: 17-25

2

53: 1-3

3

53: 7-12

4

Execution Team Commander 5-30-06:

5

19: 7-20

6

82: 5-21

7

124: 9-16

8

127: 8-10

9

128: 25-129: 6

10

139: 24-140: 6

11

140: 13-16

12

150: 10-20

13

151: 4-8

14

163: 7-12

15

175: 17-176: 4

16

177: 23-178: 8

17

Execution Team Commander 8-24-06

18

10: 2-26

19

16: 4-15

20

30: 16-21

US1DOCS 5856271v1

21

32: 3-33: 6

22

36: 11-17

23

40: 15-42: 4

24

43: 6-44: 7

25

47: 1-14

-76-

1

51: 9-20

2

53: 12-16

3

58: 21-59: 1)

4

MS. CLARK: The final deposition designation we'll

5

be offering are another deposition of Execution Team

6

Commander May 30 of this year. We do not have a video for

7

that, so we'll be reading them into the record.

8

Is there any particular manner you'd like for us to

9

follow?

10

THE COURT: No. Just have somebody, I'm not sure

11

they even have to be at the witness stand, it's just

12

whoever's asking question and answering each need to have a

13

microphone.

14

MS. CLARK: So if I will be doing the questioning

15

can I do it from counsel table.

16

THE COURT: Certainly.

17

MS. CLARK: We are now reading deposition

18

designations from the May 30, 2006 deposition of execution

19

team commander.

20

THE COURT: So this is the same individual who just

21

testified on the screen?

22

MS. CLARK: Correct.

23

THE COURT: Good. Thank you.

24

MS. CLARK: Starting page 19, line 7.

25

Q. "Have you ever received any sort of medical training

-77-

1

formal or informal?"

2

A. "Other than what I got in the military and the first aid

3

CPR classes that the department gives."

4

Q. "What type of training did you receive in the military?"

5

A. "Just the standard first aid CPR."

6

Q. "Did that involve any sort of IV insertion training?"

7

A. "No.

8

Q. "What about pharmacology?"

9

A. "No."

10

Q. "Anesthesiology?"

11

A. "No."

12

Q. I'm now reading from page 82, line 5.

13

"You mentioned that one of your duties as execution

14

team commander is to monitor the IV, correct?"

15

A. "Observe and monitor, but it is more observing than

US1DOCS 5856271v1

16

monitoring."

17

Q. "What's the difference between observing and monitoring?"

18

A. "I am only observing it being put in. Is it my job to

19

say that it's put in properly? No. It's whoever the

20

individual is who is putting it in."

21

Q. "But you don't continue to observe it after it's

22

initially inserted?"

23

A. "You mean from the injection room?"

24

Q. "Correct."

25

A. "No. Because my back is to the wall and I am facing all

-78-

1

of the team members and what they are doing. I am not

2

looking out the window."

3

Q. I'm now reading page 124 starting line 9.

4

"Would you be concerned if after the second drug

5

was administered the inmate was still moving?"

6

A. "Moving, yes no. Because I'm a hunter and even when I

7

shoot an animal, I know it's dead. It will, it will escape

8

all the air from its lungs so it will make one big heave and

9

that's it. That's not -- that's not an unusual movement.

10

That is a normal part of dying."

11

Q. I'm now reading from page 127, starting on line 8.

12

Turning to the next page of plaintiff's exhibit 15, which is

13

Evans 0 0 3 5 9 1.

14

A. Okay.

15

Q. And just for the Court, deposition exhibit 15 is

16

plaintiff's trial exhibit number 4.

17

Now, beginning on page 128, line 25.

18

On line 7 A on Evans 0 0 3 5 9 4 it says "place the

19

pressure infuser over the IV bag and inflate to the green

20

line. Do you see that?"

21

A. "Uh-huh, right."

22

Q. "Why are pressure infusion bags used during an

23

execution?"

24

A. "I am not sure."

25

Q. Turning now to page 139, starting on line 24.

-79-

1

"What if the execution needed to be stopped after

2

the administration of multiple of the drugs, or one of the

3

drugs, what would you do?"

4

A.

5

Well, I'd been told it wouldn't matter, so I would stop, and

6

then we would see what the results would be."

7

Q. "You've been told it wouldn't matter?"

8

A. "Correct."

9

Q. Starting now page 140, line 13.

10

THE COURT: I'm sorry, told what wouldn't matter?

US1DOCS 5856271v1

11

MS. CLARK: The original question was "what if the

12

execution needed to be stopped after the administration of

13

multiple of the drugs or one of the drugs, what would you

14

do?"

15

A. "Well, I'd been told it wouldn't matter, so I would stop

16

and then we would see what the results would be."

17

Q. "You've been told it wouldn't matter?"

18

A. "Correct."

19

Q. "Now, turning to page 140 line 13, why wouldn't it

20

matter?"

21

A. "Because at some point you reach a point of no return.

22

I'd been told that the -- that the amount of sodium pentothal

23

doesn't make that possible."

24

Q. Turning now to paper 150, line 10.

25

"Does the doctor perform a cut-down, if necessary?"

-80-

1

A. "No."

2

Q. "Would the execution team use a cut-down procedure if it

3

was difficult to find a vein?"

4

A. "None of them are trained in that process so that would

5

not be an option."

6

Q. "So what would happen if it was difficult or impossible

7

to find an adequate vein on an inmate?"

8

A. "I don't know. We have never, we have never got to that

9

point."

10

THE COURT: If you could stop for a minute, let me

11

write this down.

12

(Pause)

13

THE COURT: Please continue.

14

BY MS. CLARK:

15

Q. We're now on page 151, starting at line 4.

16

"So Maryland would never perform a cut-down

17

procedure on an inmate?"

18

A. "I can't say that."

19

Q. "What are the circumstances that it would?"

20

A. "I don't know."

21

Q. Turning now to page 163, line 7.

22

"If you determined that Dr. Scalea deals with

23

intravenous drug users and administers IVs on a fairly

24

regular basis, would his examination of Mr. Evans cause you

25

concern?"

-81-

1

A. "If I was convinced that he actually, he performed IV's,

2

possibly."

3

Q. Turning now to page 175, line 17.

4

"Why is the paralytic agent administered to the

5

inmate?"

US1DOCS 5856271v1

6

A. "I don't know."

7

Q. "Is there any medical purpose for using it during the

8

execution?"

9

A. "I'm not sure. That's just what -- those are the three

10

drugs that are identified by law to be used for fast acting,

11

barbiturate, paralytic agent, and a third one but in terms of

12

how they establish those, I don't know."

13

Q. "You said in the use of these three drugs is established

14

by law, correct?"

15

A. "Yes."

16

Q. And turning now to page 177, line 23.

17

"Do you know what happens if a person who is not

18

under adequate anesthesia receives a dose of potassium

19

chloride?"

20

A. "It burns."

21

Q. "Are you aware that there are other less painful drugs,

22

which could be used to effect a lethal injection?"

23

A. "No."

24

Q. "If there are, would you want to use one of those drugs?"

25

A. "I think it should be considered."

-82-

1

MS. CLARK: That's all we have.

2

THE COURT: Good. Thank you.

3

MR. HUT: Your Honor, we have Dr. Pettifer, who

4

plans to come in the afternoon, so permit me to suggest this

5

might be a good time for the Court's luncheon recess.

6

THE COURT: Good. And what time will Dr. Pettifer

7

be here.

8

MR. HUT: He can be here at 1:30, I believe, 1:45,

9

2, whatever, whatever is suitable for the Court.

10

THE COURT: We want to make sure we get him on and

11

off, so if he can be here, why don't we say 1:30 would be

12

good.

13

MR. HUT: That would be fine.

14

THE COURT: Good. Let's stand in recess, then,

15

until 1:30.

16

(Luncheon recess.)

17

THE COURT: Please be seated. Mr. Hut, if you

18

would call your next witness, please?

19

MS. WOOD: Plaintiff calls Dr. John Pettifer.

20

(The Witness is sworn.)

21

THE CLERK: You can be seated. If you can scoot up

22

and speak directly toward the mike. State your name and

23

spell it for the record, please.

24

THE WITNESS: My name is Glenn Robert Pettifer,

25

Glen, two Ns, Robert, P E T T I F E R.

-83-

US1DOCS 5856271v1

1

DIRECT EXAMINATION

2

BY MS. WOOD:

3

Q. Good afternoon, Dr. Pettifer.

4

A. Hi.

5

Q. Thank you for coming to court. What is your current

6

occupation?

7

A. I'm currently a specialist in veterinary anesthesiology

8

and pain management, and most my work involves providing

9

clinical services in the realm of veterinary anesthesiology

10

and pain management.

11

Q. Why are you here to testify in the plaintiff's case?

12

A. I was asked to provide some insight on the process of

13

veterinary euthanasia.

14

Q. Before we get to your opinion on that matter, let's talk

15

about the education and experience and training that gave you

16

the ability to provide us with your opinion.

17

Are you currently a licensed veterinarian?

18

A. I am.

19

Q. And are you one of the 175 diplomats of the American

20

College of Veterinary Anesthesiologists?

21

A. Yes, I am.

22

Q. Do you have any other positions with the American College

23

of Veterinary Anesthesiologists?

24

A. I currently serve as the chair of the board of directors

25

of the American College of Veterinary Anesthesiologists.

-84-

1

Q. Can you explain what the college does or is?

2

A. The main functions of the college are to supervise the

3

training and certification of specialists in the field of

4

veterinary anesthesiology.

5

Q. And does the American College of Veterinary

6

Anesthesiologists have anything to do with the American

7

Veterinary Medical Association?

8

A. The American Veterinary Medical Association is sort of

9

the umbrella organization that oversees all of the specialty

10

colleges that are associated with veterinary medicine.

11

Q. What does it mean to be a diplomat of the AVMA?

12

A. In order to obtain diplomat status, one has to undergo

13

residency training of two to three years, do some research,

14

which leads to publication, and then submit your credentials

15

to the college, for approval, and if your credentials are

16

approved, then you undergo an examination process.

17

Q. Do all the diplomats reside in the United States?

18

A. No. Actually, there are a number of diplomats that live

19

outside of the United States, both in Canada and then in

20

Europe as well.

21

Q. And you may have already stated this, but if not, can you

22

please tell me a little bit more about the American

23

Veterinary Medical Association does?

24

A. The American Veterinary Medical Association is a national

25

body, which oversees -- my assumption is that it oversees the

US1DOCS 5856271v1

-85-

1

development of policy as it relates to veterinary medicine in

2

the United States.

3

Q. What does euthanasia mean, Dr. Pettifer?

4

A. In the veterinary context and in the strictest sense, it

5

means a good death.

6

Q. What is the American Veterinary Medical Association Panel

7

on Euthanasia?

8

A. To my understanding, this was a body of individuals that

9

was convened by the American Veterinary Medical Association

10

to consider all of the issues around the process of

11

euthanasia for, you know, a wide variety of species, and

12

following their deliberations, then they published their

13

report that was a summary of some of the issues that they

14

felt were of concern to those individuals that were carrying

15

out veterinary euthanasia.

16

Q. In your opinion, do the guidelines from this organization

17

reflect generally accepted standards in veterinary euthanasia

18

procedures?

19

A. Yes, I think they do.

20

Q. And are the standards for veterinary medicine

21

substantially similar between the United States and Canada?

22

A. Right, they are.

23

Q. How long have you been a practicing veterinarian?

24

A. I received my DVM in 1986, 20 years.

25

Q. And where did you receive your degree?

-86-

1

A. From the Ontario Veterinary College at the University of

2

Guelf, in Ontario, Canada.

3

Q. How did you earn your specialty in veterinary

4

anesthesiology?

5

A. I completed a residency, graduate degree, whatever you

6

call it from the program at the Ontario Veterinary College.

7

That lasted three years, and I am certified by the ACVA.

8

Q. Has your professional career including teaching

9

veterinary anesthesiology?

10

A. Correct. Actually, up until my current position, all of

11

my professional activity was related to working in veterinary

12

teaching hospitals associated with various universities. And

13

in that role, I was responsible for training and evaluating

14

veterinary students, interns, residents, veterinarians who

15

are completed specialty training. So I did a lot of teaching

16

and evaluating.

17

Q. And did you teach in the United States?

18

A. I did. I taught at the University of Georgia in Athens,

19

and then most recently taught at Louisiana State University

20

in Baton Rouge.

US1DOCS 5856271v1

21

Q. How do you stay informed in the recent advancements in

22

generally practices and procedures in this field?

23

A. Reading, reading journals, attending at least one or two

24

conferences a year, discussion with colleagues.

25

Q. Have you published any articles involving veterinary

-87-

1

anesthesiology?

2

A. I have.

3

Q. Were any of these articles published in peer-reviewed

4

publications?

5

A. They were.

6

Q. Dr. Pettifer, how often do you administer anesthesia to

7

animals in the clinical setting?

8

A. Currently, probably 10 to 15 times a day.

9

Q. And how often do you perform euthanasia on animals in a

10

clinical setting?

11

A. Well, when we have a good week, we don't have to do

12

anything. Probably in our worst, maybe two to three times a

13

week.

14

MS. WOOD: Your Honor, I have offer Dr. Pettifer as

15

an expert in the field of veterinary medicine, veterinary

16

anesthesiology, and veterinary euthanasia.

17

THE COURT: Is there any voir dire?

18

MR. PICKUS: No voir dire, and no objection to his

19

designation, Your Honor.

20

THE COURT: Thank you.

21

So Dr. Pettifer is accepted as an expert in

22

veterinary medicine, veterinary anesthesiology, and

23

veterinary euthanasia. Good. Thank you.

24

BY MS. WOOD:

25

Q. Dr. Pettifer, at what rate are you being compensated for

-88-

1

your work in this case?

2

A. $200 an hour.

3

Q. Do you have a view on the death penalty?

4

A. Yes, I do. It's not something that I generally support.

5

Q. In your mind, is there a legal and moral distinction to

6

your views?

7

A. I'm not sure I understand your question.

8

Q. Oh. I was just asking you your views?

9

A. My view? I think that my hesitancy in supporting the

10

death penalty comes from my impression that it's not always

11

applied fairly, that it may actually be a greater burden to

12

the government than incarcerating someone.

13

And then I generally have a view that I can't

14

always reconcile killing as being a positive event.

15

Q. Have you previously provided any testimony in similar

US1DOCS 5856271v1

16

cases?

17

A. Two years ago, I was asked to provide some insight into

18

the process of veterinary euthanasia, in a case in Louisiana,

19

the State of Louisiana.

20

Q. Do you belong to any anti-death penalty groups?

21

A. I do not.

22

Q. Okay. Now, we'll go over what you have relied on in

23

informing your opinion in this matter.

24

A. Uh-huh.

25

Q. What types of things have you relied on?

-89-

1

A. Well, primarily, I rely on my own clinical and experience

2

and knowledge of drugs and the process of euthanasia. And

3

then in terms of materials, I've read the report of the AVMA

4

panel on euthanasia.

5

I'm also somewhat familiar with the Maryland

6

legislation as it applies to the euthanasia of animals. And

7

then I've also have access to and have reviewed some of the

8

depositions of the Contractual Team members.

9

I've also seen some diagrams and some photographs

10

of the physical layout of the execution chamber and the room

11

surrounding the chamber.

12

And then I've also have access to and have reviewed

13

some of the expert reports that were provided by the

14

anesthesiologists.

15

Q. Have these materials given you a general understanding of

16

the drug used in the Maryland procedure?

17

A. I believe they have.

18

MS. WOOD: Okay. I'd like to offer plaintiff's

19

exhibit 21, which is the 2000 report of the AVMA panel on

20

euthanasia, and I'll hand it to the courtroom deputy at the

21

end of my exam.

22

BY MS. WOOD:

23

Q. Dr. Pettifer, this is also in your binder should you need

24

to look at it. It should be behind tab 21.

25

As a veterinarian, what is your objective when

-90-

1

performing a euthanasia procedure?

2

A. As a veterinarian, carrying out euthanasia in a clinical

3

setting, our goal to effect the death of the animal with

4

minimal pain and distress for the animal, and also for the

5

family if they're present during the procedure.

6

Q. In your experience, when using an injectable drug in a

7

euthanasia procedure, is there a preferred method?

8

A. I think generally veterinarians prefer to use an

9

injectable drug called sodium pentobarbital.

10

Q. What is sodium pentobarbital?

US1DOCS 5856271v1

11

A. It is a barbiturate, belongs to class of drugs known as

12

barbiturates. And it is an injectable drug that, in the

13

context of veterinary euthanasia, is used because of its

14

relatively long duration of action.

15

That actually produces a depression of central

16

nervous system functions. And as the dose of the

17

pentobarbital increases, the degree of depression of CNS

18

functioning increases to the point where even the respiratory

19

center is completely depressed so that breathing stops. And

20

then ultimately the heart will stop.

21

Q. Okay. So I think you just described for the Court how

22

sodium pentobarbital causes a death in an animal --

23

A. Right.

24

Q. -- when you're using it to euthanize an animal?

25

A. Correct, right.

-91-

1

Q. And you mentioned it was long-acting? Is it a

2

long-acting barbiturate?

3

A. It's not actually classed, if you look in the

4

pharmacological textbooks, it's not actually classed as a

5

long-acting barbiturate, but it has a longer course of action

6

than some of the other barbiturates do.

7

THE COURT: So, doctor, is it sodium phenobarbital?

8

THE WITNESS: Pentobarbital.

9

THE COURT: Could you spell it?

10

A. Sure. P E N T O B A R B I T A L.

11

THE COURT: Thank you.

12

Q. So when you describing how the drug causes death, it

13

eventually stops the animal from breathing; is that correct?

14

A. Yes. That's probably the first thing that will happen

15

with an overdose.

16

Q. And then it stops the heart?

17

A. Right. So there are a couple processes that are taking

18

place at the same time.

19

Once the animal stops breathing, then it stops

20

oxygenating itself, stops delivering oxygen into the brain,

21

and the brain doesn't tolerate lack of oxygen for very long.

22

So that then really shuts down brain function and all of the

23

systems that the brain controls, including the heart.

24

There's a direct effect of the drug as well on the

25

heart muscle itself.

-92-

1

Q. When you're euthanizing an animal, Dr. Pettifer, in your

2

experience from start to finish how long does the procedure

3

take?

4

A. If you look at a timeline from the time that the drug is,

5

we start to administer the drug till the animal dies,

US1DOCS 5856271v1

6

probably in a matter of three to five minutes.

7

Q. So, in your clinical setting, it sounds like you had to

8

euthanize pets if it's a bad week; is that correct?

9

A. Yes.

10

Q. In your experience, or in euthanasia, are there occasions

11

when what is perceived as aesthetic and what is humane are in

12

conflict?

13

For instance, I'm thinking if you have the animal's

14

owners in the room or you have witnesses?

15

A. Right. There may be situations where the reaction of the

16

animal's body to the administration of the drug and the lack

17

of oxygen may produce some movement that may not be aesthetic

18

for the animals.

19

So sometimes there are -- there's, you know, that's

20

a conflict between aesthetic and the actual euthanasia

21

itself.

22

Q. Does the AVMA report address guidelines about when

23

euthanasia is aesthetically displaying to witnesses or to pet

24

owners?

25

A. I think that there is brief mention in the report

-93-

1

regarding that, in that the direction of the panel is that

2

really in those situations, probably the best thing that one

3

can do that a veterinarian can do is to educate the people

4

that may be affected by the process.

5

Q. So it sounds like just to keep them informed, explain

6

what may or may not happen?

7

A. And then clinically, that's I mean that's at the type of

8

process that I undertake, that prior to actually euthanizing

9

a pet, I'll have a pet with the family members that are

10

present and tell them what they can expect to see during the

11

process.

12

MS. WOOD: Okay. I would -- I neglected to offer

13

into evidence Dr. Pettifer's CV, which is previous exhibit

14

44.

15

THE COURT: It is received.

16

(Received in evidence.)

17

BY MS. WOOD:

18

Q. Thank you. Let's talk about the drugs that are used in

19

Maryland's lethal injection protocol now.

20

You've reviewed the protocol, as you stated; is

21

that correct?

22

A. Correct.

23

Q. Based on your review of the protocol, what drugs are used

24

to put inmates to death?

25

A. It's my understanding that there are three drugs that are

-94-

US1DOCS 5856271v1

1

used: One is thiopental, which is a barbiturate, and then a

2

neuromuscular called pancuronium bromide is used, and then

3

electrolyte solution of potassium chloride is also

4

administered.

5

Q. Based on your review of the materials, is there any

6

variation in the dosage based on the individual?

7

A. Not to my knowledge.

8

Q. Let's look -- let's turn to plaintiff's exhibit 21 for a

9

moment.

10

If you turn to the last page, there's an

11

introductory statement on the report.

12

A. Uh-huh.

13

Q. Does the AVMA report specifically mention the application

14

of a barbiturate paralyzing agent and potassium chloride

15

delivered in separate syringes or stages?

16

A. It does not.

17

Q. In your opinion, does this introductory statement change

18

substance of the generally accepted practices for injectable

19

drugs contained in the report?

20

A. No, I don't think that it does, because the report deals

21

with a lot of issues around the process of euthanasia, so

22

there still is a lot of information that is used in the

23

report.

24

Q. Is sodium thiopental similar to sodium pentobarbital?

25

A. In the respect they're both barbiturates, yes.

-95-

1

Q. Is one shorter or longer acting?

2

A. It is sodium thiopental is more -- has a shorter duration

3

of action than does sodium pentobarbital.

4

Q. What does potassium chloride do?

5

A. Potassium chloride in solution, well, as a solution of

6

electrolytes, potassium and chloride, when they're

7

administered to an animal, they will actually disrupt the

8

electrical activity of the heart and will cause the

9

electrical activity that's necessary for impulse generation

10

in the beating of the heart. They will cause disruption of

11

that, and it will cause the heart to stop beating.

12

Q. So it's the stopping of the heart that causes death?

13

A. Yes.

14

Q. In a clinical setting, are there any limitations on using

15

potassium chloride in euthanasia procedure?

16

A. Well, the most obvious limitation is that it would be

17

considered to be inhumane in an animal to administer

18

potassium chloride to a conscious animal.

19

Q. And why is that?

20

A. Because, essentially, what you will be doing with the

21

animal is -- you know, take the conscious animal and then

22

administering a drug that potentially can cause pain and be

23

irritating on injection, but more importantly, will provide

24

the animal with the conscious experience of having its hard

25

stop and then, you know, there's loss of blood flow to the

US1DOCS 5856271v1

-96-

1

brain.

2

So it wouldn't be, I guess, unlike the experience

3

of having a heart attack.

4

Q. You mentioned there's some limitations on using potassium

5

chloride?

6

A. Yes. So if in the clinical setting, if someone feels the

7

need to use potassium chloride, then it is most humanely used

8

in a setting where the animal is already under anesthesia, is

9

under a deep plane of anesthesia prior to the administration

10

of the potassium chloride.

11

Q. Okay. Does the position in the AVMA report, is that

12

consistent with what you just stated?

13

A. I think so. In the AVMA report, they talk about the need

14

for a surgical plane of anesthesia prior to the

15

administration of potassium chloride. And that the drug

16

needs to be administered by an individual who is able to

17

assess the level of anesthesia prior to initiating the

18

injection of the potassium.

19

Q. Does that call for any type of training. I'm sorry. Go

20

ahead?

21

A. Well, in our setting, a procedure like that would be

22

carried out either by a veterinarian, myself, or trained

23

technician, whose activities would be overseen by myself.

24

But in 99 percent of the cases, I'm the one that's involved

25

with that.

-97-

1

Q. And is anyone else involved, are they actually assessing

2

the anesthetic depth, or is it the veterinarian?

3

A. It's the veterinarian.

4

Q. Can you please define what a surgical plane of anesthesia

5

is? I think you discussed that earlier in your answer.

6

A. When we produce anesthesia in an animal, you know we take

7

it from a fully conscious state to a level of depressed

8

consciousness that allows us to carry out surgical

9

procedures, or diagnostic procedures.

10

And so with increasing doses of drugs, we move them

11

from that state of consciousness to a point where they're not

12

able to, or where they don't respond to the surgical

13

stimulation.

14

Q. Okay. In layman's terms, can you explain to me how

15

that's different from merely falling asleep?

16

A. The difference between sleep and surgical anesthesia is

17

that in a sleep state, if an animal's just asleep, it is easy

18

aroused. It can be aroused by you know, a variety of

19

stimulation, by touching, speaking to it, that sort of thing.

20

Whereas in a state of surgical anesthesia, you're

US1DOCS 5856271v1

21

not able to actually awaken the animal, unless you turn the

22

anesthesia off. And at a surgical plane of anesthesia,

23

they're nonresponsive to surgical intervention, surgical

24

stimulation.

25

Q. Okay. So it sounds like that the answer -- the loss of

-98-

1

consciousness is necessary so the animal doesn't feel the

2

pain of the potassium chloride?

3

A. Correct.

4

Q. Can you walk me through how you would monitor whether an

5

animal was sufficiently anesthetized during a euthanasia

6

procedure? And just basic just layman terms would be great.

7

A. Sure. In the context of an animal that we're going to

8

use potassium chloride for, is that what you're asking or

9

just the process in general?

10

Q. The process in general. If your vet clinic if someone

11

has brought in a pet?

12

A. Right. If an animal's presented for euthanasia, for

13

whatever reason, there are a number of things that take

14

place. The first thing that we do to prepare for the

15

procedure is to place an intravenous catheter so we have

16

reliable access to the vein. We'll have an intravenous

17

catheter placed.

18

Then we calculate amount of euthanasia solution

19

that is going to be required to produce euthanasia.

20

Q. Why do you calculate the dosage?

21

A. Well, we deal with, you know, a fairly wide range of size

22

of animals. So that we make sure that, you know, the larger

23

animals received an appropriate amount of the drug to

24

actually effect the euthanasia.

25

Q. Is there anything else you consider other than weight or

-99-

1

size?

2

A. Certainly, I think that the health status of the animal,

3

the sort of the mental state of the animal. An animal that's

4

more anxious may require more drug. If the animal is quite

5

sick and depressed, it may require less drug. So there are a

6

number of factors that sort of go into determining what dose

7

range you would employ.

8

Q. Okay. So before I interrupted you, I think we have the

9

pet, we have the IV established, and then what do you do you

10

do next?

11

A. Well, then verify that the IV catheter is actually in the

12

vein so that we have reliable access to the vein before we go

13

ahead and start administering the drug.

14

And then the drug administration will start. And

15

throughout the drug administration, then, you know, one

US1DOCS 5856271v1

16

monitors the animal's response to the drug to determine

17

whether or not you're getting the desired or the intended

18

effect. So you're looking at changes in consciousness.

19

You're looking at changes in breathing. Changes in pulse.

20

Changes in things like muscle tone, those sort of things.

21

And then we also make sure that we have continued

22

intravenous access while we're administering the drug.

23

Q. And before you get to that step, when you administer the

24

drug through the IV, are you paying attention to the amount

25

of force that's required?

-100-

1

A. I mean, I think generally, that we do that when we were

2

administering any IV solution, that the force that's required

3

to depress the plunger on the syringe provides you feedback

4

with whether or not you have unobstructed access to the vein.

5

So if there's a problem with access to the vein,

6

then you're going to encounter some resistance to depressing

7

the plunger.

8

Q. So when you you're pressing the plunger, do you also look

9

at the IV site in the animal?

10

A. Yeah, yeah. Because sometimes these drugs can cause

11

swelling around the -- around the catheter site, around the

12

IV site if there's leakage.

13

Q. So swelling means that all the fluid is not going into

14

the vein; is that correct?

15

A. Correct. Right.

16

Q. And how close are you to the animal during this

17

procedure?

18

A. If I'm carrying out the procedure, I'm right there. I

19

mean, so that I have my hands on the animal throughout the

20

drug administration.

21

Q. So you said you were right there; is that within reaching

22

distance, you could touch the animal if you wanted to?

23

A. Well, I usually have -- you know, I'll have the animal's

24

paw in my hand or something like that. So I maintain contact

25

with the animal throughout the procedure.

-101-

1

Q. Earlier you stated a couple things you look at to see if

2

loss of consciousness has been achieved. Would it be

3

sufficient to just check one of those things to see if loss

4

of consciousness has been achieved?

5

A. No. You know, the body's a very complex thing, so we

6

like to use an aggregate of all the information presented to

7

us by different systems, respiratory system, cardiovascular

8

system, all the information that comes from each of the

9

systems sort of put together.

10

Q. Okay. Why is it important, in layman's terms, to monitor

US1DOCS 5856271v1

11

the anesthetic depth when you're putting an a animal to

12

death?

13

A. Oh. To ultimately determine that you've actually

14

achieved, you know, your intended effect, which is to

15

completely depress all nervous system functioning.

16

Q. Okay. You said the intended effect, but part of that is

17

painless death; is that correct?

18

A. Correct. Right.

19

Q. Let's move onto pancuronium bromide.

20

A. Okay.

21

Q. Do you know what that?

22

A. Pancuronium bromide is a neuromuscular blocking agent

23

that is administered to produce muscle paralysis.

24

Q. Is that also sometimes called a uroform drug?

25

A. Uroform life drug, yes.

-102-

1

Q. In a clinical setting, is pancuronium bromide a preferred

2

drug in animal euthanasia?

3

A. No, no.

4

Q. Why not?

5

A. I think that in the clinical setting, I mean, I never had

6

occasion to use a neuromuscular blocking drug in a euthanasia

7

protocol, because the drug that we use, the sodium

8

pentobarbital, is very reliable in producing the intended

9

effect.

10

And the big concern that we have in using

11

pancuronium is that it actually is not only superfluous, but

12

it masks or removes our ability to assess the animal's

13

reaction to the injection of the barbiturate.

14

Q. So would it be difficult to assess the animal's level of

15

anesthesia if pancuronium bromide was used?

16

A. Yeah, it would be. I mean, because we use things like

17

breathing, we look at changes in breathing as we administer

18

the sodium.

19

Q. When you say changes in breathing, what actually are you

20

looking at?

21

A. Well, as you produce anesthesia, and animals take it from

22

a state of consciousness to be anesthetized, the breathing

23

pattern changes.

24

So what happens is the rate of breathing slows

25

down.

-103-

1

Q. And how do you tell that? Are you looking at the animal?

2

A. By observing how the animal's chest is moving.

3

Q. Okay.

4

A. Right. So that type of information, then, in a paralyzed

5

animal isn't available to us. And we rely fairly heavily on

US1DOCS 5856271v1

6

that type of information to determine the depth of

7

anesthesia.

8

Q. And it sounds like you also look at eyelids and you

9

looked at a couple other things; is that correct?

10

A. Correct. So we look at muscle tone, and more commonly

11

we're looking at jaw tone, how easy it is to open and close

12

the animal's mouth. As an animal becomes more deeply

13

anesthetized, then the jaw tone becomes almost absent.

14

So in the presence neuromuscular blockade when all

15

the muscles are paralyzed, then you're not able to assess

16

muscle tone at all.

17

Q. Does the AVMA have a view on acceptable practices when

18

using this drug in clinical settings?

19

A. I believe from the report of the panel, the position is

20

that the use of neuromuscular block agents is not -- not and

21

recommended by the AVMA.

22

Q. And if at any time you want to refer to the report,

23

please feel to do so. I'm asking you a lot of questions

24

about it.

25

A. Let me just check.

-104-

1

(Pause.)

2

A. Actually, within the report itself, they can talk about,

3

or state that when used alone, the injectable agents listed

4

in a particular appendix, which include neuromuscular

5

blocking agents, are considered unacceptable and are

6

absolutely condemned for euth, that is euthanasia agents.

7

Q. Do you know if the use of these drugs, when used alone,

8

in animal euthanasia is regulated in any other way?

9

A. Certainly I believe with the State of Maryland, the

10

legislation prohibits use of neuromuscular blocking drug for

11

the euthanasia of animals.

12

Q. Of animals like dogs and cats?

13

A. Correct.

14

Q. Okay. Let's assume, Dr. Pettifer, that you're evaluating

15

the Maryland protocol, the drugs that are used, in terms of

16

using it to euthanize an animal, so you've reviewed the

17

deposition transcripts of the execution team members; is that

18

correct?

19

A. Right.

20

Q. So you're aware of their credentials?

21

A. As described in the deposition, yes.

22

Q. Like the AVMA guidelines for injectable drugs, does

23

Maryland's lethal injection protocol require personnel

24

performing the act to be trained and knowledgeable in

25

anesthetic techniques?

-105-

US1DOCS 5856271v1

1

MR. PICKUS: I'm going to object. I don't believe

2

it's fair or relevant to apply AVMA standards to a lethal

3

injection procedure.

4

THE COURT: I understand the point, but I'll

5

overrule the objection.

6

Q. So can you go ahead, answer.

7

A. Can you repeat the question?

8

Q. Sure. Like the AVMA guidelines for injectable drugs,

9

does Maryland's lethal injection protocol require personnel

10

performing the act to be trained and knowledgeable in

11

anesthetic techniques?

12

A. From the materials that I have reviewed, and to my

13

knowledge of what the AVMA has talked about in their report,

14

it doesn't appear that any of the individuals involved in the

15

process are required to have any specific training in

16

anesthesia.

17

Q. In your opinion, and in the context of your veterinary

18

clinic, would the personnel on the execution team be

19

competent in assessing anesthetic depth of an animal in your

20

veterinary clinic?

21

A. No.

22

Q. How have you also reviewed some pictures and a diagram of

23

Maryland's execution room, I think you have stated so?

24

A. Right.

25

Q. Based on your view, do you have a general understanding

-106-

1

of where everyone is located when they administer the drugs?

2

A. Yes.

3

Q. And is it in a separate room?

4

A. Yes. My understanding is most of the people that are

5

involved in the process, and the person who is specifically

6

responsible for administering the drugs, are located in a

7

room that's adjacent to the actual execution room.

8

Q. If you were using the State of Maryland execution

9

facilities to euthanize an animal, do you feel you'd be in

10

close enough physical contact to monitor the anesthesia of

11

that animal?

12

A. No.

13

Q. In your opinion, could you perform a euthanasia procedure

14

on an animal according to generally accepted practices in

15

your field if you followed Maryland's execution protocol?

16

A. No.

17

MS. WOOD: One housekeeping matter, I think I

18

earlier stated that Dr. Pettifer's CV was plaintiff's exhibit

19

44, and it's actually 81. And I'll hand those up later.

20

I have no further questions.

21

THE COURT: Thank you.

22

Mr. Pickus? Your witness, sir.

23

CROSS-EXAMINATION

24

BY MR. PICKUS:

25

Q. Can I get the override turned off so I can use this

US1DOCS 5856271v1

-107-

1

machine, please?

2

There's some drawings on there already, I don't

3

know how to erase that.

4

Good afternoon, doctor.

5

A. Hello.

6

Q. You are a doctor of veterinary science, correct?

7

A. Doctor of veterinary medicine, yes.

8

Q. And where are you currently licensed to practice

9

medicine?

10

A. I'm currently licensed to practice veterinary medicine in

11

the Province of Ontario, Canada.

12

Q. Do you currently have a license in the United States to

13

practice veterinary medicine?

14

A. No. But I'm eligible.

15

Q. Do you currently have any kind of license that would

16

allow to you practice medicine on a human being?

17

A. No.

18

Q. Have you ever had any training or experience in providing

19

medical care to human beings?

20

A. I haven't.

21

Q. Have you ever done any pharmacological studies on

22

anesthesia used for human beings?

23

A. On humans?

24

Q. Yes.

25

A. No.

-108-

1

Q. Are you trained in applying anesthesia to human beings?

2

A. No.

3

Q. Are you trained in assessing anesthetic death for human

4

beings?

5

A. No.

6

Q. Do any of your publications have anything to do with the

7

photograph medicine on human beings?

8

A. No, not at all.

9

Q. Are any of your affiliations regarding practice of

10

medicine on human beings?

11

A. I am a member of the International Academy for the Study

12

of Pain, which is a multidisciplinary group, and there are a

13

number of MDs that are also a member of that group.

14

Q. Other than that affiliation --

15

A. No.

16

Q. -- any --

17

A. No.

18

Q. You are currently a member of the AVMA?

19

A. I am.

20

Q. Do you believe that the AVMA and their publications set

US1DOCS 5856271v1

21

forth current standards of veterinary practice?

22

A. Yes.

23

Q. And you would say that's true of the AVMA report on

24

euthanasia?

25

A. Yes.

-109-

1

Q. And it's your opinion here today that Maryland protocol,

2

as it stands right now, would not be allowed to be used for

3

euthanizing animals; is that correct?

4

A. Are you referring to the drug protocol or the physical

5

layout?

6

Q. Both.

7

A. Both?

8

Q. Yes.

9

A. I think, given the physical layout and the drug protocol

10

that has been outlined to me, it doesn't reflect the

11

generally held approach to euthanasia in the veterinary

12

clinical setting.

13

Q. And at least in part you relied on the 2000 report of the

14

AVMA panel in euthanasia, correct?

15

A. Relied on it for?

16

Q. For that opinion?

17

A. Yes, I referred to it. But I relied largely on my own

18

clinical experience.

19

Q. But their report would support your opinion, do you

20

believe?

21

A. I think so, yes.

22

Q. In this report some of the methods of euthanasia allowed

23

include decapitation; is that correct, in certain

24

circumstances?

25

A. In some circumstances, yes.

-110-

1

Q. Is that decapitation done by a guillotine?

2

MS. WOOD: Objection, beyond the scope of direct.

3

THE COURT: I'll overrule. Decapitation of what?

4

Q. Is decapitation of smaller animals done with a

5

guillotine?

6

A. In some settings, yes.

7

Q. Does the report allow for some animals be euthanized in

8

certain setting by electrician?

9

A. Yes.

10

Q. Does the report allow for animals to be euthanized in

11

settings by something called microwave irradiation?

12

A. Irradiation, yes, it's listed as a method.

13

Q. Is that heating up an animal's brain with microwaves?

14

A. It seems to be, yes. I don't have any particular

15

experience with that.

US1DOCS 5856271v1

16

Q. Does the report allow for animals to be euthanized by

17

something called cervical dislocation?

18

A. Yes, it does.

19

Q. In layman's terms is that wringing an animal's neck?

20

A. I don't think that it's that crude a technique.

21

Q. Is it similar?

22

A. It's similar.

23

Q. And the report even allows some animals to be euthanized

24

in certain situations by a, gunshot; is that correct?

25

A. It does.

-111-

1

Q. Now, you stated in your practice when you have to

2

euthanize animals, you mainly deal with sodium pentobarbital?

3

A. Correct.

4

Q. And you do not regularly deal with sodium pentothal?

5

A. Not as a drug that we use to produce euthanasia, no. But

6

I do use it on a daily basis as an anesthetic.

7

Q. And do you use it as a general anesthetic?

8

A. I use it as part of a protocol that to induce general

9

anesthesia, but not to maintain general anesthesia.

10

Q. To your knowledge, is sodium pentothal a derivative of

11

barbituric acid?

12

A. Yes.

13

Q. Do you have your AVMA report in front of you?

14

A. I do.

15

Q. If you could turn to page 680.

16

THE COURT: And what number is that, again, please,

17

Mr. Pickus?

18

MR. PICKUS: It's plaintiff's 21, Your Honor.

19

THE COURT: Good. Thank you.

20

Q. If you look on the left-hand column first full paragraph,

21

does it say all barbituric acids derivatives that are used

22

for anesthesia are acceptable for euthanasia when

23

administered intravenously?

24

A. Yes.

25

Q. Do you agree with that statement?

-112-

1

THE COURT: I'm sorry, what page again, please?

2

Q. Page 680 of the actual report, left-hand column, first

3

and indented paragraph.

4

THE COURT: Thank you. Do you see that statement,

5

doctor?

6

A. I do see it.

7

Q. Do you agree with that statement?

8

A. I do agree with it.

9

Q. Now, in layman's terms, is the purpose, well, actually

10

not in layman's terms, I'm trying to get an animal to be

US1DOCS 5856271v1

11

unconscious, is the technical result we're looking for to

12

cease functions of the cerebral cortex and the subcortical

13

structures?

14

A. Yes.

15

Q. Did I pronounce everything correct?

16

A. I think so.

17

Q. Could you turn to page 672 in the report right-hand

18

column very last paragraph.

19

A. Correct.

20

Q. Are you with me?

21

A. Yes.

22

Q. It says, does it not, "For pain to be experienced, the

23

cerebral cortex and subcortical structures must be

24

functional. If the cerebral cortex is not functional because

25

of hypoxia, depression by drugs, electric shock, or

-113-

1

concussion, pain is not experienced. Therefore, the choice

2

of the euthanizing agent or method is less critical if it is

3

to be used on animal that is anesthetized or unconscious."

4

A. Provided the animal does not regain consciousness prior

5

to death.

6

Q. Do you agree with that statement?

7

A. Yes.

8

Q. And to your knowledge, can sodium pentothal cause the

9

cerebral cortex and subcortical structures to cease

10

functioning?

11

A. That's -- if an overdose is given, yes.

12

Q. Well, does it even need to be an overdose? You testified

13

you use it for anesthesia?

14

A. Yes, but that, the purpose of anesthesia is not to remove

15

all function of the cerebral cortex or the subcortical

16

structures, because in doing that, then you're actually

17

producing death, not anesthesia.

18

Q. Okay. But you agree if an overdose of sodium pentothal

19

is given, then those functions would be ceased?

20

A. Right.

21

Q. And if that occurs, the animal, since we're talking about

22

animals, will not experience any pain no matter what is done

23

at that point; is that correct?

24

A. Once they're dead, no.

25

Q. No, once the -- are they dead when those functions have

-114-

1

stopped working?

2

A. I think that's, yeah, that's how we define it.

3

Q. Well, can there still be circulation or a heart beat?

4

A. No.

5

Q. So your testimony is once these cerebral functions stop,

US1DOCS 5856271v1

6

there's no longer the possibility of circulation?

7

A. Once the brain has ceased functioning and then all the

8

sort of the consequent depression of respiratory and

9

cardiovascular functioning, yes.

10

Q. Well, why would the report say any method of euthanasia

11

is then acceptable, if the animal would already be dead?

12

A. I don't know. I didn't write it. But my -- the way I

13

interpret this is that it's true that, for pain to be

14

experienced, the cerebral cortex and subcortical structures

15

have to be functional. So there has to be some level of

16

cortical activity for pain to be experienced.

17

Q. And if there is not, no matter what agent is then used,

18

there would be no pain, correct?

19

A. That seems to be the case.

20

Q. Does that seem to be what the report's saying, or do you

21

disagree with the report?

22

A. No, no, I agree.

23

Q. And the use of potassium chloride to euthanize animals is

24

allowed in certain circumstances; is that correct?

25

A. It is.

-115-

1

Q. And when is that?

2

A. I'm not sure when people decide that they need to use

3

potassium chloride. The AVMA report speaks to the situation

4

where it's appropriate to use it in cases where an animal is

5

already anesthetized.

6

Q. And in your practice, the way of anesthetizing the animal

7

would be with the sodium pentobarbital, correct?

8

A. No. In my practice, so we're talking about anesthesia or

9

euthanasia?

10

Q. Well, euthanasia.

11

A. In my practice, there are two ways in which euthanasia

12

presents itself. It would either be an animal that is

13

presented in a conscious state that is to be euthanized, or

14

it may be an animal that is already under general anesthesia,

15

and it's been decided while the animal's anesthetized that we

16

need to go ahead and euthanize it.

17

Q. Would you agree that the report would say that an animal

18

that has been anesthetized with potassium chloride can then

19

be used as an euthanizing agent?

20

A. As long as the level of anesthesia is appropriate, yes.

21

Q. Now, you previously testified during questioning of Miss

22

Wood, that you want to be right on top of the animal when

23

you're euthanizing the animal or even for that matter gauging

24

anesthetic depth?

25

A. Correct.

-116-

US1DOCS 5856271v1

1

Q. And one of the reasons you're looking for symptoms of

2

something going wrong, basically, for lack of a better term?

3

A. Not always. I mean, you're looking for the response of

4

the animal to the drug. So it can either be a positive

5

thing, or you're also looking to see whether there are things

6

that are happening that you hadn't intended.

7

Q. So it's your testimony it's better to be right next to

8

the patient, and in your case the patient is an animal, in

9

giving both anesthesia and euthanasia; is that correct?

10

A. Yes.

11

Q. And are you aware under the Maryland protocol that

12

Contractual Team B now stays in the execution room and stays

13

right next to the inmate during the administration of the

14

chemicals?

15

A. I think, yes, Miss Wood informed me of that.

16

Q. So, therefore, she would be in the proper view to gauge,

17

with any amount of training, of course, to gauge what's going

18

on with the patient, in this case not really a patient, the

19

inmate?

20

A. Yes. And depending on her training.

21

Q. And you also said that if an IV is leaking, there will be

22

swelling?

23

A. Yes, in most cases, there would be.

24

Q. When you administer sodium pentothal for the purpose of

25

animal euthanasia, what kind of doses do you use? I realize

-117-

1

in veterinary medicine you deal with a wide range of animals?

2

A. Right.

3

Q. What would be the kind of doses that you would give,

4

would it be helpful to narrow it to a breed?

5

A. Well, I mean, we can go anywhere from given a volume of

6

say five milliliters to a small dog to giving one 120

7

milliliter to a large horse or even on up to you know 300,

8

400 milliliters to an elephant.

9

Q. So when you want to anesthetize an elephant, you're

10

giving 3 to 400 milliliters of sodium?

11

A. Not in anesthetizing. Euthanizing it.

12

Q. So 300 milliliters sodium pentothal would kill an

13

elephant?

14

A. In the one situation where I've been involved in doing

15

that, the elephant was already anesthetized.

16

Q. And can you give me the weight range of the elephants

17

that you might euthanize?

18

A. Oh, gosh. 3,000 kilograms, maybe.

19

Q. Okay. You're going to have help me, because kilograms

20

don't mean a whole lot to me. Can you give --

21

THE COURT: 2.2. If you --

22

A. No, I can't.

23

THE COURT: If you're in a court that has heavy

24

drug docket, you know what it is.

25

(Laughter)

US1DOCS 5856271v1

-118-

1

Q. Is it fair to say that, in your experience, the average

2

elephant would weigh a whole lot more than the average human

3

being?

4

A. Yes.

5

Q. And your testimony is 300 milligrams of sodium pentothal

6

would kill an elephant?

7

A. And I am drawing on, you know, memory of a procedure that

8

I undertook probably ten years ago with an elephant, so I

9

wouldn't want to commit myself.

10

Q. That's fair. Are you wear the dose of sodium pentothal

11

given in the Maryland protocol?

12

A. So we're talking pentothal now, not pentobarbital?

13

Q. What were you talking about?

14

A. I was talking about pentobarbital. That's what we used

15

to carry out euthanasia. We don't use pentothal.

16

Q. Okay. Well, what is your experience, then, with sodium

17

pentothal?

18

A. As a -- I use it on a daily basis to induce general

19

anesthesia in animals, take them to a level of consciousness

20

or unconscious this that allows me to place a tube in their

21

trachea, in their windpipe, and then they're connected to a

22

gas anesthesia machine. So I use pentothal solely to induce

23

general anesthesia.

24

Q. Okay. I believe you stated in your direct examination

25

that you believed sodium pentobarbital had a longer lasting

-119-

1

effect than sodium pentothal, am I fair phrasing you

2

correctly?

3

A. Yes.

4

Q. Are you aware of the dose of sodium pentothal given by

5

Maryland's protocol?

6

A. According to the materials I reviewed, I believe it's

7

three grams.

8

Q. And just so I'm clear, how many milliliters is three

9

grams?

10

A. It depends on the concentration of the solution, so I

11

don't know.

12

Q. Do you have any idea what effect three grams of sodium

13

pentothal would have on a human being?

14

A. I have no idea. It is outside of my area of expertise.

15

Q. You don't know if it would kill a human being?

16

A. I have no idea.

17

Q. You don't know in what percentage of people it would

18

render someone unconscious?

19

A. No at all.

20

Q. You don't know how long a human being would be

US1DOCS 5856271v1

21

unconscious under that dose?

22

A. I do no.

23

Q. Now, I believe if I could show you an exhibit, this was

24

the back page of the exhibit that, just for clarity, I'd like

25

to mark this as defendant's 6.

-120-

1

Have you seen this before?

2

A. I have.

3

Q. In what context?

4

A. When I was reviewing the report itself.

5

Q. And do you believe this is, in fact, the statement from

6

the AVMA?

7

A. Yes.

8

Q. Do you have any reason to doubt that it's not from the

9

AVMA?

10

A. No.

11

Q. And the first line says "The 2000 report has been widely

12

misinterpreted."Is that correct?

13

A. That's what's what it says.

14

Q. If I could skip to the next paragraph, it says "Before

15

referring to 2000 report of the AVMA Panel on Euthanasia,

16

please contact the AVMA to ensure the association's position

17

is stated correctly."

18

Is that correct?

19

A. Yes.

20

Q. And you have referred to this report; have you not?

21

A. I have.

22

Q. Have you contacted the AVMA?

23

A. I have them -- I'm not stating the association's

24

position. I think it's also worthwhile noting that in the

25

report, they go on to say that the report is intended for use

-121-

1

by members of the veterinary profession who carry out or

2

oversee the euthanasia of animals.

3

Q. And it's used for purposes of guidelines for euthanizing

4

animals?

5

A. Correct.

6

Q. And this document seems to be saying that it has been

7

misinterpreted in its application to lethal injection, for

8

human being, correct?

9

A. That's what the AVMA is saying.

10

Q. Number one, in fact, says the guidelines in this respect

11

are in no way intended to be used for human lethal injection?

12

A. Right.

13

Q. But that is exactly what you have done; is it not?

14

A. No. I don't believe that's what I am doing here at all.

15

I believe that I'm here talking about the process of

US1DOCS 5856271v1

16

veterinary euthanasia.

17

Q. Okay. You were asked questions directly comparing what's

18

in this report to that the Maryland lethal injection

19

protocol; ere you not?

20

A. Yes.

21

Q. So how are you not using that for human lethal injection?

22

A. Well, I guess it depends on how you interpret the first

23

caveat in this page. Because it says the guidelines in the

24

report are in no way intended to be used for human lethal

25

injection, which I'm sure, and I certainly agree with the

-122-

1

notion that the information in the AVMA report shouldn't be

2

used to direct the process of human lethal injection. That's

3

not what it exists for. I'm merely here drawing, you know,

4

I've been asked to make comment about the Maryland process as

5

it compares to the information that's presented in this

6

report.

7

THE COURT: Could if I could ask, Mr. Pickus, the

8

exhibit that's on the screen is what number, please?

9

MR. PICKUS: Well, Your Honor, it's actually last

10

page of plaintiff's 21, but I redid it as defendant's number

11

6.

12

BY MR. PICKUS:

13

Q. Are you suggesting that, despite this caveat, the AVMA

14

did not intend for this particular warning to be applied for

15

the commenting on lethal injection protocol?

16

A. I can't speak for the AVMA. I'm not here represent the

17

AVMA.

18

Q. Would you agree that the AVMA a says this is been

19

misinterpreted and it should not be applied to lethal

20

injection, correct?

21

A. That's what it says.

22

Q. So, other than using the report as a basis of commenting

23

on Maryland's lethal injection protocol, you were also using

24

your own experience?

25

A. Correct.

-123-

1

Q. And you have no experience treating human beings?

2

A. No. But I have lots of experience carrying out

3

euthanasia.

4

Q. And you have no experience providing anesthesia to human

5

beings?

6

A. Right.

7

MR. PICKUS: That's all I have, Your Honor.

8

THE COURT: Thank you. Is there any redirect?

9

MS. WOOD: Yes, it will be short.

10

REDIRECT EXAMINATION

US1DOCS 5856271v1

11

BY MS. WOOD:

12

Q. Dr. Pettifer, I believe there were some physical methods

13

of euthanasia mentioned, cervical dislocation, decapitation.

14

Can you please turn to page 681 in the report?

15

A. Uh-huh.

16

Q. Under the second that's titled "physical methods"?

17

A. Right.

18

Q. That's where I see what counsel was referring to earlier.

19

Cervical dislocation, decapitation, et cetera.

20

A. Right.

21

Q. Can you please read the sentence that starts with when --

22

A. Oh. When properly used?

23

Q. Yes.

24

A. "When properly used by a skilled personnel with

25

well-maintained equipment, physical methods of euthanasia may

-124-

1

result in less fear and anxiety and be more rapid, painless,

2

and humane and practical than other forms of euthanasia,

3

exsanguination, stunning, and pithing are not recommended as

4

sole means of euthanasia, but should be considered adjuncts

5

to other methods."

6

Q. Thank you. Do you agree with what you just read?

7

A. Yes. I agree in some of these physical methods, if

8

they're carried out are appropriately, can lead to relatively

9

rapid death that's pain-free and stress-free.

10

Q. Okay. And I believe on the same page just a little bit

11

higher in the section titled "Recommendations," it talks

12

about the training that is necessary for people who are

13

knowledgeable in anesthetic techniques.

14

Do you see that in relation to potassium chloride?

15

Q. Yes.

16

A. Correct.

17

Q. Can you read that sentence, just the one sentence, and

18

tell me if you agree?

19

A. "It is of utmost importance that personnel performing

20

this technique are trained and knowledgeable in anesthetic

21

techniques and are competent in assessing anesthetic depth

22

appropriate for administration of potassium chloride

23

intravenously."

24

Do I agree? Yes.

25

MS. WOOD: Thank you. No further questions.

-125-

1

THE COURT: Thank you, doctor. Before you go, I

2

did have a few questions.

3

Earlier in your testimony, you were discussing two

4

drugs; sodium pentobarbital, which you helpfully spelled for

5

me, and thiopental and the difference between these two drugs

US1DOCS 5856271v1

6

is what, sir?

7

THE WITNESS: Thiopental is the same as sodium

8

pentothal. Just a different term. And then pentobarbital is

9

the drug that we use for euthanasia of animals.

10

THE COURT: Now, are these both drugs that induce

11

unconsciousness, are they used for --

12

THE WITNESS: Yes.

13

THE COURT: -- anesthesia?

14

THE WITNESS: Well, certainly thiopental or

15

pentothal is in my clinical practice is used to induce

16

unconsciousness.

17

Pentobarbital, two decades ago may, have been used

18

to induce unconsciousness, but now it's used solely in my

19

clinical setting to produce death. So it's not actually used

20

to provide, you know, for clinical anesthesia.

21

THE COURT: In looking at the report, and I'm on

22

page 680, it says "All barbituric acid derivatives used for

23

anesthesia --" and I believe that in response to Mr. Pickus's

24

cross-examination, you said that thiopental is a barbituric

25

acid derivative; is that correct?

-126-

1

THE WITNESS: Yes, that's correct.

2

THE COURT: And is sodium pentobarbital also a

3

barbituric acid derivative?

4

THE WITNESS: Right, right.

5

THE COURT: Now, when administered intravenously,

6

there's a rapid onset of action and loss of unconsciousness,

7

induced by barbiturates, results in minimal or transient pain

8

associated with venipuncture.

9

THE WITNESS: Right.

10

THE COURT: So desirable barbiturates are those

11

that are potent, and I take it you would agree both of these

12

are potent?

13

THE WITNESS: I think -- I think that pentobarbital

14

is more potent than thiopental, and that's largely because of

15

the concentration of the solution. So the solution of

16

pentobarbital we use to produce euthanasia is high

17

concentrated so that makes it more potent.

18

THE COURT: And the next is a long-acting, and

19

that's really what I was most interested in, my understanding

20

is that thiopental is a short, ultra short-acting

21

barbiturate?

22

A. Right, right.

23

THE COURT: And what does that mean?

24

THE WITNESS: It really refers to the fact that

25

after the administration of a single dose of the drug, that

-127-

US1DOCS 5856271v1

1

it is redistributed in the body and cleared relatively

2

quickly. So that following the administration of a single

3

dose, an animal would wake up relatively quickly from that.

4

THE COURT: Does it have an advantage in putting

5

someone, or an animal to sleep quicker than a long-lasting

6

barbiturate?

7

THE WITNESS: Right. In terms of the production of

8

unconsciousness, not that I am able to ascertain in the

9

clinical setting.

10

THE COURT: And you've used both?

11

THE WITNESS: Yes, I have.

12

THE COURT: In my own personal experience, they ask

13

you to count backwards by 10, and you usually get to about 6

14

or 6?

15

THE WITNESS: Right. And now currently some of the

16

drugs that they use they don't even care if you count

17

backwards, because you won't even get 10 uttered.

18

THE COURT: So that the sodium pentothal and the

19

sodium, let's say thiopental, and is there an acronym we use

20

for sodium pentobarbital something shorter we can call it by?

21

THE WITNESS: Actually, in the context, we refer to

22

it as euthanol. That's the trade name. Euthanol.

23

THE COURT: So euthanol and thiopental, to your

24

experience, induce unconsciousness equally quickly?

25

THE WITNESS: Yes.

-128-

1

THE COURT: Do you know whether they are relatively

2

the same in terms of the pain of injection, there's a -- it

3

says here loss of consciousness results in minimal or

4

transient pain associated with vena puncture.

5

When I read that, I thought that meant these drugs

6

knock you out quickly so is it having your vein punctured

7

hurts for only a short time, or having the drug put in your

8

system hurts for only a short time?

9

Because, of course, when you get the injection,

10

lethal injection, either in animal euthanasia or under the

11

protocol, your vein is punctured well before the drugs are

12

administered. So I was looking to see what that was talking

13

about.

14

THE WITNESS: My sense is that they're talking

15

about the situation where you would have either of those

16

drugs in a syringe with a needle on it, and that rather than

17

having an intravenous catheter in place trying to

18

administering the drug, you would just actually put the

19

needle in the vein. The needle's attached to the syringe,

20

and you just go ahead and inject directly through the needle.

21

THE COURT: So what they're really talking about in

22

that sentence applies when the lethal injection is given by a

23

needle rather than a catheter?

24

THE WITNESS: Right, right.

25

THE COURT: Good. The third point is that, if you

US1DOCS 5856271v1

-129-

1

have a long-lasting barbiturate, that means that if you're

2

put under, in the plane of anesthesia, if you have the long

3

acting, you'll stay under longer --

4

THE WITNESS: Correct.

5

THE COURT: -- than you will than if it's a short

6

acting.

7

THE WITNESS: Correct.

8

THE COURT: Is there any difference in the two,

9

thiopental and euthanol in the dose that it takes to achieve

10

of the surgical plane of anesthesia?

11

THE WITNESS: Well --

12

THE COURT: What I'm essentially interested in is

13

this. It's clear from the Maryland protocol that if the full

14

dose of the thiopental is administered, that it's a massive

15

dose, the person will not only be put under, but will die

16

from it?

17

So that if the dose is administered successfully --

18

THE WITNESS: Right.

19

THE COURT: -- the fact that the results are

20

short-acting is immaterial, because it will achieve quick and

21

painless death, agreed? In a mass dose? Successfully

22

administered in the vein travels through the blood system?

23

THE WITNESS: I don't know that I comment on that

24

because I'm not -- I'm not aware of the dose that's required

25

to produce anesthesia in people.

-130-

1

THE COURT: Fair enough.

2

So what I was looking for is this, if you have a--

3

maybe we ought go back to your specialty, if you have an

4

animal that -- well, let me see how I can frame it.

5

If you have an IV that's only working partly --

6

THE WITNESS: Right.

7

THE COURT: -- so that not all of the drug is

8

flowing through the veins --

9

THE WITNESS: Right.

10

THE COURT: -- and you want to achieve sedation or

11

the plane of anesthesia --

12

THE WITNESS: Surgical anesthesia, yeah.

13

THE COURT: -- is it better to have one as opposed

14

to the one, the one being thiopental as opposed to euthanol?

15

THE WITNESS: If I was presented with a situation

16

in my practice, where I had to make a choice, and I mean we

17

use pentobarbital routinely, I think that because the

18

pentobarbital is produced in such a high concentration, so

19

it's very potent compared to what I would use the

20

concentration of the thiopental that I would use, so that the

US1DOCS 5856271v1

21

amount of pentobarbital that you have to give to achieve the

22

desired effect would probably less than the volume of the

23

amount of thiopental that you will have to give.

24

But, I mean in clinical practice generally,

25

thiopental is in a concentration of two and a half percent.

-131-

1

So you have to give a fair amount of that to actually, you

2

know, achieve an overdose.

3

So I think because the euthanol is intended for

4

euthanasia and is marketed or produced at a relatively high

5

concentration, in the scenario that you described, you're

6

more likely to achieve the desired effect of use of a highly

7

concentrated solution.

8

THE COURT: And by highly concentrated solution,

9

you mean what?

10

THE WITNESS: I mean that in for every milliliter

11

of pentobarbital, there's more active ingredient than for

12

every milliliter of say a two and a half solution of the

13

thiopental.

14

You could -- you know, you could take the

15

thiopental and make it more concentrated so that you're able

16

to give more drug over the same period of time with a more

17

highly concentrated solution. The problem becomes that when

18

you start to make it much more highly concentrated, it

19

becomes much more irritating. So then you increase the risk

20

of pain on injection or that the veins themselves may start

21

to suffer some damage.

22

THE COURT: You mean, if you highly concentrate the

23

thiopental?

24

THE WITNESS: Correct.

25

THE COURT: The concentration itself makes it more

-132-

1

irritating to the vein?

2

THE WITNESS: Exactly right.

3

THE COURT: So let's go back to pentobarbital, your

4

testimony is that is very highly concentrated?

5

THE WITNESS: It is.

6

THE COURT: Does the concentration of that drug

7

mean that it's irritating the vein or have they found some

8

way to circumvent?

9

THE WITNESS: I think they must -- my sense is they

10

must either include something in the solution or it just

11

doesn't have that physical property of irritation.

12

Because, in my clinical practice, I don't see a lot

13

of reaction to the administration of the euthanol.

14

Now, part of that, too, is that in our setting, we

15

will often sedate -- excuse me, we'll give a sedative, some

US1DOCS 5856271v1

16

type of, you know, relaxing drug, like Valium or something

17

like that, just to reduce anxiety level of the animal prior

18

to administration the actual euthanol itself.

19

THE COURT: Is the Valium administered by

20

injection?

21

THE WITNESS: Oh, right, right.

22

THE COURT: Now, when a animal receives a lethal

23

dose of the euthanol, and dies as a result, what is the - if

24

you can generalize the usual degree of movement, spasm,

25

jerking, et cetera, of the animal as it's dying?

-133-

1

THE WITNESS: There are a lot of factors that might

2

contribute to that. You know, the health status of the

3

animal, whether or not they've received any additional drug,

4

like a sedative prior to the administration of the euthanol.

5

But, typically, there isn't a lot of movement at all.

6

The only thing that we might see occasionally is

7

what's called an agonal gasp. Once you actually stop

8

circulation and you stop the flow of oxygenated blood to the

9

brain, when the brain senses it's not getting oxygen, then it

10

sort of, the reaction of the body is to try and you know,

11

take a double of breath, so you'll see this sort of the mouth

12

may open widely. But it's purely a reflex reaction to the

13

hypoxemia, and those are the situation where you really have

14

to counsel the owners about, you know, what's going to happen

15

and what this actually means, that the animal isn't

16

experience any pain. It's purely a physical reaction.

17

So what you know you may see that occasionally, but

18

certainly not all, beyond that, that's it.

19

THE COURT: I know that we're talking about two

20

different situations, but if properly counseled, the owners

21

of the pet, are they normally able to tolerate that pretty

22

well?

23

THE WITNESS: Well, it really depends on the owner,

24

you know. And so a lot of what you do when we're involved in

25

euthanizing pets is, you know, dealing with the psychology of

-134-

1

their relationship of the animal to the owner and trying to

2

engage what their response would be like.

3

So in some situations, we'll recommend that the

4

owners not be present. And in other situations, you know, we

5

figure that with appropriate education, that they'll be able

6

to -- they'll find that the experience will actually

7

ultimately be a positive one for them.

8

THE COURT: Now, the reason, is this accurate, that

9

the reason that you closely monitor the animal, just to --

10

there are two situations that in contemplation, the first is

US1DOCS 5856271v1

11

administering anesthesia with a medical procedure, like an

12

operation in helping the animal, there I understand that you

13

are, and that's something you do regularly in your practice,

14

correct?

15

THE WITNESS: Correct.

16

THE COURT: And the reason for doing it is to make

17

sure that the animal is deep enough but not too deep?

18

THE WITNESS: Right.

19

THE COURT: When you're euthanizing an animal,

20

you're not worried about too deep, you're only worried about

21

too light, correct?

22

THE WITNESS: That's correct.

23

THE COURT: So why is it that you have to monitor

24

the animal so closely, is that -- is it because the physical

25

signs tell you, help tell you whether enough medicine is

-135-

1

reaching the blood system to achieve death?

2

THE WITNESS: Certainly the sort of intensity of

3

the monitoring that we undertake is more aggressive in

4

situation where we want the animals to wake up. Right?

5

So we want to be able to very closely monitor the

6

body's response to the administration of the anesthetics.

7

And that's -- it's the same with people, we look at blood

8

pressure, oxygenation, all of those sort of things.

9

We're not that aggressive, or we're not aggressive

10

in that way when we were undertaking euthanasia. Like you

11

say, we're really just monitoring to make sure that we've

12

actually achieved the desired effect. So you know, when we

13

do euthanasia, we don't have a lot of equipment hooked up to

14

the animal. We rely on our physical senses, changes in

15

breathing pattern, that sort of thing.

16

So you can tell whether you're, you know, getting

17

the desired depression of consciousness. Sometimes you'll be

18

able to detect it, the animal's actually going to start

19

become excited during the procedure, and then you can vary

20

the rate of administration of the drug so you can get them

21

through that excitation faster.

22

THE COURT: So that here you don't have, the

23

animals, you're not hooked up to let's say an EKG?

24

THE WITNESS: Not necessarily, no.

25

THE COURT: The disclaimer that Mr. Pickus showed

-136-

1

you --

2

THE WITNESS: Yes.

3

THE COURT: -- do you know what the debate was

4

within the organization that led to the disclaimer?

5

THE WITNESS: No, I don't. I'm not privy to that.

US1DOCS 5856271v1

6

THE COURT: Because there are two ways that it

7

might be taken. One is that the physical process differ

8

between humans and other animals, or other mammals, and the

9

second way of looking at it is that we've gotten

10

unintentionally gotten ourselves dragged into this death

11

penalty fight, and this isn't our fight, and we don't want to

12

be here so don't involve us.

13

Do you know which it was?

14

THE WITNESS: I don't know from the AVMA point of

15

view which one it was. I suspect it's the latter, not the

16

former.

17

I think, actually, if you look at that disclaimer

18

again, the third point that they list there, the report never

19

mentions pancuronium bromide or Pavulon. It's true, they

20

don't. But they talk about the broad class of neuromuscular

21

blocking drugs. So my sense is they're uncomfortable with

22

the organization being seen to be associated with the issue

23

of lethal injection to humans.

24

THE COURT: So their report in 2000 really was

25

aimed at this is proper, the best procedures for euthanizing

-137-

1

non human animals?

2

THE WITNESS: Right.

3

THE COURT: And it's not, you're not aware of any

4

intended use of that document is sort of a stalking horse in

5

the great death penalty debate?

6

THE WITNESS: used as what?

7

THE COURT: The stalking horse as to the great

8

death penalty debate.

9

THE WITNESS: I don't know what it means.

10

THE COURT: The people who wrote it didn't sit down

11

to think we're going to write something for veterinary

12

science that they can then use in the death penalty wars.

13

THE WITNESS: Oh, gosh no. I mean, I'm sure that

14

they don't have that intent at all. It's such a complex

15

issue.

16

THE COURT: Good. Thank you.

17

Any other questions from Mr. Evans' side?

18

MS. WOOD: Yes.

19

REDIRECT EXAMINATION

20

BY MS. WOOD:

21

Q. Dr. Pettifer, in answering the Court's question, you said

22

that you don't monitor depth as closely during euthanasia

23

than anesthesia procedures, were you referring to euthanasia

24

involving potassium chloride?

25

A. No.

-138-

US1DOCS 5856271v1

1

Q. Would that or another painful agent affect how closely

2

you monitor death during euthanasia?

3

A. Yes, I guess it would. And I didn't mention it, because

4

it's not something that I'm routinely involved in, the

5

administration of potassium chloride for euthanasia.

6

MS. WOOD: Thank you.

7

THE COURT: Mr. Pickus, anything else, sir?

8

MR. PICKUS: No, sir.

9

THE COURT: Good. Thank you. Doctor, thank you

10

very much for coming. You are excused.

11

And have a pleasant trip back to?

12

THE WITNESS: Canada. Toronto. Thank you.

13

THE COURT: Why don't we take just a recess until

14

15 minutes after. And then where are we going next?

15

MR. HUT: If I could sort of preview what I think

16

the schedule is before the recess. After the break, we would

17

propose and intend to offer in evidence a number of

18

admissions by the defendants.

19

I have at the conclusion one scheduling matter, one

20

administrative to raise with the Court. But after the

21

admissions that we would like to have in evidence, we would

22

propose to adjourn for the day.

23

Then tomorrow we will have the testimony of Miss

24

Hall, a witness to the Joe Clark execution in Ohio that I

25

made reference to in opening statement.

-139-

1

We will have some housekeeping matters relating to

2

the admission in evidence of various exhibits that may not

3

have been used with witnesses.

4

And that will conclude the plaintiff's

5

case-in-chief, we will have rested.

6

THE COURT: Good. Thank you. Then let's come back

7

at 15 minutes after.

8

(Recess.)

9

THE COURT: Please be seated. I have just a few

10

preliminary questions.

11

And I'm looking to a fact, and that is, that Mr.

12

Evans was an intravenous drug user, either primarily or

13

exclusively heroin.

14

And I believe this is accurate, that the State is

15

willing to sort of operate on the agreed assumption that

16

Evans was an intravenous drug user before 1984; is that

17

essentially correct?

18

MS. MULLALLY: Yes, Your Honor.

19

THE COURT: Good. Thank you. Obviously, the state

20

doesn't have any direct evidence of that, but the state, I

21

think it's accurate to say, has, is willing for the purpose

22

of this case to make that agreed upon -- it's not a

23

stipulated fact, but you're not opposing that assertion?

24

MS. MULLALLY: No. What the State knows is that

25

Evans committed these murders for the money because he was an

US1DOCS 5856271v1

-140-

1

IV user in 1984.

2

THE COURT: good. So that fact is then

3

established.

4

Then we come into the issue whether he was an IV

5

drug user and to what extent post 1984, and the State is not

6

conceding, or agreeing to that fact. So I think that's

7

accurate, is it not?

8

Miss Mullally is nodding.

9

MS. MULLALLY: Yes, Your Honor.

10

THE COURT: So either you can stand on the record

11

as it exists with the agreement of chronic persistent drug

12

use before 1994, or let's see. You can either stand on that,

13

or you can seek to amend the record if you need to with

14

evidence post evidence of 1984.

15

But, in my view, there isn't sufficient evidence of

16

post 1984 drug use. Well, there may be some but there's not

17

much.

18

So what you want to do is decide whether you want

19

to try to attempt, whether you want to establish post 1984

20

drug use, and there may be a couple of avenues for you to do

21

it.

22

One, you'll have to decide on whether you think the

23

game is worth the gamble.

24

MR. HUT: May I address that question, Your Honor?

25

Actually, it was my intention to do so.

-141-

1

As a first order of business this afternoon, we

2

offer in evidence, move in evidence, plaintiff's exhibit,

3

will be mark 106. Plaintiff's 106 is a verified, it's a copy

4

of a verified set of interrogatory answers.

5

Mr. Evans has sworn to the accuracy of those answers,

6

those facts set forth in the answer within his personal

7

knowledge. And that includes the answer to interrogatory

8

number 8, which said --

9

MR. PICKUS: Your Honor, before he reads this, we

10

object to this document.

11

THE COURT: Good. So that the interrogatory

12

answers are marked for identification, but they have not been

13

received into evidence yet. And what Mr. Hut now is doing is

14

telling me what's in the interrogatory answer.

15

MR. HUT: Yes. And the proffer here, they are in

16

effect, effectively they're in the record of the litigation,

17

they're not in evidence.

18

MR. PICKUS: I hate to keep interrupting. I

19

apologize. Before we do a proffer of evidence that may not

20

come in, I ask that the courtroom be closed.

US1DOCS 5856271v1

21

MR. HUT: This is a public document, Mr. Pickus,

22

these are answers to interrogatories.

23

THE COURT: Well, it doesn't name any names, does

24

it?

25

MR. HUT: It certainly does.

-142-

1

THE COURT: It does? Why don't you do this, can I

2

see a copy of it, first? Give it to my law clerk, yes,

3

please.

4

(Pause.)

5

MR. HUT: I have the original, Your Honor, should

6

the Court wish to see it. But it the original verification.

7

THE COURT: Good. Let me then read it.

8

MS. MULLALLY: What number, sir?

9

MR. HUT: It's the answer to interrogatory number

10

8.

11

MS. MULLALLY: Thank you.

12

THE COURT: So I've read the answer to

13

interrogatory number 8. Interrogatory number 8 does not

14

identify anybody on the Maryland execution team.

15

In fact, doesn't identify anyone within the

16

Maryland Department of Corrections, but does chronicle what

17

he claims is his IV drug use. So I don't see any problem

18

with having it referred to on the record in court.

19

Good. So what you should do is have this

20

interrogatory answer number 8, let's just have it marked for

21

identification as so it will be somewhere in the record, easy

22

to find, just give it a plaintiff's number marked for

23

identification.

24

MR. HUT: We've marked the entire set as 106.

25

THE COURT: 0 6?

-143-

1

MR. HUT: 106.

2

THE COURT: Then the whole thing's in, 106, and

3

we're referring simply to interrogatory number 8.

4

MR. HUT: Which begins at page 8.

5

THE COURT: Yes.

6

MR. HUT: Of the set. Continuing to page 9.

7

THE COURT: And, essentially, what Mr. Evans says

8

is that he was addicted to heroin from 1964 through 2002, and

9

that he injected heroin using IV needles with varying

10

frequency during that 38-year period.

11

With respect to his post incarceration use, he says

12

the only periods during these 38 years in which Evans was not

13

a frequent IV heroin user was from 1971 to 1973, when he was

14

in the Maryland Correctional Institution Hagerstown where

15

heroin was difficult to obtain.

US1DOCS 5856271v1

16

And from 1985 through 1992, when he was in federal

17

prison in Marion, Illinois where control of IV drug use was

18

also very tight.

19

I think that my recollection is that in Marion the

20

inmates are locked down like 23 hours a day. It says when

21

Evans was incarcerated in Hagerstown a second time from 1974

22

till 1977, heroin use had become widespread there. And Evans

23

was a frequent user during that period.

24

And he was -- as he was in every other place he has

25

been incarcerated until 2002, when he became a resident in

-144-

1

Maryland's death row.

2

So that he says that his heroin use stopped when he

3

was put on Maryland's death row, but he says that except for

4

the period that's indicated while he was in prison, that he

5

received drugs from inmates, who received heroin from their

6

visitors, and he received heroin from his girl friend, who

7

would bring drugs in the prison in a balloon in her mouth and

8

transfer drugs to Evans during a kiss.

9

And he says that with the exception of Hagerstown,

10

from '71 to '73, and the federal prison in Marion, IV needles

11

in prison hospitals were easy for incarcerated IV drug users

12

to obtain.

13

So this is an interrogatory answer. But what is

14

the basis under the federal rules under which it could be

15

received in evidence in this case?

16

MR. HUT: Let me suggest, first, I think it is a

17

declaration against interest, against penal interest in

18

reading Rule 804(3), which includes a statement which at the

19

time of its making so far tended to subject the declarant to

20

civil or criminal liability, that a reasonable person in

21

declarant's position would not have made this statement

22

unless believing it to be true.

23

THE COURT: And --

24

MR. HUT: A statement tending to expose the

25

declarant to criminal liability and exculpate, which this is

-145-

1

not. So I think the second sentence is not material.

2

So that's one ground, I would suggest to the Court.

3

A second, I would suggest, is the residual

4

exception in Rule 807, because I think here that the level of

5

detail, frankly, including the fingering of individuals,

6

including one I think known to be extremely dangerous and

7

potentially dangerous to the declarant, is sufficient indicia

8

of reliability.

9

Third, if those grounds were not sufficient, then

10

it seems to me, and if the state were to care about this, and

US1DOCS 5856271v1

11

I'll get in a moment to our assertion, that this is just not

12

relevant for reasons alluded to the Court yesterday, the

13

state can cross-examine.

14

If the state wants to bring Mr. Evans into the

15

courtroom and subject him to cross-examination as to his

16

continued post 1984 drug use while incarcerated, we think

17

it's completely not necessary, certainly if the Court admits

18

this under the first of the exceptions that I suggested.

19

But if those do not suffice and the state wishes to

20

cross-examine, we would not object to limited

21

cross-examination for that purpose.

22

There is corroboration, of course, here in the

23

record for the suggestion of long-term essentially continue

24

the drug use in the statements made by Mr. Evans to the

25

diagnosing expert, Dr. Scalea, about which Dr. Scalea

-146-

1

testified.

2

Those statements, I suggest, which were testified

3

to by Dr. Scalea are admissible to prove their truth under

4

Rule 803(4), statements for purposes of medical diagnosis or

5

treatment.

6

There is Fourth Circuit precedent, including cases

7

like Morgan versus Fortage, and others, that make clear that

8

the scope of this exception goes beyond a treating physician

9

to a physician who assesses a condition of a patient for

10

purposes of providing expert testimony in litigation.

11

THE COURT: Well, let me ask Miss Mullally or Mr.

12

Pickus, are you content to have this affidavit in evidence as

13

direct evidence of Mr. Evans' alleged drug use during or post

14

1984?

15

MR. PICKUS: No, sir.

16

THE COURT: Good. And thank you.

17

MR. PICKUS: May I point out to the Court that this

18

document is dated September 21, 2006, which is yesterday. I

19

don't know why.

20

MR. HUT: It's today. It was stated, I so stated.

21

THE COURT: Yes, April 26th.

22

MR. HUT: No, April 26th is the answers were set

23

out in text script. It's verified today.

24

THE COURT: Well, my view is that it's not accept

25

-- it's not admissible under any of those exceptions. The

-147-

1

first is that it is -- it is technically a declaration

2

against penal interest, because he is admitting to heroin

3

use, which is itself illegal. Because in order to use, he

4

must possess. Possession is illegal.

5

And, second, he has admitted before the year 2002

US1DOCS 5856271v1

6

that he violated the prison regulations, which also would

7

subject himself to discipline.

8

But the reason under the Federal Rules of Evidence

9

for accepting declarations against penal interest is that it

10

is the potential punishment that vouches for the credibility

11

of the statement, because normally people do not subject

12

themselves to penal interest unless they're telling the

13

truth.

14

But here there are a number of factors that under

15

cut the reason for the rule.

16

The first is that he's only admitting to use of

17

heroin while imprisoned pre- 2002, which is remote.

18

Second, for a reason who is under the sanction of a

19

death penalty being prosecuted for, and who is on death row

20

and is likely to remain on death row, the prospect of being

21

punished for, you know, of incarceration for possession

22

within the prison system is not much of a punishment.

23

And there's been no evidence, I think we can all

24

agree that the likelihood of prosecution of Mr. Evans for

25

this pre-2002 drug use while in prison is pretty remote.

-148-

1

So I don't view this as a kind of declaration

2

against penal interest that would warrant receiving the

3

interrogatory in evidence.

4

Second aspect has to do with the residual hearsay

5

reception. There is a substantial, there is some detail in

6

here, but there are also many of the details that are

7

lacking. Mr.

8

Evans says that, while in prison, he received drugs

9

from inmates whose names he does not recall. I would imagine

10

that the state would like to cross-examine on that.

11

Although it's clear that in prison often people do

12

not use their real names, you only know people by their

13

street names, but there are a lot of details here they are

14

lacking.

15

So given the fact he is a plaintiff in this case

16

and is available to testify, I see no reason for invoking the

17

residual hearsay exception.

18

So that gets us to the third proffered argument,

19

and that is 803(4), and I haven't studied the case, the cases

20

in any detail, but we looked at them briefly yesterday, and I

21

believe that you're correct, that when a physician examines

22

someone for purposes of an IME, for purposes of litigation,

23

statements for -- that that the statements made by the person

24

who's being examined fall within the not the treatment prong

25

but under -- they do fall under the diagnosis prong.

-149-

US1DOCS 5856271v1

1

So that I think the lay of the land is that Evans'

2

statements themselves don't come in, but Dr. Scalea, the

3

statements that he made to Dr. Scalea might. But I don't

4

recall what he said to Dr. Scalea with respect to frequency.

5

Do you recall?

6

MR. HUT: I think, not with -- not perfectly, Your

7

Honor, no. I have to admit, though, I think he gave

8

indication to Dr. Scalea about the duration, and it's 30

9

years is what sticks in my mind, of the habit, without the

10

detail of the interruption. But a basic 30-year span.

11

THE COURT: Good. So I think.

12

MR. PICKUS: That's my recollection as well.

13

THE COURT: Thank, Mr. Pickus. So I think the

14

evidentiary framework now you've established persistent

15

chronic long-term drug use before 1984.

16

Some evidence of drug use after 1984, but there's

17

no way for me as the fact finder to gauge frequency after

18

1984.

19

So whether you wish to improve the record is up to

20

you. And you may want to talk to Mr. Evans about it before

21

deciding.

22

You know, we do have time in this case.

23

MR. HUT: We will obviously consider it further,

24

subject to the Court's observations. But my last submission

25

to the Court today, and we'll see whether it's my last on the

-150-

1

subject altogether, is that it is really irrelevant. It does

2

not matter whether Mr. Evans' veins have disappeared in

3

places have been substantially compromised in other manners

4

because he ingested too much oatmeal.

5

The fact is, according to two professionals that

6

had testified in this court, that he cannot sustain an IV

7

insertion necessary to convey or effect delivery of the

8

requisite anesthesia.

9

So my surmise is that will be our position, and

10

we'll stand on the state of the record. But we will

11

obviously take it under advisement and think carefully about

12

conferring about it with the client.

13

THE COURT: I wanted to avoid in closing argument

14

if you said persistent chronic drug use after 1984 to have an

15

evidentiary objection at that point. So I thought it best to

16

sort out that issue now when it could be, when the door is

17

still open.

18

But I'll believe you now know what the state of the

19

record is, and whether you wish to try to improve it is a

20

matter of trial tactics and strategy.

21

The next point has to do with the -- I need my

22

recollection refreshed about certain aspects of the protocol.

23

And I'm looking for some light on the extent to

24

which the Department of Corrections can change the protocol

25

without having to go to the legislature.

US1DOCS 5856271v1

-151-

1

We see that the Department of Corrections in August

2

did change the protocol in some respects with respect to the

3

lighting and also having one of the contract persons either

4

an EMT or a nurse, nurse I keep forgetting --

5

MR. HUT: Nursing assistant.

6

THE COURT: Nursing assistant actually be present

7

with the inmate during the administration of the IV.

8

And I take it that the Department of Corrections

9

could make those changes without having to seek approval from

10

the legislative.

11

So what I was looking to see what portions of the

12

protocol are imbedded in the statute so that you would have

13

go back to the legislature if you wanted to change them, and

14

is the three-drug cocktail part of the statutory requirement?

15

MS. MULLALLY: If you look at -- I know the

16

number's 3-905, hang on, Your Honor. It's in the pretrial

17

order.

18

It's correctional services volume section 3-905 and

19

3-906.

20

I believe it's 3-905 states that a short-acting

21

barbiturate should be used along with a paralytic. It

22

doesn't specify the paralytic or which type of short-acting

23

barbiturate.

24

And if you look at Oken versus State, 381 Maryland

25

580, 2004, if I'm not mistaken, that issue is addressed as to

-152-

1

whether or not three drugs violates the statute that

2

references two drugs.

3

THE COURT: Right.

4

MS. MULLALLY: It is the defendant's position that

5

the protocol itself is not subject to the State

6

Administrative Procedures Act, and that under those

7

circumstances, it can be changed at any time by the

8

Department of Corrections.

9

THE COURT: So that let's assume that, just in a

10

hypothetically, that the Department of Corrections decided

11

that to dispense with the Pavulon and to dispense with the

12

third drug, which is potassium chloride.

13

MS. MULLALLY: Both of those drug are paralytics.

14

THE COURT: So that the Department of Corrections

15

could decide, if it wanted to do so, to use a one-drug

16

formulation?

17

MS. MULLALLY: No, unfortunately, not. If you look

18

at 3-905, it states a short-acting barbiturate, in

19

combination with a paralytic. Now, both of those drugs are

20

paralytics.

US1DOCS 5856271v1

21

22

three?

23

24

and three.

25

THE COURT: So you could use number one and number MS. MULLALLY: Correct, but you couldn't use two THE COURT: Two and three?
-153-

1

MS. MULLALLY: Yes, or just one. That's right.

2

THE COURT: And is there any -- anything in the

3

statute or legislative history as to the reason for the

4

paralytic?

5

I think we're all operating under the assumption

6

that the paralytic is used to spare the feelings of the

7

witnesses and those on the execution team who will be

8

carrying out the execution.

9

But is there anything in the statutory history that

10

says that's why it's used? Or anything from the genesis

11

protocol in Oklahoma?

12

MS. MULLALLY: Well, Your Honor, I don't know about

13

the Oklahoma protocol. I am familiar with the legislative

14

history and Maryland statute. And, unfortunately, I didn't

15

bring it with me. I can bring it to the next court session.

16

We did draw it, we did study it at some point. I

17

think it may have been part of an answer in one of the

18

pleadings in this case, although I might be wrong.

19

And if the Court would like defendants to do that,

20

I can do that.

21

THE COURT: Why don't need it by tomorrow. And

22

we're going to be off next week, so at some point, that is to

23

consider, because I will like to test sort of the proposition

24

that the reason for the paralytic is to spare -- feelings may

25

be too weak a word, but of the people who have to watch, and

-154-

1

have to administer.

2

The other issue in looking at the protocol,

3

obviously, if you are -- and I haven't thought this through,

4

or articulated it, so I may stumble through this, so if you

5

are looking to see what are the differences between the

6

administration of anesthesia, anesthesia in a human setting

7

or the administration of euthanasia that an animal setting,

8

you see a number of differences, real practical differences

9

if you're extrapolating those procedures to a lethal

10

injection of a condemned inmate.

11

The first is in anesthesia in a human subject, the

12

human subject has to be closely monitored because you don't

13

want to go too deep, and you don't want to go too light. So

14

you have --

15

MS. MULLALLY: Right. It's a constant monitoring.

US1DOCS 5856271v1

16

THE COURT: Constant monitors to keep the patient

17

within that narrow band.

18

The second is that there is no social reluctance on

19

the part of an anesthesiologist to sit next to the person who

20

is receiving the anesthesia.

21

MS. MULLALLY: Correct.

22

THE COURT: And there's no shortage of trained

23

anesthesiologists who are willing to administer anesthesia?

24

MS. MULLALLY: Actually, there's a Time Magazine

25

article that came out two weeks that states that I believe

-155-

1

there is a shortage of anesthesiologists, that nurse

2

anesthetists are used. I don't have any hard numbers. Mr.

3

Pickus and I read that article.

4

THE COURT: With that caveat, that's their job.

5

MS. MULLALLY: Yes.

6

THE COURT: But here in administering the protocol,

7

and that is subject, the subject on which there has been no

8

evidence.

9

And that is, the relative difficulty in obtaining

10

an anesthesiologist or a nurse anesthetist who would be

11

willing to participate in the procedure.

12

And I'm not sure it matters under the Section 1983

13

test, if you're looking just at the bill of rights, but it is

14

something that I would be interested in, if you all are

15

willing to, or have an interest in building the record on

16

that point.

17

I think in an ultimate -- well, the next difference

18

is that if you're looking at the anesthesia of an animal,

19

that's an accepted thing within veterinary medicine. There's

20

probably no shortage of veterinarians willing to anesthetize

21

animals and are capable of doing it.

22

The next point is that -- and I think this is

23

probably the case, but you may have more information on this,

24

if you're developing a protocol for a lethal injection, it

25

probably is best to spread the responsibility for

-156-

1

administering the lethal injection. So that here we have

2

somebody who puts the drug, takes, who mixes the drugs, but

3

has no further responsibility in terms of delivery.

4

Then we have somebody who takes the syringe that

5

was mixed by someone else and screws it into the lock in the

6

IV.

7

And then that person has no further involvement.

8

And then we have a third person, who actually

9

pushes the plunger, that administers the drugs, into the IV

10

line.

US1DOCS 5856271v1

11

And we have an entirely separate person who has

12

placed the IV into the inmate.

13

And then we have another person who is watching the

14

EKG and pronounces death.

15

And if you were anesthetizing a patient as part of

16

a medical procedure, and you want to maintain a narrow band,

17

you probably wouldn't do that, because you know the more

18

cooks there are, the more opportunity there is to spoil the

19

broth.

20

And plus you probably want somebody whose watching

21

everything.

22

MS. MULLALLY: I think an anesthesiologist is

23

there. He is responsible for the patient's life. He's

24

supporting the airway, and --

25

THE COURT: But you wouldn't divide up the

-157-

1

responsibility. There's no reason to do it.

2

But if lethal injection, there is a reason to

3

divide up the responsibility, because it, in a human

4

emotional way, it lessens the burden of responsibility for

5

killing someone.

6

MS. MULLALLY: You can analogize that in a certain

7

way to a firing squad where you have X number of people with

8

the gun, dummy bullets in most guns, a bullet in one, and

9

therefore no one who pulls that trigger is certain that he or

10

she bears that ultimate responsibility.

11

THE COURT: So you know there are reasons for some

12

of what you might call inefficiencies in the system or

13

division of responsibility.

14

One of the issues we'll have to take up when we'll

15

get to legal argument is what effect, if any, that has on the

16

section 19 -- on the bill of rights analysis for cruel and

17

unusual punishment.

18

But it seems to me, as a practical matter, that the

19

state is not required to build the best mousetrap that

20

potentially can be constructed by the thought of human

21

beings. There is a line above the line is okay. Anywhere

22

above the line is okay. Below the line is unacceptable.

23

MS. MULLALLY: Well, you know, Your Honor, if you

24

look at the two Maryland statutes I referenced one 3-905, but

25

other is 3-906, each of them addresses that issue that.

-158-

1

One says that an execution is not the practice of

2

medicine. And the other one says that people performing an

3

execution need not receive the certifications under health

4

general, the book that has the statutes which qualify people

5

to be involved in the practice of medicine or the treatment

US1DOCS 5856271v1

6

of patients.

7

THE COURT: The other thing that's sort of worth

8

discussing, just to think about it, because we'll be all

9

getting together in a couple weeks, is the idea that you know

10

not all people have the same height, weight, and venous

11

structure.

12

MS. MULLALLY: Titration of the drugs.

13

THE COURT: So that you could say we looked at the

14

Maryland history, except I think it's an agreed, it seems to

15

be an establish fact, although I don't want to speak for Mr.

16

Hut, but if you look at the blood levels postmortem the

17

Maryland execution for which they're available, it appears

18

that all of the who received the lethal injections had a

19

sufficient level of the drug number one, except with the

20

possible exception of Mr. Baker, I believe, or Oken? Oken.

21

I think it was 20. I forget the dosage, but it was 20

22

something or, 10 or 20.

23

MR. HUT: 10.

24

MS. MULLALLY: It was 10.

25

THE COURT: And so that that's within the debatable

-159-

1

area. But with respect to the others, they're well above

2

that.

3

From that, you may, you know, I haven't heard all

4

the evidence, but one might say that the system that's

5

presently in place, particularly has improved by the changes

6

to the August protocol is capable of delivering the drugs to

7

someone who's veins have not been compromised.

8

So you could be in a situation where you have in an

9

atypical inmate because of his age, prior drug use, or some

10

other problem with his veins. So that the answer for that

11

individual person might be that you might be able to say that

12

the present protocol doesn't pose an acceptable risk for the

13

average inmate than it does for this one inmate because of

14

whatever medical factors that exist.

15

So what I'm looking for is some guidance to the

16

extent to which you would or could change the protocol to

17

meet the needs of that one inmate.

18

And in saying that, I haven't decided that Mr.

19

Evans is that inmate, and I haven't decided that the protocol

20

is acceptable for everyone, but it's certainly an issue.

21

I think that you've told me that you can't -- you

22

have to use the two drug, but there may be other ways to

23

conform or work, tweak is a word I don't like to use, but to

24

alter the protocol to meet an individual person. So that's

25

something you might want to be thinking about over the next

-160-

US1DOCS 5856271v1

1

week.

2

And in saying that, you know, the state's not

3

required, the state can take whatever litigation position it

4

wants to, our protocol is great, rule on it up or down, or

5

the state can say we're willing to alter the protocol in some

6

respect, that's entirely up to you.

7

I'm looking for some guidance as to what you might

8

be willing to do and the extent you can do it within the

9

statutory framework.

10

So that's pretty long-winded, but I think that if

11

we had to distill that, the first would be to what extent can

12

we agree or disagree that the composition of the Maryland

13

execution team reflects the realities of obtaining more

14

qualified or better qualified, is not a good phraseology, but

15

I think probably higher credentialed medical professionals to

16

participate in lethal injection executions.

17

The second point would be is any proof on this

18

issue relevant under Section 1983?

19

And the third point would be does either side wish

20

to put on any evidence on this issue?

21

The second point would be can we assume that, for

22

purposes of this case, that the divided responsibilities of

23

the execution team are purposefully designed into the system

24

to lessen the emotional impact on the team members?

25

And then the same two second points, does it make

-161-

1

any difference under Section 1983?

2

And then finally is there any evidence needed?

3

And the third would be the ability of the

4

Department of Corrections without resorting to the

5

legislature to change the protocol to fit the particular

6

medical profile of an individual subject to an execution

7

warrant.

8

And then the corollary of that would be the DOC's

9

willingness or unwillingness in the case of Mr. Evans to vary

10

the protocol. And if so, how?

11

The other point that I gave some thought to has to

12

do with the conversation that Dr. Heath had with the

13

gentleman whose name I can't remember, who created the

14

protocol in Oklahoma.

15

MR. HUT: Dr. Chapman.

16

THE COURT: Dr. Chapman. I think it's correct that

17

-- and you can tell me if I'm wrong -- the Maryland protocol

18

was generated initially by Past Team Member M, who is not a

19

doctor, and who's had no medical training other than first

20

aid.

21

And in doing so, he consulted certain people in

22

Delaware. But if you trace the protocol back from Delaware,

23

you reach the Alpha female if you're thinking about

24

anthropology terms or maybe that's not the right term, but to

25

Oklahoma.

US1DOCS 5856271v1

-162-

1

Now, Dr. Chapman is a doctor. But I have no basis

2

on which to assess his medical qualifications. So I think

3

all I can say is that the person who invented the protocol

4

was I believe the state medical examiner, but beyond that I

5

don't know much about him.

6

And I think it's probably the case what Dr. Heath

7

said about Dr. Chapman, that Dr. Chapman's thinking about the

8

three-drug protocol, and Dr. Chapman's present misgivings

9

about how the protocol is being administered is all hearsay.

10

So I think that if Mr. Hut, so I think probably,

11

that means, Miss Mullally, if you were to get up in closing

12

argument and say this protocol was developed by a doctor of

13

certain statute and having certain qualifications, that's

14

probably not in the record, because I don't know much about

15

him at this point.

16

And I think, conversely, if Mr. Hut were to get up

17

in closing argument and say the inventor of the protocol now

18

you know has distanced himself from it, because he believes

19

that the three-drug, because he assumed that the three-drug

20

protocol would be administered by highly credentialed medical

21

personnel, and he, Dr. Chapman, would deem it to be

22

unsuitable to have the protocol administered by lesser

23

credentialed folks, and especially including the people on

24

the Maryland execution team.

25

So I think that would not be -- so that's not in

-163-

1

the record sufficiently to have that argued. I could be

2

wrong. I haven't thought through these evidentiary points,

3

but that's my gut instinct so far.

4

So, again, the door, you know, I'm simply pointing

5

this out because you all may decide those are doors that need

6

not be gone through, but that's my present thinking, and you

7

can govern yourself accordingly.

8

Mr. Hut?

9

MR. HUT: Well, with respect to Dr. Chapman, I take

10

the Court's point, I do also point out that the testimony

11

came in unobjected to. But if the Court is saying that he

12

would not accord it much weight --

13

THE COURT: We don't know a lot about him, what he

14

was thinking of, or when he developed the protocols.

15

It's now, I think the original - I don't mean to be

16

too long-winded. The original protocol was developed by a

17

doctor who was a state medical examiner, but the rest of it

18

is pretty much a focal and it hasn't been tested. He's still

19

alive, he's out there.

20

MR. HUT: Nepal.

US1DOCS 5856271v1

21

THE COURT: Oh, he's in Nepal? We could dispatch

22

you on an expedition, so as has he written anything about

23

this? Does he have a scholarly article that we could look

24

at?

25

MR. HUT: That I don't know. We -- we know about

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1

his views also in part, but it doesn't improve the hearsay

2

nature, but it was reported in the newspaper quoting him, I

3

think, that is his present view.

4

THE COURT: In a sense it's irrelevant because the

5

three-drug protocol is what it is, and what the father of it

6

thinks is more atmospheric than anything else.

7

But I think that you can't -- the record is it is

8

what it is, because his disavowal isn't much of a form I can

9

take cognizance of and the fact that it's reported in a

10

newspaper doesn't mean too much.

11

MR. HUT: I could speak to some of the Court's

12

observations in its colloquy with Miss Mullally, reserving

13

the right to supplement these as I'm able to think about it

14

with the assistance of my colleagues more fully, on the

15

subject of to what extent the team could be supplemented, or

16

augmented why higher credentialed folks without undue

17

difficulty.

18

There is, I remind, Your Honor, evidence perhaps it

19

got lost somewhere in the transmission from Dr. Heath because

20

he said a great deal. But he did say that he believes that

21

there are articles that chronicle the participation of one or

22

more physicians in the lethal injection process that a number

23

of states including, if my memory serves, North Carolina and

24

Missouri and possibly Kentucky, do employ physicians in the

25

process to among other things and place a central line. That

-165-

1

he has talked to people who he believes would be willing to

2

serve, and that he believes, this was the report of a

3

question I asked him on redirect, that sufficient payment

4

would augment the pool of available professionals.

5

There is that evidence. Whether it's as fulsome as

6

the Court would wish, that I don't know.

7

On the question of the materiality of the inquiry

8

to section 1983, I guess I should --

9

THE COURT: I don't we do this. I didn't mean to

10

argue all these today. I thought you might want to be

11

thinking of it. We're going to have an entire week while

12

we're off, plus the Court of Appeals hasn't done anything, so

13

we do have some time here.

14

And I just wanted to let you know what I was sort

15

of --

US1DOCS 5856271v1

16

MR. HUT: Then I will just wait and address it at

17

later time.

18

May I, Your Honor, I want to come back to the

19

frequency of drug use question.

20

My colleagues remind me there is evidence here

21

actually in the record, because it is contained in the

22

January declaration of Dr. Scalea. We have marked premarked

23

that declaration as an exhibit. It's plaintiff's exhibit 36.

24

I believe there is an objection to its

25

admissibility on hearsay grounds. But Dr. Scalea, in

-166-

1

paragraph 5, does address the frequency question as well as

2

the duration question.

3

I would suggest, and I move the admission of

4

plaintiff's 36, because I think that also comes within the

5

803(4) exception.

6

I can hand the document, it's a two-line paragraph.

7

THE COURT: Why don't you show it to my law clerk

8

and Miss Mullally?

9

MR. PICKUS: We have it. We wouldn't object to it

10

coming in as data that Dr. Scalea received for purposes what

11

he believed in his mind, but we do object to it coming for

12

truth of the matter asserted.

13

MR. HUT: We're offering it under Rule 803(4).

14

(Pause.)

15

THE COURT: I don't think there's -- Mr. Pickus,

16

there's no objection?

17

MR. PICKUS: No objection to it coming in for the

18

purposes of what Dr. Scalea believes in his mind.

19

THE COURT: Well, I think that, under the hearsay

20

exception, statements that the person being examined makes to

21

the doctor diagnosis for treatment come into to prove the

22

truth of the matter asserted.

23

MR. PICKUS: May I be heard on that?

24

THE COURT: Why don't we do this, it's getting

25

late. Why don't we you all can take a look at the Federal

-167-

1

Rule of Evidence and the cases, and we can talk about it.

2

We're not going to have to talk about it tomorrow, because I

3

don't want you to do a lot of work tonight, but we can talk

4

about it a week from now.

5

The other thing I don't understand from his -- from

6

here is Dr. Scalea says the extent of his previous drug habit

7

has ravaged his peripheral veins. Is that Dr. Scalea stating

8

his opinion based upon his examination? Or is he saying

9

that's what Mr. Evans has told me? And Mr. Evans said I'm a

10

long-term drug user and my drug habit has ravaged my veins?

US1DOCS 5856271v1

11

MR. HUT: Oh. I think it's the first.

12

THE COURT: The former?

13

MR. HUT: Yes.

14

THE COURT: So good.

15

(Pause.)

16

THE COURT: So tomorrow we do what again, that's

17

right we still have something do today.

18

MR. HUT: We can postpone that till tomorrow,

19

because I think we can comfortably fit in everything we need

20

do tomorrow including the examination of Miss Hall.

21

I do want to take up one housekeeping matter with

22

Your Honor if I may. Before I forget, since I've forgotten

23

every day this week.

24

I thought that the three days that Your Honor had

25

identified as available court days that we will be using the

-168-

1

week of October, were Tuesday the 10th, Wednesday the 11th,

2

and Thursday the 12th.

3

My colleagues believe that the Court also indicated

4

its willingness and or interest to hold court on October

5

13th.

6

That present s for me the following difficulty, but

7

possibly not insoluble problem, and that is I'm supposed to

8

host on October 13th at our firm of a meeting about 80 people

9

to discuss longrange planning of an organization on whose

10

board I sit.

11

I believe I ought to be there, if I possible can.

12

If I can't be, so be it. But I would hope that if we needed

13

a fourth court day, and all other thing permitted, that we

14

might be able to find a day the following week.

15

THE COURT: We'll find day. I don't want to

16

interfere with that. Let's just take a recess for 10

17

minutes, I wanted to talk to my secretary about the week of

18

the 16th, I think that she's been advised by that one of my

19

two cases scheduled for that week, one of them maybe

20

postponed.

21

And the other I think we been advised there's

22

likely to be a guilty plea. But I didn't want to talk about

23

and mention names in open court. So let's take a 10-minute

24

recess, and we can nail down the scheduling at 4:30.

25

(Recess.)

-169-

1

THE COURT: Please seated. What we'll do is we'll

2

take I believe the 13th off the table. nd pencil in the 18th,

3

well, better day would probably be the 19th, because I have a

4

trial Monday and Tuesday and sometimes they bleed over. So

5

why don't we say the 19? I'm not positive it will be

US1DOCS 5856271v1

6

available I'll know more as we get closer to the day, and

7

there's a motions hearing that's coming up, so we'll just

8

keep tabs on that date.

9

Plus we'll have to schedule closing arguments at

10

some, so we still have that left to do. So we'll plan on

11

deleting the 13th, penciling in the 19th.

12

And if it turns out we need both the 18th and 19th,

13

they probably can be available.

14

Just as information, we took a look at the lethal

15

injection statute the 9-305, and it says manner of inflicting

16

the punishment of death shall be and be the units intravenous

17

administration of a lethal quantity of an ultra short-acting

18

barbiturate or other similar drug in combination with a

19

chemical paralytic agent.

20

So the paralytic agent is given under the statute,

21

but it looks like it can be a short-acting barbiturate or

22

other similar drug.

23

And I don't know it would be up to the state to

24

tell me how broadly they read the word other similar.

25

And 3 906 states that the execution shall be

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1

performed by individuals who are selected by the commissioner

2

and trained to administer the lethal injection.

3

And it also says that an individual who administers

4

the paralytic agent and lethal injection need not be licensed

5

or certified as any type of healthcare practitioner under the

6

health occupations code.

7

Good. Mr. Hut, what else do we need do this

8

afternoon?

9

MR. HUT: I think we can accommodate everything we

10

need do before we rest tomorrow morning. We are certainly

11

prepared to proceed with the admission if you'd like to get

12

that done today.

13

THE COURT: Why don't we do that? We have like in

14

Cinderella, the coaches turn back into a pumpkin at 1:00

15

tomorrow afternoon. So I'd like not to be pushing up against

16

that deadline.

17

MR. HUT: Miss Wood will be offering the

18

admissions.

19

THE COURT: Good. Thank you.

20

MS. WOOD: Plaintiff offers exhibit 7, which is the

21

defendant's answer to the plaintiff's complaint.

22

And looking at page 4, paragraph 14, defendants

23

admit that the procedures employed by the DOC in executing

24

inmates -- I'm sorry. I'm on the wrong page.

25

Starting again on page 4, paragraph 14 defendants

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US1DOCS 5856271v1

1

admit that the first drug the DOC would inject in its

2

execution of Evans would be sodium pentothal, which if

3

administered in insufficient quantity, A, might not provide

4

sedative effect throughout the entire execution procedure.

5

B, could cause Evans to regain consciousness and be

6

sentient when the DOC injects the second and third drugs,

7

pancuronium bromide and potassium chloride, which stop

8

restoration and stop the heart respectively.

9

And, C, could cause Evans to awaken after the

10

initial injection of sodium pentothal to experience

11

suffocation, induced by the pancuronium bromide, and the

12

painful sensation of potassium chloride before it causes

13

cardiac arrests.

14

Defendants otherwise deny allegations of paragraph

15

19 of the complaint.

16

Next I'm reading on page 5, paragraph 18.

17

Defendants admit that the DOC procedures for lethal

18

injection do not require the participation of

19

anesthesiologists or CRNAs, personnel administering

20

anesthesia would not necessarily be permitted to administers

21

anesthesia during treatment at a prison hospital, and might

22

not be allowed to administer anesthesia in any circumstance

23

other than an execution.

24

Procedures for lethal injection employed by DOC do

25

not require any person to monitor plane of anesthesia.

-172-

1

Defendants otherwise deny allegations of paragraph

2

23 of the complaint.

3

Next we're moving to paragraph 29 on page 7.

4

Defendants admit that the State of Evans'

5

peripheral veins has been assessed, that Evans has multiple

6

viable peripheral venous access sites on both arms, and that

7

placement of a central line, if necessary, should be

8

performed by an individual with appropriate licensure and

9

experience.

10

And I'm not reading the rest of that paragraph,

11

unless counsel would like me to.

12

THE COURT: Could you read the first paragraph

13

again? I got lost in that sentence.

14

MS. WOOD: Sure.

15

Defendants admit that the State of Evans'

16

peripheral veins has been assessed, that Evans has multiple

17

viable peripheral venous access sites on both arms, and that

18

placement of a central line, if necessary, should be

19

performed by an individual with appropriate licensure and

20

experience.

21

THE COURT: What the state is admitting that, yes,

22

somebody has assessed his veins, and we believe that he has

23

multiple peripheral veins that would be suitable, and they

24

also admit that a central line would have to be administered

25

by somebody qualified to administer it?

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-173-

1

MS. WOOD: Yes.

2

Now we're moving to defendant's answers to

3

plaintiff's first set of interrogatories, and I am at

4

interrogatory number 14, page 13.

5

The interrogatory 14 asks set forth in any detail

6

any problems, malfunctions, or abnormalities encountered in

7

any previous lethal injection carried out by defendants

8

including leakage of IV lines, respiration after

9

administration of sodium pentothal, and/or low postmortem

10

sodium pentothal levels.

11

There's an answer, can I just omit the second that

12

defendant's object and read?

13

MR. PICKUS: Yes.

14

MS. WOOD: Following the Tyrone Gilliam execution

15

on November 16th, 1988, Former Commissioner William Sondveran

16

and/or Former Assistant Commissioner Lewis Stewart reported

17

to Assistant Commissioner Randall Watson that the IV catheter

18

that had been inserted Gilliam's left arm had partially or

19

completely pulled out prior to the administration of the

20

lethal drugs; that the lethal drugs were, therefore,

21

administered through the IV catheter in Gilliam's right arm,

22

and that the IV catheter that had been inserted, excuse me,

23

in Gilliam's left arm continued to drip saline solution onto

24

the floor creating a small puddle.

25

Next I'm looking at the answer to interrogatory 10,

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 19.5

that appears on page 12. And it states the window between the lethal injection room and the execution room is approximately 36 inches by 36 inches.
Next sentence states the distance from that window to the middle of the left arm extension of the execution table is approximately 51 inches. The distance from that window to the middle of the right arm extension of the execution table is approximately 85 inches.
And that is all I was planning to read, Your Honor. THE COURT: Good. Thank you. Mr. Hut, anything else for today? MR. HUT: Nothing further for today, Your Honor. THE COURT: Good, thank you. Ms. Mullally? MS. MULLALLY: Thank you, nothing, Your Honor. THE COURT: Thank you. Tomorrow we will begin at 9:30 a.m. Thank you.
(PROCEEDINGS ADJOURNED) I, Jacqueline Sovich, RPR, CM, do hereby certify that the foregoing is a correct transcript from the stenographic

US1DOCS 5856271v1

20

record of proceedings in the above-entitled matter.

22 23 23.5

___________________________________________________

Jacqueline Sovich

DATE

Official Court Reporter

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US1DOCS 5856271v1

1 2 3 4 5 6 7 8 8.5 9 10 11 12 13 14 15 16 16.5 17 17.5 18 19 20 20.5

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND/NORTHERN DIVISION VERNON EVANS,
Plaintiff CIVIL NO. 06-149
Vs. Mary Anne Saar, et al,
September 22, 2006 Defendants ______________________________/
DAY FIVE TRANSCRIPT OF BENCH TRIAL BEFORE THE HONORABLE BENSON E. LEGG, UNITED STATES DISTRICT CHIEF JUDGE APPEARANCES: On behalf of the Plaintiff: Stephen Hut, Jr, Esquire Todd Zubler, Esquire Kalea Clark, Esquire Anne Harden Tindall, Esquire Stephanie Katherine Wood, Esquire On behalf of the Defendant: Laura Mullally, Esquire Philip Pickus, Esquire

23 24 24.5

REPORTED BY: Jacqueline Sovich, RPR, RMR, FOCRR Official Court Reporter

-1-

1

(PROCEEDINGS)

2

THE COURT: Good morning. Please be seated. Mr.

3

Hut, whenever you're ready, sir.

4

MS. GERAGHTY: Your Honor, we'd call Dorian Hall.

5

THE COURT: Good morning, if you'll come forward,

6

please. Mr. Thompson the clerk will administer the oath.

7

(The Witness is sworn.)

8

THE CLERK: Please be seated. Ma'am. What I need

9

to you do is adjust that microphone, state your name and

10

spell your name for the record.

11

THE WITNESS: Dorian, D O R I A N, and last name is

12

H A L L.

13

DIRECT EXAMINATION

14

BY MS. GERAGHTY:

15

Q. Good morning, Miss Hall. My name is Anne Geraghty. I'm

16

one of the counsel for the plaintiff.

17

What is your occupation?

18

A. I supervise the litigation specialists and criminal

19

investigators at the office of the Ohio Public Defender.

20

Q. And can you tell us a little about what you do in that

21

position?

US1DOCS 5853856v1

22

A. As a supervisor, I assign cases and supervise the

23

criminal investigations and mitigation investigations on the

24

cases that are handled by our office.

25

And I also do work in the field so I still continue

-2-

1

to conduct mitigation investigations on cases.

2

Q. And how long have you been with the Office of The Public

3

Defender?

4

A. It was 18 years this August.

5

Q. And where did you work before that?

6

A. I worked, I was hired by the Franklin County Sheriff's

7

Department out of Columbus, Ohio to work in their correction

8

center, the main jail. I was a social worker and a mental

9

health liaison working with the mentally ill at the facility.

10

Q. Where did you go to college?

11

A. I have an undergraduate degree from Miami University and

12

Master's degree from Ohio State University.

13

THE COURT: I'm sorry, I missed the college.

14

THE WITNESS: Miami University.

15

THE COURT: In Ohio?

16

THE WITNESS: In Ohio, yes.

17

THE COURT: Thank you.

18

BY MS.GERAGHTY:

19

Q. And your master'S degree is in what?

20

A. Sociology.

21

Q. Are you a licensed social worker?

22

A. Yes, I am, since 1992.

23

Q. What are your views on the death penalty?

24

A. Personally, I'm opposed to the death penalty.

25

Q. Do your views affect your ability at all to give truthful

-3-

1

testimony today?

2

A. Not at all.

3

Q. During your career, have you had an opportunity to

4

witness an execution?

5

A. Yes, I have. Once.

6

Q. One time?

7

And what state did this execution take place?

8

A. Ohio.

9

MS. MULLALLY: Objection. Relevance, Your Honor.

10

THE COURT: I will overrule the objection, but the

11

objection's noted. Thank you.

12

Q. Do you remember the date on which the execution took

13

place?

14

A. It was in May of 2006, it was early May, I believe,

15

something like that.

16

Q. Approximately what time the during the day?

US1DOCS 5853856v1

17

A. It was in the morning. In Ohio, our executions are

18

scheduled to occur around 10:00 in the morning.

19

Q. And what was the name of the person who was executed?

20

A. Joseph Lewis Clark.

21

Q. And had you ever met Joe Clark prior to the execution?

22

A. Yes. And like in '89 or '90, I worked on his post

23

conviction case, our office handled the appeal. And I

24

conducted the mitigation investigation at that time.

25

Q. And have you had an opportunity to work with him since

-4-

1

that time?

2

A. Yes. I mean we had sporadic contact throughout the

3

years, and his case went outside our office for federal

4

habeas, but when it came to clemency time, his federal

5

attorney contacted our office and requested assistance.

6

This was his first case that went to clemency and

7

potential execution, so I was involved in the group of people

8

who are helping him. And, given my history with Joe and his

9

family, I was assigned the task to contact the family, and to

10

meet with Joe and also to kind of help the attorney with the

11

practical considerations.

12

Q. Did you have any information about Joe's history in drug

13

abuse?

14

A. Yes. At the post conviction phase, we learned that he

15

was a long-time IV drug user.

16

Q. And did you have personal knowledge of that?

17

A. Yes. When we -- talked to him at post conviction level,

18

we had checked, and he had some scarring and track marks on

19

his arms from the IV use, and we did a pretty detailed

20

history at that point on his drug use. And it was clear,

21

he's not -- he was not an animated person, and he became very

22

animated and agitated when talking about substances he used.

23

Q. After the post conviction proceedings, did you have any

24

personal knowledge about his drug abuse?

25

A. Not at all.

-5-

1

Q. How did you come to witness Mr. Clark's execution?

2

A. Well, Joe didn't want -- his mother was older. He didn't

3

want his family to witness the execution or be down at

4

Lucasville, and so I had told Joe I would do whatever he

5

wanted or needed me to do. He requested that I be down

6

there.

7

So I had gone -- because the execution occurs at 10

8

in the morning, the day before's a contact visit. So I had

9

gone down Monday and had a contact visit with him, and then

10

ended up trying to try to see him had the next morning, and

11

he requested that I be one of the witnesses.

US1DOCS 5853856v1

12

Q. Let's walk through what happened the day of Joe Clark's

13

execution. What time approximately did you arrive at the

14

facility?

15

A. The attorney and I arrived around 7:30, maybe 8, I'm just

16

not clear. There's an opportunity to have a visit, a self

17

front visit with the inmate the morning of the execution.

18

And we arrived to do that. We learned that he was kind of in

19

a zone and didn't want to see anybody at that time. So we

20

sat at the prison facility until the execution time.

21

Q. And at the execution time, where did you go then?

22

A. The inmate's witnesses are the last to be taken into the

23

witness area, so we probably arrived there around a little

24

after 10, a minute or two after.

25

Q. And were you in a special witness area?

-6-

1

A. Yeah. We were in the execution chamber or the witness

2

area for the execution, yes.

3

Q. And is that separated by a piece of glass from where the

4

inmate is executed?

5

A. Yes, it's a big glass window.

6

Q. Where was Mr. Clark when you first walked into that

7

witness room?

8

A. He was in the anteroom, the room right next to the

9

execution chamber.

10

Q. Were you able to see him?

11

A. Yes. They have a live via -- video coverage of the

12

prison staff inserting the catheter in the inmate's arm.

13

Q. So you were able to watch the process by which the

14

catheters were inserted; is that right?

15

A. Yes, I was.

16

Q. And you mentioned they were prison staff. Do you know

17

what the qualifications were of the people who were doing

18

this?

19

A. In Ohio we don't use medical doctors or anything. They

20

were emergency trained technicians or paramedics.

21

Q. You said that they were working on getting IV catheters

22

in. Can you describe what you saw during that time?

23

A. There were two individuals who were working on Joe. It

24

took approximately, I'd say 20 to 30 minutes, trying to find

25

a location in his arms to insert the catheter.

-7-

1

They were able to insert one into his left arm, but

2

the right arm they were having a great deal of difficulty

3

with, they even checked his leg, and his feet, and other

4

areas to try and find a spot for him. And the individual who

5

was working on the left arm went over to and tried to assist

6

the person who was working on his right arm.

US1DOCS 5853856v1

7

Q. Did they eventually find another IV site?

8

A. No.

9

Q. It your understanding Ohio's protocol calls for the

10

insertion of two IV catheters?

11

A. Yes, they do.

12

Q. Did they go ahead with just one?

13

A. Yes, they did.

14

Q. And you saw all of this on the video; is that correct?

15

A. Yes.

16

Q. Did they attempt to stick an IV into any of the sites,

17

any other places in the body that you mentioned?

18

A. They tried to stick in the arm. I did not see them stick

19

anything in the legs or the feet.

20

Q. Once they found one IV site, what happened after that?

21

A. We saw Joe getting up off the table, and walking and then

22

that's when the curtain was -- was open, and he working, he

23

had walked to the next room in the execution chamber and had

24

leaned down, and then the prison staff there attached the IV

25

lines to him.

-8-

1

Q. So the catheter was in, and then they hooked it to the IV

2

tubing?

3

A. Yes. Because the IV comes through the other room. It

4

comes through a window, so no one sees who starts the IV

5

lines.

6

Q. So once he was hooked up and laying down, what happened

7

after that?

8

A. He's strapped down, and then excuse me, one of the prison

9

staff pulled the microphone off of the wall and turned it on

10

and gave it to Joe, or held it in front of Joe, actually, so

11

that he could make his last statement, which lasted

12

approximately 10 minutes or so. It was pretty lengthy.

13

Q. And the microphone was on?

14

A. The microphone was on for that, yes.

15

Q. And then once his last statement was finished?

16

A. They turned off the microphone, attached it to the wall,

17

and he laid back down and waited for the drugs to start.

18

Q. And was the execution completed at this point?

19

A. No, it was not. He laid back down for a couple minutes,

20

and, you know, I mean I could tell he was breathing, and his

21

legs were moving, his arms were strapped down, so he raised

22

his upper shoulders and his head and turned, or looked up at

23

the prison personnel and said "it's not working, it's not

24

working."

25

He laid back down and for another minute or tow,

-9-

1

and he raised up again, and he looked at us in the witness

US1DOCS 5853856v1

2

area, just said "it's not working, it's not working."

3

And when he laid back down at that point, there's

4

two prison staff in the execution chamber with him, one of

5

them pulled the curtain.

6

Q. Okay. At that point you mentioned that they had turned

7

the microphone off?

8

A. Yes, they did.

9

Q. Once they closed the curtain, were you able to see

10

anything --

11

A. Nothing at all.

12

Q. -- on the other side of the room?

13

Now, even thought the microphone was off, were you

14

able to hear anything?

15

A. Yes, I was.

16

Q. Can you tell me what you heard at that point?

17

A. Initially, we heard these really loud intense guttural

18

moans and groans. You know, as if someone was in agony. I

19

equate it with child birth, one of the most painful

20

experiences I had. And that lasted for about five or ten

21

minutes. It was really pretty intense.

22

And we're all just kind of real quiet. And, you

23

know, we were kind of shocked and horrified of what was going

24

on.

25

Q. And how long, you said there was five to ten minutes of

-10-

1

intense agony?

2

A. Yes.

3

Q. After the ten minutes, did everything just stop?

4

A. No, it didn't. It tapered down. It kept continuing to

5

taper down until you couldn't hear anything, and then we

6

could hear -- actually, I heard a noise, and I wasn't sure

7

where it was coming from. And I tried to listen intently and

8

finally figured out it was Joe snoring. And that whole

9

process from which they closed the curtain till when they

10

opened the curtain probably lasted a half hour or so.

11

Q. You said everyone in the room was quiet. Can you

12

describe a little bit more about what the witness's reactions

13

were in the room where you were ?

14

MS. MULLALLY: Objection.

15

THE COURT: Overruled. You may answer.

16

A. Okay. Thank you. Yeah, we were very -- I mean quiet and

17

shocked. We weren't sure what was going on.

18

Joe's attorney had his hand, his head in his hands,

19

and that was kind of our reaction. We just were really

20

unsure of what was going on.

21

Q. Did you at any point try to do anything to stop things?

22

A. I talked to his attorney, and this was his attorney's

23

first clemency and execution, and he was not a member of our

24

office. I tried to talk to him. I suggested that we see if

25

we could stop the execution at this point. That you know, we

US1DOCS 5853856v1

-11-

1

could call someone in our office to see if they have any

2

recommendations, since they're more experienced at this kind

3

of thing, that, you know, they could call a judge, maybe get

4

a stay of execution, if possible. And the attorney said in

5

he wasn't sure what Joe would want.

6

And I suggested that we, you know, demand to see

7

Joe, and find out what he would want us to do at that point.

8

The attorney ended up not doing anything. He

9

seemed to be struggling with the decision.

10

Q. You mentioned the snoring was difficult for you to hear

11

once his sounds died down?

12

A. Yes.

13

Q. Was it difficult for you to hear the moaning at the

14

beginning when they first closed the curtain?

15

A. No, that was clearly loud. That was -- I thought it was

16

in the same room.

17

Q. Once he began snoring, and he quieted down a bit, what

18

happened?

19

A. Then they opened the curtain, and he was asleep. We

20

could see he was asleep strapped to the gurney, and they had

21

the one IV in.

22

Q. And was it your understanding that at that point they

23

began the injection again?

24

A. Yes. They started everything from the beginning, the

25

whole process was resumed.

-12-

1

And yet, you know, that may have taken five, maybe

2

ten minutes at that point.

3

The drugs were flowing and he was -- he was clearly

4

asleep. During that process, he would kind of reflexively

5

lift his upper shoulders and his head was lifting up. He did

6

that probably like 9 to 13 times while we were watching.

7

Q. And was it your understanding, were you given a

8

description before this all happened about the types of drugs

9

used in Ohio?

10

A. Yes. They told us about the drugs that were being used,

11

and that was pretty much it.

12

Q. Did they mention that one of the drugs was a paralyzing

13

agent?

14

A. Yes, they did.

15

Q. And was it your understanding that his movements made

16

during the execution were at all normal or abnormal?

17

MS. MULLALLY: Objection.

18

THE COURT: Overruled.

19

A. They did not tell us anything about what movements to

20

expect from Joe. It did learn that typically they might do

21

that once or twice, but not the number of times that Joe did.

22

That was unusual.

US1DOCS 5853856v1

23

Q. Would you have appreciated it if someone had explained to

24

you what to expect when you were witnessing the execution in

25

terms of those movements?

-13-

1

A. Definitely. I would have been able to prepare myself and

2

know what was normal and expected and have been able to ask

3

questions about some of the explanations as well.

4

Q. And did anyone prepare you for witnessing the placement

5

of the IV sites prior to the execution?

6

A. No. I was not aware we would see that video.

7

Q. Would that have made a difference to you?

8

A. Yes. That would have been helpful to have known that

9

that was going to be coming as well.

10

Q. Did you just leave the execution facility once the

11

execution had been carried out?

12

A. No. We were taken back to a room in the prison where we

13

would be sitting and waiting for the execution.

14

They were prison staff who sit with the victim's

15

families, as well as the inmate's witnesses, so we were taken

16

back there with that personnel and sat around discussing the

17

situation.

18

The attorney and I had asked if we could leave, and

19

they told us that we were not allowed to leave, that we had

20

to wait for Reverend Simms who is in charge of the prison

21

ministries. He's there for all executions. And we'd had

22

contact with him before. He's indicated that he wanted to

23

talk to us before he left.

24

Q. And when he -- when he came, what did he say?

25

A. Well, we prayed, and excuse me. He asked how we were

-14-

1

doing, and if we wanted to discuss anything. He asked -- the

2

prison has what they call a critical incident stress

3

debriefing program, where the people involved in the

4

execution gather around and do kind of peer counseling with

5

each other and discuss the events, and sharing experiences so

6

you know you're not the only one. This is typically used in

7

trauma situations.

8

Q. And is it normal for the people who were there from the

9

inmate side to be invited to this event?

10

A. No, it's not. No, it's not.

11

Q. And in your understanding, is this the first time that's

12

happened in Ohio?

13

A. Yes.

14

Q. Did you accept that counseling?

15

A. I did not. I basically wanted to just get out of there

16

and get back to my office, though I could, you know, talk to

17

other co-workers who also witnesses to other executions and

US1DOCS 5853856v1

18

who would kind of understand my perspective.

19

I was not interested in being involved with the

20

prison staff. I figured we would be coming from a different

21

perspective.

22

Q. And as a witness, how has your experience of witnessing

23

Mr. Clark's execution affected you?

24

A. Well, you know, obviously, I think about it a lot. I was

25

extremely sad and horrified that Joe had to experience that.

-15-

1

And, you know, I'm concerned about other clients of mine

2

personally having to experience that, as well as anybody else

3

going through that process. It just looked to be painful.

4

MS. GERAGHTY: Thank you, Your Honor. I have no

5

further questions.

6

THE COURT: Thank you.

7

Miss Mullally, your witness.

8

CROSS-EXAMINATION

9

BY MS. MULLALLY:

10

Q. Now, you just testified, I believe, that you don't want

11

anyone else to experience that sort of pain that you

12

witnessed and experienced?

13

A. I would hope no one would.

14

Q. Now, the pain that you witnessed, that you actually

15

witnessed, that is when the people were inserting the IVs and

16

you could see it on the video?

17

A. That I witnessed through my eyes, yes.

18

Q. Okay. Do you have anything, any records, or anything

19

that says that Mr. Clark was not deeply anesthetized at the

20

time that he died?

21

A. I don't have any records on that.

22

Q. And how does the Ohio protocol compare to Maryland's

23

protocol?

24

A. I'm not real familiar with Maryland's protocol, so I

25

don't know.

-16-

1

Q. Do you know -- so you don't know anything about Maryland

2

at all?

3

A. No, I don't.

4

Q. Now, you state that these people who were inserting the

5

IVs were paramedics?

6

A. Paramedics or emergency technical people, yes. We don't

7

use doctors.

8

Q. Were they prison employees?

9

A. I believe so.

10

Q. Were they prison correctional officers?

11

A. They do not have uniforms on.

12

Q. What were they wearing?

US1DOCS 5853856v1

13

A. They were wearing, you know, like dress khaki pants, and

14

it looked like dress shirts, it was like one had a red shirt

15

on, and I think one had a white shirt.

16

Q. Do you have any evidence that at the time the curtains

17

were closed and you could hear the sounds that prison

18

officials were doing anything other than starting an IV on

19

him?

20

A. And I couldn't see. I could just hear his groaning and

21

moaning.

22

Q. But do you have any evidence that they say were torturing

23

or hurting him?

24

A. No, I did not. I did not see anything.

25

Q. And, eventually, where was the IV located?

-17-

1

A. It was in the arm.

2

Q. Was this the one in the left arm?

3

A. Yes.

4

Q. Okay. So the execution was delayed because of problems

5

with the IV in the left arm, but the execution actually was

6

completed with that same IV in that location?

7

A. Yes. It had blown out during the first attempt, and they

8

had to re --

9

Q. How do you know that?

10

A. We were told by the prison staff.

11

Q. Okay. So they got it back into the vein, and they

12

completed the execution?

13

A. Yes.

14

Q. And you have -- do you have any reason to believe that he

15

experienced excruciating pain by being awake during the

16

administration of a drug like potassium chloride?

17

A. I have no idea. No.

18

MS. MULLALLY: Thank you. Nothing further, Your

19

Honor.

20

THE COURT: Thank you.

21

MS. GERAGHTY: We have no further questions, Your

22

Honor.

23

THE COURT: Thank you very much for coming. You are

24

excused. Oh, I did, I did write down a couple of questions,

25

if I could.

-18-

1

The reason for the having witnesses in an execution

2

is what, if you know?

3

THE WITNESS: I don't know. I assume to make sure

4

that, I don't know, that the event occurred, I don't know.

5

THE COURT: And part of it is -- did you watch the

6

pertinent parts of the execution on a VCR hook up, or did you

7

look through a window?

US1DOCS 5853856v1

8

THE WITNESS: And I actually sat through the feed,

9

the witness' statement, or his last statement, and

10

administration of the drug, I saw through the window.

11

THE COURT: And after the catheter had been

12

inserted, did he stand up and then move from one place to

13

another and lie down on the execution gurney?

14

THE WITNESS: Yes, he did.

15

THE COURT: Was he uncooperative at any time that

16

you saw?

17

THE WITNESS: Not at all.

18

THE COURT: Good. Thank you. Thank you very much

19

for coming.

20

Mr. Hut?

21

MR. HUT: Thank you, Your Honor. We now would like

22

to move into evidence some additional exhibits, in addition

23

to those that were used without objection over the course of

24

the past couple days.

25

There are a dozen or so, I would estimate, many

-19-

1

unobjected to.

2

The first document is a newly marked exhibit, as

3

plaintiff's exhibit 107. This is by way of follow-up. Let

4

me, if I may approach the Court's law clerk?

5

THE COURT: You may.

6

MR. HUT: Plaintiff's exhibit 107 is by way of

7

follow-up to the colloquy yesterday, toward the end of the

8

Court session on the subject of Mr. Evans' IV drug use.

9

This is a document that was obtained from the State

10

Division of Correction. It is a medical record compiled by

11

the state relating to Mr. Evans' health.

12

And the pertinent section of the document is under

13

social history about two-thirds of the way down the first

14

page of plaintiff's exhibit 107, where it states "There is a

15

history of heroin use last year" being two years ago. The

16

document is dated June second, 2004.

17

This is by way of corroboration for and perhaps an

18

extension of the same observation or the substantially same

19

observation by Dr. Scalea described in his testimony and

20

described in the declaration that was the subject of a motion

21

for admission yesterday.

22

It doesn't speak to the Court's question about

23

frequency, but it does -- it does further corroborate through

24

the state's own records duration of use.

25

THE COURT: Good. Thank you. Let me ask Miss

-20-

1

Mullally, is there any objection to the admission of 107?

2

MS. MULLALLY: Your Honor, there's no objection to

US1DOCS 5853856v1

3

the admission of it.

4

THE COURT: Good. Thank you. Then 107 is

5

admitted.

6

(Received in evidence.)

7

MR. HUT: Thank you, Your Honor.

8

The next exhibit we'd move in evidence is

9

plaintiff's exhibit 13. This is a letter to my colleague Mr.

10

Zubler from Miss Mullally, dated July 3, 2006.

11

There is an objection based on hearsay.

12

MR. PICKUS: Your Honor, Miss Mullally wrote the

13

letter, so she'd prefer not to argue this particular point.

14

We do believe this letter is hearsay.

15

THE COURT: Good. Let me take a look at it, Mr.

16

Pickus. Thank you.

17

(Pause.)

18

THE COURT: This is a letter of July 3, 2006 from

19

Laura Mullally, Assistant Attorney General, to Todd C.

20

Zubler, Esquire of Wilmer Hale, re Evans versus Saar, dated

21

July 3, 2006.

22

If I'm reading this correct, it says "I'm

23

responding to the June 19, 2006 notice to take the deposition

24

of a designee of the department of public safety and

25

correctional services regarding issues listed in the

-21-

1

plaintiff's attachment A schedule of topics. Below is the

2

particular information, under attachment A."

3

And then there's statements of fact.

4

And then the second to the last paragraph of the

5

letter states "I hope that this information sufficiently

6

answers the questions raised by attachment A, and that a

7

deposition of an official the Department of Corrections is no

8

longer necessary."

9

Unless I've misperceived the letter, there was a

10

deposition notice to the Department of Public Safety and

11

Correctional Services requesting a witness to testify on

12

certain subjects, those subjects being those listed in

13

attachment that in the letter Miss Mullally was providing

14

factual information to Mr. Evans' attorney, and offering a

15

suggestion or taking a position that the information makes

16

the deposition unnecessary because the state has now prepared

17

the information.

18

If that is a correct reading of the letter, then

19

plaintiff, plaintiff's counsel, are entitled to accept the

20

facts in the letter as given.

21

Am I correctly reading the letter?

22

MR. HUT: I believe you are, yes, Your Honor.

23

THE COURT: Mr. Pickus, am I correctly reading the

24

letter?

25

MR. PICKUS: Your interpretation is correct, Your

-22-

US1DOCS 5853856v1

1

Honor.

2

THE COURT: Thank you. Then I will overrule the

3

objection and accept the letter into evidence.

4

MR. HUT: The next document we move to admit in

5

evidence is plaintiff's exhibit 22. This is the Delaware

6

protocol, about which there has been some testimony through

7

Past Team Member M and Dr. Heath. The only objection is

8

relevance.

9

THE COURT: Now, is the protocol the one that is in

10

effect now or the one that was in effect when the past

11

execution team member consulted the Delaware protocol with a

12

view toward writing the Maryland protocol?

13

MR. HUT: This is the protocol that was received

14

from Delaware on the basis of which the testimony said

15

modeled the Maryland protocol.

16

THE COURT: Good. So I see that there is an

17

effective date stated on page 1 of February 26, 1993,

18

approved by the warden. So it appears that the warden

19

approved the document on 2-26-93; and, therefore, it became

20

effective on that date.

21

Let me ask Mr. Pickus and Miss Mullally, do you

22

need more time to study this document?

23

MR. PICKUS: We don't contest its authenticity,

24

Your Honor. We still contest that it is not relevant.

25

THE COURT: What I will do is, based upon the

-23-

1

admission of authenticity, I'll receive it into evidence,

2

because it does bear upon the testimony of the past execution

3

team member, and it shows where the derivation of the

4

Maryland procedure.

5

So I will receive it subject to the objection.

6

(Received in evidence.)

7

THE COURT: Mr. Hut?

8

MR. HUT: Thank you, Your Honor.

9

Next document we'd move in evidence is plaintiff's

10

exhibit 32. Plaintiff's exhibit 32, I think is acknowledged

11

to be authentic. It's an e-mail from Scott Oakley, dated

12

June 16, 2004, to Mark Dershwitz.

13

The objection from the State is relevance.

14

THE COURT: Good. If I could see it, please?

15

Thank you.

16

(Pause.)

17

MR. HUT: I'm sorry, if I said relevance, I

18

misspoke. The objection is hearsay.

19

THE COURT: Good. The factual setup essentially is

20

this. The first page in plaintiff's exhibit 32 is an e-mail

21

from Scott Oakley, who was the predecessor counsel to Miss

22

Mullally and Mr. Pickus in this case, to Mark Dershwitz, Dr.

23

Dershwitz, who is an expert who will be testifying on behalf

US1DOCS 5853856v1

24

of the state.

25

Dr. Dershwitz testified at the hearing in January

-24-

1

and will be testifying the week after next.

2

Mr. Oakley attaches Dr. Dershwitz's supplemental

3

affidavit describing Dershwitz's understanding of the IV

4

setup, then describes the IV setup, and then states that at

5

the end that "Mr. Oken's attorneys are claiming that the use

6

of the pressure infusion device will blow out Oken's vein.

7

I solicit your views on this."

8

And then Dr. Dershwitz then responded on June 16,

9

2004, in an e-mail to Mr. Oakley, stating that I'll work on

10

this later and get back to you. And then -- and I think --

11

MR. HUT: If I may, Your Honor, the document is

12

offered principally, if not solely, for the passage on the

13

first page, which is yet another version from a knowledgeable

14

state agent about the operation of a flow clamp.

15

The Court has heard three versions effectively from

16

Injection Team E. The Court heard another version, heard

17

another version that was described in the testimony of Dr.

18

Heath from Past Team Member Z.

19

This is yet another version.

20

THE COURT: Let me ask. I was trying to figure out

21

what was on the second page. Sometimes when you get an

22

e-mail, you get all the other e-mails, and I forget the

23

technical term, it's a trail or something, a thread. That's

24

it.

25

And I take it that the page 2 is a message from Dr.

-25-

1

Dershwitz to Mr. Oakley saying I'll work on this later today

2

and get back to you, and what comes after that is the thread?

3

A thread?

4

MR. HUT: Yes, I think so.

5

THE COURT: Good. Well, here are my views on the

6

document.

7

If an expert witness is retained not as a

8

testifying expert, but simply a consulting expert, and is not

9

expected to testify, and will not testify, then the expert's

10

identity need not be disclosed to the other side.

11

And the information provided by the party, or the

12

party's counsel, to the expert need not be disclosed.

13

Now, the second type of expert is not the

14

consulting expert, but a testifying expert. If an expert is

15

suspected to testify, as is the case with Dr. Dershwitz, then

16

anything and everything that he receives from the party who

17

hired him, or the party's attorneys, bearing upon the case is

18

discovery.

US1DOCS 5853856v1

19

So this is a discoverable document. It also can be

20

used in cross-examination of Dr. Dershwitz.

21

Now, the question then is whether the statements by

22

Mr. Oakley concerning the IV setup are admissible as

23

substantive evidence of how the IV was set up, or the proper

24

IV setup, and my answer is that the answer is no, because the

25

expert testifies his opinions are evidence, but what he --

-26-

1

the information that he rounds up from that go to form his

2

opinion do not become evidence simply because he said these

3

are facts that I relied upon.

4

Now, so the fact that even if Dr. Dershwitz relied

5

upon these statements in formulating his opinion, wouldn't

6

mean that this document would be admitted to prove how the IV

7

setup was actually set up.

8

Now, the next issue is whether the statements might

9

come in as some admission of the State.

10

MR. HUT: That's what they're offered as.

11

THE COURT: Now, the letter from Miss Mullally to

12

Mr. Zubler falls into the admission category, because it was

13

intended to supply information in discovery, and there's an

14

offer you can rely upon this in discovery. But the same does

15

not hold true for Mr. Oakley's statements to Dr. Dershwitz.

16

Because it's simply -- because Mr. Oakley, it's not

17

to counsel and opposing parties saying you can rely upon

18

this. It's simply a statement by the attorney for the state

19

to the expert, and it could be right, or it could be wrong.

20

MR. HUT: But it is an admission. It's an

21

admission of someone in a representative capacity with

22

knowledge, representing a party opponent.

23

THE COURT: Well --

24

MR. HUT: I don't think there's a requirement that

25

there be a demonstrable reliance by the adverse party, Your

-27-

1

Honor.

2

THE COURT: Well, my view is it's not an admission.

3

What's the best evidence of how the IV protocol works is what

4

it says in the protocol, what the witnesses who administer it

5

say, and so I don't take it as an admission. So I'm not

6

going to offer it for the truth of the matter asserted, but

7

you can certainly use it to cross-examine Dr. Dershwitz.

8

MR. HUT: Will you accept it for the fact that it

9

was said as yet another proffer of an interpretation, this is

10

about the fifth one in the record, of how the flow clamp

11

wheel is supposed to operate? That's what it's offered for,

12

not the correctness of the view, but the confusion among

13

state representatives as to the attended operation of a vital

US1DOCS 5853856v1

14

component of the apparatus.

15

THE COURT: Well, you can use it in

16

cross-examination, but Mr. Oakley was not a member of the

17

execution team. He's not a doctor. He's just a lawyer. I

18

won't received it as an admission.

19

So it's received in evidence, but for the limited

20

purpose of showing a communication from the state to the

21

expert, but the state is not bound by the factual assertions

22

in the statement.

23

MR. HUT: Thank you, Your Honor.

24

The next set of exhibits are ones as to which I

25

believe there are no -- is no objection. The first of those

-28-

1

is plaintiff's exhibit 76. Plaintiff's exhibit 76 is the

2

lethal injection checklist as it was held forth by Injection

3

Team C for the Baker execution.

4

THE COURT: And C is the witness who's the witness

5

who testified yesterday?

6

MR. HUT: Yes. The injection recorder.

7

MR. PICKUS: There is no objection, Your Honor.

8

THE COURT: It is received.

9

MR. HUT: Thank you, Your Honor.

10

(Received in evidence.)

11

MR. HUT: Next exhibit is plaintiff's exhibit 88,

12

which is a report, a scene investigation report, by the

13

Office of the Medical Examiner, again, as I understand it,

14

there is no objection.

15

MR. PICKUS: That is correct.

16

THE COURT: Good. Thank you, Mr. Pickus. It is

17

received.

18

This is for Baker?

19

MR. HUT: Yes, sir.

20

THE COURT: Okay. Thank you.

21

MR. HUT: Thank you, Your Honor.

22

The next exhibit, plaintiff's exhibit 89, a

23

supplemental report from the Office of the Medical Examiner,

24

this one in connection with the Oken execution, which places

25

the time of the commencement of the postmortem examination at

-29-

1

approximately 40 minutes after death was pronounced. Again,

2

no objection.

3

MR. PICKUS: No objection.

4

THE COURT: It is received.

5

(Received in evidence.)

6

MR. HUT: Thank you, Your Honor.

7

The next exhibit is plaintiff's exhibit and 90.

8

This is a report of the Office of the Chief Medical Examiner

US1DOCS 5853856v1

9

in respect to the execution of Flint Hunt. Again, I don't

10

believe there's an objection.

11

THE COURT: Good. Thank you.

12

Mr. Pickus, what we'll do, just to save you some

13

effort, if I'll give you a beat to look at it, and if there

14

is an objection, you can say so. But I'll assume that

15

silence is acquiescence.

16

MR. PICKUS: Very good, Your Honor.

17

THE COURT: Thank you.

18

MR. HUT: Next, Your Honor, is plaintiff's exhibit

19

91, another report of the office of the Chief Medical

20

Examiner. This one in connection with the execution of Tyron

21

Gilliam. No objection was noted in the pretrial report.

22

THE COURT: Good. It is received.

23

(Received in evidence.)

24

MR. HUT: Finally, Your Honor, following up on the

25

testimony that the Court heard this morning about the Ohio

-30-

1

execution of Joe Clark, plaintiffs move in a evidence

2

plaintiff's exhibit 108, which is a copy of the Ohio

3

protocol.

4

THE COURT: In effect during the execution of Mr.

5

Clark?

6

MR. HUT: That's our understanding, the effective

7

date on the document is January 8, 2004.

8

THE COURT: Good. Thank you.

9

Mr. Pickus?

10

MR. PICKUS: Your Honor, I don't believe we were

11

notified of this exhibit in advance. We would object to

12

this exhibit on authenticity grounds, relevancy grounds, and

13

hearsay grounds.

14

THE COURT: What I will do is -- let's do this, it

15

seems to me that the first issue is late notice, because I

16

presume that it was not listed in the pretrial order, and Mr.

17

Pickus is nodding.

18

Were we not taking the week off, I would agree with

19

you and exclude it on that basis. Excuse me. But because we

20

will have some time off, this gives you an opportunity

21

consult with the people in Ohio and verify its authenticity.

22

So essentially the late notice is secured by the

23

time. Plus if there were a wholesale group of documents that

24

were being introduced into evidence after the pretrial order,

25

then I would exclude all of them on the grounds of there are

-31-

1

just too many. But I think that we have a relatively limited

2

number. So that it's not overly burdensome for you to check

3

it out.

US1DOCS 5853856v1

4

As to the relevance, we'll have to see what the

5

protocol says. Because if the protocol is dissimilar to the

6

Maryland protocol, then the document is not -- may not be

7

relevant, and the entire execution of Mr. Clark may be of

8

dubious relevance.

9

But if the protocol is similar to the Maryland

10

protocol, then my view would be that the document has enough

11

relevance to be admitted, and I would have to study it, and

12

consider the testimony of the witness concerning the Clark

13

execution to determine how much relevance it has.

14

So what I will do is, with respect to 108, it will

15

be marked for identification. And when we resume, Mr. Pickus

16

and Miss Mullally can tell me whether they object to the

17

document on the grounds of authenticity, and we can have a

18

discussion from both sides on the relevance, and you can

19

point out to me the dissimilarities or dissimilarities with

20

the Maryland protocol.

21

So mark it for identification and table it so its

22

admission. Thank you.

23

Mr. Hut?

24

MR. HUT: That concludes the set of exhibits that

25

were the subject of our motions to have received in evidence.

-32-

1

And with that, Your Honor, plaintiff rests.

2

THE COURT: Good. Thank you.

3

(Pause.)

4

THE COURT: Good. For scheduling, we will not sit

5

next week. We will resume on the 10th with the defense case,

6

proceed as necessary through the 11th and the 12th, not sit

7

on the 13th. And presumptively resume on the 18th and if

8

necessary the 19th.

9

The availability of the 18th and the 19th depends

10

upon whether or not a criminal trial goes forward. And I

11

will know a lot more during the week of the second.

12

So I'll make a note that chambers will contact

13

everyone during the week of the second to let you know how

14

the 18th and 19th look.

15

Good. Miss Mullally and Mr. Pickus, what do you

16

have on tap for the 10th, 11th , and 12th?

17

MR. PICKUS: Well, without pinning us down to an

18

exact schedule we, do know Dr. Dershwitz would have to be on

19

the 11th.

20

I also need to tell the Court the defense case will

21

certainly include members of the execution team, that the

22

members of the team can testify this week, while not thrilled

23

with was going on, did leave with the impression His Honor

24

was concerned about their situation, and I would thank the

25

Court. And I would ask the same precautions be taken with

-33-

US1DOCS 5853856v1

1

the defense case.

2

As we get closer, I can give you the exact details

3

as far as the schedule.

4

THE COURT: Good. Dr. Dershwitz on the 11th, and

5

you would contemplate we would have members of the execution

6

team on the 10th?

7

MR. PICKUS: Yes, sir.

8

THE COURT: Good. What you should do is -- Mr.

9

Thompson will you be the courtroom deputy?

10

THE CLERK: I believe I will.

11

THE COURT: Do you have Mr. Thompson's number?

12

MR. PICKUS: I will not leave without it.

13

THE COURT: Good. Feel free to call him at time

14

day or night, you know, weekends, and we'll do the same

15

procedures. Presumptively the feed room will be 3 D. And

16

the witnesses, Mr. Thompson will make arrangements for the

17

witnesses to come in underneath the building, come up through

18

the secure elevator. And if they're here over lunch, to make

19

sure that they are fed.

20

Good. I think we've also solved the technological

21

problems so that we won't cut off those listening in 3 D from

22

any portion of the proceeding, as we did this week.

23

Plus, we'll make sure for the open sessions they

24

are given, anyone in the courtroom 3 D is given an

25

opportunity to come up here and be in the courtroom.

-34-

1

, it looks like, let me ask, Mr. Pickus, who

2

after Dr. Dershwitz, what do you think is going to happen on

3

the 12th, then?

4

MR. PICKUS: That really depends on how much we get

5

done on the 10th. Without holding us to this, I seriously

6

believe we will be able to rest on the 12th. I doubt we will

7

be able to rest on the 11th.

8

THE COURT: Well, all three days are open and

9

available for you. If you have any scheduling problems that

10

require us to truncate the day or go late, then I'm happy to

11

do it.

12

Mr. Hut, without nailing you down, do you have any

13

present thinking about whether you would have a rebuttal

14

case?

15

MR. HUT: I think the honest answer is nothing

16

definitive enough to give the Court any confidence that

17

anything I say would be right, but I think there's some

18

possibility that we could recall Dr. Heath, some possibility

19

that we might want to ask the Court to hear from Dr. Dutton,

20

who was originally scheduled, has been, was scheduled as an

21

expert in the pretrial order. As to him we may yet decide we

22

want to call him in rebuttal, depending on what the state's

23

case shows.

24

THE COURT: Then presumptively we will do that on

US1DOCS 5853856v1

25

the 18th and 19th, provided they can be here.

-35-

1

Now, if Dr. Heath is going to come back briefly in

2

rebuttal, if that's your decision, I would ask you to discuss

3

it with Miss Mullally and Mr. Pickus to see whether they

4

would be amenable to have him appear by telephone, since

5

we've all have had an opportunity to see him. But that would

6

depend upon what he's going testify about, how long he's

7

going to be.

8

MR. HUT: He might, Your Honor, be able to work in

9

our rebuttal case on the 12th, depending on the length of the

10

State's evidence, on the 12th.

11

MR. PICKUS: It's possible.

12

MR. HUT: We may be in a position do that.

13

Whatever it is, it is.

14

MR. PICKUS: It's possible, we can't promise that,

15

but it's possible.

16

MR. HUT: I understand.

17

THE COURT: Good. Thank you. And if there's

18

nothing else, I wish you a pleasant weekend.

19

THE CLERK: Judge, you didn't say what time on the

20

10th.

21

THE COURT: Oh.

22

THE CLERK: I believe it's 9:30.

23

THE COURT: 9:30. What we'll do is send out an

24

order with the schedule.

25

Good. Have a pleasant weekend. Thank you.

-36-

1

(PROCEEDINGS ADJOURNED)

4

I, Jacqueline Sovich, RPR, CM, do hereby certify that the

4.5 foregoing is a correct transcript from the stenographic

5

record of proceedings in the above-entitled matter.

7

___________________________________________________

8

Jacqueline Sovich

DATE

8.5

Official Court Reporter

US1DOCS 5853856v1

 
 IN THE COURT OF APPEALS OF MARYLAND
Nos. 107, 123, 124
September Term, 2005 ______________________________________
VERNON EVANS, JR.
v.
STATE OF MARYLAND ______________________________________
No. 122
September Term, 2005
_______________________________
VERNON EVANS, JR., ET AL.
v.
STATE OF MARYLAND
______________________________________
Bell, C.J. Raker Wilner Harrell Battaglia Greene Rodowsky, Lawrence F. (Retired,
Specially Assigned),
JJ. ______________________________________ Opinion by Wilner, J.; Greene, J., joins in Nos. 107 and 124 only; Bell, C.J., dissents which Greene, J., joins in Parts C and D Only. ______________________________________
Filed: December 19, 2006

On April 28, 1983, Vernon Evans, for a fee of $ 9,000 paid by or on beh alf of his friend, Anthony Grandison, walked into the Warren H ouse Motel in B altimore County and murdered David Piechowicz and Susan Kennedy by shooting nineteen bullets at them. The murder of Ms. Kennedy was a mistake; Evans thought she was Piechowicz’s wife, Ch eryl. Evans was hired to kill the Piechowiczes in order to prevent them from testifying against Grand ison in a pending Federal criminal case that was scheduled for trial a week later.
In May, 1984, a jury in the Circuit Court for Worcester County, to which the case had been removed, convicted Evans of two counts of first degree murder and sentenced him to death. The judgment was affirmed on appeal, but in 1991, in a post conviction proceeding filed in 1990, Evans was awarded a new sentencing hearing. At his request, the case was removed from Worces ter County an d, with his concurrence, returned to Baltim ore C ounty, where, in November, 1992, a new jury again sentenced him to death. The full procedural history of the case is described in the Appendix attached to this Opinion.
We have before us now four appeals – Nos. 107, 122, 123, and 124 – which we have consolidated. In Nos. 107 and 124, two substantive issues are raised:
(1) Whether Evans is en titled to a new sentencing hearing becaus e his attorneys at the 1992 re-sentencing hearing failed to investigate and present mitigating evidence relating to his background, thereby rendering their service, under principles enunciated in Wiggins v. Smith, 539 U.S. 510, 123 S. Ct. 2527, 156 L. Ed.2d 471 (2003) and Rompilla v. Beard, 545 U.S . 374, 125 S . Ct. 2456, 162 L. Ed.2d 360 (2005), Constitutionally deficient and prejudicial; and

(2) Whether, under Miller-El v. Dretke, 545 U.S. 231, 125 S. Ct. 2317, 162 L. Ed.2d 196 (2005), he is entitled to a new trial as to guilt or innocenc e because the State, in selecting a jury at the 1984 trial, exercised peremptory strikes in a racially discriminatory manner.
In No. 107, those issues were presented in a motion to correct an illegal sentence, and the procedural question exists of whether they may properly be raised in such a m otion. In No. 124, the two issues were presented in Evans’s fourth motion to reopen a 1995 post conviction proceeding. The question there is whether the post conviction court abused its discretion in denying that motion.
The issue in No. 123 is whether the Circuit Court for Baltim ore Cou nty abused its discretion in denying, without affording discovery, Evans’s third motion to reopen the 1995 post conviction proceeding in order to present the complaint that “selective prosecution by the Baltimore County State’s Attorney’s Office and systemic statewide ra cial and geo graphic discrimination rendered his sentence unconstitutional.”
No. 122 arises from an action for injunctive relief filed in the Circuit Court for Baltimore City. Maryland Code, § 3-905 of the Correctional Services Article requires that the manner of executing a sentence of death be by lethal injection. Complementing that statute, the Division of Correction (DOC) has adopted a comprehensive set of execution protocols, including a detailed description of the manner in which the lethal drugs are to be administered. Joined by three co-plaintiffs – the National Association for the Advancement
-2-

of Colored People (NAACP), the American Civil Liberties Union Foundation of Maryland (ACLU ), and Maryland Citizens Against State Executions (CASE) – Evans contended that those aspects of the execution protocol were (1) inconsistent with the statutory requirements, and (2) in the nature of a regulation that was promulgated without compliance with the State Administrative Procedu re Act. The app eal is from th e Circuit Court’s denial of a tem porary injunction that would have restrained DOC from using its protocol.
We shall find merit in the second aspect of E vans’s com plaint in No. 122, but no merit in any of his other complaints. Evans is not entitled to a new sentencing proceeding or to a new trial, but that part o f the DO C protoco l that directs the manner of administering the lethal injection is ineffective until either (1) it is adopted a s a regulation in accorda nce with the Administrative Procedure A ct, or (2) the Legislature exempts it from the requirements of that A ct.
I. NO. 107 Maryland Rule 4-345(a) permits a court to “correct an illegal sentence” at any time. If the sentence is not “illegal,” the court’s revisory power over it, with exceptions not pertinent here, is limited to a showing of fraud, mistake, or irregularity in the sentence. There has been no contention by Evans, and there is no basis in the record for such a contention, that the 1992 death sentence imposed on him was the product of fraud, mistake, or irr egularity. In order to be entitled to relief under Rule 4-345(a), therefore, Evans must
-3-

show that the death sentence he is challenging is “illegal.” In two of Evans’s prior appeals – Evans v. State, 382 Md. 248, 855 A.2d 291 (2004)
and Evans v. S tate, 389 M d. 456, 886 A.2d 56 2 (2005) – we con firmed ea rlier rulings and made clear that “[a] motion to correc t an illegal sente nce ordina rily can be gran ted only where there is some illegality in the sentence itself or where no sentence should have been imposed.” Evans v. State, supra, 382 Md. at 278-79, 855 A.2d at 309; Evans v. State, supra, 389 Md. at 463, 886 A.2d at 565. In the more recent of those cases, w e flatly held that “there was nothing intrinsically illegal in Evans’s sentence; he was properly found to be a principal in the first degree in two first degree murders for which the death penalty could lawfully be imposed, and the court properly found that the aggravating factors proved outweighed any mitigating factors and tha t death w as the ap propriate senten ce.” Evans v. State, supra, 389 Md. at 463, 886 A.2d at 565-66, confirming Evans v. S tate, 333 Md. 660, 637 A.2d 117 (1994), cert. denied, 513 U.S. 833, 115 S. Ct. 109, 130 L. Ed.2d 56 (1994). Nothing has been presented in these appeals that wo uld cause us to recons ider, much less overrule, that holding.
In Evan s’s 200 4 appe al, Evans v. State, supra, 382 Md. at 279, 855 A.2d at 309, we observed that, in Oken v. S tate, 378 Md. 179, 835 A.2d 1 105 (2003), cert. denied, 541 U.S. 1017, 124 S. Ct. 2084, 158 L. Ed.2d 632 (2004), we “appeared to recognize” an exception to that requirement “where, in a capital sentencing proceeding, an alleged error of constitutional dimension may have contributed to the death sentence, at least where the
-4-

allegation of error is partly based upon a decision of the United States Supreme Court or of this Court rendered after the defendant’s capital sentencing proceeding.” To the extent that there is such an exception, it is a very narrow one.1 The subsequent decision relied upon must constitute “a new judicial interpretation of a constitutional provision.” Baker v. State, 389 Md. 127, 134, 883 A.2d 916, 920 (2005).
In an effort to squeeze within that limited exception, Evans relies, as to his complaint about the performance of counsel at the re-sentencing hearing, on Wiggins v. Smith, supra, and Rompilla v. Beard, supra, which he contends constitute new judicial interpretations of a constitutional provision, rendered after he was re-sentenced, and which set new (and retroactive) requirements for counsel in death penalty sentencing proceedings that were not in place in 1992. He makes the same argument with respect to his Batson challenge, contending that Miller-El v. Dretke, supra, constitutes a new judicial interpretation of the Constitutional prohibition a gainst the us e of perem ptory challeng es in a racially discriminatory manner. We do not agree.
With respect to the Constitutional adequacy of counsel’s performance, the seminal case – the “new judicial interpretation of a constitutional provision” – was Strickland v.
1 We did not, in fact, announce any such exception in Oken, but, whether deliberately or inadvertently, we did address a complaint raised in a motion to correct an illegal sentenc e (which we fou nd substan tively to be witho ut merit) that Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428, 153 L. Ed.2d 556 (2002), decided long after Oken’s sentencing, made the standard for weighing aggravating against mitigating factors set forth in the M aryland Code unconstitutional.
-5-

Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed.2d 674 (1984). It was there that the
Supreme Court considered and announced “the proper standards for judging a criminal
defendant’s contention that the Constitution requires a conviction or death sentence to be set
aside because counsel’s assistance at the trial or sentencing was ineffective.” Id. at 671, 104
S. Ct. at 2056, 80 L. Ed.2d at 683.
The Strickland Court began its analysis by confirming that “the right to counsel is the
right to the effective assistance of counsel.” Id. at 686, 104 S. Ct. at 2063, 80 L. Ed.2d at
692, quoting from McMann v. Richardson, 397 U.S. 759, 771, n.14, 90 S. Ct. 1441, n.14, 25
L. Ed.2d 763, 773, n.14 (1970). It proceeded then to announce that “[t]he benchmark for
judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the
proper functioning of the adversarial process that the trial cannot be relied upon as having
produced a just result.” Strickland v. Washington, supra, 466 U.S. at 686, 104 S. Ct. at 2064,
80 L. Ed.2d at 692-93. The heart of the Court’s ruling – the announced holding that has
remained unchanged since Strickland – is in the introductory paragraph to Part III of the
Court’s Opinion:
“A convicted defendant’s claim that counsel’s assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose re sult is reliable. Unless
-6-

a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.” Id. at 687, 104 S. Ct. at 2064, 80 L. Ed.2d at 693. As to the first prong of the analysis – whether the performance w as deficient – the Court adopted an objective standard: “the defendant must show that counsel’s representation fell below an objective standard of reasonableness.” Id. at 688, 104 S. Ct. at 264, 80 L. Ed.2d at 693. In that regard, it made clear that “[n]o particular set of detailed rules for counsel’s conduct can satisfactorily take account of the variety of circumstances faced by defense counsel or the range of legitimate decisions regarding how best to represent a criminal defendant.” Id. at 688-89, 104 S. Ct. at 2065, 80 L. Ed .2d at 694. The C ourt directed, however, that judicial scrutiny of counsel’s performance be “highly deferential” in order to avoid the post hoc second-guessing of decisions simply because they proved unsuccessful, and required that “a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” Id. at 689, 104 S. Ct. at 2065, 80 L. Ed.2d at 694. Thus, the Court concluded, a court deciding an ineffective assistance claim “must judge the reasonableness of counsel’s c hallenged conduct o n the facts of the particular case, viewed as of the time of counsel’s conduct.” Id. at 690, 104 S. Ct. at 2066, 80 L. Ed.2d at 695. In examining the prejud ice prong, the Court rejected the notion that all a defendant had to show w as that coun sel’s errors “h ad some conceiva ble effect on the outcome of the
-7-

proceeding” and required instead that the defendant show “that there is a re asonable probability that, but for counsel’s professional errors, the result of the proceeding would have been different.” Id. at 693-94, 104 S. Ct. at 2068, 80 L. Ed.2d at 697-98. (Emp hasis added). A “reasonable probability,” the Court added, is “a probability sufficient to undermine confidence in the outcome.” Id.
Nothing in Wiggins or Rompilla changed, in any way, those standards adopted in Strickland. The Wiggins Court expressly relied on and applied the Strickland standards and simply concluded, based on its view of the factual record in th at case, that, given the information they had regarding Wiggins’s childhoo d, counsel’s failure to broaden the scope of their investigation into possible mitigating factors in a death penalty case was both deficient and prejudicial under the Strickland standards. Indeed, the Court began its discussion of the ineffective assistance cla im by expressly noting that “[w]e established the legal principles that govern claims of ineffective assistance of counsel in Strickland v. Washington . . . .” Wiggins v. Smith, supra, 539 U.S. at 521, 123 S. Ct. at 2535, 156 L. Ed.2d at 484.
We are aware of no reported decision, and none has been cited to us by Evans, holding that Wiggins established a new interpretation of a Constitutional principle. The d ecisions are to the con trary. See Grossman v. Crosby, 359 F. Supp.2d 1233, 1281 (M.D. Fla. 2005) (“Wiggins merely applied Strickland to the facts of that case, it did not change the standard by which a claim of ineffective assistance of couns el is to be judge d.”); Hodge s v. State, 885
-8-

So.2d 338, 346 (Fla. 2004 ) (Wiggins is a reiteration and application of Strickland); Grant v. State, 95 P.3 d 178, 1 79 (O kla. 200 4), cert. denied, 543 U .S. 964, 125 S. Ct. 418, 160 L. Ed.2d 332 (20 04) (Wiggins applied well-established standards of Strickland).
That analysis applies equally to Rompilla v. Beard, supra, 545 U.S. 374, 125 S. Ct. 2456, 162 L. Ed.2d 360 and Miller-El v. Dretke, supra, 545 U.S. 231, 125 S. Ct. 2317, 162 L. Ed.2d 196. Like in Wiggins, the Rompilla Court expressly applied the standards enunciated in Strickland to find deficient and prejudicial performance by counsel. No new or different interpretation of Strickland was announced. Indeed, Justice O’Connor, the author of the Op inion in Strickland, noted in Romp illa that the decision “simply applies our longstanding case-by-case approach to determining whether an attorney’s performance was unconstitutio nally deficient under Strickland v. Washington. . . .” Rompilla v. Beard, supra, 545 U.S. at 393-94, 125 S. Ct. at 2469, 162 L. Ed.2d at 379. (O’Connor, J., Concurring).
Similarly, Miller-El was merely an application of Batson v. Kentucky. Throughout its Opinion, the Court characterized Miller-El’s complaint as a Batson challenge, a nd it examined the record in light of the thr ee-step ana lysis set forth in Batson. It did not, in any way, modify that analysis.
It is clear that the complaints made by Evans in No. 107 are not cognizable in a motion under Rule 4-345(a) to correct an illegal sentence. The judgmen t of the Circ uit Court for Baltimore County entered in that case will be affirmed.
-9-

II. NO. 124 The two issues raised in No. 107 – the Wiggins and Batson claims – are also presented in No. 124, which is an appeal from the denial of Evans’ s fourth motion to reopen the 1995 post conviction case. Maryland Code, § 7-102 of the Criminal Procedure Article (CP) – the heart of the State Post Con viction Proc edure Act – permits a convicted person to se ek relief in the Circuit Court in which the conviction occurred upon an allegation that (1) the sentence or judgment was imposed in violation of the U.S. or Maryland Constitution or laws of this State, (2) the court lacked jurisdiction to impose the sentence, (3) the sentence exceeds the maximum allowed by law, or (4) th e sentence is subject to co llateral attack on a ground that would otherwise be available under a writ of habeas corpus, coram nobis, or other common law or statutory remedy. There are two important conditions to that right, however, that are relevant here. The first, expressed in CP § 7-102(b)(2) and circumscribed to some extent in § 7-106, is that the alleged error “has n ot been pre viously and fin ally litigated or waived in the proceeding resulting in the conviction or in any other proceeding that the person has taken to secure relief from the person’s conviction.” The second appears in CP §§ 7-103(a) and 7-104. Section 7-103(a) provides that, for each trial or sentence, “a person may file only one petition for relief under this title.” Section 7-104, however, permits a court to “reopen a post conviction proceeding that was previously concluded if the court determines that the action
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is in the interests of justice.” In Gray v. S tate, 388 Md. 366, 879 A.2d 1064 (2005), we made clear that a petition
to reopen a concluded post conviction proceeding was not the functional equivalent of the former right to file a second (or before 1986, subsequent) petition, that the decision to reopen is a discretiona ry one with the court in which the petition to reopen is filed, and that “[w]e will only reverse a trial court’s discretionary act if we find that the court has abused its discretio n.” Id. at 383, 879 A.2d at 1073. In that regard, we pointed out that “‘a ruling reviewed under an abuse of discretion standard will not be reversed simply because the appellate court would not have made the same ruling. The decision under consideration has to be well removed from any center mark imagined by the reviewing court and beyond the fringe of what that court deems minimally acceptable.’” Id., quoting from Dehn v. Edgecomb, 384 Md. 606, 628, 865 A.2d 603, 616 (2005), and ultimately from North v. N orth, 102 Md. App. 1, 13-14, 648 A. 2d 1025, 1031-32 (1994).
That is the standard to be applied in reviewing the Circuit Court’s denial of Evans’s fourth motion to reopen the 1995 post conviction proceeding – a proceeding in which he had raised 41 other issues, that had been concluded nine years earlier , and that he h ad sough t to reopen on three prior occasions. That was not the standard applied in Wiggins, Rom pilla, or Miller-El. All three of those cases reached th e Suprem e Court in th e context of an initi al Federal habeas corpus ac tion, an action of right. In Wiggins and Romp illa, the District Court granted relief, the U.S. Court of Appeals reversed, and the Supreme Court granted certiorari
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to review the legal correctn ess – the m erits – of the lower c ourts’ d ecision s. Miller-El also was an initial Federal habeas corpus action. In that case, the District Court denied relief, and the U.S. Court of Appeals for the Fifth Circuit affirmed. The rulings reviewed by the Supreme Court in tho se cases w ere not discre tionary ones; those cases were brought as of right, they were tried, and judgments were entered on the merits of the petitions.
A. The Batson/M iller-El Claim Evans was tried in 1984, before Batson was decided by the Su preme Court. During jury selection, the State’s use of its peremptory strikes to exclude African Americans was commented upon three times. The court (Judge Cathell) first raised the issue on its own initiative. After twelve jurors were tentatively seated, the parties proceeded to select two alternates. During th at proce ss, when the State excused a black prospective juror, Judge Cathell called counsel to the bench and directed them to make their strikes in alternating order. He wanted a clear record of who was striking whom, he said, “so that later on I can make an indic ation w hether th ey were e xcused as to rac e.” Noting that the lead prosecutor was “on loan from the United States Attorney’s Office,” Judge Cathell warned that there was a line of Maryland cases disapproving racial strikes and wanted to make sure that the Federal prosecutor was aware of those cases: “[t]here has been som e extremely strong language in dicta about using peremptory challenges for racial purposes. And I think you ought to think about that.” The prosecutor responded that he was aware of those cases and stated “I am not
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striking anybody based on race.” The process continued until twelve jurors and two alternates had been selected, at
which point the court asked if counsel were satisfied with the jury. Defense counsel informed the court that the panel w as not acceptable because the State had used its peremptory challenges “to purposely limit blacks from representation on the panel.” Counsel noted that the State had used eight of its ten peremptory challenges to strike black jurors and two to strike white jurors, leaving two African Americans on the jury and one as an alternate. The court invited a response from the State, whereupon the prosecutor advised that he did not keep track of whether he had struck black or white jurors and that “[w]e struck on background, age, occupation, what was learned during the voir dire at the bench and in open court. We did not strike on racial grounds.” T here was no challenge to that explanation and no requ est for further elucidatio n, and the court accepted it.
The next day, while the court was considering Evans’s c omplaint th at the venire itse lf did not reflect a fair cross-section of the community, the prosecutor noted that 22% of the county population was African American and three of the jurors – two regular jurors and one alternate – were black, which constituted 21.4% of the panel. His point was that there was no significant racial disparity in the actual make-up of the jury. Defense counsel responded that his objection the day before was not to a cross-se ction but rather that the State’s peremptory challenges were racially motivated, to which the court noted that the prosecutor had given his reasons for the strikes and that the objection had been ruled upon.
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In Evans’s appeal from the conviction and sentence, he raised the issue of whether the
State’s peremptory strikes had been improperly used to exclude African Americans. Batson
had still not been decided. After reviewing the existing state of the law, which was already
trending beyond Swain v. Alabama, 380 U.S. 202, 85 S. Ct. 824, 13 L. Ed.2d 759 (19 65), we
assumed that the use o f eight peremptory strikes to exclude African Americans “was
sufficient to establish a p rima facie violation of the defendant’s rights,” but concluded that
“the explanation offered by the prosecutor, and apparently accepted by the court, was
sufficient under the circumstances to support the decision of the trial judge in overruling the
defendant’s objection.” Evans v. State, 304 M d. 487, 528, 499 A.2d 1261, 1282 (1985), cert.
denied, 478 U.S. 1010, 106 S. Ct. 3310, 92 L. Ed.2d 722 (1986). We observed:
“It is also significant that neither the judge nor defense counsel questioned the explanation of the prosecutor or requested further particulars. This may well have represented a tactical decision by the defen dant’s cou nsel, to require the court’s decision to be made upon the weighing of the defendant’s prima facie showing against the rather general response of the prosecutor, as opposed to seeking specific information from the prosecutor as to each excused venireman and running the risk of further strengthening the prosecutor’s explanation. For whatever reason, the explanation of the prosecutor stood uncontroverted and unimp eache d.”
Id.
Batson was decided by the Supreme Court on April 30, 1986. At the time, Evans’s
petition for certiorari seeking review of this Court’s decision was also pend ing in that C ourt.
That petition was denied w ithout com ment on J une 30, 19 86; this Co urt was no t directed to
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reconsider its decision in light of Batson. In his first petition for post conviction relief, filed in 1990, Evans argued that the
State’s use of peremptory strikes to exclude African Americans constituted a violation of Batson. The cou rt had befo re it the transcrip t of the jury selection phase of the trial and noted that, even though Batson had not then been decided, Judge Cathell had required the prosecutor to explain his peremptory strikes. The reasons given, the court conclud ed, were race-neutral and did not appear to be pretextua l. Moreover, the matter had been raised and decided in Evans’s direct appea l and was therefore finally litigated. Evans complained about that aspect of the post conviction court’s ruling in an application for leave to appeal, which we de nied. State v. Evans, Misc. N o. 8, Sep t. Term 1991 ( Order filed Ju ne 4, 19 91).
As a result of the first post conviction proceeding, Evans received a new sentencing hearing, at which a jury in Baltimore County again sentenced him to death. He raised a Batson issue at that proceeding as well. It appears that the only African American jurors who were excused by the State were alternate jurors, however, and no alternate jurors were called upon to deliberate. The trial judge (Judge Kahl) found no merit to the complaint.
In August, 1995, Evans filed his second petition for post conviction relief. Among the 41 issues presented in that petition were seven relating to the State’s peremptory challenges – three complaints dealing with the re-sentencing and four emanating from the initial trial. As no co mplaint is made in this appeal about jury selection at the re-sentencing proceeding, w e need to consider only the four dealing with the initial trial.
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Evans’s only direct challenge did not invoke Batson, but was instead grounded on Swain v. Alabama, supra, 380 U.S . 202, 85 S . Ct. 824, 13 L. Ed.2d 759. He complained that “he was denied his rights under the Fifth, Sixth, Eighth and Fourteenth Amendments to the Constitution because the Baltimore County State’s Attorney’s Office eng aged in a pattern of using peremptory challeng es to strike jurors on the basis of race in violation of Swain v. Alabama.” The post conviction court (Judge Smith), noting that that issue had been raised and decided in the appeal from th e initial conviction and sen tence, Evans v. State, supra, 304 Md. 487, 522-28, 499 A.2d 1261, 1280-82, concluded that it had been finally litigated and that there was no merit to it in any event. A second, related argument was that trial counsel was deficient by failing to investigate and present evidence of the State’s pattern of exercising peremptory challenges in a racially discriminatory manner. That, too, invoking Swain rather than Batson, was found to be w ithout merit.
Two challenges grounded specifically on Batson were presented, but only in the context of deficient performance by counsel in the first post conviction proceeding. Evans complained that post conviction counsel was deficient in (1) failing to pursue grounds for establishing a Batson violation based on the State’s racially discriminatory use of peremptory challenges, (2) not pursuing claims that the prosecutors in this case demonstrated a pattern of using peremp tory strikes in a racially discriminatory manner in violation of Batson, (3) making only “a perfu nctory presen tation” to this Court relating to the State’s discriminatory use of peremptory challenges, and (4) failing to raise and preserve on appeal meritorious
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claims that the prosecutors in this case had demonstrated a pattern of using peremptory strikes on the basis of race. Judge Smith found that the validity of the State’s use of peremptory challenges at the initial trial had been fully an d finally litigated. He observed that trial counsel had challenged the State’s use of peremptory challenges at the trial, that the issue was raised and decided in the appeal from the initial judgm ent, and that it had been raised and decided in the first post conviction proceeding.
The second argument, as viewed by the post conviction court, was almost a repetition of the one just noted. Evans complained that post conviction counsel was deficient “in that he made only a perfunctory presentation to the Court of Appeals relating to the State’s discriminatory use of peremptory challenges.” He added:
“Petitioner alleges that (1) he was denied equal protection of the law by the prosecution’s purposefully striking African Americans from the jury in violation of Batson v. Kentucky and (2) he was denied equal protection of the law because he was prosecuted by attorneys who had demonstrated a pattern of using peremptory strikes in a racially discriminatory manner in violation of Batson v. Kentucky.” The court rejected that claim, noting that the peremptory challenge issue had been finally litigated in the direct appeal, before post conviction counsel was involved in the case. Those claims were presented to this Court in Evans’s amended application for leave to appeal fro m the den ial of relief by the post conviction court. We considered the application and obviously found no merit to it, for on May 7, 1997, we denied it. Evans v. State, 345 Md. 524, 693 A.2d 780 (1997). The Supreme Court denied certiorari. Evans v.
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Maryland, 522 U.S. 966, 118 S. Ct. 411, 139 L. Ed.2d 314 (1997). In November, 1997, Evans filed a petition for habeas corpus in the U.S. District Cou rt.
Among the 24 issues raised in that petition was a four-part complaint about the State’s peremptory strikes at the initial trial: “i) because his trial and direct appeal concluded befo re the Supreme C ourt announced Batson, the federal courts should give no deferenc e to the state proceedings described above; ii) Batson requires, ‘[the] prosecution to articulate a raceneutral reason for each strike’ once a prima facie case has been established . . . iii) the raceneutral reasons given by prosecutor . . . were clearly pretextual; and iv) his appellate counsel rendered ineffective assistance by failing to demonstrate this pretext by comparing the ages, occupations, etc. of the potential jurors Irwin struck against those he did not strike.” Evans v. Smith, 54 F. Supp.2d 503, 514 (D. Md. 1999).
The District Court (Judge Legg) reviewed the trial transcript and this Court’s ruling on appeal and concluded that none of those complaints had merit. It found, first, that “anticipating the shifting burdens eventually adopted by the Suprem e Court in Batson,” this Court, in Evans’s appeal, “applied a reasonable and correct legal standard,” and that, in the first post conviction proceeding, Judg e Eschen burg “m easured E vans’s claim against Batson, which had by then been published.” Id. Accordingly, the court held that both decisions were entitled to deference under 28 U.S.C. § 2254(d) and (e). Second, the court held that Batson did not require an individual explanation for each strike but only a clear and reasonably specific justification for the prosecutor’s use of strikes relating to the particular
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case to be tried. Third, the court held that Ev ans’s analysis of the ages, occupations, etc. of the jurors stricken and acce pted “doe s not clearly dem onstrate the pretextuality of [the prosecutor’s] explanation.” Id. at 515. In that regard, the court found Evans’s analysis of the juror data “unpersuasive” in that it “fails to take into consideration the many impressions that a potential juror makes on voir dire.” Id. at 515, n.20. Finally, the court concluded that Evans’s appellate counsel were “not constitutionally remiss in failing to develop this.” Id. at 515. Rather, it found “the proposed evidence unpersuasive as it does not clearly demonstrate that the factual determinations of Judge Cathell and the Court of Appeals were incorrect.” Id.
The District Court denied the petition and a motion for rehearing. The U.S. Court of Appea ls for the F ourth C ircuit aff irmed, Evans v. S mith, 220 F.3d 306 (4 th Cir. 2000), and the U.S. Supreme Court denied certiorari, Ev ans v. Sm ith, 532 U.S. 925, 121 S. Ct. 1367, 149 L. Ed.2d 294 (2001).
It is abundantly clear from this history that Evans’s Batson claim has been fully and finally litigated, in both the State and Federal courts. It has been presented to and rejected by this Court o n at least two occasions , it was presented to and rejected by the U.S. District Court and the U.S. Court of Appeals for the Fourth Circuit, and the Supreme Court has denied review of it at least three tim es. The Circuit Court did not abuse its discretion in refusing to reopen the 1995 post conviction proceeding to examine it again.
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B. Wiggins/Rom pilla Claim The Wiggins/R ompilla claim made by Evans is that his attorneys in the 1992 resentencing proceeding failed to investigate his social and psychological history and that there is a reasonable probability that, but for that omission, the result of that re-sentencing proceeding would have been different. In support of his fourth motion to reopen the 1995 post conviction proceeding, counsel produced a 51-page Psychos ocial Evaluation of Mitigating Circumstances In Life Of Vernon Lee Evans, Jr., prepared by a licensed social worker, Pamela Taylor, and an 18-page Investigation Of Psychological Mitigating Factors in Life Of Vernon Lee Evans prepared by a psychologist, Janice Stevenson. Both reports were based predominantly on interviews with Evans and members of his family plus various documents. In her report, Ms. Taylor concluded, in pertinent part:
(1) There was a “ Multi-Generational Family Legacy of Emotional Dysfun ction.” Evans’s parents, she said, came from emotionally troubled backgrounds, and various membe rs of his exte nded fam ily – uncles, aunts, cousins – suffered from major mental disorders, gambling addictio n, or ma y have be en alco holics. His father’s uncle and cousin comm itted suic ide. His grandmother “was known to faint when she got upset.” One of his father’s cousins “is reported to have had a chronic addiction to gambling.” Although Evans’s sisters “are accomplished in their various careers and present a positive public image ,” the oldest ones had experienced “significant instability” and “personal difficulties and inner turmoil” in their lives. One, w ho holds a doctorate in divinity, teaches b ible
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studies, and is gainfully employed, was sexually promiscuous as a teenager, is separated from her second husband, and has a “strained relationship” with her 37-year-old daughter. Another, who holds a college degree and was pursuing a masters in business administration while employed a s a financial aid counselor at Morgan State University, felt unloved as a child, on ce attem pted suicide, and thirty years earlier had a “psychotic breakdown.”
(2) Evans’s p arents did not know how to express loving feelings tow ard their children, to have empathy for their individual needs, to address conflict appropriately, or demons trate constructive problem-solving skills. They unwittingly set up an environment of “chronic fearfulness, suppression of normal emotional reactions, and boundary violations” which forced the children “to live in an environment which was toxic and traumatizing.” Ms. Taylor asserted that Evans’s father was physically abusive toward Evans and his sisters. All of this, she s aid, a fforded Eva ns “n eithe r the safe ty, security, nor nurturing for a health y self to develop.”
(3) There was an “anxious and insecure home environment” during Evans’s formative years. The household w as characterized as “fearful and full of tension between family members,” and it was difficult for Evans “to naviga te these emo tional rapids w ithin the family.” Much of this seemed to emanate from marital discord between the parents.
(4) There were episodes of abandonment and extreme neglect by the parents. On one oc casion , the mother left hom e for ten da ys. The childre n were n ot actually abandoned, however, as the fa ther remained in the home to care for them. On another
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occasion, when Evans and his father went to the beach together, the father left him for a time and Evans became frightened. Evans “h as nearly no m emories of his father spending q uality time with him.”
(5) Evans experienced persistent taunting from his peers, apparently because he was small. This, according to Ms. Taylor, “exacerbated his feelings of infe riority, personal shame, alienation, fearfulness, humiliation, and powerlessness.”
(6) On one occasion, when Evans was eleven, a man on a delivery truck exposed himself and asked Evans to kiss his penis. Evans escaped w ithout having to perform.
(7) Although Evans’s mother described him as a normal and happy child, a childhood friend interviewed by Ms. Taylor described him as sad. When Evans was 10, he took a bottle of D arvon fro m his mother’s medicine cabinet and overdosed on the pills. He was taken to the hospital and recovered from the in cident. An aunt recalled Evans looking “depressed.” By the time he was in high school, he was on drugs.
(8) Evans sustained several head injuries that, according to Ms. Taylor, created “Risk for Organic Compromise.” The first of these events occurred when, at the time of his birth, a doctor accidently dropped a scalpel on his head, giving the infant a gash. When he was nine, he fell down the steps and got “a big bum p.” He also was struck by a car and spent one nigh t in th e hospita l. Ms . Taylor did not indicate how any of those events created a “Risk for Organic Compromise.”
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(9) On a number of occasions, E vans w itnessed his father “with other w omen,” which Ms. Taylo r characte rized as “T raum atic W itnes sing of Painful Betraya l by Father.” There is no indication that Evans ever saw his father engaged in any sexual a ctivity; the only incidents of this kind that he witnessed were seeing his father on one occasion “in the arms of another woman” and on another occasion going into a house with another woman. Ms. Taylor reported several episodes when Evans’s mother followed or chased his father in a car and complained about his relationships with other wo men.
(10) In part because of his father’s p hilandering, Evans had “Unresolved Anger toward s Father.”
(11) Evans grew up in an impoverished, tough neighborhood. Ms. Taylor refers to that as “Coping through Displaced Rage, Fear and Sadness into a Tough Street Dem eanor.”
(12) According to M s. Taylor, Evans w as “predisp osed both biologically and socially, for developing problems with substance abuse,” and by 13 or 14 was using drugs.
(13) Symptoms that Ms. Taylor regarded as “resounding cries for help” by Evans went unnoticed and unatte nded bec ause his parents were self-absorbed with their own problems.
On the positive side, Ms. Taylor listed as strengths Evans’s “Capacity for Compassion and Empathy for Loved Ones” – an “underlying concern and sensitivity to his family’s needs and welfare,” “Repaired Close Fa mily Relationsh ips with Strong Advocacy for his Children
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and Grandchildren,” and a “Newfound Spiritual Grounding and Therapeutic Strides towards More Healthy Self-Aw areness.” The greatest pa rt of Ms. Taylor’s findings regarding Evans’s childhood came from her conversations with Evans, his parents, and his siblings, who testified at his re-sentencing hearing and simply gave a different account of Evans’s childhood. Much of the information regarding Evans’s parents, grandparents, uncles, aunts, and cousins came from interviews with various uncles, aunts, and first and second degree cousins.
From some of the same history developed by Ms. Taylor, Dr. Stevenson concluded that “[s]ince he was nine years old, Vernon has continuously met the criteria for Post Trauma tic Stress Disorder, Chronic and Severe, Depressive Disorder, and Generalized Anxiety Disorder. He currently meets the criteria for Paranoid Personality D isorder.”
Evans claims that the dysfunctional childhood he suffered, as documented in these reports, was far worse than that suffered by Wiggins or Rompilla and that, ha d this information been developed and presented to the jury at the 1992 re-sentencing hearing, the outcome probably would hav e been different. Th e post conviction court was, of course, aware of what had transpired at the re-sentencing hearing. The transcript of that hearing was before the court and v arious witn esses testified a s to what occurred. In considering whether the court abused its discretion in refusing to reopen the 1995 pro ceeding to allow this attack to proceed, it is important to examine at least the facial validity of Evans’s argument.
In Wiggins, counsel was aw are, from evidence the y had, that Wiggins’s mother was
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a chronic alcoholic, that she had left him home alone on occasion, and that, as a child, he had been shuttled am ong various foster ho mes. Wh en they lost a motion to bifurcate the sentencing proceeding, to deal first with whether Wiggins was a principal in the first degree and then with m itigation, counsel chose to concentrate on principalship and not present a significant mitigation defense. That was a strategic decision. As a result, they made no further investigation beyond the rather meager evidence they had of Wiggins’s childhood. They thus never learned that the mother frequently left him and his siblings home alone, forcing him to beg for food and eat paint chips and garbage, that she was physically abusive, that she had sex with men while the children slept in the same bed, that she once forced Wiggins’s hand against a hot stove burner that led to his hospitalization, that from the age of six he had been shuttled from one foster home to another, that the father in the second foster home rep eatedly molested and raped him, that at age 16, he began living on the streets, that, on one occasion, he was gang-raped by a foster mo ther’s sons, an d that he w as sexually abused as well by a supervisor in a Job Corps program.
The Suprem e Court fo und to be d eficient counsel’s failure to follow up on the information they h ad and to make any further investigation into Wiggins’s social and emotional history. The Court made clear that Strickland does not “require counsel to investigate every conce ivable line of mitigating ev idence” o r “to present mitigating evidence at sentencing in every case,” Wiggins v. Smith, supra, 539 U.S . at 533, 123 S. Ct. at 2541, 156 L. Ed.2d at 492, but concluded that the supposedly strategic decision by counsel to
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forego that kind of defense w as made w ithout a proper investigation of facts necessary to support that decision and was, for that reason, unreasonable. In that regard, the Court noted that counsel did, in fact, mention to the jury that Wiggins had an unfortunate childhood; the problem was that, because they had failed to make a proper investigation, the defense was a lame one.
With respect to the prejudice prong, the Court found that the mitigating evidence that counsel failed to discover was “powerful.” It noted that the “severe privation and abuse in the first six years of his life while in the custody of his alcoholic, absentee mother” coupled with the “physical torment, sexual molestation, and repeated rape during h is subsequent years in foster care” showe d “the kind of troubled history we have declared relevant to assessing a defendant’s moral culpability.” Id. at 535, 1 23 S. C t. at 2542 , 156 L . Ed.2d at 493. T he Court found a reasonable probabili ty that a competent attorney, aware of the nature and extent of that abuse, would have not only have offered evidence of it but would have made the m itigation defe nse a priority.
In Romp illa, it was clear that the State intended to offer at sentencing Rompilla’s extensive history of felony convictions, as evidence of a propen sity to use violence, which was an aggravating factor. Defense counsel, though she had ample opportunity to do so, never looked at the files in those cases, especially the transcript of a prior rape case, and was therefore wholly unprepared to counter or attempt to ameliorate that evidence. The file in the rape case would have revealed evidence of Rompilla’s dysfunctional childhood, filled
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with pervasive d omestic violence. Had school and mental health records been obtained, they would have revealed evidence of possible schizophrenia and m ental retardation, all of which could have been used in support of a mitigation defense that “bears no relation to the few naked pleas for m ercy actually put before the jury.” Romp illa v. Beard, supra, 545 U.S. at 393, 125 S. Ct. at 2469, 162 L. Ed.2d at 379. None of that evidence was presented to the jury.
In this case, evidence presented during the 1995 post conviction proceeding indicated that Evans wanted counsel at the re-sentencing proceeding to concentrate on showing that he was not the shooter. If that defense proved successful, there could be no death penalty and therefore no need for mitigation evidence. The problem was that Evans had already been convicted twice of the tw o homicides – first in Fe deral court, the n in W orcester C ounty – and, given the evidence, counsel had little hope of succeeding o n that issue. Ms. Chester, lead counsel at the re-sentencing hearing, stated that, as a result, they intended to present a strong mitigation case and, unless the S tate’s case on p rincipalship f ell apart, not contest that issue too strongly. In a way, it was an opposite approach to that taken in Wiggins.
That, inde ed, w as their fo cus; they did present a mitigation defense. In opening statement, counsel described mitigation not as a justification for the killings, but as a reason not to impose the death penalty. The mitigation, she indicated, would center on two things: first, that, if given life imprison ment, it was unlikely that Evans, even though rehabilitated and then free of drug addiction, would ever be released and therefore would never be a
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further danger to society; and second, that he grew up in a caring, loving family, but that, in
his early teens, he drifted into and became consumed by drugs, turned away from his f amil y,
and got into the clutches of Grandison. It was that, from which he had since recovered, that
led to the tragic murders. That argument was based on what Evans himself said and was
corroborated by the testimony of his parents and his siblings, both at the initial sentencing
in 1984 and at the re-sentencing in 1992.
At the 1984 p roceeding , Evans’s f ather said tha t the relationship in the home “was
normally as any boy would be, up until [Evans] reached maybe seventeen,” when the father
discovered that Evans had a drug problem. The father said that he tried to talk with and
counsel his son, and when that did not work, he spoke to a judge, who recommended a
treatment program. The father got Evans into the program and felt that it had “done him
some good.” The father said that “we were always able to talk, talk over problems. He
would always tell me about his problems.” At some point, he discovered that Evans was
seeking support from a friend of the father who worked in a drug program. The father
acknowledged current tension in the family but attributed it to what Evans had done:
“My family. Well, my youngest child, up until this happened, she was doin g fine. She is married and is living with her husband, but now she has a problem because of this. All times of the night she calls me and I have to go and coun sel with her, try to solve some problems for her. My ex-wife is the same. We seek help through her minister. My other daughters, I have to counsel with them, trying to explain the best I can. W e still don’t know w hy.”
(Emphasis added).
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The father added th at the family is a close one – that Evans had a very good relationship with his own children. He said that he loved his son but felt that “somewhe re along th e line he’s let [us] down.”
Evans’s mother gave very similar testimony. She said that Evans had a very close relationship with his sisters and with her and that imposition of the death sentence wo uld have a devastating effect on her, on Evans’s father, and on his sisters.
Gw endolyn Spence, Evans’s sister, a high school graduate with one year of college at the time, was employed as an administrativ e assistant at a h ealth center. When asked about her relationship with Evans while growing up, she responded that “he was just like any typical brother” – that “a lot of times we just looked up to him for the right thing to do” and that “[h] e wa s alw ays there for us to ask.” She said that they had a very close relationship, that Evans was “a lot of comfort to me, and he still is.” Spence said that she learned of her brother’s drug problem around 1978-79 and tried to help him get into a program. Crystal Wilson and Linda Trusty, also younger sisters who were successful in life, corroborated Ms. Spence’s testimony. They too said that they had a very good relationship w ith Evans, both growing up and currently.
Gw end olyn Geter, a childhood friend who mothered three of Evans’s seven children, testified that Evan s “was the type of perso n that he alw ays wanted to be a father, and he always wanted to have fatherly love and understanding with kids” and that he had a wonderful relationship with his children. Felicia Bell, who mothered another child of Evans,
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gave similar testimony, ab out the close relationship he had with that child. None of thes e witne sses – p arents, si blings, girlfriends – alluded to any serious discord
in the family; none of them spoke of any physical or psychological abuse by the father or the mother, none of them said anything about the father’s supposed philandering. Evans did not testif y, but he d id allocu te. He made no claim of family turmoil. Indeed, he said that he had been protecting his family all his life, and “I love my mother, my father, my children very much.” He acknowledged that, by age 14 or 15 he began abusing drugs, although his parents did not find out until a few years later.
Evans’s parents and sisters gave much the same testimony at the 1992 re-sentencing. There, too, the emphasis was on mitigation, in the form that Evans’s problems stemmed from his significant drug abuse, commencing when he w as thirteen or f ourteen, and that, since the murders, he had conquered that devil and was a different person. When the father testified, the rest of the fa mily was in court listening. He said that “[f]rom day one until I would say about age thirteen, fourteen, he was my dreams of a son and he fell in line with all of the other of my kids. . . . We were very close.” Things began to change when Evans was about thirteen, when Evans began using drugs and detached himself from the family. Evans’s mother described an alm ost idyllic early family life, showing photographs of the family together. She described trips they took, how proud they were at Evans’s early academic achievements, the college plans they had for him, how things began to change and how her husba nd wa s “trying to really get h im on th e right tra ck.” She stated that, by the time they
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became aware that Evans w as missing school “it was too late for us to do anything about it.” Evans’s three sisters also testified, much as they did in 198 4, only in some more deta il. Again, none of them alluded to any family turmoil, any abuse, any philandering by the father.
As in 1984, Evans chose to allocute. He began by acknowledging: “It has been nine years since I have been involved in this hideous crime. My fam ily was not to blam e, for Lord knows, I have shamed them. I know this because of the tears I have seen them shed.”
(Emphasis added). In his allocution, Evans blamed everything on his descent into drug abuse, and he
averred that he wa s now rid o f that curse: “I didn ’t just continue the lifestyle of drugs and associate myself with in dividuals tha t didn’t wan t to excel. I rid myself of the one thing that allowed others to use m e. I became drug-free. I began to profit as a human being.”
Ms. Taylor’s and Dr. Stevenson’s recitation of all of the supposed discord and dysfunction in Evans’s nuclear family came primarily from the very people who, on two occasions, testified under oath (or allocuted) to precisely the opposite – Evans himself and his parents and sisters. Twenty-one years after testifying in the first proceeding and thirteen years after testifying in the second, they have now presented to a social worker employed by new counsel an entirely differen t, and contra dictory, version o f their fam ily life. The notion that, if asked, they would have explained all of this to defense counsel in 1984 or 1 992, is belied by the testimony and allocutio n they actu ally gave at those tim es.
This is not pre-existing, reliable, undiscovered evidence that would have supported
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a credible mitigation defense, as was the case in Wiggins and Romp illa. It is a dramatica lly different story told, for the m ost part, by the very witnesses presented by counsel at the two sentencing proceedings, including Evans himself. If this new story were to be repeated by the parents and sisters to a new jury, the cross-examination would be nothing short of devastating. We find no abuse of discretion in the court’s refusal to reopen the 1995 post conviction proceeding.
III. NO. 123 The question presented by Evans in No. 123 is whether the Circuit Court erred – i.e., abused its discretion – in denying his third motion to reopen the 1995 post conviction proceeding, to consider his claim “that racial and geographic bias in the M aryland death penalty system, including race-based selective prosecution in Baltimore Cou nty, coupled with specific evidence of race discrimination in Evans’s own case, makes his sentence uncon stitutiona l.” Evans makes two arguments: (1) that studies conducted by Raymond Paternoster, a professor in the Department of Criminology and Criminal Justice at the University of Maryland, demonstrate an unconstitutional scheme of selective prosecution on the part of the State’s Attorney for Baltimore County; and (2) that it shows as well that the death penalty is implemented throughout the State in a racially and geographically biased and arbitrary manner, in violation of Federal and State Constitutional guarantees of equal protection of the law and against arbitrary enforcement.
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In addressing the issue, we f irst must detac h from it the wholly unfounded averment
that there is any “specific evidence of race discrimination in E vans’s own case,” for there is
no such evidence. In Evans’s last appea l, Evans v. State, supra, 389 Md. 456, 464-65, 886
A.2d 562, 566, he presented essentially the same argument he presents here, based on the
first (2003) version of a statistical study conducted by Dr. Paternoster. That study, Statewide
in scope, established, according to Evans, a pattern of racial and geographic discrimination
in the implem entation of the death penalty in Maryland. After noting that Dr. Paternoster,
at a public legislative hearing, had disavowed any suggestion that his Study established racial
discrimination in any particular case, we observed:
“Apart from what Evans chose to draw from the statistics compiled by Professor Paternoster, there is nothing in the record of this case to ind icate that (1) the State’s Attorney, in seeking and pursuing the death penalty against Evans, was in any way influenced by the fact that Evans is an African-American or that his victims were white, (2) any ruling by any judge presiding at any proceeding in the case was in any way influenced by those factors, or (3) any juror who sat in the case and voted to impose the death penalty was in any way influenced by those factors. Thus, not only has Dr. Paternoster disavowed any suggestion that his Study establishes racial discrimination on the part of anyone in any particular case, but, after 21 years of o pportunity to investigate with respect to the first proceeding and 13 years of opportun ity to investigate with respect to the second, Evans has been unable to show that any such discrimination was at work in this case.”
(Emphasis in original).
In this appeal, Evans claims there was some evidence of discrimination. H e points
to four things – (1) his own affidavit dated December 1, 2005, (2) a similarly dated affidavit
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from a co-inmate, (3) an affidavit dated November 30, 2005 from a minister who visited Evans in prison, and (4) Evans’s conclusion that the prosecutor exercised peremptory challenges in a racially discriminatory manner – the Batson claim. As we have held, the Batson claim has been presented at least twice to this Court and once to the U.S. District Court and the U.S. C ourt of A ppeals for the Fo urth Circuit and properly found by all three courts to be without an y merit. It does not establish any racial discrimination on the State’s part in this case.
The three affidavits are not even relev ant, much less persuas ive. In his ow n affidav it, Evans claims, for the first time in 22 years, that, upon his arrest, he was taken to an F.B.I. office where an unknown officer, identified only by the fact that he was wearing a black training suit, said to him, “it’s alright for you to kill each other but when you start killing whites in this country you are going to burn.” Evans does not indicate whether this officer was an F.B.I. agent or a State or local police officer, and he fails even to suggest, much less establish,that any State prosecutor who made or participated in the decision to seek the death penalty against Evans, either in 1983 or in 1992, ever heard or became aware of the statement (prior to the filing of his affidav it) or was influenced in any way by what this unknown officer said in th e confines of an F.B.I. office. His affidavit states that there were “four or five law enforcement officers in the room with me.” He does not indicate that any prosecutor was present.
The other two affidavits are no better. Edward Withers stated that he knew Evans
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from serving time at the Maryland Penitentiary in 1984-85. During that time, Evans related to Withers the comment supposedly made by the unknown of ficer at the time of Evan s’s arrest. Withers adds that, while he and Evans were sitting on some bleachers, “a correctional officer made a racist comm ent to Mr. Evans.” How that may have affected the prosecutor’s decision to seek the death penalty against Evans is not explained. The affidavit of Rev. James McEachim asserts that, in 2002, while visiting Evans in prison, E vans recited to him the comment supposedly made by the unknown officer at the time of Evans’s arrest. Evans told him as w ell, McEa chim adds, that the officer had u sed the word “nigger,” something that Evans, in his own affidavit, fails to mention.
This assertedly new evidence, which, if it happened, Evans knew about in 1983, is grossly insufficient to show any racial discrimination affecting the prosecutor’s decision to seek the death penalty. The record remains precisely as we characterized it last year: “Evans has been unable to show that any such discrimination was at work in this case.”
The question then is whether the 2003 Paternoster Study, enhanced by a 2004 special Baltimore County supplement, suffices on its own to have required the Circuit Court, as a matter of law, to reopen the 1995 po st conviction proceedin g in order to permit discovery on this issue. The an swer is “no.”
Some historical persp ective is helpful. The death penalty law that had long been in existence in M arylan d wa s inv alida ted in 1972 by Furman v. Georgia , 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed .2d 346 (1972) a nd Bartholomey v. State, 267 Md. 175, 297 A.2d 696
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(1972). The law under which, with occasional amendments, we now operate was enacted in 1978. That law, in accordance with requirements mandated in Gregg v. Georg ia, 428 U.S. 153, 96 S. Ct. 2909, 49 L. Ed.2d 859 (1976), Proffitt v. Florida, 428 U.S . 242, 96 S . Ct. 2960, 49 L. Ed.2d 913 (1976), and Jurek v. Texas, 428 U.S. 262, 96 S. Ct. 2950, 49 L. Ed.2d 929 (1976), ap plies a “g uided discretion” approach.
As pertinent here, a person is not eligible at all for the death penalty unless he or she (1) committed a first degree murder, (2) was a principal in the first degree in that murder – the actual killer or the person who paid the actual killer to commit the murder, (3) was eighteen or over when the murder was committed, and (4) at the time of the murder was not mentally retarded, as d efined in the statute. Even if those criteria apply, the defendant may not receive the death penalty unless the State (1) is able to prov e, beyond a re asonable d oubt, the existence of one or more of ten aggravating factors set forth in CL § 2-303(g), (2) has given timely written notice to the defendant of (i) its intention to seek the death penalty and (ii) each aggravating factor upon which it intends to re ly, and (3) is able to prove, by a preponderance of the evidence, that the aggravating factor(s) it proves beyond a reasonable doubt outweigh any mitigating factors that any juror (or the judge, if, at the defendant’s option, sentencing is imposed by a judge) may find by a preponderance of the evidence to exist.
Subject to those legal conditions a nd, of cou rse, to any Constitutional ones that may apply, the State’s A ttorneys retain the broad disc retion they hav e historically enjoyed in
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determining which cases to prosecute, which offenses to charge, and how to prosecute the cases they bring. See Brac k v. Wells, 184 Md. 86, 40 A.2d 319 (194 4); Murphy v. Yates, 276 Md. 475, 348 A.2d 837 (1975); Evans v. State, supra, 304 Md. at 503, n.4, 499 A.2d at 1269, n.4. In any case tha t is legally eligible for th e death penalty, they are generally free to seek, or not s eek, that p enal ty, and to pursue or abandon their quest for the death penalty as the case proceeds.
The first formal study of the implementation of Maryland’s death penalty involved the pre-Furman law and was conducted in 1962 by a committee of the L egislativ e Cou ncil. See Report on Capital Punishment, Legislative Council Committee on Capital Punishment (October 3, 1962). The committee examined the 122 death sentences that had been imposed between 1936 and 1961. At the time, the death penalty was available for both murder and rape.
During the 25-year study period, 122 persons had been sentenced to death, 71 for murder and 51 for rape. Twenty were still on death row when the study ended. Of the 102 others, 57 had been executed, 36 for murder and 21 for rape; the remaining 45 had either been given new trials, had their se ntences commuted or, in two cases, committed suicide. The committee noted then both a racia l and geog raphic disparity in the imposition of death sentences. Baltimore City, which during the 1930's and 1940's contained about half the State’s population, was responsible for 59 of the 122 death sentences and 24 of the 57 executions. Anne A rundel Co unty was second with 12 death sentences and four executions,
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followed by Dorchester and Montgomery Counties, with eight death sentences each, and Baltimore County, with seven death sentences.
Three other pertinent findings were made by the Legislative Council Committee. First, in the great majority of the 122 de ath sentences, the defend ant and victim were strangers (60% of the m urder cases and all but thre e of the 51 rape cases), indicating that “strangerhood” was an important factor in the decision to seek the death penalty. Second, there was a disproportionate number of African Americans who received the death sentence and were executed. Eighty percent of the 122 defendants were black, and 50% of the black defendan ts sentenced to death were executed, whereas 40% of the white defendants sentenced to d eath w ere exe cuted. Fina lly, the greatest p roportion o f persons s entenced to death and executed were laborers, farm hands, truck drivers, and cannery workers; none of the defen dants occupied positions o f we alth o r influence in society.
The issue of geographic proportionality under the 1978 law came before this Court in Calhou n v. State, 297 Md. 5 63, 488 A.2d 4 5 (198 3), cert. denied, 466 U.S. 993 , 104 S. Ct. 2374, 80 L. Ed.2d 846 (1983). At the time, the Court was required to determine, in any appeal involving a death sentence, whether the sentenc e was “ex cessive or d isproportion ate to the penalty imposed in similar cases . . . .” See former Md. Code (1 987 Re pl. Vol.), Art. 27, § 414(e)(4). Calhoun, who was tried, convicte d, and give n the death sentence in Montgom ery County, com plained that the death penalty statute was unconstitutional because of the “unbridled exercise of discretion” by prosecutors. The record in that case, summarized
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in a dissent filed by Judge Davidson in Tichnell v. Sta te, 297 Md. 432, 496-97, 468 A.2d 1, 33-34 (1983), showed both a “substantial variation, ranging from 1.8% to 100%, in the percentage of cases in which the death penalty is sought, depending upon the identity of the prosecutor making th e determin ation” and “in the stan dards em ployed by prose cutors in deciding in which cases to seek the death penalty.” Id. As examples, in six counties, prosecutors sought the death penalty “whenever a single aggravating circumstan ce is present and mitigating circumstances are not taken into account,” whereas in Baltimore City and six other counties, prosecutors considered mitig ating circumstances in making that decision. Id. In five counties, prosecutors took into account the relationship between the accused and the victim, w hereas in three they did not.
In response to Calhoun’s complaint about how prosecutorial discretion was exercised, we held that “ [a]b sent any specific evidence of indiscretion by prosecutors resulting in irrational, inconsisten t, or discriminatory application of the death penalty statute, Calhou n’s claim cannot stand.” Calhoun v. State, supra, 297 M d. at 605, 48 8 A.2d a t 64. (Emp hasis added). We have never abandoned that standard.
In 1987, the Public Defender’s Office, which handled, and continues to handle, the great majority of death penalty cases under the 1978 law, examined the 1,461 homicide cases that, by then, had arisen since 1978. Applying the statutory criteria, the Public Defender found 415 of those cases to qualify for the death penalty. Formal notices of intent to seek the death penalty had been filed in 190, of which 90 had actua lly proceeded to the pena lty
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phase (14 of the 90 w ere re-sentencing proceedings following a reversal by this Court). A total of 40 death sentences were actually imposed. Because of re-sentencings ordered on appeal, seven defendants accounted for 17 of those sentences; seven others who had been sentenced to death had their sentences either commuted or stricken on appeal.
The first and most critical finding by the Public Defender was the predominant influence of plea bargaining. Sixty-one defendants entered guilty pleas in return for withdrawal of the notice, and another 42 pled guilty in return for a comm itment not to file the notice in the first instance. Of the 17 persons then on death row, twelve were African American and five were white. Eleven of the seventeen committed their crimes in Baltimore County. Neither Baltimore City nor any other county had more than one inmate on death row. See Capital Punishment in Maryland 1978-87: A Report by the Mar yland Pu blic Defender on the Administration of Capital Punishment, 21-23 (1987).
The geographic disparity trumpeted in the Paternoster study was reported as well by the Public Defender, at a time more relevant to Evans’s case. It was noted that Baltimore City filed death penalty notices in 10% of qualified cases, whereas Baltimore County filed such notices in 56.5% of qualified cases, and that, notwith standing tha t the City accounted for nearly four tim es as man y death penalty-eligible murders as the county, in absolute terms, the county conducted more than twice as many penalty phases as the City. Even then, Baltimore County “where fewer than one in nine death eligible murders are committed, has sentenced more people to de ath than all other jurisdictions combined.” Id. at 26. Prince
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George’s Cou nty, in which 1 8% of death penalty-eligible murders occurred, filed fa r more death penalty notices than Baltimore County (49 vs. 26), but it withdrew 34 of them and was apparently unsuccessful in obtaining or defending death sentences in the other 15 cases.
The Public Defender also commented on racial proportionality. He acknowledged that the concern about racial discrimination had “focused less upon the race of the offender than upon the race of the victim” and that statistical studies conducted in some of the southern States that allegedly confirmed such discrimination had been found by the Suprem e Court in McClesky v. Kemp, 481 U.S. 279, 107 S. Ct. 1756, 95 L. Ed.2d 262 (1987) to be insufficient to establish unconstitutional discrimination.
Like Dr. Patern oster, the Pub lic Defen der identifie d the various steps at which decisions can be made regarding the death penalty – the decision to seek it by sending a formal notice, the decision not to withdraw it (either unilaterally or in connection with a plea agreement), and the sentencing.2 He reported that, although murders involving white victims represented 42.6% of all cases eligible for the death penalty Statewide, those cases accounted for 65.2% o f the death penalty notices, a nd that, as a result, “it is 2.18 times more likely that a death pen alty notice will be filed in a case involving the murder of a wh ite person tha n in a case involving the mu rder of a black person .” Capital Punishment in Maryland 1978-87,
2 Dr. Paternoster split the third decision-making point into two – the decision by the prosecutor to proceed with the penalty phase and the decision by the jury or judge whether to impose the death sentence. If the issue is selective prosecution, the prosecutor’s decision to proceed w ould seem to be the more relevant.
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supra, at 30. A similar disparity was observed at the second stage: 40.2% of the notices were withdrawn in cases involv ing a w hite victim , but in cases involving a black victim, 72.2% of the notices were withdrawn. Thus, “it [was] 2.1 5 times mo re likely that a filed d eath penalty notice will be withdraw n where the murder victim was black than w here the murder victim was white.” Id. at 30.
From these statistics, the Public Defender concluded: “In all, prosecutors seek the death penalty . . . in 31.7% (64 of 202) of all cases in volving white victims and in 6.8% (15 of 221) of all cases involving black victims. There is, therefore, a 4.7 times greater numerical probability that the prosecuto r will seek the death penalty in a case involving a white victim than in a case involving a black victim.”
Id. at 31. A similar disparity was evident as well with respect to the actual sentencing. The
death penalty was imposed in 35.9% of all cases involving a white victim and in 20.0% of cases involving a black victim. Thus, “[t]here is a 1.80 times greater numerical probability that a capital sentencer will impose the death penalty in a case involving a white victim than in a case involving a black victim.” Although the Public Defender acknowledged that he had not subjected the data to the “sophisticated statistical analysis” that was the subject of the McCleskey case, he asserted that, from the raw d ata alone, “no factor or gro up of factors remotely bears so strong a numerical correlation with capital sentencing results as does the race of the victim.” Id. at 32.
In December, 1992, Governor Schaefer created a special Comm ission to con duct a
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comprehensive review of the administration of the death penalty in Maryland. The focus of the Commission was not just on racial or geographical disparity, but it did comment on those matters. Finding No. 9 was that “[c]apital prosecutio ns under M aryland’s 197 8 death penalty statute are distributed among the State’s tw enty-four cha rging jurisdic tions in a num erically uneven fashion.” The Rep ort of the Governor’s Comm ission on the Death Penalty, at xix and 198 (November, 1993). From 1978 to 1993, fifty-seven death sentences had been imposed (41 initial impositions and 16 at re-sentencing), of w hich 22 came from Baltimore County, five each from B altimore City and Prince Ge orge’s County, and two from Harfo rd Cou nty. No other county had more than one. Id. at 91. As the record revealed in Calhoun v. State, supra, the standards for determining when to pursue the death penalty in a case eligible for that penalty varied significantly from county to county. Some prosecutors considered possible mitigating circumstances, others did not; some looked at the likelihood of success, others did not; some w eighed the frustration em anating from the process, most did not.
Finding No. 10 was that “[t]here is no evidence of intentional discrimination in the implementation of the death penalty in Maryland, but racial disparities in its implementation remain a matter of legitimate concern.” Id. at xix-xx and 201. In its Commentary to that finding, the Commission, though noting that the data had not been subjected to the type of statistical analysis necessary to determin e whethe r numerica l discrepanc ies were sta tistically significant, concluded that the data it had neither established nor disproved discrimination against African American defendants or in favor o f white victims.
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In light of the concern expressed over racial disparity, Governor Glendening created another Task Force in 1996 to “determine the causes of racial disparity in the administration of the death penalty in Maryland.” Report of Task Force on the Fair Imposition of Capital Punishment (Executive Sum mar y) (December, 1996). The Task Force gathered statistics on the racial breakdown of persons on death row and surveyed national literature dealing with racial disparity in capital sentencing. It concluded that “the high percentage of AfricanAmerican prisoners under sentence of death and [] the low percentage of prisoners under sentence of death whose victims were African-American remains a cause for concern.” Id. at 39. The potential for prejudice existed, the Task Force o pined, because m inorities were often under-represented in those positions whose incumbe nts make decisions regarding the capital punishm ent process. Id. at 41.
There was no finding by the Task Force that any death penalty-eligible defendant in particularhad been the subject of racial discrimination, either directly or by reason of therace of his victim.
In 2001, yet another study was made, this one by Professors David Baldus and George Woodworth, of the University of Iow a. Dr. Baldus had made similar studies in several southern States, and, indeed, it was his study of the Georgia death penalty that was at issue in McClesky v. Kemp, supra. Baldus and Woodworth examined 346 Maryland first degree murder cases in which the State had served no tice of intentio n to seek the death pen alty and found that, even when considering the number of statutory aggravating factors charged,
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defenda nts who killed wh ite persons were m ore likely to advance to the penalty phase and receive the death sentence than those whose victim was African American. David Baldus and Georg e Woo dwor th, Race of Victim and Race of Defe ndant Disparities in the Administration of Maryland’s Capital Charging and Sentencing System (1979-1996): Preliminary Finding (2001).
Even before the Baldus study was completed, Governor Glendening placed in the FY 2000 budget $225,000 for a further study – the fifth i n 13 years – of racial disparity in the administration of the death penalty. 2000 Md. Laws, ch. 204, at 1166. Professor Raymond Paternoster, who had participated in the 1996 Task Force evaluation, was appointed by the Governor to conduct the new study. The report of that study, An Em pirical Analysis of Maryland’s Death Sentencing System with Respect to the Influence of Race and Legal Jurisdiction, is itself undated but, according to a press release issued by the University of Maryland, was completed in January, 2003.
Following the approach of the other studies, Dr. Paternoster identified four key decision points in the death penalty sentencing system: the decision to issue a notice of intention; the decision not to retract that notice as the case proceeded; whether the case actually reached the penalty phase; and w hether the d eath senten ce was im posed. H is statistical analysis began with appro ximately 6,000 first and second degree murders committed in Maryland from August, 1978 to September, 1999, of which he concluded 1,311 were death-penalty eligible, either because the State’s Attorney, by filing a formal notice of
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intent to seek the death penalty, determined that they were death eligible, or because, in the
view of the researchers or, in close cases, the view of a panel of prosecutors and defense
attorneys, the case met the legal criteria for seeking the death penalty.3 Prosecutors filed
notices in 353 (27%) of those cases, but in 140 of them subsequently withdrew the notice,
usually in connection with a plea agreement. Of the 213 remaining cases, 180 actually
proceeded to a penalty phase, but only 76 resulted in a death sentence. Paternoster gives a
number of reasons for a case not proceeding to the penalty phase – the prosecutor concludes
that a death sentence is unlikely or, during the guilt phase, no aggravators were found or the
defendant was fo und not to be a principal in the first degree. Id. at 17. The con ditional
probability of a death sentence in a death eligible case was only 5.8% for all defendants.
The data show ed that w hite offenders com prised 24% of the poo l of death e ligible
cases; black offenders comprised 74% of that pool and offenders of other races 2%. Of the
notices of intention filed by prosecutors, 34% were filed against white offende rs, 65%
against black offenders. Thus, the report conclude s, “[t]he prob ability that a death
3 The actual composition of these panels, which reviewed about 300 cases, is not entirely clear. The Report speaks of “a panel of attorneys who had some experience in death penalty cases” that was put together by “the senior researcher” after consultation with one prosecutor and one public defender, and states that it consisted of a roughly equal number of State’s Attorneys, public defenders, and private lawyers who had previo usly hand led dea th pena lty cases. Id. at 16. It appears that the actual cases to be reviewed were submitted to sub-panels of from five to ten attorneys, but the composition of those sub-panels is not indicated. A case for which no notice had been filed was included as death penalty eligible if a majority of the sub-panel (possibly three out of five) rated the case as such and were “at least moderately confident in making that assessment.” Id. at 17.
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notification will be filed given a death eligible case is .24 for black offenders, and .37 for non-black offenders (over 90% of whom are white).” Id. at 21. It adds that, “[a]t each subsequent stage of the process there are no significant differences in the handling of black offenders and non-black offender cases.” Id.4 Even after the data was adjusted to take account of 123 factors that he concluded might be relevant in a prosecutor’s decision to seek and pursue the death penalty, Dr. Paternoster made the definitive finding that “[l]ooking across the diff erent de cision p oints, there is no evidence that the race of the defendant matters at any stage once case characteristics are controlled for.” Id. at 31. (Em phasis in original).
With this finding, which supports the conclusion that the decision to seek and pursue the death penalty against Evans was not based on his race, the only possible relevance of the Study lies in its examination of whether the race of the victim(s) influenced those decisions. In that regard, D r. Paternoster concluded that white victims com prised 45% of all death eligible cases,5 65% of death eligible cases in which an intention to seek the death penalty was filed, 74% of the cases in which that notice was not withdrawn, 77% of the cases that
4 Curiously, in the preceding sentence, Paternoster states, inconsistently, that “[a]t this first d ecision point, th en, non-wh ite offenders are significantly more likely to have a death notice filed against them than black offenders.” (Emphasis added). We assume that this sentence is a mistake, one of several apparent on the face of the R eport.
5 There is another obvious error in the articulation of that statistic. The Report actually states that “[w]hite offenders comprise approxim ately 45% o f all death elig ible cases.” Id. at 22. (Emphasis added). The source for that statement – Figure 3 – deals with victims, not off enders , and tha t is the fo cus of the disc ussion in the pa ragrap h.
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advanced to the penalty phase, and 80% of the death sentences actually imposed. Based on the raw, unadjusted data, he concluded that the probability that a prosecutor will file a notice in a death eligible case was 43% w hen there is at least one white victim but only 19% when there are no white victims, that there was a 70% probability that the notice will not be withdraw n in white victim cases but only 46% in non-white victim cases, and there was an 88% probability of a white vic tim case adva ncing to the penalty phase and a 75% probability in a non-white victim case . Those disparities he found to be statistically significant.6 Dr. Paternoster posits that this data “suggest[s] that the race of the victim appears to matter at least in the early stages of the capital punishment system.” Id. at 22. His conclusions, from the unadjusted analysis are:
(1) White offenders are more likely to be death notified than non-white offenders; (2) Offenders who kill at least one white victim are more likely to be death-notified, more likely to have that notice “stick,” and more likely to proceed to a penalty phase than cases without a white victim; (3) White offenders who kill whites are more likely to be death-notified than others; (4) Black of fenders w ho kill blacks are less likely to be death-notified and have that
6 In categorizing cases based on race of victim, Paternoster includes in the “white” column every case in which there was a white victim, even if there were also in that case one or m ore blac k victim s. Id. at Table 3A. He gives no reason why a case in which there were both white and black victims should be regarded exclusively as a white victim case, does not indicate how many such cases there were, if any, and does not indicate whether or how any conclusions drawn from the data might be affected if a different categorization had been used.
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notice “stick” than others;
(5) Black of fenders w ho kill whites are m ore likely to be death-notified and have that
notice “stick”; and
(6) There is substantial and signific ant variation in the way State ’s Attorneys in
Maryland make the decision to file a notice of intent to seek the death penalty and whether
that notice is withdrawn.
Following the lead of Dr. Baldus, Dr. Paternoster recognized that there were many
factors other than race that influenced the decision to seek, pursue, and obtain the death
pen alty. Baldus had identified over 200 such “covariates.” Paternoster whittled them down
to 123, inc luding the ten s tatutory ag gravato rs. Id. at Table 9. Some of those covariates seem, at least facially, to be duplicative.7 It is also of interest that there is no covariate for
the circumstance in which a defendant had been sentenced to death and, like Evans and many
others, had been awarded a new sentencing hearing on appeal or by reason of a successful
collateral attack. Those cases seem to be part of the general mix, with no consideration given
to whether the prosecutor seeks reimposition of the death penalty principally because the
7 Factor No. 5 is that defendant has a history of alcohol abuse. Factor No. 6 is that defendant has a history of drug abuse. Factor No. 26 is that defendant has history of drug or alcohol use/abuse. Factor No. 7 is that defendant has history of mental illness/emotional problems. Factor No. 25 is that defendant has history of mental illness/em otional p roblems. Factor 15 is that defendant was physically abused as a child. Factor 20 is that defendant has history of physical abuse as a child. Factor 16 is that defendant was sexually abused as a child. Factor 21 is that defendant has history of sexual abuse as a child. Different “Mean/Proportion” numbers are given for each of these seemingly duplicative factors.
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State was successful in getting it the first time and the case has been rem anded sp ecifically to give the State another opportunity – whether, in other words, race of the victim or the offender plays any role at all in those decisions. There may be an explanation for the omission of that circum stance, which has affected many, if not most, of the defendants given the death sentence since 1978, including Evans, but the Report does not contain one.
Because of a lack of information on some of the covariates in some c ases, Dr. Paternoster excluded those cases, which reduced the pool from 1,311 to 1,202. He did not regard that 8% exclusion as statistically significant. He reduced the pool further to 1,061, however, to eliminate cases in which information was missing either as to the race of the defendant or the victim, and he did regard that reduction as “an impo rtant but una voidable weakness of this study,” adding that “[r]eaders of this report must bear in mind that analyses involving victim race and the intersection of victim and offender race have disproportio nately eliminated death eligible cases that were not death noticed.” Id. at 28.
After applying in some fashion the 123 “covariates” to the 1,061 cases, Dr. Paternoster concluded that there were both geographic and racial disparities in the decision to seek and pursue the death penalty which, in his view, could not be explained by the various covaria tes. In terms of geograp hy, the probab ility of the death penalty being sought and pursued was much greater in Baltimore County than in any of the other 23 jurisdictions. Id. at 29-31. As to race of victim, Dr. Paternoster concluded that the adjusted data confirmed the unadjusted data, that “killers of white victims were significantly more likely to be death
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noticed, [and] to have that death notification ‘stick,’” but, for some reason, “do es not hold up . . . at the decision of the state’s attorney to advance a case to a penalty trial.” Id. at 32-33. That conclusion, Paternoster opined, remained constant when the race of the offender was considered. Thus, he found that black offenders who kill white victims were at greater risk even after case characteristics and the jurisdiction were considered. Id. at 36.
In the concluding part of his Report, Dr. Paternoster made clear that the geogra phic and racial disparities he found exerted their greatest influence at the death notice and notice retraction points and were no t exacerba ted when the case ac tually proceede d to the pen alty phase. He acknowledged three limitations or w eaknesse s in the Rep ort. The first, already noted, arose from the fact that “there were significant quantities of missing data on the race of some victims,” that those cases “were disproportionately lost at the notice decision,” and that “some o f the most i mportant effects estimated in the study revo lved aroun d the death notice decision.” Id. at 40. A second w eakness, he said, was “the inability to hold statutory aggravating factors constant at the notice decision,” as prosecutors were not required to identify aggravatin g factors unless they issued a notice of intention to se ek the dea th penalty. Id. Finally, he emphasized that he had not addressed whether “the statewide results estimated here hold equally for all counties.” Id.
Within a wee k after th is Repo rt was is sued, D r. Paternoster appeared before the Senate Judicial Proceedings C ommittee, w here he was questioned about some of his methodology and conclusions. He summarized his conclusions thusly: “[S]o, the lesson that
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we took away from this was that the race of the offender did not matter; the race of the victim mattered pretty substantially; and the county or jurisdiction where the crime occurred probably mattered most of all.”
When asked whether he had an opinion as to why there was a greater risk of a death penalty in cases with white victims, he acknowledged that the results of the study did not mean that prosecutors were acting in a prejudicial fashion but suggested that the phenomenon could result from the fact that, nationally and presumably in Ma ryland, white people suppo rt the death penalty more than non-whites, that the families of white victims might push prosecutors to seek the death penalty more frequently than the families of non-white victims, and that, if prosecutors were responding to pressure from the families, “that could produce the effects w e’re observ ing right now wit hout any reference to racial prejudice or racial animu s.” He added “I would like to make it especially clear that these results do not mean that anyone is behaving in a racially discriminatory manner because I think there are other explanations for that.” (Emphasis adde d).
In Feb ruar y, 2004, Dr. Paternoster released a supplement to his 2003 Report dealing specifically with Baltimore County. See The A dministration of the Death Penalty in Baltimore County, Maryland 1978-1999. Unlike the 2003 Report, which was written in a fairly understandable narrative, the description of the logistic regression analysis from which the ultimate conclusions are derived in the 2004 Report is highly technical. Dr. Paternoster identified 152 death-eligible cases in Baltimore County during the study period. The county
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prosecutor sought the death penalty in 99 of those cases (65%), which was the highest ra te in the State. Of the 99 cases, 75 (49% of death eligible cases) proceeded to a penalty phase, and a death penalty was imposed in 34 (23%).
The raw data showed that non-white offenders comprised 55% of the 152 deatheligible killings (83 non-white/69 white), 59% of the 99 cases in which the prosecutor sought the death pen alty (58 non-white/41 white), 60% of the 75 c ases that pro ceeded to a penalty phase (45 non-white/30 white), and 71% of the 34 cases in which a death penalty was imposed (24 non-white /10 white).8 Based on those numbers, Dr. Paternoster indicated that black offende rs were “slig htly over repre sented in the Baltimore County capital punishment system when compared w ith their representation in the universe of death eligible cases.” Id. at 4. The data regarding race of the victim showed that there w as at least one white victim in 79% of the 152 death eligible cases (12 0 white/32 non-wh ite), 81% o f the 99 ca ses in which an intention to seek the death penalty was filed (80 white/19 non-white), 83% of the 75 cases that proceeded to a penalty phase (62 white/13 n on-white ), and 88% of the 34 d eath sentences imposed (30 white/4 non-white). Notwithstanding that 55% of the death eligible cases involved non-white offenders and 79% involved a white victim , the Study repo rts that blacks who killed whites accounted for only 37% of all death eligible cases , 42% of death notices, 44% of cases advancing to the penalty stage, and 41% of actual d eath sen tences. Id.
8 The Report does not give actual num bers, only percentages. The numbers are estimated from the percentages.
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at 5, 6. Similar to the conclusions drawn as to race of offender alone, Dr. Paternoster estimated from th is data that cases involving blacks killing whites “are slightly over represented at each decision making point in the capital punishment process.” Id. at 5. (Emphasis added).
Noting that the county prose cutor did frequently exercise her discretion in deciding whether to issue a death penalty notice, Dr. Paternoster reported that there was “preliminary evidence” that her discretion “might be influence d by the race o f the offe nder and victim in the case,” although he does not indicate what th at evide nce m ight be. Id. at 6. He added that “[i]t is possible that any observed racial effect is not due to race at all but to legitimate case characteristics that are merely correlated with race.” Id. at 6, 7. The report then launches into a highly technical “bivariate logistic regression analysis” involving a “logistic regression coefficien t” and an “odds multiplie r.”9 The resu lts of this analysis appear in 21 tables, each

9 Dr. Paternoster explains the analysis, as it relates to the decision to file a death penalty no tice, this w ay:

“The sign of the logistic regression coefficient for the race of the offender is negative. Since the race of the offender is coded ‘0' for black offenders and ‘1' for white offenders, this negative sign of the logistic regression coefficient (b) indicates that white offenders are less likely to have the Baltimore County state’s attorney file a notification to seek a death sentence than are black offenders. The magnitude of the logistic regression coefficient tells us that the log of the odds that a white offender will have a death notification filed against them is -.449 less than for black offenders. A coefficient of 0 would tell us that there is no relationship between the race of the offender and the decision of the

(continued...)

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containing a logistic regression coefficient, an odds multiplier, a constant, and a “-2 Log

Likelih ood,” the derivation of which are unexplained. Presumably, the relevant factor is the

-2 Log Likelihood, which is reported for race of offender, race of victim, and race of

offender and victim models. Table 1 is illustrative:

Table 1: Logistic Regression Results for Bivariate Race of Offender Model on the Decision to File a Notification to Seek a Death Sentence

Variable Race of Offender Constant -2 Log Likelihood 191.916.

b - .449
.842

Odds Multiplier .639

Converting this data through what he described as a “very simple formula,” Dr.

Paternoster determined that “the probability that the Baltimore Coun ty state’s attorney will

file a notification to seek death in a white offender case is .70 while the proba bility for a

black offender case is .60,” and that “[t]his shows quite clearly that there is a greater

tendency for the Baltimore County state’s attorney to file a notification to seek a death

sentence in a black offender case rather th an one inv olving a w hite offender.” Id. at 9. The

9(...continued) Baltimore County state’s attorney to file a notification to seek death. Our observed coefficient of -.449 is zero, indicating that there is some relationship between the race of the offender and the decision to seek a death sentence. The odds multiplier tells us that the odds of a death notification is reduced by a factor of .639 if a white rather than a black offender is involved. Since no relationship between race of offender and death notification is indicated by a factor of 1.0, the odds multiplier of .639 further suggests that the decision of the Baltimore County state’s attorney to file a death notification is modestly affected by the race of the offender.”
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“simple formula” is as follows:

V

e$0+$1x1

p = '''''''''''''''' e 1+ $0+$1x1

Dr. Paternoste r defines the terms as fo llows: “$0 is the estimated value o f the co nstant, $1 is the estimated logistic regression coefficient for the explanato ry variable, and x1 is a given value of the independent variable.”
Evans argues that this supplemental analysis shows that “even after controlling for case characteristics, the Baltimore County State’s Attorney’s Office has, over the past 21 years, engaged in racial discrimination in selecting cases for capital prosecution.” It does no such thing and has never been asserted by Dr. Paternoster to present or document such an accusation. The only conclusion drawn by Dr. Paternoster is that, based solely on his statistical analysis, black offenders who slay white victims in Baltimore County are:
“1. more likely to have the state’s attorney file a notification to seek a death sentence
2. less likely to have an initial death notification withdrawn 3. more likely to have their case advance to a penalty trial 4. more likely to be sentenced to death than death eligible
crimes involving all other racial combination s.” Id. at 30.
There have been numerous studies of post-Furman death penalty cases that purport to

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examine and dem onstrate the effect of race on the imposition of the death penalty, beginning as early as 19 76. In 1 990, the U.S. General Accounting Office (GAO) examined many of those studies. See UNITED STATES GENERAL ACCOUNTING OFFICE, DEATH PENALTY SENTENCING, Report to S enate and House C ommittees on the Judiciary (1990). After excluding studies based on pre-Furman data and those that were either duplicative or that did not contain empirical data, GAO looked at 28 studies and rated about half as low quality and half as of eit her me dium o r high q uality. Id. at 2, 3. After noting three methodological limitations affecting some of the studies – the threat of sample selection bias, omitted variables, and small sample sizes – GAO reported that 82% of the studies indicated that defendants who murdered whites were more likely to be sentenced to death than those who murdered blacks. That co nclusion, draw n from several varieties of statistical analysis, was confirmed in 15 studies conducted in the 1990's and at least 15 more published since 2000. See Jon So rensen , et al., Empirical Studies on Race and Death Penalty Sentencing: A Decade After the GAO Report, 37 CRIM. L. BULL. 395 (200 1); David Baldus and George Woodworth, Race Discrimination in the Administration of the Death Penalty: An Overview of the Empirical Evidence with Special Emphasis on the Post-1990 Research, 41 CRIM. L. BULL. 6 (April 2005).
These studies have used a number of statistical methods, ranging from simplistic ones that made no attempt to evaluate the severity of the crime, to those that attempted to classify severity of the crime by considering whether the defendant was a deliberate killer, the status
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of the victim, and the heinousness of the killing, to the logistical regression techniques developed by Baldu s and u sed by Pa ternoste r. See Br yan E delma n, RACIAL PREJUDICE, JUROR EMPATHY, AND SENTENCING IN DEATH PENALTY CASES, 22-25 (LB F Schola rly Publishing LLC , 2006) ; Baldu s, et al., Monitoring and Evaluating Contemporary Death Sentencin g System s: Lessons from G eorgia, 18 U.C. DAVIS L. REV. 1375, 1381-82 (1 985).
In 1987, the relevance and impact of this kind of statistical analysis came before the Supreme Court in McCleskey v. Kemp, supra, 481 U.S. 279, 107 S. Ct. 1756, 95 L. Ed.2d 262. McCles key, a black man, was convicted in a Georgia court of murdering a white police officer during the commission of a robbery and was sentenced to death. In a Federal habeas corpus action, he claimed , based solely on a logistical regression analysis by Dr. Baldus of the implementation of the death penalty in Georgia and not on any specific evidence in his own case, that he was discrim inated against by reason o f his race and that of the victim.
The District Court conducted an evidentiary hearing, exhaustive ly examined the Baldus stud y, and rejected it as unpersuasive because of numerous faults, including the subjective nature of the coding for the presence of variables, the treatment of certain unknown variables, the potentially faulty assumption that all of the information available to the coders was available to the prosecutors or sentencing bodies at the time their respective decisions were made, and the potential that unaccounted for variables could explain the outcome. The court found that the data base used by Baldus had substantial flaws and had not been shown to be trust wor thy, that none of the models used by him were sufficiently predictive to support an
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inference of discrimination, and that the presence of multi-colinea rity – positive coe fficients for race of victim and race of defendant – substantially diminished the weight to be accorded to the circumstantial statistical evidence of racial disparity. See McCleskey v. Zant, 580 F. Supp. 338, 356-64 (N.D. Ga. 1984). On appeal, the U.S. Court of A ppeals for the Eleventh Circuit, sitting en banc, affirmed the District Court’s ruling, on the ground that, even assuming the validity of the research (which the District Court found wanting), it still did not support a decision that Georgia law was being unconstitutionally applied. McCleskey v. Kemp, 753 F.2d 877, 886-87 (11th Cir. 1985).
In affirming, the Suprem e Court used essentially the same approach as that used by the Court of Appeals – that the Baldus study, even if statistically valid, was insufficient to establish unlawful racial discrimination. Dealing first with McCleskey’s equal protection argument, the Court noted that, although it had accepted statistics as proof of intent to discriminate in “certain limited contexts,” the nature of the capital sentencing decision and the relationship of statistics to that decision are different from those contex ts. McCleskey v. Kemp, supra, 481 U.S. at 294, 107 S. Ct. at 1768, 95 L. Ed 2d at 279. As to the sentencing decision itself, it is made by a jury selected fro m a prop erly constituted v enire, each ju ry is unique, and the jury’s decision rests on innumerable factors that vary. Another distinction noted by the Court is that, unlike venire selection and Title VII cases, the State has no practical opportunity to explain the statistical disparity and should not be required to do so:
“Sim ilarly, the policy considerations behind a prosec utor’s traditionally ‘wide discretion’ suggest the impropriety of our
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requiring prosecutors to defend their decisions to seek death penalties, ‘often years after they were made.’ [citation omitted]. Moreover, absent far stronger proof, it is unnecessary to seek such a rebuttal, because a legitimate and unchallenged explanation for the decision is apparent from the record: McCleskey committed an act for which the United States Constitution and Georgia laws permit imposition o f the death penalty.”
Id. at 296-97, 107 S. Ct. at 1769, 95 L. Ed.2d at 281.
The Court also observed that McCleskey’s statistical proffer had to be viewed in the
context of the challenge – an attack on decisions at the heart of the criminal justice system,
the implementation of w hich “necessarily requires discretionary judgments.” Id. at 297, 107
S. Ct. at 1770, 95 L. Ed.2d at 281. The Court continued:
“Because discretion is essential to the criminal justice process, we would demand exceptionally clear proof before we would infer that the discretion has been abused. The unique nature of the decisions a t issue in this case also co unsels against adopting such an inference from the disparities indicated by the Baldus study. Accordingly, we hold that the Baldus study is clearly insufficient to support an inference that any of the decisionmakers in McCleske y’s case acted with discriminatory purpo se.”
Id.10
10 The McCleskey Court noted that the Baldus study divided cases into eight different ranges according to the estimated aggravation level of the offense and that, in his testimony in the District Court, Dr. Baldus observed that the effects of racial bias were most striking in the midrange cases. His actual testimony, quoted by the Supreme Court, was: “[W]hen the cases become tremendously aggravated so that everybody would agree that if we’re going to have a death sen tence, these are the cases that sho uld get it, the race effects go away. It’s only in the mid-range of cases where the decision-makers have a real choice as to what to do.” Id. at 287, n .5, 107 S . Ct. at 17 64, n.5, 9 5 L. Ed .2d 275 , n.5
(continued...)
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Essentially the same reasoning was used to reject McCleskey’s argument that the racial
disparities revealed by the Baldus Study caused the death penalty to be arbitrary in its
application and to viola te the Eighth Amendment for that reason. The Court observed, as we
have with respect to Dr. Paternoster, that even Dr. Baldus did not contend that his statistics
proved that race was a factor in McCleskey’s, or any other particular, case. Apparent
discrepancies in sentencin g, the Cou rt noted, “are a n inevitable p art of our criminal justice
system,” and that the discrepancy indicated by the Baldus study was “a far cry” from the
systemic defects identified in Furman. McCleskey v. Kemp, supra, 481 U.S. at 312-13, 107
S. Ct. at 1778, 95 L. Ed.2d at 291-92. It continued:
“Where the discretion that is funda mental to our criminal process is involved, we dec line to assum e that wha t is unexplain ed is invidious. In light of the safeguards designed to minimize racial bias in the process, the fundam ental value of jury trial in our criminal justice system, and the benefits that discretion provides to criminal defendants, we hold that the Baldus study does not demons trate a constitutionally significant risk of racial bias affecting the G eorgia capital sentencing process.”
Id. at 313, 107 S. Ct. at 1778, 95 L. Ed.2d at 292.11
10(...continued) (Emphasis added). D r. Baldus has continued to acknowledge that fact. See David Baldus and G eorge W oodw orth, Race Discrimination in the Administration of the Death Penalty: An Overview of the Empirical Evidence with Special Emphasis on the Post-1990 Research, supra, 41 CRIM. L. BULL. 6.
11 Although that is the critical holding, the McCleskey Court pointed out two other considerations that “inform[ed]” its decision. The first was the slippery slope of McCleskey’s argument – that if the Court accepted the claim that racial bias had impermissibly tainted the capital sentencing decision, it would not only be faced w ith
(continued...)
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Appare ntly realizing that McCleskey is of little help with respect to the main
Paternoster Study, Evans, seizing on a comment included in a footnote in McCleskey, urges
that the Baltimore County supplement would pass muster under that case. In distinguishing
venire selection and Title VII cases from selective prosecution claims, the McCleskey Court
observed that in the former cases, the statistics referred to fewer entities and that fewer
variables were relevant. In a footnote, the Court acknowledged that an unexplained statistical
discrepancy can be said to indicate a consistent policy of one decision-maker, but that it was
much more diff icult to deduce a consistent policy by studying the decisions of many unique
entities. Id. at 295, n.15, 107 S. Ct. at 1768, n.15, 95 L. Ed.2d at 280, n.15. As decisions
whether to prosecute and what to charge “necessarily are individualized and involv e infinite
factual variations,” coordination among prosecutors across a State would be meaningless,
thereby making inferences from Statewide statistics “of doubtful relevance.” Id.
The Baltimore County supplement, Evans urges, overcomes that concern and
demonstrates consistent racial discrimination on the part of one prosecutor. At the very least,
11(...continued) similar claims as to other types of penalty but with respect to unexplained disparities relating to other minority groups, other actors in the criminal justice process, or other arbitrary variables, such as attractiveness of the defendant or victim. The C ourt concluded: “there is no limiting p rinciple to the type of challenge brought by McC leskey. The Constitution does not require that a State eliminate any demonstrable disparity that correlates with a potentially irrelevant factor in order to operate a criminal justice system that includes capital punishment.” Id. at 318- 19, 107 S. Ct. at 1 781, 95 L. Ed.2 d at 295 . Second, the Court noted that McCleskey’s arguments “are best presented to the legislative bodies” as “[i]t is not the responsibility – or indeed even the right – of this Court to determine the appropriate punishment for particular crimes.” Id. at 319, 107 S. Ct. at 1781, 95 L. Ed.2d at 296.
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he claims, United States v. Armstrong, 517 U.S. 456, 116 S. Ct. 1480, 134 L. Ed.2d 687 (1996) mandate s his entitleme nt to discov ery on his selective prosecution claim. Armstrong provides no such mandate.
In Armstrong, the defendants, all African American, were indicted in Federal court for conspiracy to possess with intent to distribute mo re than 50 grams of crack cocaine and conspiracy to distrib ute that s ubstan ce. They moved for discovery or to dismiss the indictment on the ground that they were selectively chosen for Federal prosecution because they were black. In support of their motion, they offered an affidavit from a “Paralegal Specialist” employed by the Public Defend er, who asserted, with documentation, that, in every one of the 24 cases involving those charges closed by the Public Defender’s Office in 1991, the defendant(s) were black. Over the Government’s objection, the District Court granted the discovery motion and ordered the Government to produce certain infor mation reg arding all cases in the past three years in which it had charged both cocaine and firearm offenses, includin g its criteria for deciding to prosecute those cases.
When the Government refused to comply with that order, the court dismissed the indictment and the Ninth Circuit Court of Appeals affirmed. The Supreme Court reversed. The Supreme Court dealt first with whether the defendants were entitled to the discovery under Fed. Rule Crim . Proc. 16(a)(1)(C). It concluded thatthey were not, and that ruling does not concern us here. With respect to the broader attack, based on equal protection under the Fifth Amendment, the Court observed that its cases delineating the necessary elements to
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prove a claim of selective prosecution “have taken great pains to explain that the standard is a demanding one” and that “the showing necessary to obtain discovery should itself be a significant barrier to the litigation of insubstantial claims.” Id. at 463-64, 116 S. Ct. at 1486, 134 L. Ed.2d at 698. The Court emph asized the broad discretion that prosecutors have in deciding which cases to pro secute and what cha rges to bring, that there is a presumption of “regularity” in how they exercise that discretion, and that, “[i]n order to dispel the presumption that a prosecutor has not violated equal protection, a criminal defendant must present ‘clear evidence to the contrary.’” Id. at 465, 116 S. Ct. at 1486, 134 L. Ed.2d at 698, quoting in part from United States v. Chemical Foundation, Inc., 272 U.S. 1, 14-15, 47 S. Ct. 1, 6, 71 L. Ed. 131, 143 (1926).
To establish a selective prosecution claim, the Court held, the claimant must demons trate that the prosecutorial policy “‘had a discriminatory effect and that it was motivated by a discriminatory purpose,’” id. at 465, 116 S. Ct. at 1487, 134 L. Ed.2d at 699, quoting from Wayte v. United States, 470 U.S. 598, 608, 105 S. Ct. 1524, 1531, 84 L. Ed.2d 547, 556 (1985), and to establish a discriminatory effect in a ra ce case, “the claimant must show that similarly situ ated individuals of a different race were not prosecuted.” United States v. Armstrong, supra, 517 U.S. at 465, 116 S . Ct. at 1487, 134 L. Ed.2d at 699. (Empha sis added). In that regard, the Court emphasized a contrast in tw o of its earlier cases – Ah Sin v. Wittman, 198 U.S. 500, 25 S. Ct. 756, 49 L. Ed. 1142 (1905), and Yick Wo v. Hopkins, 118 U.S . 356, 6 S. C t. 1064, 30 L. Ed. 220 (1886). In Ah Sin, the Court had rejected
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the claim by a Chinese defendant that the law under which he was prosecuted was enforced solely against Chinese people because it did no t allege that ther e were no n-Chines e people against whom it could h ave been but w as not enforced. In Yick Wo, the Court granted relief on a claim that an ordinance prohibiting the operation of a laundry in a wooden building had been enforced against 200 Chinese individ uals whose applications for permits had been denied but that 8 0 non-Chinese applicants had been granted perm its.
The Court expressly rejected Armstrong’s argument that cases such as Batson, supra, and Hunter v. Underwood, 471 U.S. 222, 105 S. Ct. 1916, 85 L. Ed.2d 222 (1985) cut against “any absolute requirement that there be a showing of failure to prosecute similarly situated individ uals.” United States v. Armstrong, supra, 517 U.S. at 467, 116 S. Ct. at 1487, 134 L. Ed.2d at 700. The Court noted that, in Hunter, where it had invalidated a law disenfranchising persons who had been convicted of crimes involving moral turpitude, there was direct evidence that the law had been enacted for the purpose of disenfranchising blacks and “indisputable evidence” that it had the desired effect.
Because of the significant costs to the Government to provide the kind of discovery likely to be required – assembling documents from its files that might support or rebut the defendant’s claim, diverting resources, disclosing prosecutorial strategy – the Court held that the justifications for a rigorous standard for the elements of a selective prosecution claim “require a correspondingly rigorous standard for discovery in aid of such a claim.” United States v. Armstrong, supra, 517 U.S. at 468, 116 S. Ct. at 1488, 134 L. Ed.2d at 701. That
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requires “some evidence of differential treatment of similarly situated members of other races or protected classes.” Id. at 470, 116 S. Ct. at 1489, 134 L. Ed.2d at 702. The study offered by Armstrong did not constitute evidence sufficient to show the essential elements of a selective prosecution claim, in that it “failed to identify individuals who were not black and could have been prosecuted for the offenses for which respo ndents were cha rged, but were not prosecuted.” Id.
Armstrong was not a death penalty case, did not invo lve a statistical an alysis approaching that done by Dr. Paternoster, and did not perm it discovery on the issue. We fail to see how it mandates the relief Evans seeks. A case more on point, and more pointedly dooming Evans’s claim, is Belmontes v. Brown, 414 F.3d 1094 (9th Cir. 200 5), rev’d on other grounds sub nom . Ayers v . Belmontes, ____ U.S. ___, 127 S. Ct. 469, ___ L. Ed.2d ___ (2006), which Evans has failed even to mention, much less attempt to distinguish.
Belmontes was a Federal habeas corpus action arising from a conviction a nd death sentence imposed in State court. Among other complaints, Belmontes contended, as does Evans, that the decision to pursue the death penalty was infected by racial discrimination against defendants who killed white victims, and in support of that charge, he produced a statistical study of death eligible homicides in the county where he was prosecuted. The study was similar in methodology and conclusions to the Baltimore County supplement prepared by Dr. Paternoster. Citing Armstrong, the Ninth Circuit Court held that, to succeed in a selective prosecution claim, Belmontes needed to show both a discriminatory effect and that
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the decision-makers in his case acted with a discriminatory purpose – that the prosecutor in his case pursued a death sentence because of the race of his victim.
Belmontes offered no direct evidence on that issue but relied entirely on the statistical study. The cou rt found it un necessary to determine whether a statistical analysis alone cou ld suffice because, in response to the motion, the prosecutor stated that, when he decide d to pursue a death sentence against Belmontes, he had reason to believe that Belmontes had committed another murder as well and that there was evidence in the record to provide a good faith basis for that belief. Thus, the court held, “there appears to be a legitimate race-neutral reason for a prosecutor to seek a death sentence in this particular case, and therefore sufficient evidence to rebut the inference of discrimination raised by Belmontes’ statistical study.” Id. at 1129. The racial discrimination claim was denied.
In considering the force of Armstrong and, indeed, Evans’s entire argument grounded on the Paternoster studies, we must recall from our discussion of the Wiggins issue the context in which the issue arises. Armstrong was a direct appeal from the dismissal of a criminal indictment, and at issue was the validity of that dismissal; Belmontes was a Federal habeas corpus action, an action of right. That is certainly not the case here. The issue is not whether a lower court erred as a matter of law in rejecting the statistical evidence offered by Evans, but only whether it abused its discretion in denying his third motion to reopen the 1995 post conviction case to allow this new claim to be presented, in the hope that, if allowed to rummage through the prosecutors files in more than 150 other cases, he might find some
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evidence of racial discrimination. In resolving that issue, notwithstanding what appear to be some significant weaknesses
and omissions in both the 2003 study and the 2004 Baltimore County supplement, some admitted by Dr. Paternoster, others that are seemingly ap parent and unexplain ed, we sh all accept, for purposes of this appeal, that they show a greater likelihood that, in a death penalty eligible case arising in Baltimore County, the death pen alty is statistically more likely to be pursued against a black person who murders a white victim than against a defendant in any other racial comb ination. For th e reasons a lready stated, we note that the statistical studies are the only evidence of racial discrimination on the part of the Baltimore County prosecutor offered by Evans – that there is no other evidence that the race of the offender or of the victim(s) played any role w hatever in the prosecutor’s decision to pursue the death penalty against Evans, either in 1983 or in 1992.
The disparities supposedly demonstrated by the Paternoster Study and the Baltimore County supplem ent have been in the public domain for nearly twenty years. They are not new. The statistical methodology has been refined over time, but the conclusions drawn from it have remained fairly constant, at least since the Public Def ender’s study in 1987. This issue could have bee n raised by Ev ans in his first post conviction case in 1990, at his re-sentencing in 1992, in his second post conviction case in 199 5, in his first Federal habeas corpus action in 1997, in his second petition for Federal habeas corpus in 2000, in his first motion to reopen the 1995 post conviction case in 1999, an d in his seco nd motion to reopen that case in 2001.
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Instead, he has chosen to wait 22 years from his first sentencing and 14 years from his second until the eleventh hour, as the date and time for executing the sentence were im minent, to raise this issue and demand the right to search through all of the 152 death eligible cases arising in Baltimore County since 1978 to see if he could find some clue as to why the State’s Attorney chose to seek or not seek the death penalty in each of those cases and, if he found what he regarded as a suspicious fact, to examine or cross-examine the prosecutor with respect to her decision in any or all of those cases.
Apart from this deliberate withholding of a claim that could well have been presented on several earlier occasions, he has failed to show, from any of the statistical evidence, that there was any other perso n similarly situated to himself against whom the death penalty was not sought be cause the v ictim was black – who, in Baltimore County, had, for hire, murdered two people in order to prevent them from testifying in a pending criminal case. We have already taken judicial notice, on at least three occasions, that “[t]he mu rders giving rise to this prosecution were as heinous a s those in any case to come before us under the present capital punishment statute. No killings could have been more premeditated and deliberate than those here.” Evans v. State, supra, 304 Md. 487, 539, 499 A.2d 12 61, 1288 ; Evans v. State, supra, 389 Md. 456, 461-62, 886 A.2d 562, 565; Grandison v. State, 305 Md. 685, 750, 506 A.2d 580, 613 (1 986), cert. denied, 479 U.S. 873, 107 S. Ct. 38, 93 L. Ed.2d 1 74 (1986 ). It would seem rather fruitless to require, as a m atter of law , that a post conviction case that was concluded nine years ago be reopened so that the prosecutor could confirm the obvious, that
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if there was ever a case for the death penalty, it was Evans’s – the cold commercial aspect, the brutality, firing nineteen bullets close range at two people, and the fact that it struck at the very heart of our criminal justice system, murdering witnesses to prevent them from testifying in a pending criminal case. See Belmontes v. Brown, supra. We recall the point made in the Baldus study and commented on in McCleskey – that, in the extreme case, where “everybody would agree that if we’re going to have a death sentence, these are the cases that should get it, the race factors go away.”
As noted, apart from his selective prosecution complaint, Evans argues that the 2003 Paternoster study shows that the imposition of the death penalty throughout Maryland operates in a racially and geographically biased ma nner. This type of attack is directly addressed by McCleskey, and Evans offers no support for a rejection of the reasoning employed there.
Since McCleskey, no court has allowed a claim of this kind. The courts accept the reasoning in McCleskey concerning the failure of general statistics to establish a statewide Equal Protection or Cruel and Unusual Punishment violation and instead require a defendant to assert some specific discriminatory intent in their case. Lee v. State, 942 S.W.2d 231, 237 (Ark. 1997); Cochran v. State, 547 So. 2d 928, 930 (Fla. 1989); Jones v. State, 440 S.E.2d 161, 163 (G a. 1994 ), cert. denied, 513 U.S. 853, 115 S. Ct. 154, 130 L. E d.2d 93 (1994); People v . Britz, 528 N.E.2d 703, 718-19 (Ill. 1988 ), cert. denied, 489 U.S. 1044, 109 S. C t. 1100, 103 L. Ed.2d 242 (1989); Underwood v. State, 708 So. 2d 18, 37-38 (Miss. 19 98); State v. Taylor, 929 S .W.2d 209, 22 1 (Mo . 1996) (en ban c), cert. denied, 519 U.S. 1152, 11 7 S. Ct.
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1088, 137 L. E d.2d 222 (1997); State v. Reeves, 604 N.W.2d 151, 160-61 (Neb. 20 00); Lane v. State, 881 P.2d 1358, 13 63 (N ev. 199 4), vacated on other grounds, 956 P.2d 88 (Nev. 1998); People v. Hale, 661 N.Y.S.2d 457, 467 (N.Y . Sup. Ct. 1997); State v. Byrd, 512 N.E.2 d 611, 6 19 (O hio 198 7), cert. denied, 484 U.S. 1037, 108 S. Ct. 763, 98 L. Ed.2d 780 (1988); Comm onwea lth v. Mars hall, 810 A.2d 1211, 1228 (Pa. 2002) (rejecting argument based on statistics because “Appellant has failed to provide any link between the findings of this statistical abstract and his particular case”), cert. denied, 540 U.S. 833, 124 S. Ct. 81, 157 L. Ed.2d 61 (2003); State v. Evans, 838 S.W.2d 185, 196 (T enn. 19 92), cert. denied, 510 U.S. 1064, 114 S. Ct. 740, 126 L. Ed.2d 702 (1994); Bell v. State, 938 S.W.2d 35, 51-52 (Tex. Cr. App. 1996) (rejecting Equal Protection argument based on statistics “[b]ecause appellant fa ils to direct us to any proof of purposeful prosecutorial or jury discrimination in his particular case” and rejecting Cruel and Unusual Punishment challen ge), cert. denied, 522 U.S. 827, 118 S. Ct. 90, 139 L. Ed.2d 46 (1997); Turner v. Comm onwealth, 364 S.E.2d 483, 490 (Va. 1988), cert. denied, 486 U.S. 1017, 108 S. C t. 1756, 100 L. Ed.2d 2 18 (1988 ); In re Davis, 101 P.3d 1, 58 (Wash. 2004) (general statistics insufficient to render death p enalty unconstitutional). This reasoning holds true for asserted geogra phic dis parities a s well. See State v. Hairston, 988 P.2d 1170, 1192 (Idaho 1999) (rejecting claim based solely on statistical study demonstrating that s tate's death pen alty is applied significantly more often in u rban counties), cert. denied, 529 U.S. 1134, 12 0 S. Ct. 2014, 146 L . Ed.2d 963 (200 0).12
12Only one state has even come close to allowing a general statistical study (continued...)
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The resu lt in Maryland should be no different than the consensus around the country.
In Calhoun v. State, supra, 297 Md. 563, 468 A.2d 45, we rejected Calhoun’s arguments that
the Marylan d Death Penalty Statute violated the Eighth and Fourteenth Amendments of the
U.S. Constitution and Articles 16 and 25 of the M aryland Dec laration of R ights by its lack of
standards governing the prosecutor’s exercise of discretion in whether to seek the death
penalty. The C ourt held:
“Absent any specific evidence of indiscretion by prosecutors resulting in an irrational, inconsistent, or discriminatory application of the death penalty statute, Calhoun's claim cannot stand. To the extent that there is a difference in the practice of the various State's attorneys around the State, our proportion ality review w ould be intended to assure that the death penalty is not imposed in a dispropo rtionate manner.”
Id. at 605, 468 A.2d at 64. See also Tichnell v. State, 287 Md. 695 , 415 A.2d 830 (1980)
(upholding co nstitution ality of the Marylan d Death Penalty Statute on its face).
12(...continued) showing disparate racial impact in the administration of the death penalty to establish a general constitutional violation. In State v. Ma rshall, 613 A.2d 105 9, 1110 (N.J. 1992 ), cert. denied, 507 U.S. 929, 113 S. Ct. 1306, 122 L. Ed.2d 694 (1993), the Court expressed a willingne ss to contrad ict McCleskey based on the New Jersey Constitution, saying that “were we to believe that the race of the victim and race of the defendant played a significant part in capital-sentencing decisions in New Jersey, we would seek corrective measures, and if that failed we could not, consistent with our State's policy, tolerate discrimination that threatened the foundation of our system of law.” However, New Jersey has yet to encounter proof of such systematic discrimination. In State v. Loftin , 724 A.2d 129 (N.J. 1999), the court reaffirmed its general statement from Marsh all but rejected statistics similar to those involved in this case for various reasons pointed out by their Special Master, finding that the defendant “has not ‘relentlessly document[ed] the risk’ of racial disparity in the imposition of the death penalty” as would be required to invalidate the penalty under the state constitution. Id. at 160, quoting State v. Ma rshall, supra, 613 A.2d at 1111-12.
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Fina lly, Evans contends in this regard that, even if his complaint does not pass muster under the Eighth and Fourteenth Amendments to the Federal Constitution, it does under Articles 16, 24, and 25 of the M aryland Dec laration of Rights. We h ave cons istently construed those provisions as being in pari ma teria with their Federal counte rparts and are not convinced that they should be read more bro adly (or narrow ly) in this context. W e hold that the Circuit Court did not abuse its discretion in denying Evans’s third motion to reopen the 1995 post conviction case and the judgment in No. 123 will be affirmed.
IV. NO. 122 Unlike the claims previously addressed, No. 122 arises from an indepe ndent actio n in the Circuit Court for Baltimore City filed by Evans and three other plaintiffs, in which they sought to enjoin the Division of Correction (DOC) from carrying out lethal injections under its existing protocols. The appeal is from the denial of their request for a temporary restraining order. Because a temporary restraining order is in the nature of an injunction, such an appeal, though from an interlocutory order, is permitted under M aryland Code, § 12303(3)(iii) of the Cts. & Jud. Proc. Article (CJP). Two complaints are made about the DOC protocols: first, that they are inconsis tent with Maryland Code, § 3-905(a) of the Correctional Services Article (CS), which prescribes the method of execution by lethal injection; and second, that they constitute a regulation that was not adopted in conformance with procedural
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requirements of the S tate Administrative Proced ure Act (APA ).13
A. Standing The State’s first response to these complaints is that we should not address them because (1) the co-plaintiff organizations have no standing to raise them, and (2) Evans failed to exhaust available administrative remedies and, under both the Prisoner Litigation Act (Maryland Code, CJP §§ 5-1001 through 5-1007) and traditional administrative law, he is precluded from challenging the execution protocols through a direct judicial action for declaratory and injunctive relief. We agree with the State that the three organizations have no standing on their own to pursue the litigation, but we shall consider the challenge made by Evans. We have long held to the view that, under Maryland common law principles, “for an organization to have standing to bring a judicial action, it must ordinarily have a ‘property interest of its own – separate an d distinct from that of its individual members’” and that “an individual or an organization ‘has n o standing in court unless he has also suffered some kind of special damage from such wrong differing in character and kind from that suffered by the
13 Although in his brief, Evans captions his argument as being that the execution protocol violates the APA and the statute “and creates a grave risk that an inmate will be inadequately sedated and suffer an excruciating death,” his counsel conceded at oral argument that he was not making an argument that the execution protocol constituted a cruel and unusual punishment, under either the State or Federal Constitution. Counsel stated that such an argument had been made in a pending action in Federal court. We shall therefore regard any cruel and unusual punishment claim as having been knowingly and voluntarily waived w ith respect to this appeal.
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general public.’” Medical Waste v. M aryland W aste, 327 Md. 596, 612-13, 612 A.2d 241, 249 (1992), quoting in part from Citizens P. & H . Ass’n v. Co unty Exec., 273 Md. 333, 345, 329 A.2d 681, 687 (1974) and Rogers v. Md.-Nat’l Cap. P. & P. Comm’n, 253 Md. 687, 691, 253 A.2d 713, 71 5 (1969). See, more recently, Duckworth v. Deane, 393 Md. 524, 903 A.2d 883 (2006), and compare Teachers Union v. Board of Education, 379 Md. 192, 199, 840 A.2d 728, 732 (2004), confirming that principle but finding that the organization in question did suffer that special damage necessary to provide standing.
In this case, the o nly asserted basis for standing on the part of the three organizations is that they all oppose capital pun ishment an d desire to se e that the dea th penalty is not carried out – at all, but e specially in violation of law. In the complaint, the NAACP asserted that it works to eliminate racial prejudice and has long opposed the death penalty and, in particular, the disproportio nate impa ct of the de ath penalty on African-American criminal defendants. The ACLU averred that it works to ensure that all people in the State of M aryland are free to think and speak as they choose and that it continues to oppose capital punishment on m oral, practical, and constitutional grounds. The third organization, CASE, posited that it is a coalition of groups and individuals united to end the death penalty in Maryland. All three organizations claimed that they had an interest in seeing that State officials operate within the boundaries of the law and ensuring that executions are not carried out in violation of the Constitution and Maryland law.
The mere fact that an individual or group is opposed to a particular public policy does
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not confer standing to challenge that policy in court. If it were otherwise – if any person or group disenchan ted with some pu blic policy but not adversely affected by it in some special way were free to seek a judicial declaration that the policy is invalid – the courts, rather than the legislative branch, would end up setting public policy, and that is not the proper role of the Judiciary. The interes t asserted by the o rganizations – ensuring that State off icials operate legally and that executions are not carried out unlawfully – is no different than the interest of all Maryland citizens. The three organizations have not alleged, and presumably cannot legitimately allege, that they will suffer any special damage or injury if the current execution protocols adopted by the DOC are imp leme nted, and, consequ ently, they have no standing on their own to challenge those protocols.
The situation with Evans is different and requires some contextual explanation. We are dealing here with three agencies – the Department of Public Safety and Correctional Services (DPSCS), which is a principal department of the Executive Branch of the State Government, the DOC, which is a unit within DPSCS vested with responsibility over the State correctional facilities, and the Inmate Grievance Office (IGO), a unit that is also w ithin DPSCS and that was created to address certain complaints and grievances on the part of individuals confined in a DO C facility.
In 1997, the G eneral Assembly enacted the Prisoner Litigation Act (PLA) in order to complement the Federal Prison Litigation Reform Act (42 U.S.C. § 1997e), enacted by Congress a year earlier. CJP § 5-1003(a) provides that “[a] prisoner may not maintain a civil
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action until the prisoner has fully exhausted all administrative remedies for resolving the complaint or grievance.” Section 5-1003(b) requires the prisoner to attach to the initial complaint “proof that administrative remedies have been exhausted,” including proof that the prisoner filed a complaint or grievance with the appropriate agency, proof of the administrative disposition of the complaint or grievance, and proof that the prisoner appealed the administrative disposition to the appropriate authority, including proof of judicial review. Evans is undisputedly a “prisoner,” as that term is defined in CJP § 5-1001(g) – “a person who is in the custody of the [DPSC S] . . . .” It is also undisputed that he failed to attach to his complaint in N o. 122 any proof that he had exhausted any administrative remedy.
Maryland Code, CS §§ 10-201 through 10-210, create the IGO and permit an individual confined in a DOC correctional facility who has a grievance against an official or employee of the DOC to submit a complaint to the IGO within the time and in the manner required by regulations adopted by the IGO. Section 10-206(b) provides, however, that, if the DOC has a grievance procedure applicable to the particular grievance and the IGO considers that procedure to be reasonable and fair, IGO, by regulation, may require that the DOC procedure be exhausted before submission of a complaint to the IGO. The IGO has, indeed, adopted regulations governing those matters. COMAR 12.07.01.03D provides that, to the extent that a DOC administrative remedy procedure applies to a particular grievance, the inmate must exhaust that procedure before submitting the grievance to the IGO. COMAR 12.07.01.06A. and B. require that a grievance be filed with the IGO “within 30 days from the
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date of the occurrence being grieved, or within 30 days after the grievant knew or should have known of the occurrence” and that an appeal from the DOC administrative remedy procedure be filed within 30 days from the grievant’s receipt of a response from the Commissioner of Correction or w ithin 30 days of the date the Com missioner’s response w as due.
DOC has adopted an administrative remedy procedure for the adjustment of certain inmate grievances. At the times relevant to this case, it was set forth in DOC Directives 185101 through 185-700. The procedure was declared to be applicable to grievances related to “institutional policies and procedures.” Directive 185-101 (effective February 1, 2001) required a prisoner to submit a Request for Administrative Remedy to the warden within 15 days from the d ate “the incid ent or com plaint occurred” or from the date the inmate first gained knowledge “of the incident.” Under the ensuing Directives in the 185 series, the warden was required to respond to the request within 30 days, and the prisoner was then required to appeal an unfavorable response from the warden to the Commissioner of Corrections within 10 days after receipt of the response. The Commissioner, whose decision was final for purposes of the DOC procedure, had 30 days to respond. The next step was a complaint to the IGO.
On November 21, 2005, this Court decided Massey v. Dept. of Corrections, supra, 389 Md. 496, 886 A.2d 585, where we reviewed various Directives adopted either by the Secretary of DPSCS pursuant to CS § 2-109 or the Commissioner of Correction pursuant to CS § 3-205. The prisoner, Massey, had sought administrative review, pursuant to DOC Directive 185-100,
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of discipline meted out pursuant to DPSCS Directives 105-4 and 105-5 adopted by the Secretary of DPSCS, claiming that the Secretary’s Directives were not valid because they constituted regulations under the A PA that had no t been adopted in co nformance with the requireme nts of that Act. We agreed with Massey that the Secretary’s Directives constituted regulations under the APA, that they had not been adopted in conformance with the statutory requirements, and that they were therefore ineffective. We delayed the issuance of our mandate in that case for 120 days in order to give the Secretary an opportunity to pursue the statutory requirements.
Although the DOC Directive 185 series was implicated in Massey, our ruling did not deal with those Directives, but on ly with the Secretary’s Directiv es. On December 9, 2005, Evans filed a request for administrative remedy with the appropriate warden, contending that the DOC execution protocols w ere unlawful for a variety of reasons, including that they constituted regulations th at had not b een validly adopted. He thus made the same argument as to the DOC protocols that Massey had made with respect to the Secretary’s Directives. The warden denied the request on January 3, 2006, and on January 9, Evans filed an appeal to the Commissione r. Without waiting for the Commissioner’s response, he and the three organizations, on January 20, 2006, filed this action for declaratory and injunctive relief, raising the same issues presented in the administrative proceeding. On February 1, 2006, the court denied Evans’s request for a temporary restraining order and preliminary injunction, from which this appeal was taken. No final judgment has been entered in the matter; the case
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remains pending in the Circuit Court. On February 27, 2006 – after the Circuit Court entered its order denying temporary
injunctive relief – the Commissioner rejected Evans’s administrative appeal, whereupon, on March 13, 2006, Evans appealed to the IGO. On June 2, 2006, an Administrative Law Judge, acting for the IGO, concluded that the execution protocols w ere not inconsistent with CS § 3-905 but that portions of them were ineffective because they had not been adopted in conformance with the APA. On June 27, the Secretary of DPSCS rejected the latter determination and concluded that the Execution Operations Manual (EOM) that specifies the lethal mixture and the manner o f its injection – the procedures challenged by Evans – “is not a regulation requiring adoption pursuant to the APA rule-making provisions.” That determination, embodied in the Secretary’s Order, constitutes the final administrative ruling in the matter. O n July 26, 2006, Evans filed a petition for judicial review of the adverse rulin gs in the C ircuit Court for Baltim ore C ity.
As noted, the PLA was enacted in response to the Federal Prison Litigation Reform Act. That Act – 42 U.S.C. § 1997e(a) – provides that no action may be brought “with respect to prison conditions” under 42 U.S .C. § 1983 or any other Federal law by a prisoner confined in any correction al facility “until such administrativ e remedie s as are available are ex hauste d.” Although § 1997e does not define the term “prison conditions,” some Federal courts have looked to 18 U.S.C. § 3626, which deals with the kinds of remedies available in civil actions with respect to prison conditions. Section 3626(g)(2 ) defines “civil action with respect to
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prison conditions” as meaning “any civil proceeding arising under Federal law with respect to the conditions of confinement or the effects of actions of government officials on the lives of persons confined in prison,” other than habeas corpus proceedings challenging the fact or duration of confinement in prison. See Freeman v. Francis, 196 F.3d 641 (6th Cir. 1999); Treesh v. Taft, 122 F. Supp.2d 887 (S.D. Ohio 2000).
In the limited time that the Federal Act has been in effect, the Federal courts have construed the term “with respect to prison conditions” very broadly, to include claims of excessive force, hara ssment, failu re to provide qualified interpreters at disciplinary hearings, indifference to medica l needs, failur e to protect a p risoner from other prison ers, failure to comply with the Americans With Disabilities Act, and denial of First A mend ment rig hts. See, for exam ple, Larkin v. Galloway, 266 F.3d 718 (7th Cir. 200 1), cert. denied, 535 U.S. 992, 122 S. Ct. 1551, 152 L. Ed.2d 475 (2002 ) (exces sive fo rce), Johnson v. Litscher, 260 F.3d 826 (7 th Cir. 200 1) (hara ssmen t), Castano v. Nebras ka Dep t. of Corrections, 201 F.3d 1023 (8th Cir. 2000), cert. denied, 531 U.S. 913, 121 S. Ct. 266, 148 L. Ed.2d 193 (2000) (failure to provide interpreter); Witzke v. Femal, 376 F.3d 744 (7th Cir. 2004) (medical co nditions); Brady v. Attygala, 196 F. Supp.2d 1016 (C.D.Cal. 2002) (failure to protect), Carrasquillo v. City of New York, 324 F. Supp.2d 428 (S.D.N.Y. 2004) (ADA violatio n), Treesh v. Taft, supra, 122 F. Supp.2d 887 (denial of condemned inmate’s right to make last statement prior to execution). We are aware of no case, however, and none has been cited to us, in which the term has b een h eld to inclu de an attac k on the m anner of exec uting the death penalty.
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Although § 1997e(a) declares that “no action” shall be brought by a prisoner confined in any correctional institution, the Act has been interpreted as precluding only actions in Federal court, and, indeed, it was that limitation that prompted the concern leading to the enactment of PLA – that it would lead prisoners to file actions under 42 U.S.C. § 1983 and other Federal statutes enforceable in State court in the State courts and thus overwhelm the State courts with often frivolous litigation . See Adamson v. Correctional Medical, 359 Md. 238, 261-65, 753 A.2d 501, 513-15 (2000).
The Maryland statute, though perhaps modeled on the Federal, is constructed somewhat differently. Unlike the Federal approach of stating that “no action . . .with respect to prison conditions” may be brought absent exhaustion of available administrative remedies, the PLA, CJP § 5-1003(a)(1), tracks more the verbiage of 18 U.S.C. § 3626. It precludes a “civil action” and defines tha t term in § 5-1001(c) as a “legal action . . . that relates to or involves a prisoner’s conditions of confinement.” (Emphasis added). Un like 42 U .S.C. § 1997e, which applies to actions respecting “prison conditions” but does not define that term, the PLA applies to actions involving “conditions of confinement” and defines that term as meaning “any circumstance, situation or event that involves a prisoner’s custody, transportation, incarceration, or supervision.” (Em phasis a dded).
There can be little doubt that the execution protocols challenged by Evans affect in a significant way aspects of h is custod y, incarceration, or supervision. See Treesh v. Taft, supra, 122 F . Supp .2d 887 . Nor, in light of the legislative history of the PLA, can there be
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much doubt that the General Assembly intended for that statute to have a bro ad reach a nd to require prisoners to exhaust all available administrative remedies before filing judicial actions relating to prison conditions. The very fact that Evans filed an administrative complaint and ultimately pursued it to a conclusion demonstrates that an administrative procedure did exist.
The Federal Act imposes no pleading requirement on prisoners to allege exhaustion of administrative remedies. Failure to exhaust is an affirmative defense to the action that must be pled and show n by the defendant. See Mitchell v. Horn, 318 F.3d 523 (3 rd Cir. 2003); Abney v. McG innis, 380 F.3d 663 (2nd Cir. 2004). The Maryland statute is more onerous. As noted, CJP § 5-1003(b) requires the prisoner to attach to the initial complaint “proof that administrative remedies have been exhausted,” including proof (1) that the prisoner filed a complaint or grievance with the appropriate agency, (2) of the administrative disposition, and (3) that the priso ner h as “appealed” the administrative disposition to the app ropriate a utho rity, including proof of judicial review. If the prisoner has, in fact, exhausted his or her administrative remedies but has simply failed to attach proof of that fact, §5-1003(b)(3) requires the court to “dismiss the case without prejudice and grant the prisoner leav e to amend the complaint and to provide the proof necessary to demonstrate that th e prisoner h as fully exhausted the administrative remedies.” If the prisoner has not actually exhausted available administrative remedies, §5-1003(c) requires the c ourt to dism iss the action w ithout leave to amend (“A court shall dismiss a civil action if the p risoner filing th e action has not comp letely exhausted the administrative remedies.”).
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In light of these requirements (and the lack of standing on the part of the three coplaintiffs), the Circuit C ourt should have dismissed the complaint under § 5-1003(c). Had that been done, Evans could have completed the administrative process and proceeded through the judicial review action to litigate his challen ge.
If the administrative proceeding had never been completed, we would be required to vacate the Circuit Court order and remand the case for that court to dismiss the action. It is clear, however, that the administrative process has now been completed. The Secretary of DPSCS has made a final administrative determination that the execution protocols (1) do not violate CS § 3-905, and (2) do not constitute regulations. Those issues, which h ave been fully briefed and argued in this Court, are purely legal ones that require no further evidentiary developm ent. For us to direct the dismissal of the complaint filed in January, 2006, so that the Circuit Court could consider anew essentially the same issue in the context of the pending judicial review action, from which a new appeal would necessarily arise, would be a useless waste of judicial resources. The purposes of the PLA, and, indeed, of the common law exhaustion requirement, have been met.14
B. Consistency with the Statute
14 We cau tion that this is an unusual c ase, and ou r decision to p roceed w ith this aspect of the appeal should not be taken as a license for prisoners to file court proceedings subject to the PLA without having fully exhausted their administrative remedies. The law is clear. If the complaint does not contain proof that the administrative process has been exhausted, it must be dismissed.
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Title 3, subtitle 9 of the Correctional Services Article sets forth the procedures for executing a sentence of death. CS §3-905(a) states:
“The manner of inflicting the punishment of death shall be the continuous intravenous administration of a lethal quantity of an ultrashort-acting barbiturate or other similar drug in combination with a chemical paralytic agent until a licensed physician pronounces death according to accepted standards of medical practice .” That provision is s upplemented by CS § 3-906, which directs the Commissioner of Correction to provide a suitable and efficient place, enclosed from public view, in which to carry out an execution, to provide all of the materials necessary to perform the execution, and to select trained individuals to administer the lethal injection. Section 3-906(c) provides that an individual who “administers the paralytic agent and lethal injection” need not be a health care practitioner. Those provisions were enacted by the Ge neral A ssemb ly in 1994 . See 1994 Md. L aws, ch . 5. After enactment of Ch. 5, DOC adopted an Execution Operations Manual (EOM ) to govern virtually all aspects of implementing the death sentence by lethal inje ction. The EOM specifies the logistics, the responsibilities of various DOC officials and personnel, preexecution procedures commencing upon receipt of a warrant of execution, post execution procedures, the responsibilities of a special unit to provide security for inmates awaiting execution, and the responsibilities of a comma nd center. None o f those procedures a re challenged by Evans. The EOM defines the term “Lethal Injection” as “[t]he administration of a lethal
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quantity of an ultrashort-acting barbiturate or other similar drug in combination with a chemical paralytic agent until a licensed physician pronounces death according to accepted standards of medical practice.” That definition tracks the statutory language except that it omits the word “continuous” preceding “administration.” Attached to, and presumably a part of, the EOM is a Lethal In jection Ch ecklist, whic h prescribe s in conside rable detail the actual contents of the lethal concoction and the method of injecting it. That is the subject of Evans’s comp laint.
The Checklist specifies that the injection is to consist of (1) 120 cc/3 grams of sodium pentothal in two 60 cc syringes, (2) 50 cc/50mEq. of pancuronium bromide (Pavulon) in one 50 cc syringe, and (3) 50 cc/50mEq. of potassium chloride in one 50 cc syringe. Each of those drugs is administered at the rate of 1 to 1.5 ml/second, and each, in the dosage administered, is believed to be lethal on its own. Sodium pentothal is a sedative; Pavulon stops the breathin g; potassium ch loride sto ps the heart.
Apart from preparations, the execution process begins when the inm ate is strapped to the execution table, an IV line is inserted into each arm , and a saline solution com mences to run through the line into the inmate. The inmate is checked to observe for swelling or discoloration and to assure that the solution is flowing. At the appropriate signal, the first syringe of sodium pentothal is administered. The syringe is then removed and the second syringe of sodium pentothal is administered. That syringe is then removed, and the saline solution is allowed to run for ten seconds. At that point, the Pavulon is administered. The
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Pavulon syringe is then removed and, again, the saline solution is allowed to run for ten seconds. Finally, the potassium chloride is administered. That syringe is removed and the saline solution flows for another ten seconds.15 When the EKG monitor indicates that no heart activity is occurring, the physician advises the execution team leader and the physician prono unces d eath. See EOM, Lethal Injection Checklist at 4-6.
Evans co mplains tha t this procedu re deviates f rom the statu te in three ways: first, he claims, the statute calls for the administration of two dr ugs, bu t the EO M ad ds a third , a second paralytic agent; second, the statute requires a continuous intravenous administration of an ultrashort-acting barbiturate, but the EOM calls for two “bursts” of sodium p entothal; and third, where as CS § 3 -906(c)(1) re quires the Commissioner to select execution profession als who are “trained to administer the lethal injection,” the EOM requires only the hiring of “trained” persons but does not specify what kind of training is required.
A short answer to this complaint is that the issue of whether the EOM is consistent with CS § 3-905 was presented in Oken v. S tate, 381 Md. 580, 851 A.2d 538 (2004) and rejected by us on the merits. In Oken, we held that “the method of execution intended to be implemented by the Division of Correction does not violate the provisions of Maryland Code (1999, 2003 Cum. Supp.) § 3-905 of the Correctional Services Article or constitute a cruel or unusual punish ment . . . .” Id. at 580-81, 851 A.2d at 538. Evans asks us either to ignore or
15 It is not clear from the EOM whether all three lethal drugs are injected through one IV line and, if so, why a second line is inserted.
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overrule that clear, precedential holding because it was expressed in a per curiam opinion without any explanatory comm ent. He points out that the “truncated litigation” in Oken led a Federal District Court judge, in Oken v. Sizer, 321 F. Supp.2d 658 (D. Md. 2004) to “doubt the quality, extensiveness, or fairness of procedures” in the case and to decline to give res judicata effect to our decision. He ne glects to mention, how ever, which counsel has a clear ethical obligation to do, that two days later, the Supreme Court vacated the stay of execution ordered by the District Court judge (Sizer v. Oken, 542 U.S. 916, 124 S. Ct. 2868, 159 L. Ed.2d 290 (2004)) and, on remand, the District Court denied the requested stay and allowed execution of th e death sentence against Oken to proceed.
Our ruling in Oken was in the for m of a sum mary per curiam order because, like Evans, Oken waited more than 10 years, until the very eve of his scheduled execution, t o present the claim. The Court did give fair consideration to it, however, as evidenced by the dissent filed by Chief Judge Bell. We would never have permitted that death sentence to be executed if we had any reason to believe that Oken had a legitimate claim. Because we have stayed the warrant of execution issued against Evans to consider the other issues raised by him, we shall respond in full to his argument.
The issue ulti mate ly is one of statutory construction. Whether the Lethal Injection Checklist violates or is inconsistent with CS § 3-905 depends on how that statute is properly construed. We can quickly dispose of two of Evans’s claims. He argues that the EOM method of administering the “ultrashort-acting barbiturate” deviates from the statute in that
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it calls for administering the drug “in two separate bursts, where the [statute] calls for its ‘continuous intravenous admin istration’ until dea th.” There is no such deviation . Under the EOM procedure, the barbiturate is admin istered c ontinu ously. It is inserted in ad vance into two 60 cc syringes, and, as soon as one is administere d, that syringe is removed and the drug in the second syringe is injected . There is no flushing of saline solution between the two injections. The mere fact that DOC has chosen to administer the 120 cc of barbitura te in two syringes, the second injected imm ediately after the first, rather than in one 120 cc syringe, does not make the administration non-continuous.
The second argument that may be summarily disposed of is that DOC has not selected persons “trained to administer the lethal injection.” Evans has offered utterly no evidence in this case to support that assertion but complains only that the EOM does not specify “what type of training is required.” Neither does the statute.
The only argument worthy of more intensive consideration lies in the assertion that the statute specifies the administratio n of only on e chemica l paralytic agent, whereas the EOM calls for the adm inistration of tw o – Pavulon and potassium chloride. The question is whether, when the Legislature directed that there be the administration of “an ultrashortacting barbiturate or other similar drug in combination with a chemical p aralytic agent” (emphas is added), it intended to preclude the use of more than one chemical paralytic agent – whether “a” or “an,” as used in that statute, necessarily implies the singular.
As we have held so often, and most recently in Oakland v. Mountain Lake, 392 Md.
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301, 316, 896 A.2d 1036, 1045 (20 06), and Frederick v. Pickett, 392 Md. 411, 427, 897 A.2d 228, 237 (2006), the prime objective in construing statutes is to determine and implement the legislative inten t. We look first to the language actually used by the Legislature, and if that language is clear and unambiguous, we need go no furth er. If the intent, as relevant to the issue at hand , is not so clear fro m the sta tutory lang uage a lone, ho weve r, we may consider relevant and reliable external indicators, including the legislative history of the statute.
The articles “a” or “an” are indefinite articles, in contrast to the definite article “the.” They do not, however, necessarily imply the singular, but generally take their meaning in that regard from the context in which they are use d. See Deutsch v. Mortgage Securities Co., 123 S.E. 793, 795 (W. Va. 1924) (“The indefinite article ‘a’ may sometimes m ean one, w here only one is intended, or it may mean one of a num ber, depen ding upo n context.”) ; National Union Bank v. Copeland, 4 N.E. 794, 795-96 (Mass. 1886) (“[T]he p article ‘a’ is not necessarily a singular term. It is often used in the sense of ‘any,’ and is then applied to more than one individual object.”); Lewis v. Spies, 350 N.Y.S.2d 14, 17 (A.D. 19 73) (“Th e indefinite a rticle ‘a’ is not necessarily a singular term. It is often used to mean ‘any’ rather than ‘one.’”). Most courts have construed “a” or “an” as meaning “any” and as not restricted to just one. See Lindley v. Murphy, 56 N.E.2d 832, 838 (Ill. 1944) (“The article ‘a’ is generally not used in a singular sense unless such an intention is clear from the language of the statute.”); Chavira v. State, 319 S.W.2d 115, 120 (Tex. Cr. App. 1958) (“a” means the same as “any”); First American Nat. Bank v. Olsen, 751 S.W.2d 417, 421 (Tenn. 1987) (same); Application of Hotel
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St. George Corporation, 207 N.Y.S.2d 5 29 (King s Co. 196 0) (same); State v. Snyder, 78 N.E.2d 7 16, 718 (O hio 1948 ); compare Harward v. Com., 330 S .E.2d 8 9, 91 (V a. 1985 ).
It is evident, then, that whether the General Assembly intended to preclude the inclusion in the lethal mix of more than one paralytic agent cannot be determined, as a matter of law, from the language of the statute alone. The Legislature did not say “one chemical paralytic agent,” which, if that is what it intended, it could have done. We need to turn, then, to other indicia of intent, the most relevant and cogent of which, we think, is the legislative history of the statute.
Prior to the 1994 legislation, Maryland used the gas cham ber – lethal gas – as the means of executing the death sentence. The switch to lethal injection was recommended by the Governor’s Comm ission on the Death Penalty in its 1993 Report. See The Report of the Governor’s Commission on the Death Pe nalty, supra, at xx and 214-18. The Commission noted that the historical method of execution in Maryland was hanging and that in 1955, the Legislature substituted lethal gas because that method was regarded as less painful and more dignified than either hanging or electrocution. The Commission added, however, that the national trend had more recently moved away from lethal gas because it w as thought to kill by asphyxiation and that the suffocation or strangula tion accom panying the a sphyxiation co uld cause extreme pain for as long as twelve minutes. Maryland, it said, was the only State then to mandate that metho d. Id. at 215. The rejection of lethal gas had prompted at least 24 States to substitute lethal injection as the method of execution. The Commission advised that “[t]he
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injection of a fast-acting barbiturate or other lethal drug appears to cause death quickly without the pain associated with the slower death caused by lethal gas.” Id. at 217.
A bill to substitute lethal injection for the gas chamber was introduced into the 1993 session of the General Assembly (Sen. Bill 203), just after the Governor’s Commission had been appointed.16 The bill passed the Senate but died in the House of Delegates. The Commission report, recommending the change, was filed in November, 1993, and two months later, companion bills nearly identical to Sen. Bill 203 were introduced into the 1994 session as Administration Bills (House Bill 498 and Sen. Bill 304).
The Legislature was clearly aware from both the Commission report and from evidence presented to it in connection with the 1993 bill (S.B. 203) that more than 21 States (24 by the time the Commission report was released) had mandated lethal injection as the means of executing death sentences. A simple com parison sho ws that the M aryland statute is n early identical to those that had been adopte d earlier in nine o ther Sta tes. See ARK. CODE ANN. § 5-4-617(a); 725 ILL. COMP. STAT. ANN. 5/119-5(a )(1); MISS. CODE ANN. § 99-19-51 ; MONT. CODE ANN. § 46-19-103(3); N.M. STAT. ANN. § 31-14-11; N.C. GEN. STAT. § 15-187; OKLA. STAT. ANN. tit. 22, § 1014(A); S.D.CODIFIEDLAWS § 23A-27A-32; WYO. STAT. ANN. § 7-13904(a). We are in formed, w ithout contradiction by Evans, that in at least 24 of the States
16 As noted, the Governor’s Commission was not created to focus just on the method of execution. Most of the data used by the Commission in support of its recommendation to switch to lethal injection was already published and, indeed, was mentioned in the legislative documents accompanying Sen. Bill 203.
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using lethal injection, the same three drugs called for in the EOM were prescribed, although
not all of those States have statutes that specify the kinds of drugs to be used.17 We are not
aware of any case, and none has been cited to us by Evans, in which a court in any State with
a statute similar to CS § 3-905 has held that the three-drug protocol is inconsistent with the
govern ing statute.
More significant, at the hearing conducted by the House Judiciary Committee on House
Bill 498, on March 3, 1994, the Committee asked the Commissioner of Correction to provide
a description of the lethal injection process. Given that the raison d’etre for the change was
that lethal injection was a much more humane approach, an explanation of the process was
surely a matter of interest to the Legislature. The Commissioner responded on March 8, and
advised the Committee that the process would be just what is called for in the EOM – that the
inmate would b e strapped to a fixed gurney, that catheters would be placed in both arms and
a saline solution administered until the command is given to commence the execution, that
a quantity of sodium pentothal would then be administered, that the line would then be flushed
17 It appears that the use of an ultrashort-acting barbiturate and “neuromuscular blocking drugs” was first recommended in a letter by Dr. Samuel Deutsch, a professor of anesthesiology at the University of Oklahoma H ealth Sciences Center, to Oklahoma State Senato r Daw son. See Debo rah W . Denn o, When Legislatures Delegate Death: The Troubling Paradox Behind State Uses of Electrocution and Lethal Injection and W hat it Says About Us, 63 OHIO ST. L. J. 63, 95-96 (2002). Professor Denno observes that “Oklahoma’s lethal injection statute, which is representative of other state statutes, repeats nearly verbatim the terminology that Deutsch used in his letter to describe to Dawson the two main types of drugs that Deutsch recommended.” Id. at 97. She notes that the typical lethal injection consists of the three chemicals, but is uncertain how the third drug – potassium chloride – got into the mix.
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with normal saline solution, that a quantity of Pavulon would then be administered followed by another flushing with saline solution, and that a quantity of potassium chloride would then be injected . The en tire proc ess, he said, would take 10 to 15 minutes. The Commissioner added that “[a] trained execution team would conduct all activities associated with the execution process” and that “[a] medical doctor w ould be available to confirm that death has occurred.”
It is thus evident tha t the Legislatu re was w ell aware th at, if it enacted th e statute authorizing lethal injection, th e statute wo uld be imp lemented by the three-drug mixture. Following the receipt of that advice, the statute was enacted. There is no evidence that any member of the Legislature questioned whether the approach described by the Commissioner would be consistent with the statute. On this record, we conclude, as we did in Oken, that the EOM protocol is not inconsistent with the statute.
C. Enforceability of EOM as a Regulation Title 10, subtitle 1 of the State Government Article (SG), which is part of the Administrative Procedure Act, sets forth certain requirements for the adoption of regulations by Executive agencies subject to the statute. The Department of Public Safety and Correctional Services and D OC are subject to the statute. Massey v. Dept. of Corrections, supra, 389 M d. at 499, 886 A.2d at 587. SG §§ 10-110 and 10-111 require that a unit desiring to adopt a regulation, other than
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as an emergency measure, publish the proposed regulation in the Maryland Register and send a copy of it to the Joint Legislative Committee on Administrative, Executive, and Legislative Review (AELR Committee) for that Committee’s review. Section 10-111(a) provides that a unit “may not adopt a proposed regulation” until that is done. Section 10-112 specifies that, in order to have a proposed regulation published in the Register, it must be accompanied by a notice that (1) states the economic impact of the proposed regulation on State and local government revenues and expenditures and on groups that may be affecte d by it, and (2) sets a date, time, and place for public hearing. A unit may not change the text of any regulation “unless it is proposed anew and adopted in accordance with the requirements of §§ 10-111 and 10-112 . . . .” SG § 10-113.
Section 10-114 re quires that, if the regulation is a dopted, the unit must su bmit a notice of adoption for publica tion in th e Mar yland Re gister. SG § 10-117 provides that the effective date of a n on-e mergency regulation is the te nth calendar d ay after notice of ado ption is published in the Maryland Register (unless a later ef fective date is specified). T hus, a unit may not adopt a regulation u ntil there has been compliance with §§ 10-110 and 10-111, and a non-emergency regulation duly adopted does not become effective until ten days after notice of its adoption is published in the Register.
None of the procedures mandated by those statutes were fo llowed by D OC prio r to adopting or, from tim e to time, amending the EOM. None of the proposals were submitted to the AELR Committee, published in the Ma ryland Registe r, or subjected to public hearing.
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No notice of final adoption was ever submitted to or published in the Maryland Register. Thus, if the execution protocols challenged by Evans fall within the definition of, and thus constitute, a regulation as defined in SG § 10-101(g), they are ineffective.
Section 10-101(g)(1) defines a regulation as including, in pertinent part, a statement that has general application and future effect, is adopted to “detail or carry out a law that the unit administers” or “govern the procedure of the unit,” and is in any form, including a standard, statement of interpretation, or statement of policy. Sectio n 10-101 (g)(2) exem pts from that definition a statement which otherwise would be included within it but which “concerns only internal management of the unit,” or “does not affect directly the rights of the public or the procedures available to the public.”
Evans contends that the actual execution protocols set forth in the EOM – those included in the L ethal Injection C hecklist – cons titute a reg ulation, as defined in SG § 10101(g). The State responds that the EOM is not a regulation because it (1) does not have general application, (2) concerns only the internal management of DOC, and (3) does not directly affect the rights of the public. Those were the bases upon which the Secretary of DPSCS rejected Evans’s adm inistrative challenge. Largely for the reasons set forth in Massey, supra, we disagree with the State’s response.
The State’s argument to the contrary notwithstanding, there can be no legitimate doubt that the portions of the EO M that govern the method of an d procedure for administering the lethal injection have general ap plication and future effect, we re adopted to detail or carry out
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a law that DOC administers, and govern the procedure of DOC. They have general application and future effect be cause they comprehe nsively govern the mann er in which every death sentence is im plemented. Unqu estionably, they were adopte d, and, indeed, it is their sole purpose and function, to carry outthe mandates of CS §§ 3-905 and 3-906 and add details to the procedure that are unaddressed by the statute. They clearly are within the ambit of SG § 10-101(g)(1).
The question is w hether the execution protocols fall w ithin the exem ptions set forth in § 10-101(g)(2). That was the issue in Massey as well – whether DPSCS directives that established the basis for administering inmate discipline fell within the subsection (g)(2) exemptions. We observed there that, although an exemption from some of the procedural requireme nts for adopting regulations that pertain only to the internal management of an agency had been part of the Mod el Administrative Proced ure Act for about 50 years and was common in the various State laws, there was surprisingly little comment on the general meaning and scope o f that exemption.
The available cases and com mentary indica ted that it was a “pragmatic and balanced” exemption. Massey v. Dept. of Corrections, supra, 389 Md. at 519, 886 A.2d at 598. On the one hand, app lying the proce dural require ments “too far into the internal workings of the agency would c ompletely stifle agency activities if it were enforced,” id. at 519, 886 A.2d at 598-99, quotin g from Gary M . Ham an and Robe rt P. Tun nicliff, Idaho Administrative Agencies and the New Idaho Administrative Procedure Act, 3 IDAHO L. REV. 61, 79 (1966),
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but on the other, “agencies could too easily subvert public rulemaking requirements if they could avoid those proced ures for anything they called an internal directive to staff.” Massey v. Dept. of Corrections, supra, 389 Md. at 519, 886 A.2d at 599, quoting from Arthur E . Bonfield, The Iowa Administrative Procedure Act, 60 IOWA L. REV. 731, 833 (1975). (Emphasis in original).
Bonfield, who seemed to be the most prolific commentator on this subject, viewed the internal management exemption as a “very narrowly drawn provision with several important qualifications” meant “to assure that matters of internal agency management that are purely of concern to the agency and its staff are effectively excluded from normal rule-making and rule-effectiveness requirements.” Massey v. Dept. of Corrections, supra, 389 Md. at 520, 886 A.2d at 599, quoting from Arthur E. B onfield , STATE ADMINISTRATIVE RULE MAKING § 6.17.2, at 402. The kinds of directives falling within the exemption, he concluded in his aforecited law review article, “face inwards” and do not “su bstantially affec t any legal rights of the public or any segment of the public .” He gave as examples “purely internal personnel practices and directions.” Massey v. Dept. of Corrections, supra, 389 Md. at 520, 886 A.2d at 599, quoting from 60 IDAHO L. REV. at 834. (Emphasis added). The rather meager case law fairly supported and applied those principles.
The real test of whether a DOC Directive (or other policy statement) is exempt from the APA requirements because it concerns only the internal management of the agency and does not affect public rights is whether, given the nature and impact of the Directive, the
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Legislature intended that the agency be free to adopt, change, or abrogate the Directive a t will, without any public inp ut or legislative r eview. As noted, the APA requires that proposed regulations be submitted to the AELR Comm ittee for its review. Although the Committee may not veto a p roposed re gulation, it may hold hearings, get public input, and object to the proposal. SG § 10-111.1(b) directs the Committee, in deciding whether to oppose a proposed regulation, to consider whether the regulation is in confor mity with the statutory authority of the agency and whether it “complies with the legislative intent of the statute under which the regulation was promulgated.”
The ability of the Committee to oppose the regulation is im portant, because if it does object, the unit has but three options: it may withdraw the proposed regulation, it may amend the regulation, which essentially requires starting the process anew, or it may submit the proposal to the Governor with a statement explaining why it refuses to withdraw or amend the proposal. See Delmarva Power v. PSC, 370 Md. 1, 27, 803 A.2d 460, 475 (2002). The Governor may consult with the Committee and the unit in an effort to resolve the conflict and, after notice to the presiding officers of the Senate and House of Delegates, may instruct the unit to withdraw or amend the regulation or may approve the regulation. A proposed regulation opposed by the Committee may not be adopted and is not effective unless approved by the Governor.
The importance of that measure of legislative oversight is high ly relevant in considering whether an agency policy directive is of the kind intended by the Legislature to
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be exempt from that oversight as a matter of p urely internal management. We may fairly take judicial notice that the whole issue of the death penalty, and particularly the method of its implementation, is of great interest to the Legislature. It has enacted detailed statutes governing capital punishment and governing, in particular, the method and manner of executing death sentences, and it consid ers bills dealing with aspects of the death penalty at nearly every session.
Notwithstanding that it was advised in 1994 o f how D OC inten ded to implement the lethal injection law if that law were enacted, we are un willing to assume that the L egislature intended to leave to DOC , on its own and without any formal notice to the AELR Committee, without any opportunity for the Committee to object, without any oversight, unbridled authority to determin e and then change a t will, as a matter of internal management, how that statute is to be implemented.
In this case, DOC has decided to use two chemical paralytic agents. Using the canons of statutory construction applied by courts, we have concluded, as a matter of statutory construction, that the current protocol is consistent with the statute. Applying different standards allowable in a legislative context, the AELR Committee may have a different view, but even if that Committee agrees that the protocol is co nsistent, it may w ish to object to it and direct DOC to consider some other one. Although the three-drug protocol is standard in States using lethal injections, it has been challenged in a numb er of cases and som e believe tha t it is not as h uman e as it was purp orted to be. See Denno, supra, 63 OHIO ST. L. J. 63. Indeed,
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that issue appears to be currently pending in a proceeding instituted by Evans in the U.S. District Court. See Evans v. Saar, Civil No. 0 6-149 (U .S. Dist. Ct. D. Md.). Suppose DOC decides in the future to use three rather than two paralytic agents, or drop potassium chloride or Pavulon and use only the other agent, or use 80 cc or 150 cc of barbiturate rather than 120 cc, or 100 cc of Pavulon rather than 50 cc, or use one or more entirely different drugs? Those kinds of decisions do not con stitute routine in ternal man agemen t, any more than the decision to adopt the current mix; they affect not only the inm ates and the correctional personnel, but the witnesses allowed to observe the execution and the public generally, through its perception of the process.
Acc ordingly, we hold that those aspects of the EOM that direct the manner of executing the death sentence – the Lethal Injection Checklist – constitute regulations under SG § 10-101(g) and, because they were not adopted in conformance with the requirements of the APA, are ineffective and may not be used until such time as they are properly adopted. To that extent, we shall reverse the ruling of the Circuit Court for Baltimore City. Although the question actually before us in N o. 122 is whether the Circuit Court erred in denying a temporary restraining order, our resolution of the predominant legal issue presented by that question mandates, as a matter of law, that a final injunction issue, and we shall remand the case for that purpose.
IN NOS. 107, 123, AND 124, JUDGM ENT OF CIRCU IT COURT FOR BALTIMORE COUNTY AFFIRMED, WITH
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COSTS; IN NO. 122, ORDER OF CIRCUIT COURT FOR BALTIMORE CITY DENYING TEMPORARY RESTRAINING ORDER VACATED; CASE REMANDED TO THAT COURT WITH INSTRUCTIONS TO EN JOIN ENFORCEMENT OF LETHAL INJECTION CHECKL IST INCLUDED AS PART OF DIVISION OF CORRECTION EXECUTION OPERATIONS MANUAL UNTIL SUCH TIME AS THE CONTENTS OF THAT CHECKLIST, IN THEIR CURRENT OR ANY AMENDED FORM, ARE ADOPTED AS REGULATIONS IN ACCORDANCE WITH THE REQUIREMENTS OF THE ADMINISTRATIVE PROCEDURE ACT OR THE GENERAL ASSEMBLY EXEMPTS THE CHECKLIST FROM THE REQUIREMENTS OF THAT ACT; COSTS IN NO. 122 TO BE PAID BY APPELLEE
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APPEN DIX PROCEDURAL H ISTORY OF STATE v. EVANS
It is rare that we attach an A ppendix to an Opinion. In most instances when we do so, it is for convenience – to display a plat, diagram, or other pictorial document as a complement to the verba l description o f it in the Opinion. We attach this Appendix, which describes, as succinctly as possible, the long, tortured history of this case, for two reasons. The first is to give a more complete context to some of the issues ra ised in th ese app eals. The seco nd is to demonstrate the extraordinary lengths to which the State and Federal courts have gone, and continue to go, to protect the rights of Vernon Evans and to dispel any notion that he has not received the full measure of process and consideration that is due to any person accused of crime and , mos t particularly, to one who face s the death penalty.
Two separate juries – one in Worcester County and one more than a hundred miles away in Baltimore Cou nty – unanimously determined, eight years apart, that Evans should be put to death for the brutal murders he committed. Excluding the four pending appeals, Evans has had eleven appeals to this Court and has presented seven petitions to the United States Supreme Court. Depending on how one isolates or clusters his arguments, he has presented approxim ately one hundred complaints to the Circuit Courts in three counties and to us, many of them several times. He has had more than two dozen complaints considered and rejected by the U.S. District Court and the U.S. Court of Appeals for the Fourth Circuit and has several more now pending in the District Court. Throughout, he has been represented by able, experienced, competent counsel.

These appeals and the various proceedings described in this Appendix all arose from a double murder committed by Evans on April 28, 1983, more than 23 years ago. Evans was paid $9,000 by or on behalf of Anthony Grandison, who was then in jail awaiting trial on Federal narcotics charges, to kill David Piechowicz and his wife, Cheryl. Mr. and Ms. Piechowicz were slated to testify against Grandison in Federal court a week later. Evans went to the Warren House Motel in Baltimore County and, in cold blood, murdered Mr. Piechowicz and the woman he thought was Cheryl but who, in fact, was Cheryl’s sister, Susan K ennedy.
Two prosecutions ensued – one Federal and one State. The Federal prosecution came first in tim e. In M ay, 1983, the Govern ment cha rged Eva ns, Grand ison, and tw o others w ith conspiracy to violate the civil rights of David and Cheryl Piechowicz (18 U.S.C. § 241) and with witness tampering (18 U.S.C. § 1512). In November, 1983, Evans and Grandison were convicted by a Federal jury on both counts and senten ced to lif e impris onme nt. On app eal, Evans raised eight issues, all of which were found b y the U. S. Court of Appeals for the Fourth Circuit to be without merit. United States v. Grandison, 780 F.2d 425 (4th Cir. 1985).
One of the issues presented by both Evans and Grandison w as that the Government used its peremptory challenges in a manner that was racially biased against African American jurors. While the case was pending on appeal, the Supreme Court granted certiorari in Batson v. Kentucky, 471 U.S. 1052, 105 S. Ct. 2111, 85 L. Ed.2d 476 (1985), but that case had not been decided by the time the Fourth Circuit court acted on the Grandison/Evans appeal, and the peremptory challenge issue was resolved againstEvans under the rule established in Swain
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v. Alabama, 380 U.S. 202, 85 S . Ct. 824, 13 L. Ed.2d 7 59 (1965). Batson was decided by the Supreme Court shortly thereafter – see Batson v. Kentucky,
476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed.2d 69 (1986) – and, in Griffith v. Kentucky, 479 U.S. 314, 107 S. Ct. 708, 93 L. Ed.2d 649 (1987), Batson was declared to apply retroactively to cases still in litigation. In February, 1987, the Supreme Court vacated the Federal convictions in light of Griffith and remanded the cases for the District Court to consider the effect of Batson. In Ma y, 1988, after an evidentiary hearing, the District Court found no purposeful discrimination in the Government’s exercise of its peremptory challenges, denied Evans’s and Grandison’s motion for new trial, and reinstated the judgments, and in September, 1989, the U.S. Court of Appeals for the Fourth Circuit affirmed. United States v. Grandison, 885 F.2d 143 (4th Cir. 1989) . The app ellate court denied motions for rehearing, and, in May, 1990, the Supreme Court denied certiorari. Grandison v. United States, 495 U.S. 934, 110 S. Ct. 2178, 109 L. Ed.2d 507 (1990). That ended the Federal prosecution.
On June 30, 1983, the State prosecution commenced in Baltimore County with an indictment charging Evans and Grandison with two counts of first degree m urder, one count of conspiracy to commit murder, and one count of using a handgun in the commission of a felo ny. Prior to trial, the cases against Evans and Grandison were severed. On September 7, 1983, Evans w as served w ith a notice of the State’s intention to seek the death penalty that listed two aggravating circumstances upon which the State intended to rely – that the murder was committed pursuant to an agreement or contract for remuneration or the promise of
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remuneration (current Maryland Code, § 2-303(g)(1 )(vi) of the Criminal Law Article (CL); former Ann. Code, 1957, Art. 27, § 413(d)(6)) and that the defendant committed more than one first degree murder arising out of the same incident (CL § 2-303(g)(1)(ix); former Ann. Code, 1957, Art. 27, § 413(d)(9)).
At Evans’s request, his case was removed from Baltimore County to Worcester County, where it was assigned to Judge Cathell, then a judge of the Circuit Court. Prior to trial, but after his conviction on the Fed eral charge s, Evans m oved to dis miss the Sta te indictment on the ground that his F ederal convictions precluded a subsequent State prosecution under both Federal and State double jeopardy prohibitions. His principal argument was that the dual sovereignty principle, long and well establish ed in both the State and Federal courts, was not applicable. The motion was denied and, in an interlocutory appeal, this Court affirmed that ru ling. Evans v. State, 301 Md. 45, 48 1 A.2d 1135 (1984). (CA-1).18 Evans’s petition for certiorari was denied by the Supreme Court. Grandison v. Maryland, 470 U.S. 1034, 105 S . Ct. 1411, 84 L. Ed.2d 795 (1985). (SC-1).
With that r esolved, the c ase p roce eded befo re a ju ry, which convicted Evans of the two murders and related offenses and sentenced him to death. He appealed, raising 17 issues. The
18 In order to keep account of, and distinguish, the various proceedings in which Evans’s complaints have been reviewed by a court, we shall label them by the court in which they were brought: CA (Maryland Court of Appeals); SC (United States Supreme Court); PC (State Circuit Court considering post conviction petition, motion to correct illegal sentence, or other collateral attack); DC (U.S. District Court considering habeas corpus petition); C4 (U.S. Court of Appeals considering appeal from denial of habeas corpus by U.S. District Court).
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first ten dealt with the trial as to guilt or innocence and the remaining seven pertained to the sentencing proceeding:
(1) An in-court identification by Calvin Harper should have been suppressed because it was tainted by a suggestive and unreliable pre-trial identification;
(2) He was entitled to a mistrial because of the State’s failure to notify him of a photographic identification;
(3) Two State’s witnesses – Calvin Harper and C harlene Sparrow – were incompetent w itnes ses becau se they had prev iously com mitte d perjury;
(4) The trial court erred in denying his motion to compe l a psychiatric examination of Charlene Sparrow, quashing a subpoena for her attendance at trial, and refusing to exclude her testimony at trial;
(5) The trial court erred in denying his motions for further removal from Worcester County and for a continuance in order to individually voir dire prospective jurors;
(6) The trial court erred in admitting certain documents as business records; (7) The trial court erred in admitting a MAC-11 machine pistol as representative of the unrecovered weapon used in the murders; (8) The trial court erred in excluding from the jury venire persons who stated that they would never vote to impose capital punishment; (9) The State’s use of peremptory challenges to exclude African-Americans was improper;
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(10) A renewal of the double jeopardy argument he made in his earlier interlocutory appeal;
(11) The trial court erred in excluding evidence of a minimum parole release date;19
(12) The trial court erred in refusing to instruct the jury that, if it found that the murders were contract murders, it must find as a mitigating factor that Evans was not th e sole cause of the victims’ deaths;
(13) The trial court erred in refusing to instruct the jury that any non-statutory mitigating factors it found to exist could be given as much weight as statutory mitigating factors;
(14) The death penalty law was unconstitutional in that it shifted the burden to defendants to prove the existence of mitigating factors;
(15) The trial court’s instructions regarding reasonable doubt were deficient because they omitted to inform the jury that the State’s proof must be “to a moral certainty;”
(16) Given that there were two murders and only one death penalty can be imposed, it was error to allow the jury, as to each murder, to rely on the aggravating factor that the defendant committed more than one offense of first degree murder arising out of the
19 At the time, State law did not afford the option of life without parole. Evans unsuccessfully sought to introduce evidence that, if convicted of all the offenses charged and given consecutive sentences, he would not have been eligible for parole until he had served 39 years in prison.
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same incident; and (17) Imposition of the death penalty in the case was disproportio nate to
sentences imposed in similar cases. In a 42-page opinion examining each of those issues, this Court found no merit to them
and affirmed. Evans v. State, 304 M d. 487, 499 A.2d 1261 (1985). (CA-2). It was in response to the last com plain t, abo ut disproportionality, that we observed that “[t]he murders giving rise to th is prosecution were as heinous as those in any case to come before us under the present capital punishment statute.” Id. at 539, 499 A.2d at 1288. Evans’s motion for reconsideration, in which he presented six issues, was d enied, Foster, Evans and Huffington v. State, 305 Md. 306, 503 A.2d 1 326 (1986) (CA-3), and the Supreme Court denied certiorari. Evans v. Maryland, 478 U.S. 1010, 106 S . Ct. 331 0, 92 L . Ed.2d 722 (1 986). (SC2).
In March, 1990, Evans filed his first petition under the Post Conviction Act in the Circuit Court for Worcester County. He raised 22 issues in the petition and a dded six more on the day of the hearing. Many of them had been, or could have been, raised in his direct appeal. In summary, they were that he was denied equal protection of the law or due process by or because:
(1) The State’s racially discriminatory use of peremptory challenges; (2) The selection process for veniremen in W orcester County was unlawful in that the county had a 22% black population and the jury venire was only 19.85% black;
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(3) There was an under-representation of minority and young person s on jury panels and as forepersons of jury panels;
(4) The excusing for cause of jurors who had reservations about the death pen alty;
(5) The trial court’s failure to sequester the jury and grant a postponement; (6) The trial court’s refusa l to allow ind ividual voir dire; (7) The jury was “uninformed” because some members had never heard of him or Grandison; (8) The jury was shown an orientation film (about which no specific complaint was made); (9) He was not present at certain bench conferences that constituted critical stages of the trial; (10) The court’s refusal to question prospective jurors on drug usage as a mitigating factor; (11) The fact that an Assistant U.S. Attorney, specially designated as an assistant State’s Attorney, was part of the prosecution team; (12) He was no t advised of his right to a court trial at the guilt/innocence stage; (13) He was not allowed to subject the State’s witness, C harlene Sp arrow, to a psychiatric examination; (14) The State used perjured testimony of Sparrow and Calvin Harper;
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(15) The State failed to disclose excu lpato ry grand ju ry testimony; (16) The admission of a MAC-11 machine pistol; (17) He was subjected to a suggestive lineup; (18) He received ineffective assistance of counsel at both trial and sentencing; (19) Because of his Federal convictions, the State prosecution violated his right against double jeo pard y; (20) Because of the Federal prosecutions, the State prosecution constituted cruel and unusual punishment in violation of the E ighth Amendment; (21) He received ineffective assistance of counsel in his appeal; (22) The trial court’s instructions at sentencing and the sentencing form given to the jury unconstitutionally suggested that unanimity was required in order to find a mitigating factor, in contravention of Mills v. Maryland, 486 U.S. 367, 108 S. Ct. 1860, 100 L. Ed.2d 384 (1988); (23) The State lost jurisdiction over Evans w hen he was transferred, for a time, to the U.S. Bureau of Prisons to serve his Federal sentences; (24) Government agents who investigated the m urders sup pressed fa vorable evidence (that complaint was withdrawn but renewed in subsequent proceedings); (25) The prosecutors made unfair and prejudicial comme nts regarding his failure to present alibi evidence; (26) One juror was not a resident of Worcester County;
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(27) He was not personally served with the State’s notice of its intention to seek the death penalty; and
(28) During c losing argu ment, the prosecutor made improper remarks concerning the effect of the murders on the victims’ families.
On March 28, 1991, the post conviction court (Judge Eschenburg), in a 38-page memorandum opinion, addressed each of those issues and found merit in only one – No. 22. The court held that the sen tencing form did, indeed, violate Mills and that the error was not ameliorated by the court’s instructions to the jury. As tha t error affec ted only the sentencing, the court ordered a new sentencing hearing but denied the request for a new trial as to guilt or innocence. (PC-1).
Both Evans and the State filed an application for leave to appeal that decision. The State complained about the post conviction court’s analysis and application of Mills. Evans complained about 19 of the other rulings not in his favor. In June, 1991, this Court denied both applica tions. State v. Evans, Misc. No. 8, Sept. Term 1991 (Order filed Ju ne 4, 1991). (CA-4). It does not appear that either side sought further review in the Supreme C ourt.
Prior to the new sentencing hearing, pursuant to Evans’s request, the case was removed back to the Circuit Court for B altimore County (Judge Kahl). On November 5, 1992, a jury in that court again sentenced Evans to death, and Evans appealed, raising twelve issues:
(1) Whether there was insufficient questioning of prospective jurors regarding their pred isposition tow ard the death penalty;
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(2) Whether the court erred in failing to ask a voir dire question relating to such predisposition exactly in the form he requested;
(3) The prosecutor impermissibly suggested to the jury that Evans w ould likely escape fr om p rison and be a d anger to society;
(4) The court erred in submitting a presenten ce investiga tion report to the jury without redacting Evans’s initial refusal to speak to the investigator, in violation of his Fifth Amendment right against self-incrimination;
(5) The court erred in permitting victim impact evidence of any kind to be considered b y the ju ry;
(6) The court erred in a dmitting Che ryl Piechowicz’s victim impact statement because it w as prejudicial;
(7) The court erred in refusing to instruct the jury that victim impact evidence is not an appropriate consideration in imposing sentence;
(8) The court erred in admitting certain autopsy photographs of the victims; (9) The court erred in allowing the jury to see a docket entry from which it might infer that the jury at the guilt/innocence trial deliberated for less than two hours; (10) The court erred in refusing two requested instructions on mitigating circumstances; (11) The court erred in admitting a MAC-11 machine pistol at the sentencing hearing; and
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(12) The evidence was insufficient to show that the aggravating factors relied on by the State outweighed m itigating factors and that the sentence was not imposed under the influence of passion, prejudice, or any other arbitrary factor.
In February, 1994, in a 34-page opinion, the Court found no merit in any of these complaints and affirmed the judgments. Evans v. State, 333 Md. 660, 637 A.2d 117 (1994). (CA-5). Evans so ught certiorari in the Supreme Cou rt, whic h was denied . Evans v. Maryland, 513 U.S. 833, 115 S. Ct. 109, 130 L. Ed.2d 56 (1994). (SC-3).
On August 29, 1995, Evans filed a second petition for post conviction relief, in the Circuit Court for Baltimore County. The petition raised 41 issues, many of which were clustered and presented in two or more different contexts, and most of which had been previously litigated:
(1) T he State p rosecutio n wa s precluded by double je opardy; (2) The State relinquished its authority over Evans when it m oved him back to the Federal Bureau of Prisons to resume service of his Federal sentences; (3) He received ineffective assistance of trial counsel in the re-sentencing proceeding. Trial counsel, he said, was ineffective in:
(a) Failing to call Roberta Weinstein and Darece Pinkney as witnesses to contest the State’s evidence that he was a principal in the first degree in the murders;
(b) Subm itting certain sup plemental voir dire question s belatedly; (c) Failing to challenge the State’s alleged systematic exclusion of
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African-American jurors; (d) Failing to ask specific, individual questions on voir dire going to juror
pred isposition tow ard the death penalty; (e) Failing to request that the judge ask voir dire questions re lating to
racial bias; (f) Belatedly making a Batson argumen t; (g) Incompetently cross-examining Charlene Sparrow; (h) Failing to interview and present witnesses from the Federal prison
in Marion, Illinois to offer testimony regarding how Evans positively affected their lives; (i) Failing to properly investigate Evans’s parole eligibility and projected
release date if he received life sentences; (j) Failing to ask the sentencing judge to formulate a proper response to
two questions from the jury relating to the effect of life sentences; (k) Failing to object to the court’s instruction concerning the jury’s
consideration of Evans’s allocution; and (l) Agreeing to removal of the re-sentencing from Worcester County to
Baltimore County; (4) He received ineffective assistance of appellate counsel in the re-sentencing
proceeding, in that appellate counsel: (a) Failed to raise the issue of ineffective assistance of trial counsel;
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(b) Failed to complain that the re-sentencing jury did not represe nt a fair cross-section of the com mun ity;
(c) Failed to complain about the trial judge’s attempt to “rehabilitate” jurors who sh owe d a bias in favo r of the death penalty;
(d) Failed to illustrate the def icient voir dire by omitting to point out that certain jurors were not asked certain questions;
(e) Failed to complain ab out the court’s striking of jurors for cause after denying follow-up questions sought by defense counsel;
(f) Failed to complain about the trial court’s failure to conduct individual voir dire as to racial attitudes;
(g) Failed to complain about the trial court’s re fusal to bifu rcate the resentencing proceeding;
(h) Failed to raise a Batson issue relating to the State’s peremptory strikes of African-American jurors; and
(i) Failed to co mplain tha t the death penalty is unconstitutional because it is imposed disproportionately on African-Americans in cases involving white victims;
(5) The sentencing jury did not represent a fair cross-section of the comm unity because of systematic exclusion of racial minorities from jury panels;
(6) The re-sentencing court erred in conducting voir dire generall y; (7) It erred specifically in failing to conduct adequate voir dire into racial
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attitudes; (8) The court erred in relyin g on jury instructions to compensate for
inadequacies in voir dire; (9) The court erred in allowing concerns of judicial economy to outweigh a
constitutionally sufficient voir dire; (10) The court erred in failing to bifurcate the sentencing proceeding; (11) The court erred in denying Evans’s Batson challenge; (12) The court failed to correct prosecutorial misconduct during closing and
rebuttal argument; (13) The court failed to redact a portion of th e presenten ce investigation report; (14) The death penalty constitutes excessive punishment; (15) The dea th penalty is unconstitutional because it is imposed
disproportion ately on African-Americans involving white victims (this was repeated in several different contexts);
(16) Evans was denied effective assistance of counsel at his first post conviction proceeding;
(17) He was denied equal protection of the law because post conviction counsel was ineffective in presenting a Batson complain t;
(18) The dea th penalty is unconstitutional because it is imposed disproportionately on males;
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(19) The trial court erred in refusing to allow Charlene Sparrow to undergo a psychiatric examination to determine her competence to testify;
(20) The prosecutor engaged in a pattern of using peremptory challenges to strike jurors on the basis of race; and
(21) Trial counsel was deficient in failing to present evidence of that pattern. On January 24, 1997, in a 26-page memorandum opinion, the Circuit Court (Judge Smith) discussed each of those complaints, found that most of them had previously been litigated and that no ne had m erit, and denied the petition . (PC-2). Evans filed an application, and then a 37-p age ame nded app lication, for leav e to appeal, which this Court considered and denied. See Evans v. State, 345 M d. 524, 693 A.2d 780 (1997). (CA-6). He then sought review by the Supreme Court, which, in November, 1997, also w as deni ed. See Evans v. Maryland, 522 U.S. 966, 118 S. Ct. 411, 139 L. Ed.2d 314 (1997). (SC-4). On Novem ber 3, 1997 , Evans filed a petition for habeas corpus in the U.S. District Court, raising 24 issues, several of which had sub-parts – essentially the iss ues previo usly raised in the State courts:
(1) The prosecutor’s use of peremptory challenges at the guilt phase trial in 1984 – the Batson claim;
(2) Ineffective assistance of counsel at resentencing because of: (a) Failure to call witnesses Weinstein and Pinkney to testify; and (b) Failure to call an expert on Federal parole to testify that Evans w ould
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not begin serving his State sentences for at least 30 years; (3) The prosecutor’s use of perem ptory challeng es at the guilt p hase trial in
violation of Swain v. Alabama, supra, 380 U.S. 202, 85 S. Ct. 824, 13 L. Ed. 2d 759; (4) The ven ire in Worcester County in 1984 did not reflect a fair cross-section
of the com mun ity, with respec t to the petit jury; (5) The ven ire in Baltimo re Coun ty in 1983 did not reflect a fair cross-section
of the com mun ity with respec t to the grand ju ry; (6) The trial court in the g uilt phase erre d in not perm itting individual voir dire; (7) The trial court erred in not removing the case from Worcester County
beca use o f adv erse publicity; (8) A pretrial identification of Evans by Calvin Harper was unduly suggestive
and tainted his in-court identification; (9) The trial court erred in refusing to order a psychiatric examination of
Charlene Sparrow; (10) The re-sentencing jury in Baltimore County did not reflect a fair cross-
section o f the commun ity; (11) Voir dire with respect to the re-sentencing jury was inadequate and the
court erred in refusing to strike certain jurors for cause; (12) Appellate counsel in Evans’s direct appeal was ineffective in failing to
contest Judge Kahl’s failure to strike those jurors for cause;
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(13) The re-sentencing court failed to provide a dequate voir dire with respect to the racial attitudes of prospective jurors;
(14) The re-sentencing court erred in refusing to bifurcate the re-sentencing proceeding, to deal first with principalship and then with aggravating and mitigating factors;
(15) The re-sentencing court failed to give an adequate response to a jury note regarding the nature and length of other sentences imposed on Evans;
(16) Counsel at the re-sentencing were ineffective by failing to produce evidence of Evans’s good behavior in prison;
(17) Counse l was also ineffective in eliciting a damaging response from Charlene Sparrow on cross-examination;
(18) The re-sentencing court erred in allowing allocution too close to the time it instructed th e jury regarding Evans’s righ t not to tes tify;
(19) Re-sentencing counsel was ineffective in failing to object to the timing of the allocution;
(20) The re-sentencing court erred in failing to redact a statement in the presentence investigation report that Evans had initially refused to speak with the investigator;
(21) There was improper argument from the prosecutor; (22) In light of his Federal convictions, the State prosecution was barred by double jeopardy principles; (23) Maryland relinquished authority over Evans by returning him to Federal
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custody; and (24) The death penalty is unconstitutional because it constitutes excessive
punishment and is disproportionately imposed on African-Am ericans who murder white victims.
In a 36-page opinion, the District Court (Judge Legg) considered each of those complaints, found that many had previously been litigated, concluded that there w as no me rit to any of them, and denied the petition. See Evans v. Smith, 54 F. Supp.2d 50 3 (D. Md. 19 99). (DC-1). After the court denied a motion for rehearing, Evans appealed to the U.S. Court of Appeals for the Fourth Circuit.
While the appeal to the Fourth Circuit court was pending, Evans filed a motion in the Circuit Court for Baltimore County to reopen his 1995 post conviction proceeding to add a claim that the State withheld an FBI report recounting an agent’s interview with one Janet Bannister. Regarding that report as exculpatory evidence, Evans claimed a violation of Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed.2d 215 (1963). The court (Judge Smith) denied the motion on the grounds that Evans’s affidavit and petition were insufficient to show that the State had failed to provide the exculpatory material, that, even if it had, Evans failed to show that he was prevented from raising that claim in his first post conviction proceeding, and that Bannister’s statement was insufficien t in any event to s upport a rea sonable probability that the outcome of the re-sentencing proceeding would have been any differen t. See Evans v. S tate, No. 83-CR-2339 (Circ. Ct. for Baltimore County, October 20, 1999).
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(PC-3). Evans filed an application for leave to appeal that decision, w hich this Court denied. See Evans v. State, Misc. N o. 18, Sept. Term 1999. (CA-7).
In February, 2000, Evans filed a second petition for habeas corpus in the U.S. District Court, raising only the Brady claim. He sought leave from the Fourth Circuit court to file that petition as a successive petition and asked that the District Court treat it as a motion to reopen his original habeas corpus petition. (DC-2). The Fourth Circuit court dealt with that issue in the appeal fro m the District Court jud gment w hich, in July, 200 0, it affirmed , finding no merit in any of Evans’s claims. See Evans v. Smith, 220 F.3d 306 (4th Cir. 200 0). (C4-1). Evans sought review in the Supreme Court, which was denied. Evans v. Smith, 532 U.S. 925, 121 S. Ct. 1367, 149 L. Ed.2d 294 (2001). (SC-5).
In May, 2000, while the Federal appeal was still pending, Evans filed in the Circuit Court for Baltimore County a Motion to Correct Illegal Sentence and a Motion for New T rial. The first motion was based on an amendment to the death penalty law that took effect ve ry shortly after the mu rders were committed . The ame ndment re moved in toxication as a specific statutory mitigating factor and permitted a jury to find it as a mitigator under the catchall provision for mitigating factors. Evans claimed that constituted an unlawful ex post facto law. The motion for new trial was based on supposedly newly discovered evidence in the form of FBI interview reports that would allegedly impeach the testimony of two Sta te’s witnesses that he was the person who actually shot the victims. Those motions were initially denied, but, while an appeal to the Court of Special Appeals from that ruling was pending, the court
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rescinded its order and scheduled a hearing. The appeal was subsequently dismissed. In April, 2001, Evans filed a second motion in the Circuit Court to reopen the 1995
post conviction proceeding, claiming that, under Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L . Ed.2d 435 (200 0), the 1983 indictment that triggered the State prosecution was Constitutionally deficient because it did not allege either principalship or the aggravating factors upon which the State intended to rely. The motion also asked that execution of the death sentence be stayed pending completion of a legislatively commissioned study of the implementation of the dea th penalty (the Paternoster Study). A month later, before any ruling on that motion, Evans filed a second Motion to Correct Illegal Sentence and/or Motion for New Sentencing Based on Mistake and Irregularity. That motion was also based on Apprendi. On October 12, 2001, the court denied the motion to reopen the post conviction proceeding (Judge Turnbull) (PC-4), and, on December 14, 2001, this Court denied Evans’s application for leave to appeal that ru ling. (CA-8).
On July 18, 2003, following an evidentiary hearing and consideration of supplemental briefs, Judge Kahl entered two orders denying the Motion for New T rial and the M otion to Correct Illegal S entenc e. (PC-5). Evans appealed, and, in a 37-page opinion, we affirmed, holding that (1) the shif t of intoxication to a catchall mitigator did not constitute an ex post facto law, and (2) the FBI reports, even if newly discovered , failed to create a substantial possibility that a jury would find that Evans was not the shooter. See Evans v. State, 382 Md. 248, 855 A .2d 291 (2004 ). (CA-9). Evans moved for reconsideration, which was denied.
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(CA-10). As usual, he then sought review by the Supreme Court and that too was denied. Evans v. Maryland, 543 U .S. 1150, 125 S . Ct. 132 5, 161 L . Ed.2d 113 (2005). (SC-6).
Upon the denial of certiorari by the Supreme Court, the Circuit Court for Baltimore County issued a warrant of execution. That prompted a new round of proceedings. On February 28, 2005, Evans filed a Motion to Stay Warrant of Execution and a Motion to Correct Illegal Sentence, arguing that (1) his sentence was illegal because it emanated from a pattern of racial and geographic discrimination in the implementation of the death sentence in Maryland, and (2) the indictment that triggered the prosecution w as Constitu tionally defective under Apprendi v. New Jersey, supra, and Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428, 153 L . Ed.2d 556 (2002). In March, Evans filed a separate motion to correct illegal sentence and supplemented the pending one, complaining that use of a preponderance of the evidence standard in the balancing of aggravating and mitigating factors violated various provisio ns of the Maryland Co nstitution .
A week later, the court entered an order denying all motions (PC-6), and Evans appealed. We affirmed , holding, first, that a motion to correct illegal sentence was not the appropriate vehicle to raise a selective prosecution claim based on the by-then-completed Paternoster Study, and second, that none of his Apprendi/Ring argumen ts had m erit. Evans v. State, 389 Md. 456, 886 A .2d 562 (2005 ). (CA-11). His motion for reconsideration was also denied. (CA-12). For the seventh time, Evans soug ht certiorari in the Supreme Court, which was denied. Evans v. Maryland, ___ U.S. ___, 126 S. Ct. 1442, 164 L. Ed.2d 141
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(2006). (SC-7). In August, 2005, Evans filed another Motion to Correct Illegal Sentence in the Circuit
Court for Baltimore County, raising two issues: (1) that his attorneys at his 1992 re-sentencing hearing were C onstitutionally ineffective because of their failure to investigate substantial mitigating evidence relating to his background; and (2) his death sentence was imposed by a jury selected in viola tion of the equal protection clause. The first complaint was based on Wiggins v. Smith, 539 U.S. 510, 123 S. Ct. 2527, 156 L. Ed.2d 471 (2003) and Rompilla v. Beard, 545 U.S. 374, 125 S. Ct. 2456, 162 L. Ed.2d 360 (2005). The second – essentially a Batson challenge – is based as well on Miller-El v. Dretke, 545 U.S. 231, 125 S. Ct. 2317, 162 L. Ed.2d 196 (2005). On December 15, 2005, Judge Kahl entered an order denying the motion, concluding that, under controlling decisions of this Court, those complaints, even if valid, did not make the sentence illegal. (PC-7). On December 29, 2005, Evans appealed. That appeal is now before us as No. 107.
On December 20, 2005, Evans filed a third motion to reopen the 1995 post conviction proceeding. That motion was based entirely on the Paternoster Study whic h, accordin g to Evans, showed that the B altimore County State’s Attorney’s Office engaged in unconstitutional race-based selective prosecution. On January 19, 2006, that motion was denied (Judge Turnb ull). (PC-8). Evans filed an application for leave to appeal, which we granted and is now before us as No. 123.
On January 23, 2006, Evans filed a fourth motion to reopen the 1995 post conviction
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proceeding in order to present the Wiggins and Miller-El issues prese nted in the m otion to correct illegal sentence. On February 2, 2006, the Circuit Court denied that motion (Judge Turnbu ll) (PC-9) and Evans filed an application for leave to appeal, which we granted. That is No. 124.
On January 20, 2006, Evans, along with the National Association for the Advancement of Colored People, the American Civil Liberties Union Foundation of Maryland, and Maryland Citizens Against State Executions, filed a separate action in the Circuit Court for Baltimore City seeking to enjoin the D ivision of Correction from using lethal injections to inflict the death p enalty under its current execution protocol on the grounds that (1) the execution protocol materially conflicts with the State’s death penalty statute; (2) the protocol was not adopted in conformance with the Administrative Procedure Act; and (3) several of the regulations conflict with the specific directives of the W arrant of E xecution f iled in this case by Judge T urnbull. O n January 31 , 2006, the C ircuit Court denied preliminary injunctive relief (PC-10), and Evans and the other plaintiffs appealed to the Court of Special Appeals. We granted certiorari on our own initiative (No. 122), stayed the warrant of execution that had be en issue d, and c onsolid ated the four ap peals. (CA-13, 14, 15, and 16).
Contemp oran eously, on January 19, 2006, E vans filed an action in the U .S. District Court, complaining that the execution protocols of the Division of Correction create a risk that he will be conscious during the execution process and accordingly will suffer unnecessary pain. See Evans v. Saar, Civil No. 06-149 (U .S. Dist. Ct. D. Md.). He a sked for a declaratory
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judgment that the Division’s protocols violate the Eighth and Fourteenth Amendments and a permanent injunction barring the Division from using those protocols to carry out an execution against him. On February 1, 2006, the court denied Evans’s motions for temporary restraining order and preliminary injun ction. Evan s appealed to the Court o f Appe als for the Fourth Circuit, but when this Court stayed the outstanding warrant of execution pending resolution of the appeals now before us, he dismissed that appeal, and the case has been tried but remains open in the District C ourt. (DC-3).
In December, 2005, Evans commenced an administrative challenge to the execution protocols by filing a request for administrative rem edy with the warden of the Maryland Penitent iary. When the warden denied that request, Evans appealed to the Commissioner of Corrections. The Commissioner rejected the appeal on February 27, 2006, and Evans filed a complain t with the Inm ate Grievance Office (IGO). On June 2, 2006, an administrative law judge, acting for the IGO, concluded that (1) the execution protocols are not inconsistent with § 3-905 of the Correctional Services Article, (2) portions of them do constitute a regulation under the Administrative Procedure Act and are ineffective because they were no t adopted in conformance with that Act, and (3) there was a m aterial dispute of fact as to whether the condition of Evan s’s veins w ill render the execution protocols, as to him, violative of the Eighth Amendment prohibition against cruel and unusual punishment. The Secretary of Public Safety and Correctional Services rejected the second determination on June 27, and on July 26, 2006, Evans filed a petition for judicial review in the Circuit Court for Baltimore
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City. (PC 11). -26-

IN THE COURT OF APPEALS OF MARYLAND
Nos. 107, 123, 124
September Term, 2005 ______________________________________
VERNON EVANS, JR.
v.
STATE OF MARYLAND ______________________________________
No. 122
September Term, 2005 _____________________________________
VERNON EVANS, JR., ET AL.
v.
STATE OF MARYLAND ______________________________________
Bell, C.J. Raker Wilner Harrell Battaglia Greene Rodowsky, Lawrence F. (Retired,
Specially Assigned),
JJ. ______________________________________
Dissenting Op inion by Bell, C.J., which G reene, J., joins in parts C and D Only. ______________________________________
Filed: December 19, 2006

Vernon Evans, Jr. challenges the judgments of the Circuit Court for Baltim ore Cou nty denying: his motion, filed, pursuant to Maryland Rule 4-435 (a) and premised on the holdings in Wiggins v. Smith, 539 U.S. 510, 123 S. Ct. 2527, 156 L. Ed. 2d 471 (2 003), Rompilla v. Beard, 545 U.S. 374, 125 S. Ct. 2456, 162 L. Ed. 2d 360 (2005), and Miller-El v. Dretke, 545 U.S. 231, 125 S. Ct. 2317, 162 L. Ed. 2d 196 (2005) (“Miller-El II”), to correct an illegal sentence (Appeal # 107) and his Motion to Reopen Post-Conviction Proceeding, premised on these decisions (Appeal # 123) and on the findings of a study of the Maryland capital punishment system by University of Maryland P rofessor Raymond Paternoster, and request, in connection therewith, for discovery (Appeal # 124), and the challenge by Evans and others1 to the judgment of the Circuit Court for Baltimore City denying their motion for preliminary injunctive relie f, to enjoin his execution, and all other executions, by lethal injection under the current protocol, which they alleged was improperly promulgated and was materially in conflict with Maryland Code (1999, 2006 Cum . Supp.) § 3-905 of the Correctional Services Article (App eal # 122). The majority finds merit only in the argument that the execu tion protocol was not prop erly promulgated. __ Md. __, __, __ A.2d __, __ (2006) [slip op. at 3]. As to this aspect of Appeal No. 122, it reverses the judgment of the Circuit Court for Baltimore City and remands the case to that court for issuanc e of a “final” injunction, id. at __, __ A.2d at __ [slip op. at 91,] enjoining its use “until either (1) it is adopted as a regulation in accordance with the Adm inistrative Procedure Act, or (2) the
1The other parties involved are The National Association for the Advancement of Colored People, The American Civil Liberties Union, and Maryland Citizens Against State Executions.

Legislature exempts it from the requirements of that Act.” Id. at __, __ A.2d at __ [Slip op. at 3].
I do not disagree with the majority’s resolution of the “regulation” issue. On the other hand, I can not agree w ith its other hold ings and, ind eed, take strong excep tion to them. Accordingly, as to each of them , I dissent.
A. Maryland Rule 4-345, SENTENCING--REVISORY POWER OF COURT, provides, as relevant, “[t]h e court m ay correct an illegal sentence at any time.” To be sure, “ as a gene ral rule, a Rule 4-345(a) motion to correct an illegal sentence is not appropriate where the alleged illegality ‘did not inhere in [the defendant's] senten ce.’ State v. Kanaras, [357 Md. 1 70, 185 , 742 A .2d 508 , 517 (1999)]. A motion to correct an illegal sentence ordinarily can be g ranted only where there is some illegality in the sentence itself or where no sentence should have been imposed. See, e.g., Ridgeway v. State, 369 Md. 165, 171, 797 A.2d 1287, 1290 (2002); Holmes v. State, 362 Md. 190, 763 A.2d 737 (2000); Moosavi v. State, 355 Md. 651, 662-663, 736 A.2d 285, 291 (1999). On the other hand, a trial court error during the sentencing proceeding is not ordinarily cognizab le under Rule 4-345(a) where the resulting s entence o r sanction is itself lawful. Randall B ook Corp. v. State, 316 Md. 315, 323, 558 A.2d 715, 719 (1989) (‘[W]hile improper motivation may justify vacation of the
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sentence, it does not render the sentence illegal within the meaning of Rule 4-
345. Appellant did not raise this contention on direct appeal and may not do
so here’). See also Hill v. United States, 368 U.S. 424, 430, 82 S. Ct. 468, 472,
7 L. Ed. 2d 417, 422 (1962).”
Evans v. State, 382 Md. 248, 278-79, 855 A.2d 291, 309 (2004). There is, however, as the
Evans Court itself acknowled ged, “an exception to the abo ve-sum marized principles,”
“where, in a capital sentencing proceeding, an alleged error of constitutional dimension may
have contributed to the death sentence, at least where the allegation of error is partly based
upon a decision of the United States Supreme Court or of this Court rendered after the
defe ndant's capital sentencing proceeding.” Id. It cited as an exa mple o f the ex ception , Oken
v. State, 378 Md. 179, 835 A.2d 1105 (2003), cert. denied, 541 U.S. 1017, 124 S. Ct. 2084,
158 L. Ed.2d 632 (2004), which it summarized:
“[Oken] was a Rule 4-345 proceeding to correct an illegal or irregular sentence. The defendant Oken argued, relying on recent Suprem e Court cases,[2] that a constitutional error in the capital sentencing proceeding
2Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000) (in which the Supreme Court ruled that any fact that increased the penalty for a crime above the statutory maxim um must be submitted to a jury and proved beyond a reasonable doubt), and Ring v. Arizona, 536 U.S . 584, 122 S . Ct. 2428, 1 53 L. Ed . 2d 556 (2 002) (in which the Supreme Court held that an Arizona statute pursuant to which, following a jury adjudication of a defendant's guilt of first-degree murder, the trial judge, sitting alone, determines the presence or absence of the aggravating factors required by Arizona law for imposition of the death penalty, violates the Sixth Amendment right to a jury trial in capital prosecutions).
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contributed to the death sentence. Section 2-303(i) of the Maryland death penalty statu te provid es that the trier of facts ‘shall determine by a preponderance of the evidence whether the aggravating circumstances under subsection (g) of this section outw eigh the mitigatin g circum stances .’ (Emphasis added). In Oken, the case was presented to the sentencing jury under this ‘preponderance of the evidence’ standard. The defendant Oken had raised no objection to this in the sentencing proceeding or in a prior post conviction proceeding. In the Rule 4-345 proceeding, however, Oken argued that the preponderance of the evidence standard violated due process and that a ‘beyond a reasonable doubt’ s tandard w as constitution ally required. Th is Court, in the Rule 4-345 proceeding, resolved the merits of the constitutional issue, with the majority holding that application of the ‘preponderance of the evidence’ standard was constitutional. See also Oken v. State, 367 Md. 191, 195, 786 A.2d 691, 693 (2001), cert. denied, 535 U.S. 1074, 122 S. Ct. 1953, 152 L. Ed.2d 855 (2002), where the Court decided the merits of a similar challenge by the defendant Oken.
Id. at 279-280, 855 A.2d at 309.
Concluding that the case presented by Evans was in the same posture - he claimed,
relying chiefly on Carmell v. Texas, 529 U .S. 513 , 120 S . Ct. 162 0, 146 L . Ed. 2d 577
(2000), a United States Supreme Court opinion filed after his 1992 capital sentencing
proceeding, that a provision of the Maryland death penal ty statute was unconstitutio nally
applied to him at his capital sentencing proceeding and that this alleged error may have
resulted in the death sentence - w e decided the m erits of that claim. Id. at 280, 855 A. 2d at
309-3 10.
More recently, this Court, in Baker v. S tate, 389 Md. 127, 883 A.2d 916 (2005),
applied the histo ric appr oach to illegal se ntence review . There , the def endan t, under sentence
of death, which had been affirmed on direct appea l, filed, pu rsuant to Rule 4 -345(a ), a
Motion to Correct a n Illegal Sen tence, as w ell as a Motion to Reopen the Post-Conviction
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Proceeding, and a Petition for Post-Conviction Relief. 389 Md. at 131, 883 A.2d at 918. The defendant principally relied on a University of Maryland study of the Maryland Capital punishment system conducted b y Professor Raymond Paternoster of the University of Maryland, 389 Md. at 131, 883 A.2d at 918, the same study relied upon which Evans relies in the instant case, albeit for a different legal purpose. Contending that study’s statistical findings establish that Maryland’s death penalty was sought mo re frequently depending on the racial combinations of the accused an d the victim and dependin g on the ge ographic location of the prosecuted charge, the defendant argued that the death penalty statute was applied to him unconstitutionally. 389 M d. at 132, 883 A.2d at 918-919.
Relying on the con stitutionality of M aryland's death penalty statute under the Eighth and Fourteenth Amendments, citing Gregg v. Georgia, 428 U.S. 153, 168-69, 96 S.Ct. 2909, 2922-23, 49 L. Ed. 2d 859, 871-72 (1976) and Baker v. S tate, (Baker II), 367 Md. 648, 676, 790 A.2d 629, 646 (2002) and the lack of direct and specific evidence in the record to “suggest that Baker's death sentence was surrounded by impropriety of any kind,” citing Baker v. State, (Baker I), 332 Md. 542, 571, 632 A.2d 783, 797 (1993), the Court pronounced Baker's death sentence to be itself lawful, validly imposed, and, thus “ not illegal under the pre-Oken general analytical principles governin g motions brought under Rule 4-345(a).” Baker v. State (Baker III), 389 Md. 127, 137-38, 883 A.2d 916, 922 (2005). Acknowledging Oken and Evans, and the exception they represent, but noting the distinction between them and the case under review, the Court concluded that the historic approach, and
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not the exception, applied to Baker’s case. With regard to the exception, the Court observed:
“In a capital sentencing context, a motion to correct an illegal sentence enables the court to re-evaluate the initial sentence to ensure that it is not illegal, as that term has been defined in our cases considering Maryland Rule 4 -345(a), its predecessors, and the common law. It is not an opportunity for the parties to litigate or re-litigate factual issues, but rather a vehicle to demonstrate, particularly in the case of the constitutional decision exception, that newly declared common law causes a penalty that was legal when administered now to be illeg al as a matter of constitutio nal law.”
Id. at 140, 883 A.2d at 924 (footn ote om itted). Thus, the Court reasoned: “because Baker
relies almost e xclusiv ely upon the Pate rnoster S tudy, rather than a ‘new’ judicial decision
bearing on relevant constitutional law, to establish the argued illeg ality in his sentence, h is
argumen ts do not fall within the exception recognized in Oken and Evans.” Id. at 138, 883
A.2d at 922-23.
Subsequ ently, in Evans v . State, 389 Md. 456, 462-63, 886 A.2d 562, 565 (2005), the
Court confirmed its Baker decision, holding that “a statistical analysis conducted by
Raymond Paternoster, a Professor of Criminology and Criminal Justice at the University of
Maryland, which Evan s claims establishes a pattern of racial and geographic discrimination
in the implementation of the death pen alty in Maryland ,” is not “ an appro priate vehicle to
raise this issue.” Like Baker, however, it recognized, and did not disavow, the exception to
the “historic” approach this Court has recognized:
“We acknowledged in Baker that, in Oken v. State, 378 Md. 179, 184-86, 835 A.2d 1105, 1 108, 1157-58 (20 03), cert. denied, 541 U.S . 1017, 124 S. Ct. 2084, 158 L. Ed.2d 632 (2004), and in Evans v . State, supra, 382 Md. at 279, 855 A.2d at 309, w e had recognized a limited exception to that general principle and had entertained a motion under Rule 4-345(a) where ‘in a capital
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sentencing proceeding, an alleged error of constitutional dimension may have contributed to the death sentence, at least where the allegation of error is pa rtly based upon a decision of the United States Supreme Court or of this Court rendered after the defendant's capital sentencing proceeding.’” Id. at 463-64, 886 A.2d at 566, quoting Baker, supra, 389 Md. at 136, 883 A.2d at 921, in turn quoting Evans, supra, 382 Md. at 279, 855 A.2d at 309. It is Evans’ contention that the decisions in Wiggins v. Smith, 539 U.S. 510, 123 S. Ct. 2527, 1 56 L. Ed. 2d 471 (2003), Rompilla v. Beard, 545 U.S. 374, 125 S. Ct. 2456, 162 L. Ed. 2d 360 (2005), and Miller-El v. Dretke, 545 U.S. 231, 125 S. Ct. 2317, 162 L. Ed. 2d 196 (2005) are new “interpretations” of relevant constitution al precedents, Wiggins and Rompilla of Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984) and Miller-El of Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986), supporting his argument that an error may have c ontributed to the impositio n of his sentence of death, and, therefore, require correction of that illegal sentence. In other words, Evans contends that the death sentence he received, although legal when imposed, is, in light of these decisions now illegal. A ccordin gly, a Rule 4-345 (a) motion is appropriate. I agree.
1. At his 1992 resentencing, Evans’ counsel presented a mitigation case. It consisted only of the testim ony of six fam ily members, the essence of which was that Evans grew up in a stable and supportive family. No professionals were called to provide mitigating evidence or an expert opinion with respect to Evans’ background or pre-criminal justice system involvement. Aside from testifying that they loved him and hoped that his life would
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be spared, they painted a picture of a home-life and environment that was happy and s table and of a family that was supportive of him. The testimony described family outings and family dinners, playfu l children and nurturing and concerned parents, who guided them through their young years. T he testimon y also reflected these relatives’ disbelief and astonishment that Evans had not accepted this lifestyle and, inste ad, had rejec ted it and his upbringing, favoring a life of drugs and violence.
In preparing the mitigation case they would present, counsel did not commission a social history report to be prepared and, thus, none was prepared. Although they retained a mitigation specialist, she was not made a part of the defense team and was not a sked to conduct an investigation of Evans’ background or family history. As a result, the mitigation specialist conducted almost no investigation, she never met Evans and spoke to just a few of his family members. No one on the defense team, or on its behalf, reviewed, critically, the pertinent social services records pertaining to Evans and, so, the picture painted by the mitigation testimony was neither questioned nor critically analyzed.
This is to be contrasted with the investigation and preparation undertaken by new counsel, after the Wiggins and Rompilla cases, discussed infra, were decided by the United States Supreme Court. Counsel retained a mitigation specialist and charged her with conducting an investigation of Evans’ family and psychosocial history. Having received her report, the findings of w hich were different from the picture painted by the mitigation
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case presented at resentencin g and, inde ed, was in d irect conflict w ith it,3 counsel retained
the services of a psychologist to evaluate Evans. She concluded, after reviewing the social
history report prepared by the mitigation specialist, interviewing Evans and reviewing
records, that Evans met, and had done so since age 9, the criteria for Post Traumatic Stress
Disorder, Chronic and S evere Depressive D isorder, and Generalized Anxiety Disorder,
which, after numerous missed opportunities to intervene, left Evans vulnerable to the
criminal forces on the City streets.
In Wiggins, the defendant was convicted of capital murder. Prior to his capital
sentencing proceedin g, his attorneys unsuccessfully sought to bifurcate those proceedings,
intending to prove that Wiggins was not directly responsible for the victim’s d eath and, if
that failed, to present a mitigation defense. 539 U.S. at 515, 123 S. Ct. at 2532, 156 L. Ed.
3This is not surp rising. Th e mitigation sp ecialist interviewed Evans and twentynine of his family members, as well as a childhood friend and a one-time next door neighbor. She spent some thirty hours interviewing Evans and collected and reviewed a number of D.O.C.uments and records, school, medical and prison, relating to him. As a result the mitig ation spec ialist prod uced a 51 page report, w ith a n ine (9) pa ge su mmary, in which she concluded that Evans “grew up in a toxic household characterized by chronic conflict, predictable violence, and hopeless despair.” Specifically, she reported frequent and severe beating of Evans, during his childhood, by his father, abandonment on two occasions, the absence of expressions of parental love or approval, that he was singled out for harsh treatment, that he attempted suicide at age ten, for which he was never treated and of which the family never spoke, that he was sexually assaulted when he was eleven and verbally and physically harrassed at school and in the neighborhood and that he was exposed to pervasive crime and violence in his neighborhood. In addition, the m itigation specialist concluded that Evans and his family were adversely impacted by a significant history of untreated mental-health and substance abuse problems and violence.
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2d at 481. The motion to bifurcate w as denied and, although counsel informed the jury in
opening statement that it would hear about Wiggins’ “difficult” life,4 id. at 515, 123 S. Ct.
at 2532, 156 L. Ed. 2d at 481, th ey did not prod uce, or attem pt to produce, any such evidence.
Id. Indeed, despite proffering to the court the mitigation case it would have presented had
its bifurcation motion been granted, no evidence or information was offered as to Wiggins’
life history or family background.5 Id. at 515-16, 123 S. Ct. at 2532, 156 L. Ed. 2d at 481.
4In ad dition to m entio ning that W iggins ha d a clean record, counse l told the ju ry: “You’re going to hear that Kevin Wiggins has had a difficult life. It has not been easy for him. But he’s worked. He’s tried to be a productive citizen, and he’s reached the age of 27 with no convictions for prior crimes of violence and no conviction s, period . . . . I think that’s an important thing for you to consider.” Wiggins v. Smith, 539 U.S. 510, 515, 12 3 S. Ct. 2527, 2532, 156 L. Ed. 2d 471, 481 (2003).
5 The Supreme Court was not at all sure that Wiggins’s counsel “did ... focus exclusively on Wiggins’s direct responsibility for the murder.” After referencing counsel’s opening statement and noting specially that she did not “follow up” the proffer with details of Wiggins’ history, the Court observed:
“At the same time, counsel called a criminologist to testify that inmates serving life sentences tend to adjust well and refrain from further violence in prison - testimony with no bearing on whether petitioner committed the murder by his own hand. ... Far from focusing exclusively on petitioner’s direct responsibility, then, counsel put on a half-hearted mitigation case, taking precisely the type of ‘shotgun’ approach the Maryland Court of Appeals concluded counsel sought to avoid. ... When viewed in this light, the ‘strategic decision’ the state courts and respondents all invoke to justify counsel’s limited pursuit of mitigating evidence resembles more a post hoc rationalization of counsel’s conduct than an accurate description of their deliberations prior to sentencing.” Wiggins v. Smith, 539 U.S. 510, 526-27, 123 S. Ct. 2527, 2538, 156 L. Ed. 2d 471, 488(2 003), quoting Wiggins v. State, 352 Md. 580, 609, 724 A. 2d 1, 15 (1999). In the passage to which the Court referred, this Court stated: “[Counsel] understood that some lawyers use what he regarded as a ‘shotgun approach,’ attacking everything and hoping that ‘something
(continued...)
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The mitigation case proffered did not involve “any evidence of [Wiggins’] life history or family background,” id. at 516, 123 S. Ct. at 2532, 156 L. Ed. 2d a t 481, although the State made funds available to investigate those matters. Id. at 517, 123 S. Ct. at 2533, 156 L. Ed. 2d at 482. The proffer was simply that he had limited intellectual ability, a childlike emotional state, exhibited no aggressive patterns, had a capacity for empathy and desired to function in the world, all of which would be sup ported by psychological reports and expert testim ony. Id. at 516, 123 S. Ct. at 253 2, 156 L. E d. 2d at 481 . Wiggins w as sentence d to death, and this Court, on direct appeal, affirmed. Wiggins v. State, 324 Md. 551, 597 A.2d 1359 (1991), cert. denied, 503 U .S. 1007, 112 S . Ct. 176 5, 118 L . Ed. 2d 427 (1992).
Seeking post-conviction relief, Wiggins argued that his trial counsel’s failure to investigate his life history or fam ily background and then present mitigating evidence of his dysfunctional background was ineffective assistance of counsel. He relied primarily on Strickland. Under that case, in order to prove ineffective assistance of counsel, a defendant must show that counsel’s performance was deficient, that it fell below an objective standard of reasonableness defined by prevailing professional norms, and that this deficiency
5(...continued) sticks.’ He w as not of that view, how ever, preferring to concentrate his defense. H e did not, therefore, have any detailed background reports prepared, although funds may have been available for that purpose. He expressed some concern that that kind of information might prove counte rprodu ctive.” Id. at 609, 724 A.2d at 15-16.
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prejudiced the def endan t. Strickland, 466 U.S. at 687-688, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693.
In support of his ineffective assistance of counsel argument, Wiggins’ post convictio n counsel presented expert testimony by a forensic social worker who “chronicled [Wiggins’] bleak life history.” 539 U.S. at 516, 123 S. Ct. at 2533, 156 L. Ed. 2d at 482. The testimony was from the social history repo rt, characterized by the Court as “elaborate,” 539 U.S. at 516, 123 S. Ct. at 2531, 156 L. Ed. 2d at 481, the social worker prepared from social service, medical, school records and interviews with Wiggins and numerous family members, and it provided “evidence of the severe physical and sexual abuse [Wiggins] suffered at the hands of his mother and while in the care of a series of fo ster parents.” 5 39 U.S. at 5 16, 123 S . Ct. at 2533, 156 L. Ed. 2d at 482. Acknowledging the failure to investigate Wiggins’ family background or life history, trial counsel defended on the basis that, “well in advance of trial,” they had dec ided, upon re-trial, to concentra te on “retrying the factual case,” 539 U.S. at 517, 123 S. Ct. at 2533, 156 L. Ed. 2d at 482, and disputing W iggins’ direct responsibility for the murder. 539 U.S. at 517, 123 S. Ct. at 2533, 156 L . Ed. 2d at 482. The trial cou rt denied post-conviction relief, concluding, “when the decision not to investigate ... is a matter of trial tactics, there is n o ineff ective a ssistanc e of co unsel.” 539 U.S . at 517-518 , 123 S. Ct. at 2533, 156 L. Ed. 2d at 482.
This Court a ffirme d. Wiggins v. State, 352 Md. 580, 724 A.2d 1 (1999). It agreed with the trial court that counsel’s decision to concentrate on principalship was “a deliberate,
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tactical decision.” 352 Md. at 608, 724 A.2d at 15. Moreover, the Court concluded that Wiggins’ trial counsel knew of Wiggins’ unfortunate childhood; after all, they had availab le to them the PSI report prepared by Parole and Probation and the social services report that detailed, albeit not as graphically as the petitioner’s social worker’s social history, instances of physical and sexual abuse, an alcoholic moth er, foster care placements and borderline retardation. Thus, the C ourt stated that “counsel did investigate and were aware of [Wiggins’] background.” 352 Md. at 610, 724 A.2d at 16. Therefore, it reasoned, Wiggins’ counsel “made a reasoned choice to proceed with w hat they th ought w as their b est defe nse.” 352 Md. at 610, 724 A.2d at 16.
The United S tates District C ourt for the D istrict of Maryland granted relief on Wiggins’ federal habeas petition, holding that Maryland’s rejection of his ineffective assistance of counsel claim was an unreasonable application of clearly established federal law. Wiggins v. Corcoran, 164 F. Supp. 2d 538, 557 (D. Md. 2001). The Fourth Circuit Court of Appeals reversed, holding that trial counsel’s strategic decision to focus on establishing that Wiggins was not directly responsible for the murder was a reasonable one. Wiggins v. Corcoran, 288 F.3d 629, 639-640 (4th Cir. 2002). The United States Supreme Court reversed. It held that the actions of Wiggins’ counsel at sentencing violated his Sixth Amendment right to effective assistance of counsel. 539 U.S. at 519, 123 S. Ct. at 2534, 156 L. Ed. 2d at 483.
In the Supreme Court, Wiggins complained, as had Strickland, about his counsel’s
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decision to limit their investigation of the availability of mitigation evidence. The Supreme Court held that trial counsel’s decision not to expand their investigation beyond the PSI and DSS records, records of which they were already aware, “fell short of the professional standards that prevailed in Maryland...” - standard practice, at that time was to prepare a social history rep ort, Wiggins, 539 Md. at 524, 123 S. Ct. at 2536 , 156 L. Ed. 2d at 486, and the scope of the investigation they undertook was unreasonable in light of what the DSS records revealed about Wiggins’ mother’s alcoholism, her treatment of him and his siblings, his foster care p lacements , emotional d ifficulties, etc., and the fact that counsel had uncovered no evidence indicating that a mitigation case would be, or could be, unproductive. 539 U.S. at 525, 123 S. Ct. at 2537, 156 L. Ed. 2d at 487. Indeed, the Court was satisfied that the record of the sentencing proceeding, because it demonstrated that counsel never abandoned mitigation as a tactic and, in fact, put one on, albeit a “half hearted” attempt, “underscore[d] the u nrea sona blen ess o f cou nsel's conduct by suggesting that their failure to investigate thorough ly resulted from inattention, not reasoned strategic judgment.” Id. at 526, 123 S. Ct. at 2537, 156 L. Ed. 2d at 487.
This Court d id not escape the Supreme Court’s criticism. In fact, we were reminded that the reasonableness of an attorney’s investigation can not be determined by assessing, alone, what the attorney knows; a reviewing court needs also to consider, and determine, whether the known information would lead a reasonab le attorney to investigate further, and that “Strickland does not establish that a cursory investigation automatically justifies a
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tactical decision with respect to sentencing strategy.” Id. at 527, 123 S. Ct. at 2538, 156 L.
Ed. 2d at 488. Accordingly, the Court admonished:
“The Maryland Court of Appeals' application of Strickland’s governing legal principles was objectivelyunreasonable. Though the state court acknowledged petitione r's claim that counsel's failure to prepare a social history ‘did not meet the minimum standards of the profession,’ the court did not conduct an assessment of whether the decision to cease all investigation upon obtaining the PSI and the DSS records actually demonstrated reasonable professional judgmen t. ... The state court merely assumed that the investigation was adequate. In light of what the PSI and the DSS records actually revealed, however, counsel chose to abandon their investigation at an unreasonable juncture, making a fully informe d decision w ith respect to sentencing strategy impossible. The Court of Appeals' assumption that the investigation was adequate ... thus reflected an unreasonable application of Strickland. 28 U.S.C. § 2254(d)(1 ). As a result, the court's subsequent deference to counse l's strategic decision not ‘to present every conceivable mitigation defense,’ ... despite the fact that counsel based this alleged choice on what we have made clear was an unreasonable investigation, was also objectively unreasonable. As we established in Strickland, ‘strategic choices m ade after les s than com plete investigation are reasona ble precisely to the extent that rea sonable p rofessional judgments support the limitations on investigation.’”
Id. at 527-28, 123 S. Ct. at 2 538-39, quoting Wiggins, 352 Md. at 609-610, 724 A.2d at 16
and Strickland, 466 U.S. at 690-691, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695.
Further, the Supreme Court determined that this Court had misapplied the standards
articulated in Strickland. 539 U.S. at 527, 123 S. Ct. at 2538, 156 L. Ed. 2d a t 488. Wh ile
cautioning that its decision did not mean that Strickland required counsel to investigate every
conceiva ble line of mitigating evidence no matter how unlikely the effort would be to assist
the defendant at sentencing, and that Strickland does not require counsel to present mitigating
evidence at sentencing in every case, the Sup reme Court re-asserted the principle that
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strategic choices made after less than complete investigation are reason able only to the extent that reasonable professional judgments support the limitations on investigation. 539 U.S. at 533, 123 S. Ct. at 2541, 156 L. Ed. 2d at 492. It held, ultimately, that “[i]n def erring to counsels’ decision not to pursue a mitigation case despite their unreasonable investigation, the Maryland Cou rt of App eals unreasonably applied Strickland.” 539 U.S. at 534, 123 S. Ct. at 2542, 156 L. Ed. 2d at 492
In addition, the Supreme Court concluded that counsels’ failure to investigate and, then, present mitigating evidence prejudiced Wiggins to the extent that a jury, confronted with such evidence, may have returned a different sentence. 539 U.S. at 536, 123 S. Ct. at 2543, 156 L. Ed. 2d at 494.
Romp illa is also pertinent on the question of the specific application to defense counsel of the reasonable competence standard required by the Sixth Amendment, 545 U.S. 374, 377, 125 S. Ct. 2456, 2460, 162 L. Ed. 2d 360, 369, and instructive, as it teaches, inter alia, that more is required of counsel by way of investigating the possibility of mitigating evidence than simply intervie wing a nd relying on the d efend ant and his fam ily memb ers. 545 U.S. at 381-82, 125 S. Ct. 2456, 2462-63, 162 L. Ed. 2d at 372. There, the Supreme Court held “that even when a capital defendant's family members and the defendant himself have suggested that no mitigating evidence is available, his lawyer is bound to make reasonab le efforts to obtain and review material that counsel knows the prosecu tion will probably rely on as evidence of aggravation at the sentencing phase o f trial.” Id. at 377, 125 S. Ct. at 2460,
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162 L. Ed. 2d at 369. To oppose the evidence presented by the State to justify the death sentence it sought
against the defendant - proof of the aggravating factors that the murder was committed in the course of another felony and by torture and that the defendant’s significant history of felony convictions indicated the use or threat of violence - counsel for Rompilla offered relatively brief testimony by five of the defendant’s fam ily members. Those w itnesses argued, in effect, for reasonable doubt, and begged the jury for mercy, on the basis of their belief that the defendant was innocent and a good man, and, in the case of his 14-year-old son, that he loved his father and would visit him in prison. Although the jury found the latter to be a mitigating factor, along with rehab ilitation being p ossible, it senten ced the de fendant to death. 545 U.S. at 378, 125 S. Ct. at 2460-61, 162 L. Ed. 2d at 370.
In preparing th eir mitigating case, trial counsel c onsulted thr ee sources : Rompilla , his family members and three mental health workers. They got little, if anything, of substance from Rompilla regarding his background, who responded to questions concerning his schooling and childhood by saying they were “normal,” except for his dropping out of school in the 9th grade and, in some instances, by sending counsel off on false leads. 545 U.S. at 381, 125 S. C t. at 2462, 162 L. Ed. 2d at 371-372. Similarly, little of substance was developed by the family members. Although counsel developed a rapport with them, counsel did not have the feeling that they knew Rompilla that well, since he spent a great deal of time incarcerated. And, “because the family was ‘coming from the position that
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[Rompilla] was innocent ... they weren't looking for reasons for why he might have done this.’” 545 U.S. at 382, 125 S. Ct. at 2463, 162 L. Ed. 2d at 372. The three m ental health witnesses, likewise, revealed “nothing useful.” 545 U.S. at 382, 125 S. Ct. at 2463, 162 L. Ed. 2d at 372. Trial counsel did not consult school records, records of Rompilla’s juvenile and adult incarce rations, police reports ava ilable during pre-trial discovery, or anything that might have reflected that Rompilla had a dependence on alcohol. 545 U.S. at 382, 125 S. Ct. at 2463, 162 L. Ed. 2d at 372.
The post-conviction court rejected Rompilla’s claims that his trial counsel had rendered ineffective assistance by their failure to investigate and then present, at sentencing, mitigation evidence concerning Rompilla’s childhood, mental capacity, health, and alcoholism. 545 U.S. at 378, 125 S. Ct. at 2461, 162 L. Ed. 2d at 370. O n the contra ry, it held that the trial counsel had done enough to investigate the possibilities of a mitigation case. The Supreme Court of Pennsylvania agreed and affirmed. Commonwealth v. Rompilla, 539 Pa. 499, 653 A .2d 626 (1995). The Federal District Court granted habeas relief, finding ine ffective assistance of c ounsel. Tria l counsel, the court determ ined, in preparing the mitigation case, had f ailed to investigate “pretty obvious signs” that Romp illa had a troubled childhood and suffered from mental illness and alcoholism, and instead had relied unju stifiably o n Rompilla's own description of an unexceptional background. 545 U.S. at 379, 125 S. Ct. at 2461, 162 L. Ed. 2d at 370. The Third Circuit Co urt of Ap peals reversed, concluding that there was nothing unreasonable about the State Supreme Court’s
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application of Strickland, opining that defense counsel, who had attempted to uncover
mitigation evidence from Rompilla, certain family members, and three mental health experts,
Rompilla v. Horn, 355 F.3d 233 (3rd Cir. 2004), had gone far enough and done enough. 355
F.3d at 2 52.
The Supreme C ourt granted certiorari and reversed. It held that, even when a capital
defendant and his family members have suggested that no mitigating evidence is available,
his lawyer is bound to make reasonable efforts to obtain and review material that counsel
knows the prosecution will probably rely on as evidence of agg ravation at the trial’s
sentencing phase. 545 U.S. at 385-386, 125 S. Ct. at 2465, 162 L. Ed. 2d at 374-375. Thus,
Rompilla’s counsels’ failure to examine a court file on Rom pilla’s prior rap e and assa ult
conviction, a crime similar to the one with which he was charged, was deficient. 545 U.S.
at 385-386, 12 5 S. Ct. at 2465-2466, 162 L. Ed. 2d at 375.
Further,
“[n]o reasonable lawyer would forgo examination of the file thinking he could do as well by asking the defendant or family relations whether they recalled anything helpful or damaging in the prior victim's testimony. Nor would a reasonab le lawyer compare possible searches for school reports, juvenile records, and evidence of drinking habits to the opportunity to take a look at a file disclosing what the prosecutor knows and even plans to read from in his case. Questioning a few more family members and searching for old records can promise less than looking for a needle in a haystack, when a lawyer truly has reason to doubt there is any needle th ere.”
545 U.S. at 389 , 125 S. Ct. at 2467, 162 L. Ed. 2d at 376-377.
The majority asserts that Wiggins and Romp illa are a mere re-applications of
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Strickland to the facts of those cases, and, as such, are not new interpretations of a
Constitutional principle. __ Md. at __, __, __ A.2d at __, __, __ [slip op. at 8, 9]. To the
majo rity, those cases apparently are mere error correction, having absolutely no precedential
value and informing not one future review of ineffective assistance of counsel, even when
they are directly on point. Matter-of-factly, therefore, the majority dismisses Wiggins and
Rompilla, and especially their analysis:
“Nothing in Wiggins or Romp illa changed, in any way, those standards adopted in Strickland. The Wiggins Court expressly relied on and applied the Strickland standards and simply concluded, based on its view of the factual record in that case, that, given the information they had regarding Wiggins’s childhood, counsel’s failure to broaden the scope of their investigation into possible mitigating factors in a death penalty case was both deficient and prejudicial under the Strickland standards. Indeed, the C ourt began its discussion of the ineffective assistance claim by expressly noting that ‘[w]e established the legal principles that govern claims of ineffective assistance of counsel in Strickland v. Washington . ...’ Wiggins v. Smith, supra, 539 U.S. at 521, 123 S. Ct. at 2535, 156 L. Ed. 2d at 484.
* * *
“Like in Wiggins, the Romp illa Court expressly applied the standards enunciated in Strickland to find deficient and prejudicial performance by counsel. No new or different interpretation of Strickland was an nounc ed. Indeed Justice O’Connor, the author of the Opinion in Strickland, noted in Romp illa that the decision ‘simply applies our longstanding case-by-case approach to determining whether an attorney’s performance was unconstitutionally deficient under Strickland v. Washington....’ (O’Connor, J., Concurring).”
Id. at __, __ A.2d at __ ( slip op. at 8-9).6
6This is the only basis on which the majority rejects the applicability of Rule 4-345 (a) to this case. The majority offers no other analysis, nor does it address, or even
(continued...)
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To be sure, neither Wiggins nor Romp illa purports to change the established legal
principles governing ineffective assistance of counsel claims announced in Strickland. See
Wiggins, 539 U. S. at 521, 123 S. Ct. at 2535, 156 L. Ed. 2d at 484; Rompilla, 545 U. S. at
380, 125 S. Ct. at 2462, 162 L. Ed. 2d at 371. They are, indeed, concerned, and seriously
so, with not simply the app lication of the principles w ell established in Strickland, and sought
to be clarified by its progeny, but with the proper and reasonable application of those
principle s. Th us, th ese cases are not mere error c orrection or ex ercis es in futility.7
Federal habeas review is permitted, in fact, only when the federal law as to which
review is so ught is “clea rly established” by Suprem e Court pr ecedents a t the time the sta te
6(...continued) acknowledge, whether the Supreme Court’s determination that this Court, in Wiggins, and the Pennsylvania Supreme Court, in Romp illa, had “objectively u nrea sona bly” applied Strickland, could impact other cases in which that very issue may have been, or could have been, raised.
7It is worth reminding ourselves of what the Wiggins’ Court em phasized w ith regard to the responsibility of the reviewing court when the adequacy of investigation is at issue:
“In assessing the reasonableness of an attorney’s investigation ... a court must consider not only the quantum of evidence already known to counsel, but also whether the known evidence w ould lead a reasonable attorney to investigate further. Even assuming [counsel] limited the scope of their investigation for strategic reasons, Strickland does not establish that a cursory investigation automatically justifies a tactical decision with respect to sentencing strategy. Rather, a reviewing court must consider the reasonableness of the investigation said to support that strategy.” 539 M d. at 527 , 123 S . Ct. at 25 38, 156 L. Ed. 2 d at 488 , citing Strickland, 466 U.S. at 691, 10 4 S. Ct. at 2066, 8 0 L. Ed. 2d at 695.
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court decision is filed. 28 U. S. C. § 2254,8 as amended by the “Antiterrorism and Effective
Death Penalty Act of 1996.” The Court made clear, in Wiggins, the scope of that provision:
“In order for a federal co urt to find a state court’s application of our precedent ‘unrea sonab le,’ the state court’s decision must have been more than incorrect or erroneous. ... The state court’s application must have been ‘objectively unreasonable.’”
Wiggins, 539 U . S. at 520 -21, 123 S. Ct. at 2535, 1 56 L. E d. 2d at 4 84.
Having granted certiorari to review the application of “clearly established Federal
law” as it had dete rmined it, and having decided that the state court had applied the law
objectively unreasonably, I would be surprised, and I suspect the Supreme Court would be
more so, to learn that a state court found previously to have misapplied the “clearly
established Federal law,” was not expec ted to consid er the decisio n so conc luding, and apply
it in cases, involving the same issue, that arise subsequently, and that neither are the many
other state courts that will be called on to apply it. After all, the point of appellate review
is to instruct bench and bar as to the law and to provide precedents that they must follow.
828 U.S.C. § 2254 (d), provides: “(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim“(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or “(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.”
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It makes no sense, not to mention that it trivializes, I believe, the Supreme Court’s review function, to permit a court that has been educated as to the proper application of a wellestablished legal precedent of the Supreme Court, one that the Court has determined has been misapplied “objectively unreasonably,” to avoid having to apply that precedent on the merits, when the issue to which it relates is raised in the context of a proceeding, sanctioned by that court, in this instance, whether to consider illegal sentences or to provide other discretionary relief, simply because the error, the effect of which is just as prejudicial, is not characterized as a “new interpretation” of that Supreme Court precedent. I am sorry, but to me, pointing out that a particular interpretation, and, therefore, application, of a precedent is “objectively unreasonable ,” has the same feel and effects the same result, if it does not amount to the same thing.
In Wiggins, where counsel purported to be pursuing a strategy that did not include mitigation, presenting only a “half hearted” case and neglecting to do a social history report, this Court was instructed that deferral to counsel’s tactical decision relating to mitigation was objectively unreasonable because available information made it reasonable for coun sel to have conducted more of an investigation and the Co urt was required, befo re deferring to the counsel’s decision, to evaluate the knowledge counsel had with that in mind . In this case, counsel presen ted a mitigation case, albeit, it was not a p articularly strong one . They too did not do a social history report, accepting, in total, the representations and assurances of Evans and his family members as to the accuracy of the picture that they “painted” for the jury. If
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there was a deficiency in performance in Wiggins, where the mitigating ca se, if a priority at all, was only secondary, there certainly was a deficiency in this case, where the mitigation case, such as it w as, was pre sented and it was the defense ’s primary focus. Th is is especially the case in light of Romp illa’s recognition, and teaching, that counsel’s investigative responsibilities extend beyond, and are not co-extensive with, what he or she learns from the client and his or h er family. 545 U.S. at 383 , 125 S. Ct. at 2463, 162 L. Ed. 2d at 373.
This latter point is critically important, as this case and Romp illa demonstrate: presenting a mitigation case without an adequate and full investigation, or without considering how what is presented can be used against the defendant and whether it may have the opposite ef fect, very well may aggravate, rather than mitigate, the defendant’s case. As Evans p oints out, the p rosecution all but adop ted the picture Evans’ m itigation case painted, telling the jury, agreeing with Evans, that his family was “a wonderful group of people ,” “an excellent support system,” who “brought him up right.” Proceeding from that premise, it made the point that, viewed from that perspective, Evan s’ actions were aggravated, “after all, they were always there, always there. Anytime he walked over and asked for help, he had help.”
Wiggins and Romp illa are constitutional decisions that can be, and logically should be, applied in connection with a Rule 4-345 (a) motion to challenge an illegal sentence. Both holdings e stablish the bo undaries o f reasonab le application in which a reviewing court, evaluating Strickland claims, must confine its analysis. They make clear that any sentence
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that is the result of an “objectively unreasonable” application of the guiding principles, clearly established ones an nounced by the Supreme Co urt, is illegal and thus reversible.
3. A similar analysis applies to Evans’ jury impanelm ent argu ment. Evans was tried in 1984, prio r to the decisio n in Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986). His jury consisted of ten whites and two African-Americans, exclusive of alternates, of which there w ere two, one white and the other African-American. Although only 31% of the jury pool were African-American, the prosecution used 80% of its peremptory strikes to exclude African-Americans from the jury venire. When, at the end of jury selection, the p rosecutor’s u se of his peremptory strikes was challenged, he responded by indicating that he had exercised his strikes on the basis of the venireperson’s “background, age, occupatio n, what was learned during voir dire at the bench and in open court.” Although the trial court denied Evans’ objection, it subsequently acknowledged, and, in effect, endorsed, that the prosecutor’s strikes may have been raced-based, noting “it’s logical to presume that perhap s [the prosecutor] wa s trying to get a jury which roughly reflects the composition of a cross- section of the c ounty.” This is consistent with what the prosecutor told the trial court with regard to the racial composition of the County, “that 22% of the county population was African American and three of the jurors - two regular jurors and one alternate - were black, which constituted 21.4% of the pan el.” The trial trans cript reflects that the prosecutor only questioned one of the eight African-Americans he struck and that he
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did not strike sim ilarly situated white jurors.

A similar pattern was evident in Miller-El II. There, Dallas County prosecutors used

10 of their 14 p eremptory strike s to strike black jurors, in the process striking 91 % (10 of

11) of the e ligible, q ualified black venire members during jury selection for petitioner

Miller-El’s capital murder trial. 545 U.S. at 241, 125 S. Ct. at 2325, 162 L. Ed. 2d at 214.

Miller-El’s objection under Swain v. Alabama, 380 U.S. 202, 85 S. Ct. 824, 13 L. Ed. 2d 759

(1965), the predecessor to Batson, was overruled, and he was convicted, the trial court

finding no systemic exclusion of blacks. 545 U.S. at 236, 125 S. Ct. at 2322, 162 L. Ed. 2d

at 211.

After Batson was decided, Miller-El’s objection was reviewed in light of that

case, but the trial court found that the strikes were race-neutral and that no racially motivated

strikes occurred. That decision was affirmed by the Texas Court of Criminal Appeals, the

federal district court denied Miller-El h abeas r elief, Miller-El v. Johnson, Civil No. 3:96-

CV-1992 -H (N.D. Tex., June 5, 2 000), and the Fifth Circuit affirmed that decision. The

Supreme Court granted certiorari and reverse d. 545 U.S. at 237, 125 S. Ct. at 2323, 162 L.

Ed. 2d at 212. Focusing on, as Evans characterizes it, “the strong statistical disparity in the

State’s use of peremptory strikes against African Americans,” the Court noted:

“The numbers describing the prosecution'suse of peremptoriesare remarkable. Out of 20 black members of the 108-person v enire pan el for Miller-El's trial, only 1 served. Although 9 were excused for cause or by agreement, 10 w ere peremptorily struck b y the pros ecution . Id. [Miller-El v . Cockrell, 537 U.S. 322, 331, 123 S. Ct. 1029, 1036, 154 L. Ed. 2d 931, 946 (2003)]. ‘The prosecutors used their peremptory strikes to exclude 91% of the eligible African-American venire members .... Happenstance is unlikely to produce this disparity.’ Id., at 342, 123 S. Ct. 1029.”

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545 U.S. at 240-41, 125 S. Ct. at 2325, 162 L. Ed. 2d at 214. The Court also was guided by the circumstances surrounding each strike, including the disparity of treatment of African American and white venire members. The extensive comparative analysis undertaken by the Court, see id. at 545 U.S. at 239-252, 125 S. Ct. at 2325-32, 162 L. Ed. 2d at 213-221, made this fact evident and caused it to note that some of the proffered explanations for striking African Americans applied w ith equal force to some of the white venire members who were not challenged. The Court concluded: “[i]f a prosecutor’s proffered reason for striking a black panelist applies just as well to an otherwise-similar nonblack who is permitted to serve, that is evidence tending to prove purposeful discrimination.” Id. at 241, 125 S. Ct. at 2326, 162 L . Ed. 2d at 215. Another circumstance determined to be significant was whether the prosecutor engaged, during voir dire, in meaningful voir dire on the “post hoc” reason for a strike; if he or she did not, the Court concluded, that was an indicia of implau sibility. Id. at 244, 125 S. Ct. at 2328, 162 L. Ed. 2d at 217. Finally, the Court looked to see, and found, evidence of past discrimination by the prosecutor’s office. Id. at 253-265, 125 S. Ct. at 23322339, 162 L. Ed. 2d at 222-229.
Every aspect of this analysis applies to Evans’ case, in spades. Statistically, the numbers are as “remarkable.” The app licability of the exp lanations fo r striking black s to some of the non-cha llenged w hites is just as ev ident. The d earth of the voir dire in relation to the “post hoc” explanations is just as lacking. In this case, however, there is the, at least, tacit, finding by the trial court that the strikes were race-based. That it may ha ve seen this
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finding as benign does not matter; it buttresses the case for error and, thus, illegal sentence
review.
The majority responds to Miller-El as it does to Wiggins and Romp illa, that it makes
no new pronoun cement, it is no t a new interpretation, simply an application of Batson. This
case is an habeas case and , therefo re, was decide d unde r 28 U.S.C. § 2 254, see supra note
8 at 21. As s uch, what I sa id in supp ort of the applicab ility of Wiggins and Rompilla to a
Rule 4-345 (a) review applies equally to this case. I will add what Evans notes as to the
significance of habeas cases, a comment that also applies to the Wiggins and Romp illa
discussion:
“The im port of the C ourt’s decisio n is underscored by the fact that Miller-El obtained relief on fed eral habeas review, w hich is subject to a deferential standard under which ‘factual determinations by state courts are presumed correct absent clear and convincing ev idence to the contrary,’ and factual determinations will not be overturned ‘unless obje ctively unreaso nable in light of the evidence presented in the state-court proceeding.’”
(Quoting Miller-El I, 537 U.S. at 324, 123 S. Ct. at 1041, 154 L. Ed. 2d at 952).
B.
Maryland Code (2001, 2006 Cum. Supp.) § 7-102 of the Criminal Procedure Article
provides:
“(a) Subject to subsection (b) of this section, §§ 7-103[9] and 7-104[10] of this
9Maryland C ode (200 1, 2005 S upp.) § 7-1 03 of the C riminal Proc edure A rticle provides, as relevant:
“§ 7-103. Number and time of filing of petitions “(a) For each trial or sentence, a person may file only one petition for relief under
(continued...) -28-

subtitle and Subtitle 2 of this title, a convicted person may begin a proceeding under this title in the circuit court for the county in which the conviction took place at any time if the person claims that:
“(1) the sentence or judgment was imposed in violation of the Constitution of the United States or the Constitution or laws of the State; “(2) the court lacked jurisdiction to impose the sentence; “(3) the sentence exceeds the maximum allowed by law; or “(4) the sentenc e is otherw ise subject to collateral attack on a ground of alleged error that would otherwise be available under a writ of habeas corpus, writ of coram nobis, or other common law or statutory rem edy.
“(b) A person may begin a proceeding under this title if:
“(1) the person seeks to set aside or correct the judgment or sentence; and “(2) the alleged error has not been previously and finally litigated or waived in the proceeding resulting in the conviction or in any other proceeding that the person has taken to se cure relief fro m the person's convic tion.”
Our approach to petitions to reopen post conviction proceedings under this provision
was most recently highlighted in Gray v. State, 388 Md. 366 , 879 A.2d 106 4 (2005). In
Gray, the defendant had been convicted of seco nd-degre e murder a nd use of a handgu n in
the commission of a violent crime. 388 Md. at 368, 879 A.2d at 1065. He filed a “Petition
9(...continued) this title.”
10Maryland C ode (200 1, 2005 S upp.) § 7-1 04 of the C riminal Proc edure A rticle provides, as relevant:
“§ 7-104. Reopening postconviction proceeding “The court may reopen a postconviction proceeding that was previously concluded if the court determines th at the action is in th e interests of justice.”
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to Reopen Post Conviction Proceedings” pursuant to § 7-104 of the C riminal Procedure
Article. 388 Md. at 369, 879 A.2d at 1065. The trial court denied the petition, finding it not
to be in th e interest of justice to do so. 388 Md. at 369, 879 A.2d at 1065. After the Court
of Special Appeals affirmed that decision, Gray v. State, 158 Md. App. 635, 857 A.2d 1176
(2004), this Court granted certiorari to determine whether the Circuit Court was required to
provide a written statement supporting its denial of relief. 388 Md. at 369, 879 A.2d at 1065.
In holding that no such statement was required by the Circuit Court, we explained that
§ 7-104 allows a court to reopen a post-conviction proceeding that was previously concluded,
“‘if the court determines that the action is in the interests of justice.’” 388 Md. at 382, 879
A.2d at 1073 , citing § 7-10 4 (emp hasis rem oved). That requires the exercise of discretion.
Therefore, in analyzing whether a trial court’s denial of a petition to reopen a post conviction
proceeding was an abuse of discretion, we explained:
“Abuse of discre tion is on e of t hose very g eneral, amorphous terms that appellate courts use and app ly with great frequency but which they have defined in many different ways. . . . [A] ruling reviewed under an abuse of discretion standard will not be reversed simply because the appellate co urt would not have ma de the s ame ru ling. The decision under consideration has to be well removed from any center mark imagined by the reviewing court and beyond the fringe of what that court deems minimally acceptable. That kind of distance can arise in a number of ways, among which are that the ruling either does not logically follow from the findings upon which it supposedly rests or has no reasonable relationship to its announced objective. That, we think, is included within the notion of untenable grounds, violative of fact and logic, and against the logic and effect of facts and inf erences before the cou rt.”
388 Md. at 383-384, 879 A.2d a t 1073- 1074, citing Dehn v. Edgecombe, 384 Md. 606, 628,
865 A.2d 603, 616 (2005) (Em phasis added, internal quotations omitted).
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The majority acknow ledges that th is standard sh ould be applied to Evans’ motion to reopen the 1995 post-conviction proceeding. __ Md. at __, __ A.2d at __ [slip op. at 11-12]. The majority then states that, because Wiggins, Romp illa, and Miller-El II were not abuse of discretion cases, their mandates do not apply to an abuse of discretion evaluation in the case sub judice. __ Md. at __, __ A .2d at __ [slip op. at 12].
I cannot agree. The petitioner does not assert that Wiggins, Romp illa, and Miller-El II are abuse of discretion cases, and § 7-104 does not require that the precedents relied upon be abuse of discretion cases. Evans’ point is that, given the three Supreme Court decisions, albeit rendered on habeas review, where a decision on the merits had to be mad e, this Court, on its review of the trial court denials in this case, could conclude, and should so conclude, that the trial court abused its discretion.
In Wiggins and Romp illa, the Supreme Court held that this Court and the Supreme Court of Pennsylvania, respectively, had objectively and unreason ably applied its ho lding in Strickland. 539 U.S. at 527, 123 S. Ct. at 2538, 156 L. Ed. 2d at 488. The Court drew the same conclusion with regard to the Texas Court of Criminal Appeals application of its holding in Batson. Those are definitive rulings by the Supreme Court, made only after determining that its well established precedent was not, apparently, so well understood as to be applied reasonably, even if incorrectly and erroneously. I am surprised to learn that Supreme Court decisions may be disregarded whenever the standard to be applied by a trial court is discretionary, that even when properly and timely raised, they summarily can be
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rejected as applicable, even before the trial court undertakes an, a nd, th eref ore, w ithout an y,
analysis specific to the case or facts and circum stances. In fact, at the least, some level of
case specific analysis must be m ade if the trial court is to exercise discretion; unless the court
considers the argument on the merits, in light of the facts of the defendant’s case, it cannot
properly and logically exercise discretion. Just as important, such an analysis should be
required so that any review by this C ourt of the issue is meaningful.
Unless an analysis on the merits is required and this Court seriously reviews the
discretionary decision, w e pay only lip servic e to the availa bility of the remedy of reopening
postconviction proceedings, and what I lamented earlier is absolutely true:
“It makes no sense, not to mention that it trivializes, I believe, the Supreme Court’s review function, to permit a court that has been educated as to the proper application of a well-established legal preced ent of the S upreme C ourt, one that the Court has determ ined has been misapplied ‘objectively unreasonably,’ to avoid having to apply that precedent on the merits, when the issue to which it relates is raised in the context of a proceeding, sanctioned by that court, in this insta nce, whe ther to consider illegal sentences or to provide other discretionary relief, simply because the error, the effect of which is just as prejud icial, is not characterized as a ‘new interpretation’ of that Supreme Court preced ent. I am sorry, but to me, pointing out that a particular interpretation, and therefore, application, of a precedent is ‘objectively unreasonab le,’ has the same feel and effects the same result, if it does not amount to the same thing.”
C.
Evans, in No. 124, claims that United States v. Armstrong, 517 U.S. 456, 116 S. Ct.
1480, 134 L. Ed. 2d 687 (1996), mandates that he be entitled to discovery in order
appropriately and effectively to present his selective prosecution claims. The majority, in
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turn, holds that there is no such mandate. __ Md. at __ A.2d at __ [slip op. at 63]. I disagree. In Armstrong, the Supreme C ourt considered the showing that a defendant must make
to be entitled to discovery on a claim that the prosecuting attorney singled him out for prosecution based on race. 517 U.S. at 458, 116 S. Ct. at 1483, 134 L. Ed. 2d at 694. Crucial to Armstrong’s claim was the theory that the government had declined to pros ecute defendants of other races that were similarly situated. 517 U.S. at 458, 116 S. Ct. at 1483, 134 L. Ed. 2d at 694.
Armstrong and a colleague had been arrested for conspiring to possess with the intent to distribute more than 50 grams of cocaine b ase (crack), c onspiring to distribute the same, and for federal firearms offenses. 517 U.S. at 458, 116 S. Ct. at 1483, 134 L. Ed. 2d at 694695. In respo nse to th e indictm ent, Armstrong filed a motion for discovery, alleging selective prosecution based on race. 517 U.S. at 459, 116 S. Ct. at 1483, 134 L. Ed. 2d at 695. The allegation stated that in every one of the 24 cases that contained similar charges as the ones brought against Armstrong, the defendant w as black. 517 U.S. at 459, 116 S. Ct. at 1483, 134 L. Ed. 2d at 695. The District Court granted the motion, instructing the government to produce information regarding the criteria for deciding when to prosecute cases in which it had charged both firearms and cocaine offenses. 517 U.S. at 459, 116 S. Ct. at 1484, 134 L. Ed. 2d at 695. When the government refused to comply, the District Court d ismissed the case, and the Ninth Circuit Court of Appeals affirmed.
In reversing, the Supreme Court held:
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“The requirements for a selective-prosecution claim draw on ‘ordinary equal protection standards.’ . . . The claimant must demonstrate that the federal prosecutorial policy ‘had a discriminatory effect and that it was motivated by a discriminatory purpose.’ . . . To establish a discriminatory effect in a race case, the claimant must show that similarly situated individuals of a different race were not p rosecuted.”
517 U.S. at 465, 116 S. Ct. at 1487, 134 L. Ed. 2d at 699 (citations omitted).
Moreover,
“Having reviewed the requirements to prove a selective-prosecution claim, we turn to the sh owing n ecessary to obtain discovery in support of such a claim. If discov ery is orde red, the Government must assemble from its own files docume nts which might corroborate or refute the defendan t's claim. Discovery thus imposes m any of the costs present w hen the G overnment must respond to a prima facie case of selective prosecution. It will divert prosecutors'resources and may disclose th e Gove rnment's pro secutorial strate gy. The justifications for a rigorous stan dard for th e elements of a selective-prosecution claim thus require a correspondingly rigorous standard for discovery in aid of such a claim.”
517 U.S. at 468, 116 S. Ct. at 1488, 134 L. Ed. 2d at 701.
In discussing of what a correspondingly rigorous standard for discovery should
consist, and the test for such a showing, “colorable basis” or “substantial threshold
showing,” employed by the Courts of Appeals, the Supreme Court remarked:
“The Court of Appeals held that a defendant may establish a colo rable basis for discriminatory effect without evidence that the Government has failed to prosecute others who are similarly situated to the defendant. . . . We think it was mistaken in this view.
* * * *
“In the present case, if the claim of selective prosecution were well founded, it should not have been an insuperable task to prove that persons of other races were being treated differently than respo ndents. For instance, resp ondents
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could have investigated whether similarly situated persons of other races were prosecuted by the State of California and were known to federal law enforcement officers, but were not prosecuted in federal court. We think the required threshold-a credible showing of different treatment of sim ilarly situated persons-adequately balances the Government's interest in vigorous prosecution an d the defendant's interest in avoiding selective prosecution.”
517 U.S. at 469-470, 116 S. Ct. at 1488-1489, 134 L. Ed. 2d at 701-702 (citations omitted).
Therefore, under Armstrong, a credible showing of different treatment of similarly situated
persons will justify discov ery by the defendant.
The majority cites Armstrong for the proposition that:
“To establish a selective prosecution claim, . . . , the claimant must demons trate that the prosecutorial policy ‘“had a discriminatory effect and that it was motivated by a discriminatory purpose,”’ id. at 465, 116 S. Ct. at 1487, 134 L. Ed.2d at 699, quoting from Wayte v. United States, 470 U.S. 598, 608, 105 S. Ct. 1524, 1531, 84 L. Ed. 2d 547, 556 (1985), and to establish a discriminatory effect in a race case, ‘the claimant must show tha t similarly situated individuals of a different race were not prosecuted.’ United States v. Armstrong, supra, 517 U.S. at 465, 116 S. Ct. at 1487, 134 L. Ed.2d at 699. (Emphasis added).”
__ Md. at __, __ A.2d at __ [slip op. at 64].
The majority, having used Armstrong to establish the elements of selective
prosecution, never returns to Evans’ argument that Armstrong requires only a threshold
showing of selective prosecution in order to obtain discovery. Instead, the majority explains
that, because Armstrong was not a death penalty case, and did not involve a statistical
analysis like in the case sub judice, Evans is not entitled to relief. __ Md. at __, __ A.2d at
__ [slip op. at 66]. It is clear, however, that neither of these factors makes any difference
in review ing wh ether discovery is w arranted in a selective prosecution claim .
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In Armstrong’s case, there was no showing - the study he submitted failed to identify individuals who were not black and could have been prosecuted for similar offenses, but were not so prosecuted. 517 U.S. at 470, 116 S. Ct. at 1489, 134 L. E d. 2d at 702. The D r. Paternoster statistical analysis in the case sub judice, howev er, is significan tly more in depth than the study conducted in Armstrong, and, as s uch, does satisfy the Armstrong standard. Accordingly, it does mandate the relief the Evans seeks.
The Paternoster study provides substantial evidence that the Baltimore County State’s Attorney’s Office singled out black defendants from similarly situated w hite defen dants when choosing against whom to seek the death penalty. The study reflects that the State’s Attorney will seek the death penalty 83% of the time when the defendant is black and the victim is white, but will seek the death penalty only 60% of the time with respect to all other racial comb inations . These two statistical findings, alone, trigger the mandate of Armstrong. While they do not mean that selective prosecution definitively has been established, m erely that discovery is warranted, I do not see how, in light of the immense body of evidence presented by Dr. Paternoster, the threshold has not been satisfied.
This case is unlike Belmontes v. Brown, 414 F.3d 1094 (9th Cir. 2005), a case cited by the majority, __ Md. at __, __ A.2d at __ [slip op. at 66]. That case involved the merits of the selective prosecution claim tha t the defen dant brou ght against th e State. The Ninth Circuit Court of Appea ls rejected the claim, concluding that the State had produced evidence that adequately rebutted it. 414 F.3d at 1128-29. It explained:
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“While we think that Belmontes' statistics provide a strong showing of intentional discrimination, we need n ot decide whethe r, in a discriminatory charging case, statistics stan ding alone can make out a prima facie case. Assuming arguendo that they can and that Belmontes has made out a prima facie case, here the State has provided evidence that is sufficient to overcome that showing. In his deposition, the prosecutor stated that when he decided to pursue a death sentence against Belmontes, he had reason to believe that prior to the McConnell murder Belmontes had shot and killed Jerry Howard. In short, the prosecutor asserted that he pursued a death penalty against Belmontes, not because of McCon nell's death alone, but because he believed that Belmontes had actually committed more than one murder. Moreover, the evidence in the record is sufficient to provide a good faith basis for such belief. Thus, there appears to be a legitimate, race-neutra l reason fo r a prosecu tor to seek a death sentence in this particular case, and therefore sufficient evidence to rebut the inference of discrimination raised by Belmontes' statis tical stud y. More important, Belmontes does not challenge the state's assertion that the prosecutor's explanation is sufficient to rebut his prima facie case.”
Id.
That case, in short, is inapposite a nd, if anything seems to su pport the thre shold
showing required in this case. In any event, I reiterate, the merits of the selective prosecution
claim are not yet on the table; this is a threshold inquiry into whether discovery is warranted.
I believe that Evans has satisfied the burden.
D.
Evans, in No. 122, contests two items involving the State’s Divisio n of Correction
(D.O.C.), the department that carries out lethal injections. Since I do not disagree with the
majority’s disposition of the “regulation” issue, I need only address the issue as to which I
dissented in Oken v . State, 381 M d. 580, 851 Md. 53 8 (2004), E vans’ con tention that the
D.O.C. protocols are inconsistent with Maryland Code (1999 , 2003 C um. Su pp., 2005 S upp.)
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§ 3-905 of the Correctional Services Article.
In Oken v. State, 381 Md. 580, 851 Md. 538, this Court, in a per curiam order, denied
Oken’s Motion for Stay of Warrant of Execution an d Suppo rting Exhib its, rejecting his
challenge to the method of exe cution the D ivision of C orrection intended use in putting him
to death. He had argued that that method violated § 3-905 of the Correctional Services
Article, and constituted cruel and unusual punishment.
The majority concludes that in the case sub judice, like in Oken, the Execution
Operations Manual (EOM), which governs the aspects in which a death sentence by lethal
injection is implemented, is not inconsistent with § 3-905. __ Md. at __, __ A.2d at __ [slip
op. at 84].
Maryland § 3-905 provides:
“(a) The manner of inflicting the punishm ent of death shall be the continuous intravenous administration of a lethal quantity of an ultrashort-acting barbiturate or other similar drug in combination with a chemical paralytic agent until a licensed physician pronounces death according to accepted standards of medical practice.
“(b)
“(1) The administration of the lethal s ubstances required by this section is not the practice of medicine.
“(2) Notwithstanding any other law, a pharmacist or pharmaceutical supplier may dispense drugs, without a prescription, to the Co mmissio ner o r the Com miss ione r's designee to carry out this section.”
The statute clearly requires the D.O.C. to use two substances, a barbiturate or similar
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drug, and a c hemic al paralytic agent. It also describes “the manner of inflicting the p enalty of death,” how they are to be used in combination: “continuous intraven ous ad ministra tion,” in combination , until death is pron ounced.
The method currently employed by the D.O.C . is not at all consistent with this statutory requirement. It involves the use of three different chemicals - two syringes of sodium pentothal, a sedative, and one syringe each of both pancuronium bromide and potassium chloride, both lethal agents. The process as described by the majority, __ Md. at __, __ A.2d at __ [slip op. at 77], clearly describes the use of two “bursts” of the barbiturate, and two chem ical paralytic agents. This significant departure from w hat the statute authorizes disturbs me. As I stated in Oken, 381 M d. at 582 , 851 A .2d at 53 9 (Bell, C .J., dissenti ng),
“‘Continuous intravenous administration’ of a quick acting barbiturate, ‘in combination’ with a paralytic agent, is, I submit, vastly different from the intravenous administration, successively, of a barbiturate, a paralytic agent and potassium chloride, each discrete administration being separated by a saline flushing of the line.” It seems clear to me that the statutory langua ge is clear an d unamb iguous. Th is is not, as the majority characterizes, an issue of statutory construction, __ Md. at __, __ A.2d at __ [slip op. at 79]. We’ve held, most recently in Kilmo n v. State, that “[i]f the statutory language is unambiguous when construed according to its ordinary and everyday meaning, then we give effect to the statute as written . . . .” 394 Md. 168, 172, 905 A.2d 306, 308 (2006). See also Chow v. State, 393 Md. 431, 443, 903 A.2d 388, 395 (2006), Mackey v.
-39-

Compass Marketing, Inc., 391 M d. 117, 1 41, 892 A.2d 4 79, 493 (2006 ), Collins v. State, 383
Md. 684, 689 , 861 A.2d 727, 730 (2004).
The majority states that beca use the Legislature did not say “one chemical p aralytic
agent,” when it clearly could have done so, this renders the actual meaning of the words “an”
and “a” ambiguous, and thus, an exploration of legislative intent is required.11 The statute
is so clear, no legislative digging is necessary. Indeed, even if there were ambiguities, the
benefit of any ambiguity would be given to the defendant. As I explained in Oken,
“In any event, this statute is highly punitive, indeed, given the intended re sult of its implementation, it could not be more so. As a result, even if it were ambiguous, the rule of lenity would apply, that is, the benefit of the ambiguity would be required to be given to the defendant.”
381 M d. at 582-83, 851 A.2d at 539, citing Melton, 379 Md. at 488-89, 842 A.2d at 753.
It is of little consequence that other States with similar statutes employ the same three
chemicals with no legal challenge; we should only be concerned with Maryland law. The
11The ma jority’s discussion of “a” an d “an” as in definite articles , as oppose d to “the,” which they claim is a definite article, is without merit. While it is true that if I ask someone to give me “the book” as opposed to “a book,” the use of the word “the” necessarily implies a specific object, and the use of the w ord “a” may imply an indefinite object, this does not change that “a” refers to something singular. While the majority has cited cases w hich state that the article “a” can be interpreted as “more than one” in certain contexts, it is indeed the context which is most relevant. Under the plain language of § 3905, the words “an” and “a” cannot be understood to refer to anything except for single items.
Assuming the “ambiguity,” the question remains, how does one explain that which is not ambiguous, the manner of inflicting death, the continuous injection, as opposed to “short bursts.” There certainly is nothing ambiguous about that. The majority’s strained “ambiguity” approach serves to completely vary the statute.
-40-

statute authorizes two chem icals, and three are used. This clearly violates § 3-905. The majority claims that “the Legislature was well aware that, if it enacted the statute authorizing lethal injection, the statute would be implemented by the thre e-drug mixture . . . . There is no evidence that any member of the Legislature questioned whether the approach described by the Commissioner would be consistent with the statute.” __ M d. at __, __ A .2d at __ [slip op. at 84]. As I stated in Oken, 381 Md. at 583 , 851 A.2d at 540 (Bell, C.J., dissenting):
“...[F]or me, the critical question is whether the proced ure comp orts with, is consistent with, or is the procedure contemplated by, the statute. Because I conclude that it is not and, in fact, is violative of the statute, I dissent.” Judge Greene authorizes me to state he joins in Parts C and D only of this dissent.
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 Case: 1:06-cv-149 As of: 02/04/2016 12:56 PM EST 1 of 16
CLOSED,STAYED
U.S. District Court District of Maryland (Baltimore) CIVIL DOCKET FOR CASE #: 1:06−cv−00149−BEL

Evans v. Saar et al Assigned to: Judge Benson Everett Legg Cause: 42:1983 Civil Rights Act − Civil Action for Deprivation of Rights
Plaintiff

Date Filed: 01/19/2006 Date Terminated: 08/17/2012 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Vernon Evans, Jr.

represented by Anne H Geraghty Wilmer Cutler Pickering Hale and Dorr LLP 1875 Pennsylvania Ave NW Washington, DC 20006 12026636707 Fax: 12026636363 Email: anne.geraghty@wilmerhale.com TERMINATED: 11/16/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Anne Harden Tindall Wilmer Cutler Pickering Hale and Dorr LLP 1875 Pennsylvania Ave NW Washington, DC 20006 12026636732 Fax: 12026636363 Email: anne.tindall@wilmerhale.com TERMINATED: 11/16/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jeffrey Brian O Toole Bonner Kiernan Trebach & Crociata 1233 20th Street, NW 8th Floor Washington, DC 20036 2027127000 Fax: 2027127100 Email: otoole@bonnerkiernan.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Stephanie Katherine Wood Wilmer Cutler Pickering Hale and Dorr LLP 1875 Pennsylvania Ave. NW Washington, DC 20006 12026636000 Fax: 12026636363 Email: stephanie.wood@wilmerhale.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

A Stephen Hut , Jr Office of the Public Defender Six Saint Paul St Baltimore, MD 21202 14107677042

Case: 1:06-cv-149 As of: 02/04/2016 12:56 PM EST 2 of 16
Fax: 14103338496 ATTORNEY TO BE NOTICED
Julie Sippel Dietrich 10600 Shady Cir Silver Spring, MD 20903 13016421076 TERMINATED: 09/27/2011 ATTORNEY TO BE NOTICED
Kalea Seitz Clark Wilmer Cutler Pickering Hale and Dorr LLP 1875 Pennsylvania Ave NW Washington, DC 20006 12026636396 Fax: 12026636363 Email: kalea.clark@wilmerhale.com TERMINATED: 11/16/2009 ATTORNEY TO BE NOTICED
Todd C Zubler Wilmer Cutler Pickering Hale and Dorr LLP 2445 M St NW Washington, DC 20037 12026636000 Fax: 12026636363 Email: todd.zubler@wilmerhale.com ATTORNEY TO BE NOTICED

V.
Defendant
Mary Ann Saar Secretary, Department of Public Safety and Correctional Services

represented by Laura Mullally Maryland Office of the Attorney General 300 East Joppa Road Suite 1000 Towson, MD 21286 410−339−7339 Email: lmullally@dpscs.state.md.us LEAD ATTORNEY ATTORNEY TO BE NOTICED
Scott S Oakley Inmate Grievance Office 115 Sudbrook Lane Ste 200 Pikesville, MD 21208 14105853840 Fax: 14103186015 Email: soakley@dpscs.state.md.us TERMINATED: 07/19/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED
J Joseph Curran , Jr Office of the Attorney General of Maryland 200 Saint Paul Pl Baltimore, MD 21202 14105766300 Fax: 14105766880 TERMINATED: 09/29/2008
Phillip Michael Pickus

Case: 1:06-cv-149 As of: 02/04/2016 12:56 PM EST 3 of 16

Maryland Department of State Police Bldg A 1201 Reisterstown Rd Pikesville, MD 21208 14106534293 Fax: 14106534270 Email: phillip.pickus@maryland.gov ATTORNEY TO BE NOTICED

Defendant
Frank C. Sizer, Jr. Commissioner, Maryland Division of Correction

represented by Laura Mullally (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Scott S Oakley (See above for address) TERMINATED: 07/19/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED

J Joseph Curran , Jr (See above for address) TERMINATED: 09/29/2008

Phillip Michael Pickus (See above for address) ATTORNEY TO BE NOTICED

Defendant
Lehrman Dotson Warden, Maryland Correctional Adjustment Center

represented by Laura Mullally (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Scott S Oakley (See above for address) TERMINATED: 07/19/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED

J Joseph Curran , Jr (See above for address) TERMINATED: 09/29/2008

Phillip Michael Pickus (See above for address) ATTORNEY TO BE NOTICED

Defendant
Gary Hornbaker Warden, Metropolitan Transition Center

represented by Laura Mullally (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Scott S Oakley (See above for address) TERMINATED: 07/19/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED

J Joseph Curran , Jr (See above for address)

Case: 1:06-cv-149 As of: 02/04/2016 12:56 PM EST 4 of 16

TERMINATED: 09/29/2008

Phillip Michael Pickus (See above for address) ATTORNEY TO BE NOTICED

Defendant John Does

represented by Laura Mullally (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant Secretary, DPSCS Gary D. Maynard

represented by Phillip Michael Pickus (See above for address) ATTORNEY TO BE NOTICED

Date Filed 01/19/2006
01/19/2006 01/19/2006 01/20/2006
01/20/2006 01/20/2006 01/23/2006 01/23/2006 01/23/2006 01/23/2006 01/24/2006

# Docket Text
1 COMPLAINT For Injunctive and Declaratory Relief against Mary Ann Saar, Frank C. Sizer, Jr, Lehrman Dotson, Gary Hornbaker, John Does ( Filing fee $ 250 receipt number 14637006754.), filed by Vernon Evans, Jr. (Attachments: # 1 Civil Cover Sheet)(raf, Deputy Clerk) Modified on 1/19/2006 (raf, Deputy Clerk). (Entered: 01/19/2006)
2 (FILED IN ERROR )Summons Issued 20 days as to Mary Ann Saar, Frank C. Sizer, Jr, Lehrman Dotson, Gary Hornbaker. (raf, Deputy Clerk) Modified on 1/19/2006 (raf, Deputy Clerk). (Entered: 01/19/2006)
3 Summons Issued 20 days as to Mary Ann Saar, Frank C. Sizer, Jr, Lehrman Dotson, Gary Hornbaker. (raf, Deputy Clerk) (Entered: 01/19/2006)
4 MOTION for Temporary Restraining Order, MOTION for Preliminary Injunction by Vernon Evans, Jr. (Attachments: # 1 Proposed Order for Preliminary Injunction # 2 Application for TRO# 3 Proposed Order for TRO# 4 Memorandum in support for TRO and Preliminary Injunction# 5 Index of Exhibits# 6 Declaration of Tindall# 7 Exhibit A1# 8 Exhibit A2# 9 Exhibit A3# 10 Exhibit A4# 11 Exhibit A5# 12 Exhibit A6# 13 Exhibit A7# 14 Exhibit A8# 15 Exhibit 9# 16Exhibit B Declaration of Heath)(eg, Deputy Clerk) (Entered: 01/20/2006)
5 Correspondence from Clerk re: "ECF" warning letter to counsel. (eg, Deputy Clerk) (Entered: 01/20/2006)
Telephone Conference held on 1/20/2006 held before Chief Judge Benson Everett Legg. (Recorded on Tape) (kam, Deputy Clerk) (Entered: 01/23/2006)
6 AFFIDAVIT of Service for Complaint served on Mary Ann Saar, Assistant Attorney General on 01/19/2006, filed by Vernon Evans, Jr. (O Toole, Jeffrey) Modified on 1/23/2006 (eg, Deputy Clerk). (Entered: 01/23/2006)
7 AFFIDAVIT of Service for Complaint served on Frank C. Sizer, Jr., Assistant Attorney General on 01/19/2006, filed by Vernon Evans, Jr. (O Toole, Jeffrey) Modified on 1/23/2006 (eg, Deputy Clerk). (Entered: 01/23/2006)
8 AFFIDAVIT of Service for Complaint served on Lehrman Dotson, Assistant Attorney General on 01/19/2006, filed by Vernon Evans, Jr. (O Toole, Jeffrey) Modified on 1/23/2006 (eg, Deputy Clerk). (Entered: 01/23/2006)
9 AFFIDAVIT of Service for Complaint served on Gary Hornbaker, Assistant Attorney General on 01/19/2006, filed by Vernon Evans, Jr. (O Toole, Jeffrey) Modified on 1/23/2006 (eg, Deputy Clerk). (Entered: 01/23/2006)
10 NOTICE of Appearance by Scott S Oakley on behalf of Mary Ann Saar, Frank C. Sizer, Jr, Lehrman Dotson, Gary Hornbaker (Oakley, Scott) (Entered: 01/24/2006)

Case: 1:06-cv-149 As of: 02/04/2016 12:56 PM EST 5 of 16

01/24/2006

11 Status Report Submitted Concerning Hearing of 1−24−06 by Mary Ann Saar, Frank C. Sizer, Jr, Lehrman Dotson, Gary Hornbaker (Attachments: # 1 Letter of A. Stephen Hut, Esq.# 2 Memorandum Opinion (Quarles, J.), Baker v. Saar)(Oakley, Scott) (Entered: 01/24/2006)

01/24/2006 12 MOTION for Todd Zubler to Appear Pro Hac Vice for Vernon Evans, Jr. (cag, Deputy Clerk) (Entered: 01/24/2006)

01/24/2006

13 MARGINAL ORDER granting 12 Motion for Todd Zubler to Appear Pro Hac Vice. Signed by the clerk on 1/24/06. (Fee paid − for document #13 see #12) (cag, Deputy Clerk) (Entered: 01/24/2006)

01/24/2006 14 MOTION for A. Stephen Hut, Jr. to Appear Pro Hac Vice for Vernon Evans, Jr. (cag, Deputy Clerk) (Entered: 01/24/2006)

01/24/2006

15 MARGINAL ORDER granting 14 Motion for A. Stephen Hut, Jr. to Appear Pro Hac Vice. Signed by the clerk on 1/24/06. (fee paid receipt #14637006802 for document #15 see #14) (cag, Deputy Clerk) Modified on 1/24/2006 (cag, Deputy Clerk). (Entered: 01/24/2006)

01/24/2006

Discovery Hearing held on 1/24/2006 held before Judge Benson Everett Legg. (Court Reporter Sovich.) (hsg, Deputy Clerk) (Entered: 01/24/2006)

01/25/2006

16 LETTER ORDER re Redacted files. Signed by Judge Benson Everett Legg on 1/25/06. (Attachments: # 1 List of Documents)(eg, Deputy Clerk) (Entered: 01/25/2006)

01/25/2006 17 Correspondence re: Court's January 25, 2006 Memorandum to Mr. Oakley (being submitted by Plaintiff) (Zubler, Todd) (Entered: 01/25/2006)

01/25/2006

18 RESPONSE in Opposition re 4 MOTION for Temporary Restraining Order MOTION for Preliminary Injunction MOTION for Preliminary Injunction MOTION for Preliminary Injunction filed by Mary Ann Saar, Frank C. Sizer, Jr, Lehrman Dotson, Gary Hornbaker. Replies due by 2/8/2006. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D# 5 Exhibit D−A# 6 Exhibit D−BCD)(Oakley, Scott) (Entered: 01/25/2006)

01/25/2006

Telephone Conference held on 1/25/2006 held before Chief Judge Benson Everett Legg. ( Recorded on Tape) (kam, Deputy Clerk) (Entered: 02/03/2006)

01/26/2006

19 (FILED IN ERROR) MOTION to Produce Certain Records by Vernon Evans, Jr. Responses due by 2/13/2006 (Zubler, Todd) Modified on 1/26/2006 (eg, Deputy Clerk). Modified on 1/26/2006 (eg, Deputy Clerk). (Entered: 01/26/2006)

01/26/2006

20 Status Report Submitted Pursuant to Memorandum Order of 1−25−06 by Mary Ann Saar, Frank C. Sizer, Jr, Lehrman Dotson, Gary Hornbaker (Oakley, Scott) (Entered: 01/26/2006)

01/26/2006

21 MOTION to Produce Certain Records by Vernon Evans, Jr. Responses due by 2/13/2006 (Attachments: # 1 Text of Proposed Order Proposed Order)(Zubler, Todd) (Entered: 01/26/2006)

01/26/2006

22 MOTION to Amend/Correct 4 MOTION for Temporary Restraining Order MOTION for Preliminary Injunction MOTION for Preliminary Injunction MOTION for Preliminary Injunction by Vernon Evans, Jr. Responses due by 2/13/2006 (Attachments: # 1 Exhibit Attachment A# 2 Exhibit Attachment B# 3 Text of Proposed Order Proposed Order)(Zubler, Todd) (Entered: 01/26/2006)

01/26/2006 23 Correspondence re: Objections to additional redactions claimed by state defendants (Zubler, Todd) (Entered: 01/26/2006)

01/26/2006

24 ORDER GRANTING Plaintiff's Motion for an Order Directing the Maryland Office of the Chief Medical Examiner to Produce Certain Records. Signed by Judge Benson Everett Legg on 1/26/06. (jlb, Deputy Clerk) (Entered: 01/26/2006)

01/26/2006

25 MEMORANDUM to Mr. Oakley RE: Mr. Oakley's Letter of January 26, 2006.. Signed by Judge Benson Everett Legg on 1/26/06. (jlb, Deputy Clerk) (Entered: 01/26/2006)

Case: 1:06-cv-149 As of: 02/04/2016 12:56 PM EST 6 of 16

01/26/2006

26 (FILED IN ERROR) REPLY to Response to Motion re 4 MOTION for Temporary Restraining Order MOTION for Preliminary Injunction MOTION for Preliminary Injunction MOTION for Preliminary Injunction Providing Supplemental Evidence filed by Vernon Evans, Jr. (Attachments: # 1 Exhibit 1# 2 Exhibit 1A# 3 Exhibit 2# 4 Exhibit 3# 5 Exhibit 3A# 6 Exhibit 3B# 7 Exhibit 3C)(Zubler, Todd) Modified on 1/27/2006 (eg, Deputy Clerk). (Entered: 01/26/2006)

01/26/2006

27 REPLY to Response to Motion re 4 MOTION for Temporary Restraining Order MOTION for Preliminary Injunction MOTION for Preliminary Injunction MOTION for Preliminary Injunction Providing Supplemental Evidence filed by Vernon Evans, Jr. (Attachments: # 1 Exhibit 1# 2 Exhibit 1A# 3 Exhibit 2# 4 Exhibit 3# 5 Exhibit 3A# 6 Exhibit 3B# 7 Exhibit 3C)(Zubler, Todd) Modified on 1/27/2006 (eg, Deputy Clerk). (rec'd 1/27/06 c/s to Chambers) (Entered: 01/26/2006)

01/26/2006 28 STATUS REPORT Summary of Procedural History in Evans v. State Since June 1999 by Vernon Evans, Jr. (Zubler, Todd) (Entered: 01/26/2006)

01/26/2006

29 REPLY to Response to Motion re 4 MOTION for Temporary Restraining Order MOTION for Preliminary Injunction MOTION for Preliminary Injunction MOTION for Preliminary Injunction filed by Vernon Evans, Jr. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C)(Zubler, Todd) (Entered: 01/26/2006)

01/26/2006

Telephone Conference held on 1/26/2006 held before Chief Judge Benson Everett Legg. (Court Reporter: Recorded on Tape) (kam, Deputy Clerk) (Entered: 02/03/2006)

01/27/2006

30 PROTECTIVE ORDER. Signed by Judge Benson Everett Legg on 1/27/06. (Attachments: # 1 Questions for Counsel# 2 Questions for Counsel)(eg, Deputy Clerk) (Entered: 01/27/2006)

01/27/2006

Motion Hearing held on 1/27/2006 re 4 MOTION for Temporary Restraining MOTION for Preliminary Injunction filed by Vernon Evans, Jr. held before Judge Benson Everett Legg −arguments of counsel− hearing not concluded; to be continued (Court Reporter J. Sovich) (ggpb, Deputy Clerk) (Entered: 01/30/2006)

01/30/2006 31 PLAINTIFF'S HEARING EXHIBITS LIST by Vernon Evans, Jr.. (EXHIBITS FILED SEPARATELY)(eg, Deputy Clerk) (Entered: 01/30/2006)

01/30/2006

32 TRANSCRIPT of (Motions Hearing) Proceedings held on 1/24/06 before Judge Benson E. Legg. Court Reporter: Jacqueline Sovich. (FILED SEPARATELY) (eg, Deputy Clerk) (Entered: 01/30/2006)

01/30/2006

33 TRANSCRIPT of (Motions Hearing) Proceedings held on 1/27/06 before Judge Benson E. Legg. Court Reporter: Jacqueline Sovich. (FILED SEPARATELY) (eg, Deputy Clerk) (Entered: 01/30/2006)

01/30/2006

Telephone Conference held on 1/30/2006 held before Chief Judge Benson Everett Legg. (Recorded on Tape) (kam, Deputy Clerk) (Entered: 02/03/2006)

01/31/2006

34 RESPONSE in Opposition re 4 MOTION for Temporary Restraining Order MOTION for Preliminary Injunction MOTION for Preliminary Injunction MOTION for Preliminary Injunction (Supplemental Evidence) filed by Mary Ann Saar, Frank C. Sizer, Jr, Lehrman Dotson, Gary Hornbaker. Replies due by 2/14/2006. (Attachments: # 1 Affidavit of [Certified Nurse Assistant]# 2 Affidavit of [EMT−P #1]# 3 Affidavit of [EMT−P #2])(Oakley, Scott) (Entered: 01/31/2006)

02/01/2006

35 RESPONSE in Opposition re 4 MOTION for Temporary Restraining Order MOTION for Preliminary Injunction MOTION for Preliminary Injunction MOTION for Preliminary Injunction Second Submission of Supplemental Evidence filed by Mary Ann Saar, Frank C. Sizer, Jr, Lehrman Dotson, Gary Hornbaker. Replies due by 2/15/2006. (Attachments: # 1 Affidavit James V. Peguese)(Oakley, Scott) (Entered: 02/01/2006)

02/01/2006

Motion Hearing held on 2/1/2006 − re 22 MOTION to Amend/Correct 4 MOTION for Temporary Restraining Order MOTION for Preliminary Injunction MOTION for Preliminary Injunction MOTION for Preliminary Injunction filed by Vernon Evans, Jr. held before Judge Benson Everett Legg − continued from 1/27/2006 − testimony taken (via telephone) − evidence presented − closing argument − held subcuria. (Court Reporter J. Sovich) (bma, CRD) (Entered: 02/01/2006)

Case: 1:06-cv-149 As of: 02/04/2016 12:56 PM EST 7 of 16

02/01/2006 36 MEMORANDUM OPINION. Signed by Judge Benson Everett Legg on 02/01/2006. (Legg, Benson Everett) (Entered: 02/01/2006)

02/01/2006

37 ORDER DENYING Evans's motion for a temporary restraining order 4 , and DENYING Evans's motion for a preliminary injunction 4 . Signed by Judge Benson Everett Legg on 02/01/2006. (Legg, Benson Everett) (Entered: 02/01/2006)

02/01/2006 38 DEFENDANT'S EXHIBIT LIST by Mary Ann Saar,et al.. (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Exhibit 4)(eg, Deputy Clerk) (Entered: 02/02/2006)

02/02/2006

39 ORDERED that Hearing Exhibits be placed under seal pending further order of the Court. Signed by Judge Benson Everett Legg on 2/1/06. (eg, Deputy Clerk) (Entered: 02/02/2006)

02/02/2006 40 SEALED EXHIBITS. (eg, Deputy Clerk) (Entered: 02/02/2006)

02/02/2006

41 NOTICE OF APPEAL as to 36 Memorandum Opinion, 37 Order by Vernon Evans, Jr. Filing fee $ 255. Appeal Record due by 3/6/2006. (Zubler, Todd) (Entered: 02/02/2006)

02/02/2006

42 MOTION to Stay re 36 Memorandum Opinion, 37 Order Pending Appeal with Request for Expedited Consideration by Vernon Evans, Jr. Responses due by 2/21/2006 (Attachments: # 1 Text of Proposed Order)(Zubler, Todd) (Entered: 02/02/2006)

02/02/2006

43 RESPONSE in Opposition re 42 MOTION to Stay re 36 Memorandum Opinion, 37 Order Pending Appeal with Request for Expedited Consideration filed by Mary Ann Saar, Frank C. Sizer, Jr, Lehrman Dotson, Gary Hornbaker. Replies due by 2/16/2006. (Oakley, Scott) (Entered: 02/02/2006)

02/02/2006 44 Discovery Material (FILED SEPARATELY) (eg, Deputy Clerk) (Entered: 02/02/2006)

02/02/2006 45 SEALED Discovery Material (eg, Deputy Clerk) (Entered: 02/02/2006)

02/02/2006 46 QUESTIONS FOR COUNSEL at Hearing entered 1/24/06. Signed by Judge Benson Everett Legg on 1/24/06. (eg, Deputy Clerk) (Entered: 02/02/2006)

02/02/2006 47 QUESTIONS FOR COUNSEL at Hearing entered 1/27/06. Signed by Judge Benson Everett Legg on 1/27/06. (eg, Deputy Clerk) (Entered: 02/02/2006)

02/02/2006 48 ORDER denying 42 Motion of Plaintiff for an injunction pending appeal. Signed by Judge Benson Everett Legg on 2/2/06. (eg, Deputy Clerk) (Entered: 02/02/2006)

02/02/2006 49 ORDER re Post−Execution. Signed by Judge Benson Everett Legg on 2/2/06. (eg, Deputy Clerk) (Entered: 02/02/2006)

02/02/2006 50 PAPERLESS ORDER granting 22 Motion to Amend/Correct. Signed by Judge Benson Everett Legg on 02/02/2006. (Legg, Benson Everett) (Entered: 02/02/2006)

02/02/2006

51 TRANSCRIPT filed for proceedings on 2/1/06 before Judge Legg, re 41 Notice of Appeal Court Reporter: Jackie Sovich. (Filed Separately) (sls, Deputy Clerk) (Entered: 02/02/2006)

02/03/2006

USCA Appeal Fees received $ 255 receipt number 14637007069 re 41 Notice of Appeal filed by Vernon Evans, Jr. (sls, Deputy Clerk) (Entered: 02/03/2006)

02/03/2006 52 Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re 41 Notice of Appeal (sls, Deputy Clerk) (Entered: 02/03/2006)

02/07/2006

53 MEMORANDUM to Parties: Please file a status report by Wednesday, February 15, 2006 as therein set forth. Signed by Judge Benson Everett Legg on 2/6/06. (slf, Deputy Clerk) (Entered: 02/07/2006)

02/08/2006

USCA Case Number 06−1 for 41 Notice of Appeal filed by Vernon Evans, Jr.. Case Manager − Beth Walton (sls, Deputy Clerk) (Entered: 02/08/2006)

02/14/2006 54 STATUS REPORT pursuant to Court's February 6, 2006 Order by Vernon Evans, Jr. (Zubler, Todd) (Entered: 02/14/2006)

02/15/2006 55 STATUS REPORT (February 15, 2006) by Mary Ann Saar, Frank C. Sizer, Jr, Lehrman Dotson, Gary Hornbaker. (Oakley, Scott) (Entered: 02/15/2006)

Case: 1:06-cv-149 As of: 02/04/2016 12:56 PM EST 8 of 16

02/17/2006

56 MOTION to Shorten Time for Defendants to Respond to Complaint and for Immediate Issuance of a Scheduling Order by Vernon Evans, Jr. Responses due by 3/6/2006 (Zubler, Todd) Modified on 3/7/2006 (eg, Deputy Clerk). (Entered: 02/17/2006)

02/17/2006

57 MOTION to Shorten Time for Defendants to Respond by Vernon Evans, Jr. Responses due by 3/6/2006 (Zubler, Todd) Modified on 3/7/2006 (eg, Deputy Clerk). (Entered: 02/17/2006)

02/17/2006

58 RESPONSE in Opposition re 56 MOTION to Shorten Time for Defendants to Respond to Complaint and for Immediate Issuance of a Scheduling Order, 57 MOTION to Shorten Time for Defendants to Respond filed by Mary Ann Saar, Frank C. Sizer, Jr, Lehrman Dotson, Gary Hornbaker. Replies due by 3/3/2006. (Oakley, Scott) (Entered: 02/17/2006)

02/17/2006 59 MANDATE of USCA as to 41 Notice of Appeal filed by Vernon Evans, Jr. (sls, Deputy Clerk) (Entered: 02/17/2006)

02/17/2006 60 ORDER SETTING Schedule. Signed by Judge Benson Everett Legg on 2/17/06. (eg, Deputy Clerk) (Entered: 02/17/2006)

02/23/2006 61 Request for Hearing/Trial −− Rescheduling of Trial Date (Zubler, Todd) (Entered: 02/23/2006)

03/01/2006 62 LETTER ORDER re Trial date. Signed by Judge Benson Everett Legg on 3/1/06. (eg, Deputy Clerk) (Entered: 03/01/2006)

03/03/2006

63 MOTION to Dismiss or for Summary Judgment by Mary Ann Saar, Frank C. Sizer, Jr, Lehrman Dotson, Gary Hornbaker. Responses due by 3/20/2006 (Attachments: # 1 Exhibit "A," Affidavit of Patricia Allen# 2 Exhibit "1" to Ex. "A," Affidavit of Patricia Allen# 3 Exhibit "2" to Ex. "A," Affidavit of Patricia Allen# 4 Exhibit "3" to Ex. "A," Affidavit of Patricia Allen# 5 Exhibit "B," Affidavit of Marvin Robbins)(Oakley, Scott) Modified on 3/7/2006 (eg, Deputy Clerk). (Entered: 03/03/2006)

03/03/2006 64 REQUEST for Extension of Time to File Answer (Oakley, Scott) (Entered: 03/03/2006)

03/07/2006 65 LETTER ORDER re Answer, SETTING date for Teleconference. Signed by Judge Benson Everett Legg on 3/7/06. (eg, Deputy Clerk) (Entered: 03/07/2006)

03/07/2006

66 (FILED IN ERROR−DOCUMENT FILED IN THE WRONG CASE) NOTICE OF DISMISSAL and ORDER APPROVING subject to the Court's continuing jurisdiction over issues related to claims against the bond. Signed by Judge Andre M Davis on 3/7/06. (eg, Deputy Clerk) Modified on 3/7/2006 (eg, Deputy Clerk). (Entered: 03/07/2006)

03/07/2006

The link to DOCUMENT #66 has been reset so that non−court users may not access it and the docket text has been modified to indicate that it was filed in error. It was filed in the wrong case. (eg, Deputy Clerk) Modified on 3/7/2006 (eg, Deputy Clerk). (Entered: 03/07/2006)

03/13/2006 67 ANSWER to Complaint by Mary Ann Saar, Frank C. Sizer, Jr, Lehrman Dotson, Gary Hornbaker.(Oakley, Scott) (Entered: 03/13/2006)

03/14/2006 68 Correspondence re: Scheduling (Oakley, Scott) (Entered: 03/14/2006)

03/14/2006

Telephone Conference held on 3/14/2006 held before Judge Benson Everett Legg. (eg, Deputy Clerk) (Entered: 03/15/2006)

03/15/2006

69 LETTER ORDER CONFIRMING SCHEDULE re Discovery, ADMINISTRATIVELY CLOSING 63 Motion of Defendants to Dismiss. Signed by Judge Benson Everett Legg on 3/14/06. (eg, Deputy Clerk) (Entered: 03/15/2006)

03/28/2006 70 PAPERLESS ORDER denying as moot 56 Motion to Shorten Time. Signed by Judge Benson Everett Legg on 03/28/2006. (Legg, Benson Everett) (Entered: 03/28/2006)

03/28/2006 71 PAPERLESS ORDER denying as moot 57 Motion to Shorten Time. Signed by Judge Benson Everett Legg on 03/28/2006. (Legg, Benson Everett) (Entered: 03/28/2006)

03/29/2006 72 Correspondence re: scheduling (Zubler, Todd) (Entered: 03/29/2006)

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04/20/2006

73 MOTION for Protective Order and For Expedited Consideration by Vernon Evans, Jr. Responses due by 5/8/2006 (Attachments: # 1 Exhibit Proposed Protective Order# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D# 5 Exhibit E# 6 Exhibit F)(Zubler, Todd) (Entered: 04/20/2006)

04/21/2006

74 Cross MOTION for Protective Order and Opposition to Plaintiff's Motion for Protective Order by Mary Ann Saar, Frank C. Sizer, Jr, Lehrman Dotson, Gary Hornbaker. Responses due by 5/8/2006 (Attachments: # 1 Exhibit "A"# 2 Exhibit "B"# 3 Exhibit "C"# 4 Exhibit "D")(Oakley, Scott) (Entered: 04/21/2006)

04/24/2006

75 MOTION for Extension of Time to Respond to Plaintiff's Discovery by Mary Ann Saar, Frank C. Sizer, Jr, Lehrman Dotson, Gary Hornbaker. Responses due by 5/11/2006 (Attachments: # 1 Exhibit "A"# 2 Text of Proposed Order)(Oakley, Scott) (Entered: 04/24/2006)

04/24/2006

76 REPLY to Response to Motion re 73 MOTION for Protective Order and For Expedited Consideration, 74 Cross MOTION for Protective Order and Opposition to Plaintiff's Motion for Protective Order filed by Vernon Evans, Jr. (Attachments: # 1 Text of Proposed Order)(Zubler, Todd) (Entered: 04/24/2006)

04/25/2006

77 RESPONSE to Motion re 75 MOTION for Extension of Time to Respond to Plaintiff's Discovery filed by Vernon Evans, Jr. Replies due by 5/9/2006. (Zubler, Todd) (Entered: 04/25/2006)

04/28/2006 78 ORDER granting 75 Motion by the State for an Extension of Time. Signed by Judge Benson Everett Legg on 4/28/06 (cag, Deputy Clerk) (Entered: 04/28/2006)

05/02/2006

79 Joint MOTION for Other Relief Scheduling Order by Vernon Evans, Jr. Responses due by 5/19/2006 (Attachments: # 1 Text of Proposed Order Proposed Scheduling Order)(Zubler, Todd) (Entered: 05/02/2006)

05/03/2006 80 PAPERLESS ORDER granting 79 Joint Motion. Signed by Judge Benson Everett Legg on 05/03/2006. (Legg, Benson Everett) (Entered: 05/03/2006)

05/03/2006

81 MOTION Enforce Court's Order Dated April 28, 2006 by Vernon Evans, Jr. Responses due by 5/22/2006 (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D# 5 Exhibit E# 6 Exhibit F)(Zubler, Todd) (Entered: 05/03/2006)

05/03/2006

82 RESPONSE to Motion re 81 MOTION Enforce Court's Order Dated April 28, 2006 and Cross−Motion to Enlarge Time filed by Mary Ann Saar, Frank C. Sizer, Jr, Lehrman Dotson, Gary Hornbaker. Replies due by 5/17/2006. (Oakley, Scott) (Entered: 05/03/2006)

05/04/2006 83 ORDER re Confidentiality. Signed by Judge Benson Everett Legg on 5/4/06. (hml, Deputy Clerk) (Entered: 05/04/2006)

05/05/2006 84 Joint MOTION for Protective Order by Vernon Evans, Jr. Responses due by 5/22/2006 (Attachments: # 1 Text of Proposed Order)(Zubler, Todd) (Entered: 05/05/2006)

05/05/2006 85 PROTECTIVE ORDER Signed by Judge Benson Everett Legg on 5/5/06(cag, Deputy Clerk) (Entered: 05/05/2006)

05/15/2006 86 NOTICE of Appearance by Stephanie Katherine Wood on behalf of Vernon Evans, Jr (slf, Deputy Clerk) (Entered: 05/15/2006)

05/15/2006 87 MOTION for Anne Harden Tindall to Appear Pro Hac Vice by Vernon Evans, Jr.(fee pd, voucher #14637009178) (slf, Deputy Clerk) (Entered: 05/15/2006)

05/15/2006

88 MARGINAL ORDER granting 87 Motion of Anne Harden Tindall to Appear Pro Hac Vice. Signed by Clerk on 5/15/06. (see pleading No 87) (slf, Deputy Clerk) (Entered: 05/15/2006)

05/15/2006 89 MOTION for Anne H. Geraghty to Appear Pro Hac Vice by Vernon Evans, Jr.(fee pd, voucher #14637009178) (slf, Deputy Clerk) (Entered: 05/15/2006)

05/15/2006

90 MARGINAL ORDER granting 89 Motion of Anne H. Geraghty to Appear Pro Hac Vice. Signed by Clerk on 5/15/06.(see pleading No 89) (slf, Deputy Clerk) (Entered: 05/15/2006)

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05/25/2006 91 NOTICE of Appearance by Kalea Seitz Clark on behalf of Vernon Evans, Jr (Clark, Kalea) (Entered: 05/25/2006)

06/12/2006 92 Joint Correspondence re: Statement of Parties Concerning Tour of Execution Area by Court and Counsel (Zubler, Todd) (Entered: 06/12/2006)

06/12/2006

93 STIPULATION and Proposed Order to Suspend Discovery Schedule by Defendants and by Vernon Evans, Jr. (Attachments: # 1 Text of Proposed Order Proposed Order)(Zubler, Todd) (Entered: 06/12/2006)

06/14/2006 94 Correspondence re: Inspection Visit (Zubler, Todd) (Entered: 06/14/2006)

06/28/2006

95 NOTICE of Plaintiff's Motion for Leave to Conduct Deposition by Vernon Evans, Jr of Filing of Document Under Seal (Zubler, Todd) Modified on 7/5/2006 (eg, Deputy Clerk). (Entered: 06/28/2006)

06/29/2006 96 NOTICE of Appearance by Phillip Michael Pickus on behalf of Mary Ann Saar, Frank C. Sizer, Jr, Lehrman Dotson, Gary Hornbaker (Pickus, Phillip) (Entered: 06/29/2006)

06/30/2006

97 Joint MOTION for Other Relief Requesting Entry of Agreed−On Scheduling Order by Vernon Evans, Jr. Responses due by 7/17/2006 (Attachments: # 1 Text of Proposed Order Scheduling Order)(Zubler, Todd) (Entered: 06/30/2006)

07/05/2006 98 Correspondence re: Withdrawal of Plaintiff's Motion for Leave to Conduct Deposition (Zubler, Todd) (Entered: 07/05/2006)

07/14/2006 99 PAPERLESS ORDER granting 97 Joint Motion for Other Relief. Signed by Judge Benson Everett Legg on 07/14/2006. (Legg, Benson Everett) (Entered: 07/14/2006)

07/18/2006 100 MOTION to Withdraw as Attorney by Mary Ann Saar, Frank C. Sizer, Jr, Lehrman Dotson, Gary Hornbaker. Responses due by 8/4/2006 (Oakley, Scott) (Entered: 07/18/2006)

07/19/2006 101 LETTER ORDER granting 100 Motion to Withdraw as Attorney. Attorney Scott S Oakley terminated. Signed by Judge Benson Everett Legg on 7/18/06. (eg, Deputy Clerk) (Entered: 07/19/2006)

07/25/2006

102 STATUS REPORT Plaintiff's Submission of Generic Identifiers filed Under Seal Pursuant to Protective Order by Vernon Evans, Jr. (Zubler, Todd) Modified on 7/26/2006 (eg, Deputy Clerk).(rec'd 7/26/06 Filed Under Seal c/s to Chambers) (Entered: 07/25/2006)

07/31/2006 103 NOTICE by Vernon Evans, Jr of Filing of Document Under Seal (Zubler, Todd) (Entered: 07/31/2006)

08/01/2006 104 (FILED UNDER SEAL) MOTION for Modification of Protective Order, Memorandum and Exhibits 1−14 by Vernon Evans, Jr. (rec'd 8/1/06 c/s to Chambers) (eg, Deputy Clerk) (Entered: 08/02/2006)

08/02/2006 105 NOTICE of Appearance by Laura Mullally on behalf of all defendants (Mullally, Laura) (Entered: 08/02/2006)

08/09/2006 106 NOTICE of Appearance by Laura Mullally on behalf of all defendants (Mullally, Laura) (Entered: 08/09/2006)

08/10/2006 107 NOTICE re Sealed Documents. (Mullally, Laura) Modified on 8/11/2006 (eg, Deputy Clerk). (Entered: 08/10/2006)

08/11/2006

108 (SEALED) RESPONSE to Motion re 104 MOTION of Plaintiff for for Modification of Protective Order, filed by Mary Ann Saar, et al.. (eg, Deputy Clerk)(Paper No. 107 refiled by Clerk to correct docket entry). Modified on 8/11/2006 (eg, Deputy Clerk). Modified on 8/14/2006 (egs, Deputy Clerk).(rec'd 8/14/06 c/s to Chambers, Documents filed under seal) (Entered: 08/11/2006)

08/14/2006

109 (FILED IN ERROR)NOTICE by Vernon Evans, Jr of Filing Document Under Seal (Zubler, Todd) Modified on 8/15/2006 (eg, Deputy Clerk). (Document refiled by Clerk to correct the docket entry) Modified on 8/16/2006 (eg, Deputy Clerk). (Entered: 08/14/2006)

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08/14/2006

110 (SEALED)REPLY to Response to Motion re 104 MOTION to Amend/Correct filed by Vernon Evans, Jr. (rec'd 8/14/06 c/s to Chambers, Document filed under seal) (eg, Deputy Clerk) Modified on 8/15/2006 (eg, Deputy Clerk). (Document #109 refiled by Clerk to correct the docket entry) (Entered: 08/15/2006)

08/16/2006 111 ORDER denying 104 Motion for Modification of Protective Order. Signed by Judge Benson Everett Legg on 8/16/06. (eg, Deputy Clerk) (Entered: 08/16/2006)

08/16/2006 112 MEMORANDUM to Counsel, confirming pretrial conference. Signed by Clerk on 8/16/06. (eg, Deputy Clerk) (Entered: 08/16/2006)

08/16/2006

Telephone Conference held on 8/16/2006 held before Chief Judge Benson Everett Legg. (Recorded on Tape) (kam, Deputy Clerk) (Entered: 09/11/2006)

08/17/2006 113 PAPERLESS ORDER denying as moot 81 Motion. Signed by Judge Benson Everett Legg on 08/17/2006. (Legg, Benson Everett) (Entered: 08/17/2006)

08/18/2006

114 RESPONSE in Opposition re 63 MOTION to Dismiss or for Summary Judgment filed by Vernon Evans, Jr. Replies due by 9/1/2006. (Attachments: # 1 Text of Proposed Order # 2 Exhibit Attachment A# 3 Exhibit Attachment B# 4 Exhibit Attachment C# 5 Exhibit Attachment D# 6 Exhibit Attachment E)(Zubler, Todd) (Entered: 08/18/2006)

08/24/2006

115 NOTICE of service of motion to compel discovery by Vernon Evans, Jr (Attachments: # 1 Motion to Compel Discovery# 2 Certificate of Conference# 3 Text of Proposed Order # 4 Motion to Compel Ex 1# 5 Motion to Compel Ex. 2# 6 Motion to Compel Exs. 3−4 filed under seal# 7 Memorandum in Support of Motion to Compel# 8 Memorandum Attachment)(Wood, Stephanie) Modified on 9/8/2006 (eg, Deputy Clerk).(rec'd 8/25/06 Exhibits 3−4 Under Seal) (Entered: 08/24/2006)

09/01/2006 116 LETTER ORDER re Law Clerk conflict. Signed by Judge Benson Everett Legg on 9/1/06. (eg, Deputy Clerk) (Entered: 09/01/2006)

09/06/2006

117 PRETRIAL MEMORANDUM by Vernon Evans, Jr, Mary Ann Saar, Frank C. Sizer, Jr, Lehrman Dotson, Gary Hornbaker, John Does. (Attachments: # 1 Schedule 1 Exhibit List# 2 Schedule 2 Plaintiff's Witness List# 3 Schedule 3 Defendants' Witness List# 4 Schedule 4 Deposition Designations)(Wood, Stephanie) (Entered: 09/06/2006)

09/06/2006 118 Correspondence re: Proposed Joint Pretrial Order (Wood, Stephanie) (Entered: 09/06/2006)

09/07/2006

119 NOTICE of service of response to motion to compel discovery by Mary Ann Saar, Frank C. Sizer, Jr, Lehrman Dotson, Gary Hornbaker re 115 Notice of service of motion to compel discovery, (Attachments: # 1 Supplement Memorandum)(Pickus, Phillip) (Entered: 09/07/2006)

09/08/2006

120 MOTION in Limine by Mary Ann Saar, Frank C. Sizer, Jr, Lehrman Dotson, Gary Hornbaker, John Does. Responses due by 9/25/2006 (Attachments: # 1 Exhibit Attachment A# 2 Exhibit Attachment B# 3 Text of Proposed Order)(Mullally, Laura) (Entered: 09/08/2006)

09/10/2006 121 RESPONSE in Opposition re 120 MOTION in Limine filed by Vernon Evans, Jr.Replies due by 9/25/2006. (Attachments: # 1 Text of Proposed Order)(Wood, Stephanie) (Entered: 09/10/2006)

09/11/2006

122 NOTICE of service of reply to response to motion to compel discovery by Vernon Evans, Jr re 119 Notice of service of response to motion to compel discovery, 115 Notice of service of motion to compel discovery, (Attachments: # 1 Reply to Defendant's Opposition to Motion to Compel# 2 Attachment 1# 3 Attachment 2# 4 Attachment 3)(Wood, Stephanie) (Entered: 09/11/2006)

09/12/2006

Final Pretrial Conference held in opoen court on 9/12/2006 before Judge Benson Everett Legg. (Court Reporter J. Sovich.) (pat, Deputy Clerk) (Entered: 09/12/2006)

09/13/2006 123 Correspondence re: matters covered at Pretrial Conference (Wood, Stephanie) (Entered: 09/13/2006)

09/13/2006 124 Correspondence re: Pre−Trial Conference (Pickus, Phillip) (Entered: 09/13/2006)

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09/13/2006 125 Correspondence re: Response to Mr. Pickus's September 13, 2006 Letter (Wood, Stephanie) (Entered: 09/13/2006)

09/14/2006 126 ORDER SCHEDULING Trial. Signed by Judge Benson Everett Legg on 9/14/06. (eg, Deputy Clerk) (Entered: 09/14/2006)

09/14/2006 127 ORDER re Opening Statements. Signed by Judge Benson Everett Legg on 9/14/06. (eg, Deputy Clerk) (Entered: 09/14/2006)

09/15/2006 128 Correspondence re: Conflict Raised by Trial Schedule (Wood, Stephanie) (Entered: 09/15/2006)

09/15/2006 129 MEMORANDUM. Signed by Judge Benson Everett Legg on 9/14/06. (eg, Deputy Clerk) (Entered: 09/15/2006)

09/15/2006

130 ORDER REOPENING and denying 63 MOTION to Dismiss or for Summary Judgment filed by Gary Hornbaker, Mary Ann Saar, Lehrman Dotson, Frank C. Sizer, Jr.. Signed by Judge Benson Everett Legg on 9/14/06. (eg, Deputy Clerk) (Entered: 09/15/2006)

09/15/2006 131 ORDER granting in part and denying in part 120 Motion in Limine. Signed by Judge Benson Everett Legg on 9/14/06. (eg, Deputy Clerk) (Entered: 09/15/2006)

09/15/2006 132 ORDER re Testimony of Dr. Dershwitz. Signed by Judge Benson Everett Legg on 9/14/06. (eg, Deputy Clerk) (Entered: 09/15/2006)

09/15/2006 133 ORDER denying 115 Notice of service of motion to compel discovery, filed by Vernon Evans, Jr.. Signed by Judge Benson Everett Legg on 9/14/06. (eg, Deputy Clerk) (Entered: 09/15/2006)

09/15/2006 134 Correspondence re: Orders cited in Pretrial Order (Attachments: # 1 Orders Issued in Other Cases)(Wood, Stephanie) (Entered: 09/15/2006)

09/15/2006 135 Correspondence re: Proposed Order (Attachments: # 1 Text of Proposed Order)(fks, Deputy Clerk) (Entered: 09/15/2006)

09/15/2006 136 LETTER ORDER re Telephone Hearing. Signed by Judge Benson Everett Legg on 9/15/06. (Attachments: # 1 Proposed Order)(eg, Deputy Clerk) (Entered: 09/15/2006)

09/15/2006 137 Proposed Exhibit List by Vernon Evans, Jr.. (Wood, Stephanie) (Entered: 09/15/2006)

09/15/2006

Telephone Conference held on 9/15/2006 held before Chief Judge Benson Everett Legg. (Recorded on Tape) (kam, Deputy Clerk) (Entered: 09/18/2006)

09/18/2006 138 Correspondence re: Eastern District of Virginia Case (Attachments: # 1 Supplement Waker)(Pickus, Phillip) (Entered: 09/18/2006)

09/18/2006

Bench Trial Day 1 held on 9/18/2006 held before Judge Benson Everett Legg. (Court Reporter J. Sovich.) (pat, Deputy Clerk) (Entered: 09/20/2006)

09/19/2006 139 LETTER ORDER to Press re Sealed Courtroom. Signed by Judge Benson Everett Legg on 9/18/06. (eg, Deputy Clerk) (Entered: 09/19/2006)

09/20/2006

Bench Trial Day 3 held on 9/20/2006 held before Judge Benson Everett Legg. (Court Reporter J. Sovich.) (pat, Deputy Clerk) (Entered: 09/20/2006)

09/21/2006

Bench Trial − Day 4 held on 9/21/2006 held before Chief Judge Benson Everett Legg − Testimony taken − Admissions of plaintiff − Not concluded − continue tomorrow at 9:30 A.M. (Court Reporter J. Sovich) (bma, CRD) (Entered: 09/21/2006)

09/22/2006

Bench Trial Day 5 held on 9/22/2006 held before Judge Benson Everett Legg. (Court Reporter J. Sovich.) (pat, Deputy Clerk) (Entered: 09/22/2006)

10/03/2006 140 LETTER MEMORANDUM to Counsel re Trial. Signed by Judge Benson Everett Legg on 10/3/06. (eg, Deputy Clerk) (Entered: 10/03/2006)

10/09/2006 141 Correspondence re: request to limit the testimony of Contractual Team C (Wood, Stephanie) (Entered: 10/09/2006)

10/10/2006

Bench Trial Day 6 held on 10/10/2006 held before Judge Benson Everett Legg. (Court Reporter J. Sovich.) (pat, Deputy Clerk) (Entered: 10/10/2006)

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10/11/2006

Bench Trial Day 7 held on 10/11/2006 held before Judge Benson Everett Legg. (Court Reporter J. Sovich.) (pat, Deputy Clerk) (Entered: 10/12/2006)

10/12/2006

Bench Trial Day 8 held on 10/12/2006 held before Judge Benson Everett Legg. (Court Reporter J. Sovich.) (pat, Deputy Clerk) (Entered: 11/02/2006)

10/13/2006 142 AUTHORIZATION FOR JUROR MEAL. Signed by Clerk of Court Felicia C. Cannon on 10/11/06. (eg, Deputy Clerk) (Entered: 10/13/2006)

10/16/2006 143 LETTER ORDER CONFIRMING logistical matters. Signed by Judge Benson Everett Legg on 10/16/06. (eg, Deputy Clerk) (Entered: 10/16/2006)

10/18/2006 144 ORDER re Exhibit 90. Signed by Judge Benson Everett Legg on 10/17/06. (eg, Deputy Clerk) (Entered: 10/18/2006)

10/18/2006 145 Correspondence re: evans v. saar (Attachments: # 1 Exhibit Supplemental Amended Privilege Log)(Mullally, Laura) (Entered: 10/18/2006)

10/20/2006 146 AUTHORIZATION FOR JUROR MEAL. Signed by Clerk of Court, Felicia C. Cannon on 9/26/06. (eg, Deputy Clerk) (Entered: 10/23/2006)

10/30/2006 147 LETTER ORDER re Scheduling. Signed by Judge Benson Everett Legg on 10/27/06. (eg, Deputy Clerk) (Entered: 10/30/2006)

11/02/2006

Bench Trial Day 9 held on 11/2/2006 held before Judge Benson Everett Legg. (Court Reporter J. Sovich.) (pat, Deputy Clerk) (Entered: 11/02/2006)

11/15/2006

Bench Trial Day 11 completed on 11/15/2006 held before Judge Benson Everett Legg. (Court Reporter J. Sovich.) (pat, Deputy Clerk) (Entered: 11/15/2006)

12/01/2006 148 LETTER ORDER re teleconference, as therein set forth. Signed by Judge Benson Everett Legg on 12/1/06. (eg, Deputy Clerk) (Entered: 12/01/2006)

12/07/2006

Telephone Conference held on 12/7/2006 before Judge Benson Everett Legg. (mcb, Deputy Clerk) (Entered: 12/08/2006)

12/07/2006

Telephone Conference held on 12/7/2006 held before Chief Judge Benson Everett Legg. (Recorded on Tape) (kam, Deputy Clerk) (Entered: 12/13/2006)

12/08/2006 149 ORDER CONFIRMING the schedule set at the Telephone Conference on 12/7/06. Signed by Judge Benson Everett Legg on 12/7/06. (mcb, Deputy Clerk) (Entered: 12/08/2006)

12/21/2006 150 Correspondence re: case status (Clark, Kalea) (Entered: 12/21/2006)

01/24/2007 151 LETTER ORDER re Scheduling. Signed by Judge Benson Everett Legg on 1/24/07. (eg, Deputy Clerk) (Entered: 01/24/2007)

02/21/2007 152 Consent MOTION to Stay by Mary Ann Saar. Responses due by 3/12/2007 (Attachments: # 1 Exhibit senate bill 239# 2 Exhibit house bill 225)(Mullally, Laura) (Entered: 02/21/2007)

02/22/2007 153 ORDER granting 152 Joint Motion to Stay. Signed by Judge Benson Everett Legg on 2/22/07. (jnl, Deputy Clerk) (Entered: 02/22/2007)

05/22/2007 154 Status Report Submitted by Mary Ann Saar (Mullally, Laura) (Entered: 05/22/2007)

05/23/2007 155 STATUS REPORT ORDER. Status Report due by 8/22/2007. Signed by Judge Benson Everett Legg on 5/23/07. (hml, Deputy Clerk) (Entered: 05/23/2007)

05/25/2007 156 NOTICE of Change of Address by Julie Sippel Dietrich (Dietrich, Julie) (Entered: 05/25/2007)

08/21/2007 157 Status Report Submitted by Gary D. Maynard (Mullally, Laura) (Entered: 08/21/2007)

08/28/2007 158 ORDER DIRECTING Counsel to submit a status report on or before November 21, 2007. Signed by Judge Benson Everett Legg on 8/28/07(cag, Deputy Clerk) (Entered: 08/28/2007)

11/20/2007 159 Status Report Submitted by Gary D. Maynard (Mullally, Laura) (Entered: 11/20/2007)

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11/20/2007 160 PAPERLESS ORDER granting 159 the 90−day extension request. Signed by Judge Benson Everett Legg on 11/20/2007. (Legg, Benson Everett) (Entered: 11/20/2007)

02/21/2008 161 Status Report Submitted by Gary D. Maynard (Mullally, Laura) (Entered: 02/21/2008)

02/21/2008 162 PAPERLESS ORDER granting 161 extension request. Counsel are to submit a status report on or before May 21, 2008. Signed by Chief Judge Benson Everett Legg on 02/21/2008. (Legg, Benson Everett) (Entered: 02/21/2008)

05/21/2008 163 Status Report Submitted by Gary D. Maynard (Mullally, Laura) (Entered: 05/21/2008)

05/22/2008 164 PAPERLESS ORDER granting 163 defendants' request, with no objection by the plaintiff, to a 90−day extension. Signed by Chief Judge Benson Everett Legg on 05/22/2008. (Legg, Benson Everett) (Entered: 05/22/2008)

08/20/2008 165 Status Report Submitted by Gary D. Maynard (Mullally, Laura) (Entered: 08/20/2008)

08/21/2008 166 PAPERLESS ORDER granting 165 defendants' request, with no objection by the plaintiff, to a 90−day extension. Signed by Chief Judge Benson Everett Legg on 08/21/2008. (Legg, Benson Everett) (Entered: 08/21/2008)

09/12/2008 167 MOTION to Withdraw as Attorney J. Joseph Curran, Jr. by Gary D. Maynard, Frank C. Sizer, Jr, Lehrman Dotson, Gary Hornbaker Responses due by 9/29/2008 (Attachments: # 1 Text of Proposed Order)(Pickus, Phillip) (Entered: 09/12/2008)

09/29/2008 168 ORDER granting 167 Motion to Withdraw as Attorney. Attorney J Joseph Curran, Jr terminated. Signed by Chief Judge Benson Everett Legg on 9/29/08. (eg, Deputy Clerk) (Entered: 09/29/2008)

11/21/2008 169 Status Report Submitted by Gary D. Maynard (Mullally, Laura) (Entered: 11/21/2008)

11/21/2008 170 PAPERLESS ORDER GRANTING re 169 Request for extension of time filed by Gary D. Maynard. Status report due on or before 2/20/2009. Signed by Chief Judge Benson Everett Legg on 11/21/2008. (Legg, Benson Everett) (Entered: 11/21/2008)

02/20/2009 171 STATUS REPORT by Gary D. Maynard. (Mullally, Laura) (Entered: 02/20/2009)

02/20/2009 172 ORDER APPROVING Joint Status Report and 90 day postponement. Signed by Chief Judge Benson Everett Legg on 2/20/09. (das, Deputy Clerk) (Entered: 02/23/2009)

05/20/2009 173 Status Report Submitted by Gary D. Maynard (Mullally, Laura) (Entered: 05/20/2009)

05/20/2009 174 PAPERLESS ORDER re 173 Joint Status Report. The parties are GRANTED a continued STAY of the case to and including August 20, 2009. Signed by Chief Judge Benson Everett Legg on 05/20/2009. (Legg, Benson Everett) (Entered: 05/20/2009)

08/19/2009 175 Status Report Submitted by Gary D. Maynard (Mullally, Laura) (Entered: 08/19/2009)

08/20/2009

176 PAPERLESS ORDER re 175 Joint Status Report. The parties are GRANTED a continued STAY of the case to and including November 19, 2009. Signed by Chief Judge Benson Everett Legg on 08/20/2009. (Legg, Benson Everett) (Entered: 08/20/2009)

11/11/2009 177 MOTION to Withdraw APPEARANCES OF COUNSEL by Vernon Evans, Jr Responses due by 11/30/2009 (Wood, Stephanie) (Entered: 11/11/2009)

11/16/2009 178 ORDER granting 177 Motion to Withdraw the Appearance of Anne H. Geraghty, Anne Harden Tindall and Kalea Seitz Clark. Signed by Chief Judge Benson Everett Legg on 11/16/2009. (egs, Deputy Clerk) (Entered: 11/16/2009)

11/18/2009 179 Status Report Submitted by Gary D. Maynard (Mullally, Laura) (Entered: 11/18/2009)

11/19/2009 180 LETTER ORDER Staying Case; Status Report due no later than 2/19/2010.. Signed by Chief Judge Benson Everett Legg on 11/19/2009. (egs, Deputy Clerk) (Entered: 11/19/2009)

02/22/2010 181 Status Report Submitted by Gary D. Maynard (Mullally, Laura) (Entered: 02/22/2010)

02/22/2010 182 LETTER ORDER Staying Case; Status Report due no later than 5/24/2010.. Signed by Judge Benson Everett Legg on 2/22/2020. (egs, Deputy Clerk) (Entered: 02/22/2010)

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02/25/2010 183 Status Report Submitted amended status report by Gary D. Maynard (Mullally, Laura) (Entered: 02/25/2010)

05/24/2010 184 Status Report Submitted by Gary D. Maynard (Mullally, Laura) (Entered: 05/24/2010)

05/25/2010 185 LETTER ORDER CONTINUING STAY; Status Report due no later than 8/24/2010. Signed by Judge Benson Everett Legg on 5/25/2010. (egs, Deputy Clerk) (Entered: 05/25/2010)

08/25/2010 186 Status Report Submitted by Gary D. Maynard (Mullally, Laura) (Entered: 08/25/2010)

08/25/2010 187 PAPERLESS ORDER APPROVING 186 Status Report. Parties directed to file their next report in 90 days. Signed by Judge Benson Everett Legg on 08/25/2010. (Legg, Benson Everett) (Entered: 08/25/2010)

12/20/2010 188 Status Report Submitted by Gary D. Maynard (Mullally, Laura) (Entered: 12/20/2010)

12/21/2010 189 PAPERLESS ORDER APPROVING re 188 Status Report. Parties directed to submit their next status report in 90 days. Signed by Judge Benson Everett Legg on 12/21/2010. (Legg, Benson Everett) (Entered: 12/21/2010)

03/21/2011 190 Status Report Submitted by Gary D. Maynard (Mullally, Laura) (Entered: 03/21/2011)

03/21/2011 191 PAPERLESS ORDER re 190 Status Report. Parties directed to submit their next status report on or before 6/21/2011. Signed by Judge Benson Everett Legg on 3/21/2011. (Legg, Benson Everett) (Entered: 03/21/2011)

06/21/2011 192 Status Report Submitted by Gary D. Maynard (Mullally, Laura) (Entered: 06/21/2011)

06/23/2011

Case STAYED. Parties directed to file further status report in 90 days. Signed by Judge Benson Everett Legg on 6/23/2011. (Legg, Benson Everett) (Entered: 06/23/2011)

09/21/2011 193 Status Report Submitted by Gary D. Maynard (Mullally, Laura) (Entered: 09/21/2011)

09/21/2011 194 PAPERLESS ORDER APPROVING 193 Status Report. Further status report due on or before 12/21/2011. Signed by Judge Benson Everett Legg on 9/21/2011. (Legg, Benson Everett) (Entered: 09/21/2011)

09/26/2011 195 MOTION to Withdraw as Attorney by Vernon Evans, Jr Responses due by 10/14/2011 (Attachments: # 1 Text of Proposed Order)(Dietrich, Julie) (Entered: 09/26/2011)

09/27/2011 196 ORDER granting 195 Motion to Withdraw as Attorney. Attorney Julie Sippel Dietrich terminated. Signed by Judge Benson Everett Legg on 9/27/11. (apl, Deputy Clerk) (Entered: 09/28/2011)

12/21/2011 197 Status Report Submitted by Gary D. Maynard (Mullally, Laura) (Entered: 12/21/2011)

12/27/2011 198 PAPERLESS ORDER APPROVING re 197 Status Report. Further status report due on or before 3/21/2012. Signed by Judge Benson Everett Legg on 12/27/2011. (Legg, Benson Everett) (Entered: 12/27/2011)

03/14/2012 199 Status Report Submitted by Gary D. Maynard (Mullally, Laura) (Entered: 03/14/2012)

03/16/2012 200 PAPERLESS ORDER APPROVING 199 Status Report. Further status report due on or before 6/14/2012. Signed by Judge Benson Everett Legg on 3/16/2012. (Legg, Benson Everett) (Entered: 03/16/2012)

05/22/2012 201 Status Report Submitted by Gary D. Maynard (Mullally, Laura) (Entered: 05/22/2012)

05/31/2012 202 PAPERLESS ORDER APPROVING (201) Status Report. Further status report due on or before August 30, 2012. Signed by Judge Benson Everett Legg on 05/31/2012. (Legg, Benson Everett) (Entered: 05/31/2012)

08/02/2012 203 Letter ORDER re: case status. Signed by Judge Benson Everett Legg on 8/02/2012. (bf2, Deputy Clerk) (Entered: 08/02/2012)

08/16/2012 204 STATUS REPORT Parties' Joint Status Letter Report by Vernon Evans, Jr. (Wood, Stephanie) (Entered: 08/16/2012)

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08/16/2012 205 ORDER administratively closing this case. Signed by Judge Benson Everett Legg on 8/16/12. (apls, Deputy Clerk) (Entered: 08/17/2012)

 
 Case: 1:06-cv-149 As of: 02/08/2016 06:06 PM EST 1 of 16
CLOSED,STAYED
U.S. District Court District of Maryland (Baltimore) CIVIL DOCKET FOR CASE #: 1:06−cv−00149−BEL

Evans v. Saar et al Assigned to: Judge Benson Everett Legg Cause: 42:1983 Civil Rights Act − Civil Action for Deprivation of Rights
Plaintiff

Date Filed: 01/19/2006 Date Terminated: 08/17/2012 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Vernon Evans, Jr.

represented by Anne H Geraghty Wilmer Cutler Pickering Hale and Dorr LLP 1875 Pennsylvania Ave NW Washington, DC 20006 12026636707 Fax: 12026636363 Email: anne.geraghty@wilmerhale.com TERMINATED: 11/16/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Anne Harden Tindall Wilmer Cutler Pickering Hale and Dorr LLP 1875 Pennsylvania Ave NW Washington, DC 20006 12026636732 Fax: 12026636363 Email: anne.tindall@wilmerhale.com TERMINATED: 11/16/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jeffrey Brian O Toole Bonner Kiernan Trebach & Crociata 1233 20th Street, NW 8th Floor Washington, DC 20036 2027127000 Fax: 2027127100 Email: otoole@bonnerkiernan.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Stephanie Katherine Wood Wilmer Cutler Pickering Hale and Dorr LLP 1875 Pennsylvania Ave. NW Washington, DC 20006 12026636000 Fax: 12026636363 Email: stephanie.wood@wilmerhale.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

A Stephen Hut , Jr Office of the Public Defender Six Saint Paul St Baltimore, MD 21202 14107677042

Case: 1:06-cv-149 As of: 02/08/2016 06:06 PM EST 2 of 16
Fax: 14103338496 ATTORNEY TO BE NOTICED
Julie Sippel Dietrich 10600 Shady Cir Silver Spring, MD 20903 13016421076 TERMINATED: 09/27/2011 ATTORNEY TO BE NOTICED
Kalea Seitz Clark Wilmer Cutler Pickering Hale and Dorr LLP 1875 Pennsylvania Ave NW Washington, DC 20006 12026636396 Fax: 12026636363 Email: kalea.clark@wilmerhale.com TERMINATED: 11/16/2009 ATTORNEY TO BE NOTICED
Todd C Zubler Wilmer Cutler Pickering Hale and Dorr LLP 2445 M St NW Washington, DC 20037 12026636000 Fax: 12026636363 Email: todd.zubler@wilmerhale.com ATTORNEY TO BE NOTICED

V.
Defendant
Mary Ann Saar Secretary, Department of Public Safety and Correctional Services

represented by Laura Mullally Maryland Office of the Attorney General 300 East Joppa Road Suite 1000 Towson, MD 21286 410−339−7339 Email: lmullally@dpscs.state.md.us LEAD ATTORNEY ATTORNEY TO BE NOTICED
Scott S Oakley Inmate Grievance Office 115 Sudbrook Lane Ste 200 Pikesville, MD 21208 14105853840 Fax: 14103186015 Email: soakley@dpscs.state.md.us TERMINATED: 07/19/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED
J Joseph Curran , Jr Office of the Attorney General of Maryland 200 Saint Paul Pl Baltimore, MD 21202 14105766300 Fax: 14105766880 TERMINATED: 09/29/2008
Phillip Michael Pickus

Case: 1:06-cv-149 As of: 02/08/2016 06:06 PM EST 3 of 16

Maryland Department of State Police Bldg A 1201 Reisterstown Rd Pikesville, MD 21208 14106534293 Fax: 14106534270 Email: phillip.pickus@maryland.gov ATTORNEY TO BE NOTICED

Defendant
Frank C. Sizer, Jr. Commissioner, Maryland Division of Correction

represented by Laura Mullally (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Scott S Oakley (See above for address) TERMINATED: 07/19/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED

J Joseph Curran , Jr (See above for address) TERMINATED: 09/29/2008

Phillip Michael Pickus (See above for address) ATTORNEY TO BE NOTICED

Defendant
Lehrman Dotson Warden, Maryland Correctional Adjustment Center

represented by Laura Mullally (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Scott S Oakley (See above for address) TERMINATED: 07/19/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED

J Joseph Curran , Jr (See above for address) TERMINATED: 09/29/2008

Phillip Michael Pickus (See above for address) ATTORNEY TO BE NOTICED

Defendant
Gary Hornbaker Warden, Metropolitan Transition Center

represented by Laura Mullally (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Scott S Oakley (See above for address) TERMINATED: 07/19/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED

J Joseph Curran , Jr (See above for address)

Case: 1:06-cv-149 As of: 02/08/2016 06:06 PM EST 4 of 16

TERMINATED: 09/29/2008

Phillip Michael Pickus (See above for address) ATTORNEY TO BE NOTICED

Defendant John Does

represented by Laura Mullally (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant Secretary, DPSCS Gary D. Maynard

represented by Phillip Michael Pickus (See above for address) ATTORNEY TO BE NOTICED

Date Filed 01/19/2006
01/19/2006 01/19/2006 01/20/2006
01/20/2006 01/20/2006 01/23/2006 01/23/2006 01/23/2006 01/23/2006 01/24/2006

# Docket Text
1 COMPLAINT For Injunctive and Declaratory Relief against Mary Ann Saar, Frank C. Sizer, Jr, Lehrman Dotson, Gary Hornbaker, John Does ( Filing fee $ 250 receipt number 14637006754.), filed by Vernon Evans, Jr. (Attachments: # 1 Civil Cover Sheet)(raf, Deputy Clerk) Modified on 1/19/2006 (raf, Deputy Clerk). (Entered: 01/19/2006)
2 (FILED IN ERROR )Summons Issued 20 days as to Mary Ann Saar, Frank C. Sizer, Jr, Lehrman Dotson, Gary Hornbaker. (raf, Deputy Clerk) Modified on 1/19/2006 (raf, Deputy Clerk). (Entered: 01/19/2006)
3 Summons Issued 20 days as to Mary Ann Saar, Frank C. Sizer, Jr, Lehrman Dotson, Gary Hornbaker. (raf, Deputy Clerk) (Entered: 01/19/2006)
4 MOTION for Temporary Restraining Order, MOTION for Preliminary Injunction by Vernon Evans, Jr. (Attachments: # 1 Proposed Order for Preliminary Injunction # 2 Application for TRO# 3 Proposed Order for TRO# 4 Memorandum in support for TRO and Preliminary Injunction# 5 Index of Exhibits# 6 Declaration of Tindall# 7 Exhibit A1# 8 Exhibit A2# 9 Exhibit A3# 10 Exhibit A4# 11 Exhibit A5# 12 Exhibit A6# 13 Exhibit A7# 14 Exhibit A8# 15 Exhibit 9# 16Exhibit B Declaration of Heath)(eg, Deputy Clerk) (Entered: 01/20/2006)
5 Correspondence from Clerk re: "ECF" warning letter to counsel. (eg, Deputy Clerk) (Entered: 01/20/2006)
Telephone Conference held on 1/20/2006 held before Chief Judge Benson Everett Legg. (Recorded on Tape) (kam, Deputy Clerk) (Entered: 01/23/2006)
6 AFFIDAVIT of Service for Complaint served on Mary Ann Saar, Assistant Attorney General on 01/19/2006, filed by Vernon Evans, Jr. (O Toole, Jeffrey) Modified on 1/23/2006 (eg, Deputy Clerk). (Entered: 01/23/2006)
7 AFFIDAVIT of Service for Complaint served on Frank C. Sizer, Jr., Assistant Attorney General on 01/19/2006, filed by Vernon Evans, Jr. (O Toole, Jeffrey) Modified on 1/23/2006 (eg, Deputy Clerk). (Entered: 01/23/2006)
8 AFFIDAVIT of Service for Complaint served on Lehrman Dotson, Assistant Attorney General on 01/19/2006, filed by Vernon Evans, Jr. (O Toole, Jeffrey) Modified on 1/23/2006 (eg, Deputy Clerk). (Entered: 01/23/2006)
9 AFFIDAVIT of Service for Complaint served on Gary Hornbaker, Assistant Attorney General on 01/19/2006, filed by Vernon Evans, Jr. (O Toole, Jeffrey) Modified on 1/23/2006 (eg, Deputy Clerk). (Entered: 01/23/2006)
10 NOTICE of Appearance by Scott S Oakley on behalf of Mary Ann Saar, Frank C. Sizer, Jr, Lehrman Dotson, Gary Hornbaker (Oakley, Scott) (Entered: 01/24/2006)

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01/24/2006

11 Status Report Submitted Concerning Hearing of 1−24−06 by Mary Ann Saar, Frank C. Sizer, Jr, Lehrman Dotson, Gary Hornbaker (Attachments: # 1 Letter of A. Stephen Hut, Esq.# 2 Memorandum Opinion (Quarles, J.), Baker v. Saar)(Oakley, Scott) (Entered: 01/24/2006)

01/24/2006 12 MOTION for Todd Zubler to Appear Pro Hac Vice for Vernon Evans, Jr. (cag, Deputy Clerk) (Entered: 01/24/2006)

01/24/2006

13 MARGINAL ORDER granting 12 Motion for Todd Zubler to Appear Pro Hac Vice. Signed by the clerk on 1/24/06. (Fee paid − for document #13 see #12) (cag, Deputy Clerk) (Entered: 01/24/2006)

01/24/2006 14 MOTION for A. Stephen Hut, Jr. to Appear Pro Hac Vice for Vernon Evans, Jr. (cag, Deputy Clerk) (Entered: 01/24/2006)

01/24/2006

15 MARGINAL ORDER granting 14 Motion for A. Stephen Hut, Jr. to Appear Pro Hac Vice. Signed by the clerk on 1/24/06. (fee paid receipt #14637006802 for document #15 see #14) (cag, Deputy Clerk) Modified on 1/24/2006 (cag, Deputy Clerk). (Entered: 01/24/2006)

01/24/2006

Discovery Hearing held on 1/24/2006 held before Judge Benson Everett Legg. (Court Reporter Sovich.) (hsg, Deputy Clerk) (Entered: 01/24/2006)

01/25/2006

16 LETTER ORDER re Redacted files. Signed by Judge Benson Everett Legg on 1/25/06. (Attachments: # 1 List of Documents)(eg, Deputy Clerk) (Entered: 01/25/2006)

01/25/2006 17 Correspondence re: Court's January 25, 2006 Memorandum to Mr. Oakley (being submitted by Plaintiff) (Zubler, Todd) (Entered: 01/25/2006)

01/25/2006

18 RESPONSE in Opposition re 4 MOTION for Temporary Restraining Order MOTION for Preliminary Injunction MOTION for Preliminary Injunction MOTION for Preliminary Injunction filed by Mary Ann Saar, Frank C. Sizer, Jr, Lehrman Dotson, Gary Hornbaker. Replies due by 2/8/2006. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D# 5 Exhibit D−A# 6 Exhibit D−BCD)(Oakley, Scott) (Entered: 01/25/2006)

01/25/2006

Telephone Conference held on 1/25/2006 held before Chief Judge Benson Everett Legg. ( Recorded on Tape) (kam, Deputy Clerk) (Entered: 02/03/2006)

01/26/2006

19 (FILED IN ERROR) MOTION to Produce Certain Records by Vernon Evans, Jr. Responses due by 2/13/2006 (Zubler, Todd) Modified on 1/26/2006 (eg, Deputy Clerk). Modified on 1/26/2006 (eg, Deputy Clerk). (Entered: 01/26/2006)

01/26/2006

20 Status Report Submitted Pursuant to Memorandum Order of 1−25−06 by Mary Ann Saar, Frank C. Sizer, Jr, Lehrman Dotson, Gary Hornbaker (Oakley, Scott) (Entered: 01/26/2006)

01/26/2006

21 MOTION to Produce Certain Records by Vernon Evans, Jr. Responses due by 2/13/2006 (Attachments: # 1 Text of Proposed Order Proposed Order)(Zubler, Todd) (Entered: 01/26/2006)

01/26/2006

22 MOTION to Amend/Correct 4 MOTION for Temporary Restraining Order MOTION for Preliminary Injunction MOTION for Preliminary Injunction MOTION for Preliminary Injunction by Vernon Evans, Jr. Responses due by 2/13/2006 (Attachments: # 1 Exhibit Attachment A# 2 Exhibit Attachment B# 3 Text of Proposed Order Proposed Order)(Zubler, Todd) (Entered: 01/26/2006)

01/26/2006 23 Correspondence re: Objections to additional redactions claimed by state defendants (Zubler, Todd) (Entered: 01/26/2006)

01/26/2006

24 ORDER GRANTING Plaintiff's Motion for an Order Directing the Maryland Office of the Chief Medical Examiner to Produce Certain Records. Signed by Judge Benson Everett Legg on 1/26/06. (jlb, Deputy Clerk) (Entered: 01/26/2006)

01/26/2006

25 MEMORANDUM to Mr. Oakley RE: Mr. Oakley's Letter of January 26, 2006.. Signed by Judge Benson Everett Legg on 1/26/06. (jlb, Deputy Clerk) (Entered: 01/26/2006)

Case: 1:06-cv-149 As of: 02/08/2016 06:06 PM EST 6 of 16

01/26/2006

26 (FILED IN ERROR) REPLY to Response to Motion re 4 MOTION for Temporary Restraining Order MOTION for Preliminary Injunction MOTION for Preliminary Injunction MOTION for Preliminary Injunction Providing Supplemental Evidence filed by Vernon Evans, Jr. (Attachments: # 1 Exhibit 1# 2 Exhibit 1A# 3 Exhibit 2# 4 Exhibit 3# 5 Exhibit 3A# 6 Exhibit 3B# 7 Exhibit 3C)(Zubler, Todd) Modified on 1/27/2006 (eg, Deputy Clerk). (Entered: 01/26/2006)

01/26/2006

27 REPLY to Response to Motion re 4 MOTION for Temporary Restraining Order MOTION for Preliminary Injunction MOTION for Preliminary Injunction MOTION for Preliminary Injunction Providing Supplemental Evidence filed by Vernon Evans, Jr. (Attachments: # 1 Exhibit 1# 2 Exhibit 1A# 3 Exhibit 2# 4 Exhibit 3# 5 Exhibit 3A# 6 Exhibit 3B# 7 Exhibit 3C)(Zubler, Todd) Modified on 1/27/2006 (eg, Deputy Clerk). (rec'd 1/27/06 c/s to Chambers) (Entered: 01/26/2006)

01/26/2006 28 STATUS REPORT Summary of Procedural History in Evans v. State Since June 1999 by Vernon Evans, Jr. (Zubler, Todd) (Entered: 01/26/2006)

01/26/2006

29 REPLY to Response to Motion re 4 MOTION for Temporary Restraining Order MOTION for Preliminary Injunction MOTION for Preliminary Injunction MOTION for Preliminary Injunction filed by Vernon Evans, Jr. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C)(Zubler, Todd) (Entered: 01/26/2006)

01/26/2006

Telephone Conference held on 1/26/2006 held before Chief Judge Benson Everett Legg. (Court Reporter: Recorded on Tape) (kam, Deputy Clerk) (Entered: 02/03/2006)

01/27/2006

30 PROTECTIVE ORDER. Signed by Judge Benson Everett Legg on 1/27/06. (Attachments: # 1 Questions for Counsel# 2 Questions for Counsel)(eg, Deputy Clerk) (Entered: 01/27/2006)

01/27/2006

Motion Hearing held on 1/27/2006 re 4 MOTION for Temporary Restraining MOTION for Preliminary Injunction filed by Vernon Evans, Jr. held before Judge Benson Everett Legg −arguments of counsel− hearing not concluded; to be continued (Court Reporter J. Sovich) (ggpb, Deputy Clerk) (Entered: 01/30/2006)

01/30/2006 31 PLAINTIFF'S HEARING EXHIBITS LIST by Vernon Evans, Jr.. (EXHIBITS FILED SEPARATELY)(eg, Deputy Clerk) (Entered: 01/30/2006)

01/30/2006

32 TRANSCRIPT of (Motions Hearing) Proceedings held on 1/24/06 before Judge Benson E. Legg. Court Reporter: Jacqueline Sovich. (FILED SEPARATELY) (eg, Deputy Clerk) (Entered: 01/30/2006)

01/30/2006

33 TRANSCRIPT of (Motions Hearing) Proceedings held on 1/27/06 before Judge Benson E. Legg. Court Reporter: Jacqueline Sovich. (FILED SEPARATELY) (eg, Deputy Clerk) (Entered: 01/30/2006)

01/30/2006

Telephone Conference held on 1/30/2006 held before Chief Judge Benson Everett Legg. (Recorded on Tape) (kam, Deputy Clerk) (Entered: 02/03/2006)

01/31/2006

34 RESPONSE in Opposition re 4 MOTION for Temporary Restraining Order MOTION for Preliminary Injunction MOTION for Preliminary Injunction MOTION for Preliminary Injunction (Supplemental Evidence) filed by Mary Ann Saar, Frank C. Sizer, Jr, Lehrman Dotson, Gary Hornbaker. Replies due by 2/14/2006. (Attachments: # 1 Affidavit of [Certified Nurse Assistant]# 2 Affidavit of [EMT−P #1]# 3 Affidavit of [EMT−P #2])(Oakley, Scott) (Entered: 01/31/2006)

02/01/2006

35 RESPONSE in Opposition re 4 MOTION for Temporary Restraining Order MOTION for Preliminary Injunction MOTION for Preliminary Injunction MOTION for Preliminary Injunction Second Submission of Supplemental Evidence filed by Mary Ann Saar, Frank C. Sizer, Jr, Lehrman Dotson, Gary Hornbaker. Replies due by 2/15/2006. (Attachments: # 1 Affidavit James V. Peguese)(Oakley, Scott) (Entered: 02/01/2006)

02/01/2006

Motion Hearing held on 2/1/2006 − re 22 MOTION to Amend/Correct 4 MOTION for Temporary Restraining Order MOTION for Preliminary Injunction MOTION for Preliminary Injunction MOTION for Preliminary Injunction filed by Vernon Evans, Jr. held before Judge Benson Everett Legg − continued from 1/27/2006 − testimony taken (via telephone) − evidence presented − closing argument − held subcuria. (Court Reporter J. Sovich) (bma, CRD) (Entered: 02/01/2006)

Case: 1:06-cv-149 As of: 02/08/2016 06:06 PM EST 7 of 16

02/01/2006 36 MEMORANDUM OPINION. Signed by Judge Benson Everett Legg on 02/01/2006. (Legg, Benson Everett) (Entered: 02/01/2006)

02/01/2006

37 ORDER DENYING Evans's motion for a temporary restraining order 4 , and DENYING Evans's motion for a preliminary injunction 4 . Signed by Judge Benson Everett Legg on 02/01/2006. (Legg, Benson Everett) (Entered: 02/01/2006)

02/01/2006 38 DEFENDANT'S EXHIBIT LIST by Mary Ann Saar,et al.. (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Exhibit 4)(eg, Deputy Clerk) (Entered: 02/02/2006)

02/02/2006

39 ORDERED that Hearing Exhibits be placed under seal pending further order of the Court. Signed by Judge Benson Everett Legg on 2/1/06. (eg, Deputy Clerk) (Entered: 02/02/2006)

02/02/2006 40 SEALED EXHIBITS. (eg, Deputy Clerk) (Entered: 02/02/2006)

02/02/2006

41 NOTICE OF APPEAL as to 36 Memorandum Opinion, 37 Order by Vernon Evans, Jr. Filing fee $ 255. Appeal Record due by 3/6/2006. (Zubler, Todd) (Entered: 02/02/2006)

02/02/2006

42 MOTION to Stay re 36 Memorandum Opinion, 37 Order Pending Appeal with Request for Expedited Consideration by Vernon Evans, Jr. Responses due by 2/21/2006 (Attachments: # 1 Text of Proposed Order)(Zubler, Todd) (Entered: 02/02/2006)

02/02/2006

43 RESPONSE in Opposition re 42 MOTION to Stay re 36 Memorandum Opinion, 37 Order Pending Appeal with Request for Expedited Consideration filed by Mary Ann Saar, Frank C. Sizer, Jr, Lehrman Dotson, Gary Hornbaker. Replies due by 2/16/2006. (Oakley, Scott) (Entered: 02/02/2006)

02/02/2006 44 Discovery Material (FILED SEPARATELY) (eg, Deputy Clerk) (Entered: 02/02/2006)

02/02/2006 45 SEALED Discovery Material (eg, Deputy Clerk) (Entered: 02/02/2006)

02/02/2006 46 QUESTIONS FOR COUNSEL at Hearing entered 1/24/06. Signed by Judge Benson Everett Legg on 1/24/06. (eg, Deputy Clerk) (Entered: 02/02/2006)

02/02/2006 47 QUESTIONS FOR COUNSEL at Hearing entered 1/27/06. Signed by Judge Benson Everett Legg on 1/27/06. (eg, Deputy Clerk) (Entered: 02/02/2006)

02/02/2006 48 ORDER denying 42 Motion of Plaintiff for an injunction pending appeal. Signed by Judge Benson Everett Legg on 2/2/06. (eg, Deputy Clerk) (Entered: 02/02/2006)

02/02/2006 49 ORDER re Post−Execution. Signed by Judge Benson Everett Legg on 2/2/06. (eg, Deputy Clerk) (Entered: 02/02/2006)

02/02/2006 50 PAPERLESS ORDER granting 22 Motion to Amend/Correct. Signed by Judge Benson Everett Legg on 02/02/2006. (Legg, Benson Everett) (Entered: 02/02/2006)

02/02/2006

51 TRANSCRIPT filed for proceedings on 2/1/06 before Judge Legg, re 41 Notice of Appeal Court Reporter: Jackie Sovich. (Filed Separately) (sls, Deputy Clerk) (Entered: 02/02/2006)

02/03/2006

USCA Appeal Fees received $ 255 receipt number 14637007069 re 41 Notice of Appeal filed by Vernon Evans, Jr. (sls, Deputy Clerk) (Entered: 02/03/2006)

02/03/2006 52 Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re 41 Notice of Appeal (sls, Deputy Clerk) (Entered: 02/03/2006)

02/07/2006

53 MEMORANDUM to Parties: Please file a status report by Wednesday, February 15, 2006 as therein set forth. Signed by Judge Benson Everett Legg on 2/6/06. (slf, Deputy Clerk) (Entered: 02/07/2006)

02/08/2006

USCA Case Number 06−1 for 41 Notice of Appeal filed by Vernon Evans, Jr.. Case Manager − Beth Walton (sls, Deputy Clerk) (Entered: 02/08/2006)

02/14/2006 54 STATUS REPORT pursuant to Court's February 6, 2006 Order by Vernon Evans, Jr. (Zubler, Todd) (Entered: 02/14/2006)

02/15/2006 55 STATUS REPORT (February 15, 2006) by Mary Ann Saar, Frank C. Sizer, Jr, Lehrman Dotson, Gary Hornbaker. (Oakley, Scott) (Entered: 02/15/2006)

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02/17/2006

56 MOTION to Shorten Time for Defendants to Respond to Complaint and for Immediate Issuance of a Scheduling Order by Vernon Evans, Jr. Responses due by 3/6/2006 (Zubler, Todd) Modified on 3/7/2006 (eg, Deputy Clerk). (Entered: 02/17/2006)

02/17/2006

57 MOTION to Shorten Time for Defendants to Respond by Vernon Evans, Jr. Responses due by 3/6/2006 (Zubler, Todd) Modified on 3/7/2006 (eg, Deputy Clerk). (Entered: 02/17/2006)

02/17/2006

58 RESPONSE in Opposition re 56 MOTION to Shorten Time for Defendants to Respond to Complaint and for Immediate Issuance of a Scheduling Order, 57 MOTION to Shorten Time for Defendants to Respond filed by Mary Ann Saar, Frank C. Sizer, Jr, Lehrman Dotson, Gary Hornbaker. Replies due by 3/3/2006. (Oakley, Scott) (Entered: 02/17/2006)

02/17/2006 59 MANDATE of USCA as to 41 Notice of Appeal filed by Vernon Evans, Jr. (sls, Deputy Clerk) (Entered: 02/17/2006)

02/17/2006 60 ORDER SETTING Schedule. Signed by Judge Benson Everett Legg on 2/17/06. (eg, Deputy Clerk) (Entered: 02/17/2006)

02/23/2006 61 Request for Hearing/Trial −− Rescheduling of Trial Date (Zubler, Todd) (Entered: 02/23/2006)

03/01/2006 62 LETTER ORDER re Trial date. Signed by Judge Benson Everett Legg on 3/1/06. (eg, Deputy Clerk) (Entered: 03/01/2006)

03/03/2006

63 MOTION to Dismiss or for Summary Judgment by Mary Ann Saar, Frank C. Sizer, Jr, Lehrman Dotson, Gary Hornbaker. Responses due by 3/20/2006 (Attachments: # 1 Exhibit "A," Affidavit of Patricia Allen# 2 Exhibit "1" to Ex. "A," Affidavit of Patricia Allen# 3 Exhibit "2" to Ex. "A," Affidavit of Patricia Allen# 4 Exhibit "3" to Ex. "A," Affidavit of Patricia Allen# 5 Exhibit "B," Affidavit of Marvin Robbins)(Oakley, Scott) Modified on 3/7/2006 (eg, Deputy Clerk). (Entered: 03/03/2006)

03/03/2006 64 REQUEST for Extension of Time to File Answer (Oakley, Scott) (Entered: 03/03/2006)

03/07/2006 65 LETTER ORDER re Answer, SETTING date for Teleconference. Signed by Judge Benson Everett Legg on 3/7/06. (eg, Deputy Clerk) (Entered: 03/07/2006)

03/07/2006

66 (FILED IN ERROR−DOCUMENT FILED IN THE WRONG CASE) NOTICE OF DISMISSAL and ORDER APPROVING subject to the Court's continuing jurisdiction over issues related to claims against the bond. Signed by Judge Andre M Davis on 3/7/06. (eg, Deputy Clerk) Modified on 3/7/2006 (eg, Deputy Clerk). (Entered: 03/07/2006)

03/07/2006

The link to DOCUMENT #66 has been reset so that non−court users may not access it and the docket text has been modified to indicate that it was filed in error. It was filed in the wrong case. (eg, Deputy Clerk) Modified on 3/7/2006 (eg, Deputy Clerk). (Entered: 03/07/2006)

03/13/2006 67 ANSWER to Complaint by Mary Ann Saar, Frank C. Sizer, Jr, Lehrman Dotson, Gary Hornbaker.(Oakley, Scott) (Entered: 03/13/2006)

03/14/2006 68 Correspondence re: Scheduling (Oakley, Scott) (Entered: 03/14/2006)

03/14/2006

Telephone Conference held on 3/14/2006 held before Judge Benson Everett Legg. (eg, Deputy Clerk) (Entered: 03/15/2006)

03/15/2006

69 LETTER ORDER CONFIRMING SCHEDULE re Discovery, ADMINISTRATIVELY CLOSING 63 Motion of Defendants to Dismiss. Signed by Judge Benson Everett Legg on 3/14/06. (eg, Deputy Clerk) (Entered: 03/15/2006)

03/28/2006 70 PAPERLESS ORDER denying as moot 56 Motion to Shorten Time. Signed by Judge Benson Everett Legg on 03/28/2006. (Legg, Benson Everett) (Entered: 03/28/2006)

03/28/2006 71 PAPERLESS ORDER denying as moot 57 Motion to Shorten Time. Signed by Judge Benson Everett Legg on 03/28/2006. (Legg, Benson Everett) (Entered: 03/28/2006)

03/29/2006 72 Correspondence re: scheduling (Zubler, Todd) (Entered: 03/29/2006)

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04/20/2006

73 MOTION for Protective Order and For Expedited Consideration by Vernon Evans, Jr. Responses due by 5/8/2006 (Attachments: # 1 Exhibit Proposed Protective Order# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D# 5 Exhibit E# 6 Exhibit F)(Zubler, Todd) (Entered: 04/20/2006)

04/21/2006

74 Cross MOTION for Protective Order and Opposition to Plaintiff's Motion for Protective Order by Mary Ann Saar, Frank C. Sizer, Jr, Lehrman Dotson, Gary Hornbaker. Responses due by 5/8/2006 (Attachments: # 1 Exhibit "A"# 2 Exhibit "B"# 3 Exhibit "C"# 4 Exhibit "D")(Oakley, Scott) (Entered: 04/21/2006)

04/24/2006

75 MOTION for Extension of Time to Respond to Plaintiff's Discovery by Mary Ann Saar, Frank C. Sizer, Jr, Lehrman Dotson, Gary Hornbaker. Responses due by 5/11/2006 (Attachments: # 1 Exhibit "A"# 2 Text of Proposed Order)(Oakley, Scott) (Entered: 04/24/2006)

04/24/2006

76 REPLY to Response to Motion re 73 MOTION for Protective Order and For Expedited Consideration, 74 Cross MOTION for Protective Order and Opposition to Plaintiff's Motion for Protective Order filed by Vernon Evans, Jr. (Attachments: # 1 Text of Proposed Order)(Zubler, Todd) (Entered: 04/24/2006)

04/25/2006

77 RESPONSE to Motion re 75 MOTION for Extension of Time to Respond to Plaintiff's Discovery filed by Vernon Evans, Jr. Replies due by 5/9/2006. (Zubler, Todd) (Entered: 04/25/2006)

04/28/2006 78 ORDER granting 75 Motion by the State for an Extension of Time. Signed by Judge Benson Everett Legg on 4/28/06 (cag, Deputy Clerk) (Entered: 04/28/2006)

05/02/2006

79 Joint MOTION for Other Relief Scheduling Order by Vernon Evans, Jr. Responses due by 5/19/2006 (Attachments: # 1 Text of Proposed Order Proposed Scheduling Order)(Zubler, Todd) (Entered: 05/02/2006)

05/03/2006 80 PAPERLESS ORDER granting 79 Joint Motion. Signed by Judge Benson Everett Legg on 05/03/2006. (Legg, Benson Everett) (Entered: 05/03/2006)

05/03/2006

81 MOTION Enforce Court's Order Dated April 28, 2006 by Vernon Evans, Jr. Responses due by 5/22/2006 (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D# 5 Exhibit E# 6 Exhibit F)(Zubler, Todd) (Entered: 05/03/2006)

05/03/2006

82 RESPONSE to Motion re 81 MOTION Enforce Court's Order Dated April 28, 2006 and Cross−Motion to Enlarge Time filed by Mary Ann Saar, Frank C. Sizer, Jr, Lehrman Dotson, Gary Hornbaker. Replies due by 5/17/2006. (Oakley, Scott) (Entered: 05/03/2006)

05/04/2006 83 ORDER re Confidentiality. Signed by Judge Benson Everett Legg on 5/4/06. (hml, Deputy Clerk) (Entered: 05/04/2006)

05/05/2006 84 Joint MOTION for Protective Order by Vernon Evans, Jr. Responses due by 5/22/2006 (Attachments: # 1 Text of Proposed Order)(Zubler, Todd) (Entered: 05/05/2006)

05/05/2006 85 PROTECTIVE ORDER Signed by Judge Benson Everett Legg on 5/5/06(cag, Deputy Clerk) (Entered: 05/05/2006)

05/15/2006 86 NOTICE of Appearance by Stephanie Katherine Wood on behalf of Vernon Evans, Jr (slf, Deputy Clerk) (Entered: 05/15/2006)

05/15/2006 87 MOTION for Anne Harden Tindall to Appear Pro Hac Vice by Vernon Evans, Jr.(fee pd, voucher #14637009178) (slf, Deputy Clerk) (Entered: 05/15/2006)

05/15/2006

88 MARGINAL ORDER granting 87 Motion of Anne Harden Tindall to Appear Pro Hac Vice. Signed by Clerk on 5/15/06. (see pleading No 87) (slf, Deputy Clerk) (Entered: 05/15/2006)

05/15/2006 89 MOTION for Anne H. Geraghty to Appear Pro Hac Vice by Vernon Evans, Jr.(fee pd, voucher #14637009178) (slf, Deputy Clerk) (Entered: 05/15/2006)

05/15/2006

90 MARGINAL ORDER granting 89 Motion of Anne H. Geraghty to Appear Pro Hac Vice. Signed by Clerk on 5/15/06.(see pleading No 89) (slf, Deputy Clerk) (Entered: 05/15/2006)

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05/25/2006 91 NOTICE of Appearance by Kalea Seitz Clark on behalf of Vernon Evans, Jr (Clark, Kalea) (Entered: 05/25/2006)

06/12/2006 92 Joint Correspondence re: Statement of Parties Concerning Tour of Execution Area by Court and Counsel (Zubler, Todd) (Entered: 06/12/2006)

06/12/2006

93 STIPULATION and Proposed Order to Suspend Discovery Schedule by Defendants and by Vernon Evans, Jr. (Attachments: # 1 Text of Proposed Order Proposed Order)(Zubler, Todd) (Entered: 06/12/2006)

06/14/2006 94 Correspondence re: Inspection Visit (Zubler, Todd) (Entered: 06/14/2006)

06/28/2006

95 NOTICE of Plaintiff's Motion for Leave to Conduct Deposition by Vernon Evans, Jr of Filing of Document Under Seal (Zubler, Todd) Modified on 7/5/2006 (eg, Deputy Clerk). (Entered: 06/28/2006)

06/29/2006 96 NOTICE of Appearance by Phillip Michael Pickus on behalf of Mary Ann Saar, Frank C. Sizer, Jr, Lehrman Dotson, Gary Hornbaker (Pickus, Phillip) (Entered: 06/29/2006)

06/30/2006

97 Joint MOTION for Other Relief Requesting Entry of Agreed−On Scheduling Order by Vernon Evans, Jr. Responses due by 7/17/2006 (Attachments: # 1 Text of Proposed Order Scheduling Order)(Zubler, Todd) (Entered: 06/30/2006)

07/05/2006 98 Correspondence re: Withdrawal of Plaintiff's Motion for Leave to Conduct Deposition (Zubler, Todd) (Entered: 07/05/2006)

07/14/2006 99 PAPERLESS ORDER granting 97 Joint Motion for Other Relief. Signed by Judge Benson Everett Legg on 07/14/2006. (Legg, Benson Everett) (Entered: 07/14/2006)

07/18/2006 100 MOTION to Withdraw as Attorney by Mary Ann Saar, Frank C. Sizer, Jr, Lehrman Dotson, Gary Hornbaker. Responses due by 8/4/2006 (Oakley, Scott) (Entered: 07/18/2006)

07/19/2006 101 LETTER ORDER granting 100 Motion to Withdraw as Attorney. Attorney Scott S Oakley terminated. Signed by Judge Benson Everett Legg on 7/18/06. (eg, Deputy Clerk) (Entered: 07/19/2006)

07/25/2006

102 STATUS REPORT Plaintiff's Submission of Generic Identifiers filed Under Seal Pursuant to Protective Order by Vernon Evans, Jr. (Zubler, Todd) Modified on 7/26/2006 (eg, Deputy Clerk).(rec'd 7/26/06 Filed Under Seal c/s to Chambers) (Entered: 07/25/2006)

07/31/2006 103 NOTICE by Vernon Evans, Jr of Filing of Document Under Seal (Zubler, Todd) (Entered: 07/31/2006)

08/01/2006 104 (FILED UNDER SEAL) MOTION for Modification of Protective Order, Memorandum and Exhibits 1−14 by Vernon Evans, Jr. (rec'd 8/1/06 c/s to Chambers) (eg, Deputy Clerk) (Entered: 08/02/2006)

08/02/2006 105 NOTICE of Appearance by Laura Mullally on behalf of all defendants (Mullally, Laura) (Entered: 08/02/2006)

08/09/2006 106 NOTICE of Appearance by Laura Mullally on behalf of all defendants (Mullally, Laura) (Entered: 08/09/2006)

08/10/2006 107 NOTICE re Sealed Documents. (Mullally, Laura) Modified on 8/11/2006 (eg, Deputy Clerk). (Entered: 08/10/2006)

08/11/2006

108 (SEALED) RESPONSE to Motion re 104 MOTION of Plaintiff for for Modification of Protective Order, filed by Mary Ann Saar, et al.. (eg, Deputy Clerk)(Paper No. 107 refiled by Clerk to correct docket entry). Modified on 8/11/2006 (eg, Deputy Clerk). Modified on 8/14/2006 (egs, Deputy Clerk).(rec'd 8/14/06 c/s to Chambers, Documents filed under seal) (Entered: 08/11/2006)

08/14/2006

109 (FILED IN ERROR)NOTICE by Vernon Evans, Jr of Filing Document Under Seal (Zubler, Todd) Modified on 8/15/2006 (eg, Deputy Clerk). (Document refiled by Clerk to correct the docket entry) Modified on 8/16/2006 (eg, Deputy Clerk). (Entered: 08/14/2006)

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08/14/2006

110 (SEALED)REPLY to Response to Motion re 104 MOTION to Amend/Correct filed by Vernon Evans, Jr. (rec'd 8/14/06 c/s to Chambers, Document filed under seal) (eg, Deputy Clerk) Modified on 8/15/2006 (eg, Deputy Clerk). (Document #109 refiled by Clerk to correct the docket entry) (Entered: 08/15/2006)

08/16/2006 111 ORDER denying 104 Motion for Modification of Protective Order. Signed by Judge Benson Everett Legg on 8/16/06. (eg, Deputy Clerk) (Entered: 08/16/2006)

08/16/2006 112 MEMORANDUM to Counsel, confirming pretrial conference. Signed by Clerk on 8/16/06. (eg, Deputy Clerk) (Entered: 08/16/2006)

08/16/2006

Telephone Conference held on 8/16/2006 held before Chief Judge Benson Everett Legg. (Recorded on Tape) (kam, Deputy Clerk) (Entered: 09/11/2006)

08/17/2006 113 PAPERLESS ORDER denying as moot 81 Motion. Signed by Judge Benson Everett Legg on 08/17/2006. (Legg, Benson Everett) (Entered: 08/17/2006)

08/18/2006

114 RESPONSE in Opposition re 63 MOTION to Dismiss or for Summary Judgment filed by Vernon Evans, Jr. Replies due by 9/1/2006. (Attachments: # 1 Text of Proposed Order # 2 Exhibit Attachment A# 3 Exhibit Attachment B# 4 Exhibit Attachment C# 5 Exhibit Attachment D# 6 Exhibit Attachment E)(Zubler, Todd) (Entered: 08/18/2006)

08/24/2006

115 NOTICE of service of motion to compel discovery by Vernon Evans, Jr (Attachments: # 1 Motion to Compel Discovery# 2 Certificate of Conference# 3 Text of Proposed Order # 4 Motion to Compel Ex 1# 5 Motion to Compel Ex. 2# 6 Motion to Compel Exs. 3−4 filed under seal# 7 Memorandum in Support of Motion to Compel# 8 Memorandum Attachment)(Wood, Stephanie) Modified on 9/8/2006 (eg, Deputy Clerk).(rec'd 8/25/06 Exhibits 3−4 Under Seal) (Entered: 08/24/2006)

09/01/2006 116 LETTER ORDER re Law Clerk conflict. Signed by Judge Benson Everett Legg on 9/1/06. (eg, Deputy Clerk) (Entered: 09/01/2006)

09/06/2006

117 PRETRIAL MEMORANDUM by Vernon Evans, Jr, Mary Ann Saar, Frank C. Sizer, Jr, Lehrman Dotson, Gary Hornbaker, John Does. (Attachments: # 1 Schedule 1 Exhibit List# 2 Schedule 2 Plaintiff's Witness List# 3 Schedule 3 Defendants' Witness List# 4 Schedule 4 Deposition Designations)(Wood, Stephanie) (Entered: 09/06/2006)

09/06/2006 118 Correspondence re: Proposed Joint Pretrial Order (Wood, Stephanie) (Entered: 09/06/2006)

09/07/2006

119 NOTICE of service of response to motion to compel discovery by Mary Ann Saar, Frank C. Sizer, Jr, Lehrman Dotson, Gary Hornbaker re 115 Notice of service of motion to compel discovery, (Attachments: # 1 Supplement Memorandum)(Pickus, Phillip) (Entered: 09/07/2006)

09/08/2006

120 MOTION in Limine by Mary Ann Saar, Frank C. Sizer, Jr, Lehrman Dotson, Gary Hornbaker, John Does. Responses due by 9/25/2006 (Attachments: # 1 Exhibit Attachment A# 2 Exhibit Attachment B# 3 Text of Proposed Order)(Mullally, Laura) (Entered: 09/08/2006)

09/10/2006 121 RESPONSE in Opposition re 120 MOTION in Limine filed by Vernon Evans, Jr.Replies due by 9/25/2006. (Attachments: # 1 Text of Proposed Order)(Wood, Stephanie) (Entered: 09/10/2006)

09/11/2006

122 NOTICE of service of reply to response to motion to compel discovery by Vernon Evans, Jr re 119 Notice of service of response to motion to compel discovery, 115 Notice of service of motion to compel discovery, (Attachments: # 1 Reply to Defendant's Opposition to Motion to Compel# 2 Attachment 1# 3 Attachment 2# 4 Attachment 3)(Wood, Stephanie) (Entered: 09/11/2006)

09/12/2006

Final Pretrial Conference held in opoen court on 9/12/2006 before Judge Benson Everett Legg. (Court Reporter J. Sovich.) (pat, Deputy Clerk) (Entered: 09/12/2006)

09/13/2006 123 Correspondence re: matters covered at Pretrial Conference (Wood, Stephanie) (Entered: 09/13/2006)

09/13/2006 124 Correspondence re: Pre−Trial Conference (Pickus, Phillip) (Entered: 09/13/2006)

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09/13/2006 125 Correspondence re: Response to Mr. Pickus's September 13, 2006 Letter (Wood, Stephanie) (Entered: 09/13/2006)

09/14/2006 126 ORDER SCHEDULING Trial. Signed by Judge Benson Everett Legg on 9/14/06. (eg, Deputy Clerk) (Entered: 09/14/2006)

09/14/2006 127 ORDER re Opening Statements. Signed by Judge Benson Everett Legg on 9/14/06. (eg, Deputy Clerk) (Entered: 09/14/2006)

09/15/2006 128 Correspondence re: Conflict Raised by Trial Schedule (Wood, Stephanie) (Entered: 09/15/2006)

09/15/2006 129 MEMORANDUM. Signed by Judge Benson Everett Legg on 9/14/06. (eg, Deputy Clerk) (Entered: 09/15/2006)

09/15/2006

130 ORDER REOPENING and denying 63 MOTION to Dismiss or for Summary Judgment filed by Gary Hornbaker, Mary Ann Saar, Lehrman Dotson, Frank C. Sizer, Jr.. Signed by Judge Benson Everett Legg on 9/14/06. (eg, Deputy Clerk) (Entered: 09/15/2006)

09/15/2006 131 ORDER granting in part and denying in part 120 Motion in Limine. Signed by Judge Benson Everett Legg on 9/14/06. (eg, Deputy Clerk) (Entered: 09/15/2006)

09/15/2006 132 ORDER re Testimony of Dr. Dershwitz. Signed by Judge Benson Everett Legg on 9/14/06. (eg, Deputy Clerk) (Entered: 09/15/2006)

09/15/2006 133 ORDER denying 115 Notice of service of motion to compel discovery, filed by Vernon Evans, Jr.. Signed by Judge Benson Everett Legg on 9/14/06. (eg, Deputy Clerk) (Entered: 09/15/2006)

09/15/2006 134 Correspondence re: Orders cited in Pretrial Order (Attachments: # 1 Orders Issued in Other Cases)(Wood, Stephanie) (Entered: 09/15/2006)

09/15/2006 135 Correspondence re: Proposed Order (Attachments: # 1 Text of Proposed Order)(fks, Deputy Clerk) (Entered: 09/15/2006)

09/15/2006 136 LETTER ORDER re Telephone Hearing. Signed by Judge Benson Everett Legg on 9/15/06. (Attachments: # 1 Proposed Order)(eg, Deputy Clerk) (Entered: 09/15/2006)

09/15/2006 137 Proposed Exhibit List by Vernon Evans, Jr.. (Wood, Stephanie) (Entered: 09/15/2006)

09/15/2006

Telephone Conference held on 9/15/2006 held before Chief Judge Benson Everett Legg. (Recorded on Tape) (kam, Deputy Clerk) (Entered: 09/18/2006)

09/18/2006 138 Correspondence re: Eastern District of Virginia Case (Attachments: # 1 Supplement Waker)(Pickus, Phillip) (Entered: 09/18/2006)

09/18/2006

Bench Trial Day 1 held on 9/18/2006 held before Judge Benson Everett Legg. (Court Reporter J. Sovich.) (pat, Deputy Clerk) (Entered: 09/20/2006)

09/19/2006 139 LETTER ORDER to Press re Sealed Courtroom. Signed by Judge Benson Everett Legg on 9/18/06. (eg, Deputy Clerk) (Entered: 09/19/2006)

09/20/2006

Bench Trial Day 3 held on 9/20/2006 held before Judge Benson Everett Legg. (Court Reporter J. Sovich.) (pat, Deputy Clerk) (Entered: 09/20/2006)

09/21/2006

Bench Trial − Day 4 held on 9/21/2006 held before Chief Judge Benson Everett Legg − Testimony taken − Admissions of plaintiff − Not concluded − continue tomorrow at 9:30 A.M. (Court Reporter J. Sovich) (bma, CRD) (Entered: 09/21/2006)

09/22/2006

Bench Trial Day 5 held on 9/22/2006 held before Judge Benson Everett Legg. (Court Reporter J. Sovich.) (pat, Deputy Clerk) (Entered: 09/22/2006)

10/03/2006 140 LETTER MEMORANDUM to Counsel re Trial. Signed by Judge Benson Everett Legg on 10/3/06. (eg, Deputy Clerk) (Entered: 10/03/2006)

10/09/2006 141 Correspondence re: request to limit the testimony of Contractual Team C (Wood, Stephanie) (Entered: 10/09/2006)

10/10/2006

Bench Trial Day 6 held on 10/10/2006 held before Judge Benson Everett Legg. (Court Reporter J. Sovich.) (pat, Deputy Clerk) (Entered: 10/10/2006)

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10/11/2006

Bench Trial Day 7 held on 10/11/2006 held before Judge Benson Everett Legg. (Court Reporter J. Sovich.) (pat, Deputy Clerk) (Entered: 10/12/2006)

10/12/2006

Bench Trial Day 8 held on 10/12/2006 held before Judge Benson Everett Legg. (Court Reporter J. Sovich.) (pat, Deputy Clerk) (Entered: 11/02/2006)

10/13/2006 142 AUTHORIZATION FOR JUROR MEAL. Signed by Clerk of Court Felicia C. Cannon on 10/11/06. (eg, Deputy Clerk) (Entered: 10/13/2006)

10/16/2006 143 LETTER ORDER CONFIRMING logistical matters. Signed by Judge Benson Everett Legg on 10/16/06. (eg, Deputy Clerk) (Entered: 10/16/2006)

10/18/2006 144 ORDER re Exhibit 90. Signed by Judge Benson Everett Legg on 10/17/06. (eg, Deputy Clerk) (Entered: 10/18/2006)

10/18/2006 145 Correspondence re: evans v. saar (Attachments: # 1 Exhibit Supplemental Amended Privilege Log)(Mullally, Laura) (Entered: 10/18/2006)

10/20/2006 146 AUTHORIZATION FOR JUROR MEAL. Signed by Clerk of Court, Felicia C. Cannon on 9/26/06. (eg, Deputy Clerk) (Entered: 10/23/2006)

10/30/2006 147 LETTER ORDER re Scheduling. Signed by Judge Benson Everett Legg on 10/27/06. (eg, Deputy Clerk) (Entered: 10/30/2006)

11/02/2006

Bench Trial Day 9 held on 11/2/2006 held before Judge Benson Everett Legg. (Court Reporter J. Sovich.) (pat, Deputy Clerk) (Entered: 11/02/2006)

11/15/2006

Bench Trial Day 11 completed on 11/15/2006 held before Judge Benson Everett Legg. (Court Reporter J. Sovich.) (pat, Deputy Clerk) (Entered: 11/15/2006)

12/01/2006 148 LETTER ORDER re teleconference, as therein set forth. Signed by Judge Benson Everett Legg on 12/1/06. (eg, Deputy Clerk) (Entered: 12/01/2006)

12/07/2006

Telephone Conference held on 12/7/2006 before Judge Benson Everett Legg. (mcb, Deputy Clerk) (Entered: 12/08/2006)

12/07/2006

Telephone Conference held on 12/7/2006 held before Chief Judge Benson Everett Legg. (Recorded on Tape) (kam, Deputy Clerk) (Entered: 12/13/2006)

12/08/2006 149 ORDER CONFIRMING the schedule set at the Telephone Conference on 12/7/06. Signed by Judge Benson Everett Legg on 12/7/06. (mcb, Deputy Clerk) (Entered: 12/08/2006)

12/21/2006 150 Correspondence re: case status (Clark, Kalea) (Entered: 12/21/2006)

01/24/2007 151 LETTER ORDER re Scheduling. Signed by Judge Benson Everett Legg on 1/24/07. (eg, Deputy Clerk) (Entered: 01/24/2007)

02/21/2007 152 Consent MOTION to Stay by Mary Ann Saar. Responses due by 3/12/2007 (Attachments: # 1 Exhibit senate bill 239# 2 Exhibit house bill 225)(Mullally, Laura) (Entered: 02/21/2007)

02/22/2007 153 ORDER granting 152 Joint Motion to Stay. Signed by Judge Benson Everett Legg on 2/22/07. (jnl, Deputy Clerk) (Entered: 02/22/2007)

05/22/2007 154 Status Report Submitted by Mary Ann Saar (Mullally, Laura) (Entered: 05/22/2007)

05/23/2007 155 STATUS REPORT ORDER. Status Report due by 8/22/2007. Signed by Judge Benson Everett Legg on 5/23/07. (hml, Deputy Clerk) (Entered: 05/23/2007)

05/25/2007 156 NOTICE of Change of Address by Julie Sippel Dietrich (Dietrich, Julie) (Entered: 05/25/2007)

08/21/2007 157 Status Report Submitted by Gary D. Maynard (Mullally, Laura) (Entered: 08/21/2007)

08/28/2007 158 ORDER DIRECTING Counsel to submit a status report on or before November 21, 2007. Signed by Judge Benson Everett Legg on 8/28/07(cag, Deputy Clerk) (Entered: 08/28/2007)

11/20/2007 159 Status Report Submitted by Gary D. Maynard (Mullally, Laura) (Entered: 11/20/2007)

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11/20/2007 160 PAPERLESS ORDER granting 159 the 90−day extension request. Signed by Judge Benson Everett Legg on 11/20/2007. (Legg, Benson Everett) (Entered: 11/20/2007)

02/21/2008 161 Status Report Submitted by Gary D. Maynard (Mullally, Laura) (Entered: 02/21/2008)

02/21/2008 162 PAPERLESS ORDER granting 161 extension request. Counsel are to submit a status report on or before May 21, 2008. Signed by Chief Judge Benson Everett Legg on 02/21/2008. (Legg, Benson Everett) (Entered: 02/21/2008)

05/21/2008 163 Status Report Submitted by Gary D. Maynard (Mullally, Laura) (Entered: 05/21/2008)

05/22/2008 164 PAPERLESS ORDER granting 163 defendants' request, with no objection by the plaintiff, to a 90−day extension. Signed by Chief Judge Benson Everett Legg on 05/22/2008. (Legg, Benson Everett) (Entered: 05/22/2008)

08/20/2008 165 Status Report Submitted by Gary D. Maynard (Mullally, Laura) (Entered: 08/20/2008)

08/21/2008 166 PAPERLESS ORDER granting 165 defendants' request, with no objection by the plaintiff, to a 90−day extension. Signed by Chief Judge Benson Everett Legg on 08/21/2008. (Legg, Benson Everett) (Entered: 08/21/2008)

09/12/2008 167 MOTION to Withdraw as Attorney J. Joseph Curran, Jr. by Gary D. Maynard, Frank C. Sizer, Jr, Lehrman Dotson, Gary Hornbaker Responses due by 9/29/2008 (Attachments: # 1 Text of Proposed Order)(Pickus, Phillip) (Entered: 09/12/2008)

09/29/2008 168 ORDER granting 167 Motion to Withdraw as Attorney. Attorney J Joseph Curran, Jr terminated. Signed by Chief Judge Benson Everett Legg on 9/29/08. (eg, Deputy Clerk) (Entered: 09/29/2008)

11/21/2008 169 Status Report Submitted by Gary D. Maynard (Mullally, Laura) (Entered: 11/21/2008)

11/21/2008 170 PAPERLESS ORDER GRANTING re 169 Request for extension of time filed by Gary D. Maynard. Status report due on or before 2/20/2009. Signed by Chief Judge Benson Everett Legg on 11/21/2008. (Legg, Benson Everett) (Entered: 11/21/2008)

02/20/2009 171 STATUS REPORT by Gary D. Maynard. (Mullally, Laura) (Entered: 02/20/2009)

02/20/2009 172 ORDER APPROVING Joint Status Report and 90 day postponement. Signed by Chief Judge Benson Everett Legg on 2/20/09. (das, Deputy Clerk) (Entered: 02/23/2009)

05/20/2009 173 Status Report Submitted by Gary D. Maynard (Mullally, Laura) (Entered: 05/20/2009)

05/20/2009 174 PAPERLESS ORDER re 173 Joint Status Report. The parties are GRANTED a continued STAY of the case to and including August 20, 2009. Signed by Chief Judge Benson Everett Legg on 05/20/2009. (Legg, Benson Everett) (Entered: 05/20/2009)

08/19/2009 175 Status Report Submitted by Gary D. Maynard (Mullally, Laura) (Entered: 08/19/2009)

08/20/2009

176 PAPERLESS ORDER re 175 Joint Status Report. The parties are GRANTED a continued STAY of the case to and including November 19, 2009. Signed by Chief Judge Benson Everett Legg on 08/20/2009. (Legg, Benson Everett) (Entered: 08/20/2009)

11/11/2009 177 MOTION to Withdraw APPEARANCES OF COUNSEL by Vernon Evans, Jr Responses due by 11/30/2009 (Wood, Stephanie) (Entered: 11/11/2009)

11/16/2009 178 ORDER granting 177 Motion to Withdraw the Appearance of Anne H. Geraghty, Anne Harden Tindall and Kalea Seitz Clark. Signed by Chief Judge Benson Everett Legg on 11/16/2009. (egs, Deputy Clerk) (Entered: 11/16/2009)

11/18/2009 179 Status Report Submitted by Gary D. Maynard (Mullally, Laura) (Entered: 11/18/2009)

11/19/2009 180 LETTER ORDER Staying Case; Status Report due no later than 2/19/2010.. Signed by Chief Judge Benson Everett Legg on 11/19/2009. (egs, Deputy Clerk) (Entered: 11/19/2009)

02/22/2010 181 Status Report Submitted by Gary D. Maynard (Mullally, Laura) (Entered: 02/22/2010)

02/22/2010 182 LETTER ORDER Staying Case; Status Report due no later than 5/24/2010.. Signed by Judge Benson Everett Legg on 2/22/2020. (egs, Deputy Clerk) (Entered: 02/22/2010)

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02/25/2010 183 Status Report Submitted amended status report by Gary D. Maynard (Mullally, Laura) (Entered: 02/25/2010)

05/24/2010 184 Status Report Submitted by Gary D. Maynard (Mullally, Laura) (Entered: 05/24/2010)

05/25/2010 185 LETTER ORDER CONTINUING STAY; Status Report due no later than 8/24/2010. Signed by Judge Benson Everett Legg on 5/25/2010. (egs, Deputy Clerk) (Entered: 05/25/2010)

08/25/2010 186 Status Report Submitted by Gary D. Maynard (Mullally, Laura) (Entered: 08/25/2010)

08/25/2010 187 PAPERLESS ORDER APPROVING 186 Status Report. Parties directed to file their next report in 90 days. Signed by Judge Benson Everett Legg on 08/25/2010. (Legg, Benson Everett) (Entered: 08/25/2010)

12/20/2010 188 Status Report Submitted by Gary D. Maynard (Mullally, Laura) (Entered: 12/20/2010)

12/21/2010 189 PAPERLESS ORDER APPROVING re 188 Status Report. Parties directed to submit their next status report in 90 days. Signed by Judge Benson Everett Legg on 12/21/2010. (Legg, Benson Everett) (Entered: 12/21/2010)

03/21/2011 190 Status Report Submitted by Gary D. Maynard (Mullally, Laura) (Entered: 03/21/2011)

03/21/2011 191 PAPERLESS ORDER re 190 Status Report. Parties directed to submit their next status report on or before 6/21/2011. Signed by Judge Benson Everett Legg on 3/21/2011. (Legg, Benson Everett) (Entered: 03/21/2011)

06/21/2011 192 Status Report Submitted by Gary D. Maynard (Mullally, Laura) (Entered: 06/21/2011)

06/23/2011

Case STAYED. Parties directed to file further status report in 90 days. Signed by Judge Benson Everett Legg on 6/23/2011. (Legg, Benson Everett) (Entered: 06/23/2011)

09/21/2011 193 Status Report Submitted by Gary D. Maynard (Mullally, Laura) (Entered: 09/21/2011)

09/21/2011 194 PAPERLESS ORDER APPROVING 193 Status Report. Further status report due on or before 12/21/2011. Signed by Judge Benson Everett Legg on 9/21/2011. (Legg, Benson Everett) (Entered: 09/21/2011)

09/26/2011 195 MOTION to Withdraw as Attorney by Vernon Evans, Jr Responses due by 10/14/2011 (Attachments: # 1 Text of Proposed Order)(Dietrich, Julie) (Entered: 09/26/2011)

09/27/2011 196 ORDER granting 195 Motion to Withdraw as Attorney. Attorney Julie Sippel Dietrich terminated. Signed by Judge Benson Everett Legg on 9/27/11. (apl, Deputy Clerk) (Entered: 09/28/2011)

12/21/2011 197 Status Report Submitted by Gary D. Maynard (Mullally, Laura) (Entered: 12/21/2011)

12/27/2011 198 PAPERLESS ORDER APPROVING re 197 Status Report. Further status report due on or before 3/21/2012. Signed by Judge Benson Everett Legg on 12/27/2011. (Legg, Benson Everett) (Entered: 12/27/2011)

03/14/2012 199 Status Report Submitted by Gary D. Maynard (Mullally, Laura) (Entered: 03/14/2012)

03/16/2012 200 PAPERLESS ORDER APPROVING 199 Status Report. Further status report due on or before 6/14/2012. Signed by Judge Benson Everett Legg on 3/16/2012. (Legg, Benson Everett) (Entered: 03/16/2012)

05/22/2012 201 Status Report Submitted by Gary D. Maynard (Mullally, Laura) (Entered: 05/22/2012)

05/31/2012 202 PAPERLESS ORDER APPROVING (201) Status Report. Further status report due on or before August 30, 2012. Signed by Judge Benson Everett Legg on 05/31/2012. (Legg, Benson Everett) (Entered: 05/31/2012)

08/02/2012 203 Letter ORDER re: case status. Signed by Judge Benson Everett Legg on 8/02/2012. (bf2, Deputy Clerk) (Entered: 08/02/2012)

08/16/2012 204 STATUS REPORT Parties' Joint Status Letter Report by Vernon Evans, Jr. (Wood, Stephanie) (Entered: 08/16/2012)

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08/16/2012 205 ORDER administratively closing this case. Signed by Judge Benson Everett Legg on 8/16/12. (apls, Deputy Clerk) (Entered: 08/17/2012)