Case 4:05-cv-00746-CEJ Document 2-1 Filed 05/10/2005 Page 1 of 28

IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

VERNON BROWN,

)

)

Plaintiff,

)

)

v.

)

)

)

LARRY CRAWFORD,

)

Director,

)

Department of Corrections; )

)

JAMES D. PURKETT,

)

Superintendent,

)

Eastern Reception Diagnostic )

Correctional Center; and

)

)

JOHN DOES 1‐666,

)

Anonymous Executioners, )

)

)

Defendants.

)

This is a capital case.
EXECUTION SCHEDULED FOR MAY 18, 2005
No. ____________________
JURY TRIAL DEMANDED
EXPEDITED HEARING REQUESTED

VERIFIED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
COMES NOW the plaintiff, Vernon Brown, by and through

appointed counsel, Richard H. Sindel and John William Simon, and—as

authorized by 42 U.S.C. § 1983—prays the Court for its declaratory

judgment holding that the existing procedure for lethal injection that the
CONFIDENTIAL AND PRIVILEGED EX PARTE, IN CAMERA APPLICATION PER ORDER OF APRIL 27, 2005

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State of Missouri and its officials, officers, and employees, acting under color of state law, use in executions violates the Eighth and Fourteenth Amendments, by inflicting on him cruel and unusual punishment, which thereby deprives him of life, liberty, or property without due process of law, in that the defendants’ selection of a three‐chemical sequence—itself unnecessary to bring about the statutory goal of his death—in its applying its method of lethal injection creates a foreseeable risk of the infliction of gratuitous pain, and for its preliminary injunction to prevent them from executing him at all until he has an opportunity to present his case after discovery and in open court, and thereafter a permanent injunction to prevent the defendants from using this procedure on the plaintiff; for its order granting the plaintiff reasonable attorneys’ fees and costs; and for such other relief as the Court finds appropriate.
I. Summary As set forth in detail in the declarations of anesthesiologists Mark J.S. Heath, M.D. (Attachment A), and David A. Lubarsky, M.D. (Attachment B) which are attached to this complaint, the use of a specific succession of chemicals in judicial executions by lethal injection—which the defendants or their predecessors in office have admitted they use—creates a
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foreseeable risk of the gratuitous infliction of pain and suffering, in that the first chemical is used by health‐care professionals specifically because it wears off when the patient experiences stimuli which produce pain; the second chemical paralyzes the prisoner such that he cannot breathe and he suffers from suffocation, but cannot cry out or even flinch because of the paralysis; the third chemical burns as it works its way through his veins to the heart, killing him with a heart attack. The LANCET co‐authors found that in 43% of executions, the levels of anesthetic were inadequate to render the prisoner unconscious at the time of his death; and those were in jurisdictions which were careful enough to keep records and confident of the humanness of their several practices to share these data with the co‐ authors. None of these chemicals are required by Missouri statute; none are necessary to bring about the death of the plaintiff. The Eighth Amendment forbids the gratuitous infliction of pain and suffering. Plaintiff is entitled to the relief he seeks.
II. Parties 1. Plaintiff, Vernon Brown, is a citizen of the United States and a resident of the State of Missouri.
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2. Plaintiff is a person within the jurisdiction of the State of Missouri.
3. Plaintiff was sentenced to death in the Circuit Court of the City of St. Louis (the Hon. Evelyn M. Baker, Circuit Judge) for the homicide of a minor child, J.P.
4. Plaintiff is attacking the conviction and sentence of the Circuit Court of the City of St. Louis in one or more petitions for certiorari in the Supreme Court of the United States, but not in this complaint.
5. On April 15, 2005, the Supreme Court of Missouri issued a warrant of execution specifying that the plaintiff be executed on May 18, 2005.
6. Plaintiff is incarcerated at the Eastern Missouri Reception, Diagnostic & Correctional Center, 2727 Highway K, Bonne Terre, St. Francois County, Missouri 63628.
7. Defendant Larry Crawford is Director of the Department of Corrections of the State of Missouri.
8. Defendant Crawford is specifically authorized and directed by state statute to prescribe and direct the means by which the Department of Corrections carries out executions within the statutorily specified methods
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of lethal gas or lethal injection.1 Plaintiff does not in this complaint contend that lethal injection is per se unconstitutional.
9. Defendant Crawford is sued in his individual and official capacity for the purpose of obtaining declaratory and injunctive relief.
10. Defendant James D. Purkett is Superintendent of the Eastern Reception, Diagnostic & Correctional Center (ERDCC), in Bonne Terre, St. Francois County, Missouri.
11. Defendant Purkett is “warden” or chief executive officer of ERDCC, and is therefore charged with the management of ERDCC.
12. Defendant Purkett’s principal place of business is the Eastern Reception, Diagnostic & Correctional Center (ERDCC), 2727 Highway K, Bonne Terre, St. Francois County, Missouri 63628.
13. Defendant Purkett is a resident of the Eastern District of Missouri.
1Mo. Rev. Stat. § 546.720: “The manner of inflicting the punishment of death shall be by the administration of lethal gas or by means of the administration of lethal injection. And for such purpose the director of the department of corrections is hereby authorized and directed to provide a suitable and efficient room or place, enclosed from public view, within the walls of a correctional facility of the department of corrections, and the necessary appliances for carrying into execution the death penalty by means of the administration of lethal gas or by means of the administration of lethal injection.”
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14. ERDCC is where the State of Missouri began conducting its executions on April 27, 2005.
15. By virtue of his authority over the staff of ERDCC, defendant Purkett is responsible for the way in which executions are conducted in Missouri.
16. Defendant Purkett is sued in his individual and official capacity for the purpose of obtaining declaratory and injunctive relief.
17. Defendants John Does 1‐666 are officials, officers, employees, agents, and servants of the State of Missouri who, by virtue of their employment or other status (including independent contractors and volunteers under the supervision of the defendants and their designees), participate in the planning of, purchasing and preparation for, carrying out of, and covering up of details about executions in the State of Missouri.
18. Plaintiff cannot provide the Court the natural names of these individuals because the State of Missouri and its officials, officers, and employees have thus far kept them secret.
19. John Does 1‐666 are sued in their individual and official capacities for the purpose of obtaining declaratory and injunctive relief.
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20. Each and all of the foregoing defendants Crawford, Purkett, and Does 1‐666 at all times relevant to this complaint were acting in their official capacities with respect to all acts and omissions described in this complaint, and were in each instance acting under color of state law.
21. Unless permanently enjoined against doing so, the defendants and each of them intend to act in their respective official capacities and under color of state law to execute the plaintiff by lethal injection in the manner set forth in this complaint.
III. Jurisdiction 22. Plaintiff brings this action to enforce and protect his rights under the Eighth Amendment to the United States Constitution, as applied against the states by the Fourteenth Amendment. 23. This Court has jurisdiction over this cause under 28 U.S.C. § 1331, in that it arises under the Constitution of the United States; under 28 U.S.C. § 1343(a)(3), in that it is brought to redress deprivations, under color of state law, of rights, privileges, and immunities secured by the United States Constitution; under 28 U.S.C. § 1343(a)(4), in that it seeks to secure equitable relief under an Act of Congress, i.e., 42 U.S.C. § 1983, which provides a cause of action for the protection of rights, privileges, or
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immunities secured by the Constitution and laws of the United States; under 28 U.S.C. § 2201(a), in that one purpose of his action is to secure declaratory relief; and under 28 U.S.C. § 2202, in that one purpose of his action is to secure permanent injunctive relief.
IV. Venue 24. Venue is proper in this federal judicial district under 28 U.S.C. § 1391(b)(2) in that the events giving rise to this claim will, absent the action of this Court as prayed for in this action, occur in its territorial jurisdiction.
V. Facts 25. Plaintiff restates and realleges the contents of each preceding paragraph as if fully set forth again. 26. Defendants intend to execute the plaintiff on May 18, 2005, by lethal injection using a succession of three chemicals: sodium pentothal, pancuronium bromide, and potassium chloride. 27. As set forth in greater detail in the declarations of anesthesiologists, Mark J.S. Heath, M.D. (Attachment A), and David A. Lubarsky, M.D. (Attachment B), the use of this succession of chemicals in judicial executions by lethal injection creates a foreseeable risk of the
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gratuitous infliction of pain and suffering. The use of this succession of chemicals, or of any one or more of them, is absolutely unnecessary to bring about the death of the plaintiff. (E.g., Attachment A, ¶¶ 25, 36, 41 & 45.)
28. Specifically, sodium pentothal, also known as thiopental, is a ultra‐short acting substance which produces shallow anesthesia. Health‐ care professionals use it as an initial anesthetic in preparation for surgery while they set up a breathing tube in the patient and use different drugs to bring to patient to a “surgical plane” of anesthesia that will last through the operation and will block the stimuli of surgery which would otherwise cause pain. Sodium pentothal is intended to be defeasible by stimuli associated with errors in setting up the breathing tube and initiating the long‐run, deep anesthesia; the patient is supposed to be able to wake up and signal the staff that something is wrong. (Attachment A ¶¶ 20‐22.)
29. Sodium pentothal is unstable in liquid form, and must be mixed up and applied in a way that requires the expertise associated with licensed health‐care professionals who cannot by law and professional ethics participate in executions. (Attachment A, ¶ 26.)
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30. The second chemical the defendants use in lethal injections is pancuronium bromide, sometimes referred to simply as pancuronium. It is not an anesthetic. It is a paralytic agent, which stops the lungs. It has two contradictory effects: first, it causes the person to whom it is applied to suffer suffocation when the lungs stop moving; second, it prevents the person from manifesting this suffering, or any other sensation, by facial expression, hand movement, or speech. (Attachment A, ¶¶ 27‐30.)
31. When sodium pentothal is exposed to pancuronium bromide, it precipitates. It is then no longer active as an anesthetic. Any one of a number of mistakes, or simply bad luck, can cause this to happen. In the absence of the assurance that the executioners have the same skills as anesthetists or nurse‐anesthetists, the likelihood is substantial that this will happens in any given execution by lethal injection performed in the State of Missouri.
32. Pancuronium bromide is unnecessary to bring about the death of a person being executed by lethal injection. Its only relevant function is to prevent the media and the conscientious staff from knowing when the sodium pentothal has worn off and the prisoner is suffering from
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suffocation or from the administration of the third chemical. (Attachment A, ¶ 41.)
33. That third chemical is potassium chloride, which is the substance that causes the death of the prisoner. It burns intensely as it goes through the veins toward the heart. Because the veins are running back to the heart after the arteries have carried it to the extremities, the blood runs more slowly than it does in the arteries. This prolongs the pain the prisoner suffers when the sodium pentothal wears off, as it is selected by surgical anesthetists because it does. (Attachment A, ¶¶ 43‐44.)
34. When the potassium chloride reaches the heart, it causes a heart attack. If the sodium pentothal has worn off by the time, the prisoner feels the pain of a heart attack, but no one can tell because the pancuronium bromide has paralyzed his face, his arms, and his entire body so that he cannot express himself either verbally or otherwise. (Attachment A, ¶¶ 43‐ 46.)
35. Veterinarians are prohibited by law from using these chemicals in euthanizing animals, because the veterinary profession knows that they are cruel means of bringing about the death of a sentient being.
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(Attachment A, ¶¶ 25, 37‐40 & 47‐50.) They cause pain and suffering far in excess of what is necessary to bring about the mere extinguishment of life.
36. Veterinarians are forbidden to use these chemicals even though they may personally participate in euthanasia and may also recruit and retain the most qualified available personnel to assist them. By contrast, physicians are forbidden by the Hippocratic Oath and by positive law from participating in executions. (Attachment A, ¶¶ 55‐58.)
37. In a study published the day after the Missouri Supreme Court set the execution date in this case, Dr. David A. Lubarsky and three co‐ authors published in the world‐renowned medical journal THE LANCET the results of their research on the effects of these chemicals in lethal injections in the few states which bothered to conduct autopsies and prepare toxicology reports, and which did not refuse to produce these data for these scholars.
38. This publication is Exhibit 2 to Attachment B, the declaration of the plaintiff’s expert witness Dr. Lubarsky.
39. The LANCET team found that in 43% of the lethal injections they studied, the prisoner had an inadequate amount of sodium pentothal in his bloodstream to provide anesthesia. (Attachment B, ¶ 16.) In other words,
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in close to half of the cases, the prisoner felt the suffering of suffocation from pancuronium bromide, and the burning through the veins followed by the heart attack caused by the potassium chloride.
40. Another Missouri prisoner under sentence of death, Timothy Johnston, has filed an action before this Court under 42 U.S.C. § 1983 raising substantially the same claim that this plaintiff is raising. Johnston v. Kempker, No. 4:04‐CV‐01075‐DJS (E.D. Mo. Mar. 31, 2005) (memorandum in support of motion to compel answers filed by plaintiff Johnston’s counsel).
41. Represented by the Office of the Attorney General, specifically Assistant Attorneys General Denise G. McElvein and Stephen David Hawke, the defendants in the Johnston case—including the predecessor in office of defendant Crawford and also defendant Purkett—have resisted virtually every syllable of discover promulgated by Mr. Johnston’s counsel, but have admitted, by their response to interrogatories to defendant Crawford’s predecessor in office (Attachment C at 4), that the defendants use the three chemicals identified in this complaint, though the defendants have refused to disclose the amounts or the timing of their administration.
42. Although a Missouri statute specifies that death sentences will be carried out by lethal gas or lethal injection, it does not prescribe any
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given chemical to be used in either process, but leaves these decisions up to defendant Crawford.2
43. In Johnston v. Kempker, the defendants have refused to disclose the training or lack thereof which the actual executioners have had. Only blind faith would lead this Court to find that the personnel they have been able to recruit to participate in this activity have the skills of licensed medical and veterinary professionals which would be necessary to administer the chemicals in a minimally competent manner. (Attachment A, ¶¶ 55‐58; Attachment B, ¶¶ 19.f & 21.)
44. One of the defenses the Johnston defendants asserted was nonexhaustion of administrative remedies. (Attachment D at 12‐13.) Mr. Johnston’s counsel filed an Informal Resolution Request (IRR) in which Mr. Johnston had sought to raise the grievance in his complaint, Mr. Jones’s, and this one, but the Department of Corrections had not processed the grievance beyond noting in writing that it raised “a non‐grievable issue.” (Attachment E.) Although the Johnston defendants’ counsel, Ms. McElvein and Mr. Hawke, filed a reply to the response to which this IRR was an exhibit, they did not dispute the plaintiff’s showing that because the issue
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was non‐grievable according to the agency which promulgated the grievance policy on which the defense of nonexhaustion relied, the defense was unavailing. (Attachment F at 5 (digitally signed “/s/Denise G. McElwein”).
45. On January 21, 2005, the plaintiff filed a pleading in the Missouri Supreme Court asking it not to set an execution date in his case on the basis of his grievance with the use of the three‐chemical sequence described in the attached declarations, and that it not do so while the defendants’ motion to dismiss was pending before this Court in Mr. Johnston’s case.
46. On April 15, 2005, the Missouri Supreme Court set an execution date notwithstanding his pleading as aforesaid, which it had duly filed and to which the Office of the Attorney General (specifically counsel of record for the state, Assistant Attorney General Stephen D. Hawke) filed no response.
47. On April 16, 2005, Dr. Lubarsky (whose declaration is attached to this complaint) and his co‐authors published in the world‐renowned medical journal THE LANCET the article attached to Dr. Lubarsky’s declaration (Attachment B) as Exhibit 2.
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48. This article confirmed, through the analysis of empirical after‐ the‐fact data, that the scientific critique of the use of sodium pentothal, pancuronium bromide, and potassium chloride creates a foreseeable risk of the gratuitous infliction of pain on a person being executed.
49. On April 21, 2005, the plaintiff filed a petition for a writ of habeas corpus under Mo. S. Ct. R. 91 before the Missouri Supreme Court, renewing the grievance he had set forth on January 21, 2005, but with the additional authority of the LANCET article by Dr. Lubarsky and his co‐ authors.
50. On the same day that the plaintiff filed his state habeas corpus petition challenging this three‐chemical sequence on the new basis of the LANCET article, so did Donald Jones, CP‐110, represented by the undersigned court‐appointed counsel.
51. The Missouri Supreme Court denied Mr. Jones’s petition the next day.
52. Represented by Michael A. Gross—his lead appointed counsel in the federal courts—Mr. Jones filed an action under 42 U.S.C. § 1983 on Monday, April 25, 2005, less than forty‐eight hours before his scheduled execution using this sequence of three chemicals.
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53. The same day, the Court (the Hon. Rodney W. Sippel, District Judge) held a proceeding at which Mr. Jones was represented by Mr. Gross, and the defendants (including defendants Crawford and Purkett here) were represented by Assistant Attorneys General Denise McElwein, in person, and Andrew W. Hassell, by telephone. (Attachment G is a true and correct copy of the transcript of proceedings in the Jones section 1983 action.)
54. Before Judge Sippel, Ms. McElwein (who had signed a pleading in the Johnston case recognizing by silence that the issue before Judge Sippel was non‐grievable) re‐raised the defense of nonexhaustion of administrative remedies:
. . . even if you look at this as a Section 1983 action, then it is barred under the Prison Litigation Reform Act because the plaintiff has failed to allege that he has exhausted his administrative remedies as required by the PLRA. And I think the PLRA is pretty clear that no action—it says: “No action shall be brought with respect to prison conditions under Section 1983 until such administrative remedies as are available are exhausted.” And according to this circuit in McAlphin v. Morgan, 216 F.3d. 680, which is a 2000 Eighth Circuit
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opinion, states that dismissal is appropriate in the absence of proof of exhaustion.3 55. After retiring to deliberate, Judge Sippel returned to the courtroom and announced that he was relying on Ms. McElwein’s nonexhaustion defense as his first and basic reason for denying relief: “the basis of my judgment will be that the complaint fails to state a cause of action under Section 1983 for failure to exhaust administrative remedies.” (Attachment G at 30‐31.) 56. Over a vote of five to two for commutation by the Board of Probation & Parole, the Governor denied executive clemency, and the defendants executed Mr. Jones on April 27, 2005, at or about 12:01 a.m. 57. Later the same morning (after the fact of the execution was public knowledge), the district court (the Hon. Carol E. Jackson) granted Mr. Brown’s motion—filed before the Missouri Supreme Court had set an execution date—for leave to proceed ex parte to request funding for expert and investigative services. Thereafter and thereby, Mr. Brown’s counsel were able to obtain the services, inter alia, of the senior co‐author of the LANCET article published the day after the Missouri Supreme Court set Mr. Brown’s execution date.

3Attachment G at 22‐23.

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58. After this Court allowed the plaintiff’s counsel to seek funding for expert and investigative services without disclosing their mental impressions to opposing counsel, the Missouri Supreme Court summarily denied the plaintiff’s habeas corpus action raising this issue, with explanation and without ordering the respondents to show cause or otherwise respond.
59. This complaint is being filed as soon as counsel received the attached declarations prepared by the LANCET team and by the leading expert on the underlying mechanism under which the defendants’ three‐ chemical sequence creates a foreseeable risk of inflicting gratuitous pain.
60. Unless the defendants answer several questions that the LANCET team has expressed through Dr. Lubarsky’s declaration (Attachment B, ¶¶ 19‐21), and which are reflected in the plantiff’s discovery, the petitioner is entitled to the inference that because the defendants’ practices are substantially similar to those of the lethal‐ injection jurisdictions which conducted autopsies and toxicology reports, which kept records of them, and which disclosed them to the LANCET scholars, there is at least the same risk (43%) as in those jurisdictions that he will not be anesthetized at the time of his death. (Attachment B, ¶¶ 22‐23.)
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VI. Claim for Relief 61. Plaintiff restates and realleges the contents of each preceding paragraph as if fully set forth again. 62. Unless this Court stops them, the defendants, acting individually and under color of state law, will violate the plaintiff’s right to be free of cruel and unusual punishments secured to him by the Eighth Amendment to the Constitution of the United States as applied against the states by section 1 of the Fourteenth Amendment by executing him using the sequence of three chemicals (sodium pentothal a/k/a thiopental, pancuronium bromide, and potassium chloride) which they have admitted to be their practice in their discovery responses in Johnston v. Kempker as aforesaid, which is unnecessary as a means of employing lethal injection and not required by the statute creating this form of execution in the State of Missouri, and which creates a foreseeable risk of inflicting gratuitous pain and suffering.
VII. Exhaustion of Administrative Remedies 63. As noted, in the Johnston and Jones litigation, the defendants initially asserted that the plaintiff had failed to exhaust administrative remedies.
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64. In Johnston, the defendants’ clients in the Department of Corrections had admitted, by notation on Mr. Johnston’s IRR, that the issue of which chemicals the executioners use is “non‐grievable.”
65. Counsel for the defendants recognized this fact by dropping the nonexhaustion point in the reply to Mr. Johnston’s response to which the IRR was attached as an exhibit.
66. The same counsel raised the same defense in Jones, knowing that this issue was not grievable according to the Department of Corrections, in whose favor the exhaustion requirement of 42 U.S.C. § 1997e is supposed to run; the Court relied on her representations; Mr. Jones was executed by the use of the specific chemical sequence which Mr. Johnston’s pleadings, his pleadings, and Mr. Brown’s pleadings show to create a foreseeable risk of inflicting gratuitous pain and suffering in violation of the Eighth and Fourteenth Amendments.
67. As of the time this claim manifested itself beyond cavil with the publication of the LANCET article, Mr. Brown was not only aware of what happened to Mr. Johnston’s grievance but had also heard that when prisoners have attempted to file IRR’s on this issue, the staff of the
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Department of Corrections have actually refused to give them IRR forms because of the Department’s position that the issue was not grievable.
68. Nonetheless, on the advice of counsel, Mr. Brown has filed an IRR and submits a true and correct copy of it with a cover affidavit as Attachment H. This filing is in an abundance of caution and not by way of admission that the issue is grievable notwithstanding the well‐established position of the Department of Corrections, reflected both to this Court through counsel and to the prisoners affected by the issue by the staff of the Department.
69. Because the issue which chemicals the state uses in lethal injections is not within the scope of the Department of Corrections grievance policy, this complaint is not subject to the requirement of 42 U.S.C. § 1997e which applies to suits about the heat of beans served at meals, etc.
70. Parties in privity with the State of Missouri, such as these defendants, are estopped to assert the nonexhaustion of administrative remedies because the Department of Corrections does not consider this issue grievable (and their attorneys know it) and because the plaintiff has
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given the Missouri Supreme Court a clear opportunity to resolve this issue by filing a petition under its Rule 91.
71. In any event, the plaintiff observes ex gratia that just as a constitutional challenge to the specific selection and sequence of chemicals used in a lethal injection is not an attack on the fact or duration of his confinement, it is not an issue of “prison conditions” either, but falls between these two categories and is among the deprivations of federal constitutional rights for which section 1983 provides a remedy on the facts and circumstances of this case.
VIII. Prayer for Relief 72. Initially, the plaintiff seeks a preliminary injunction to prevent the defendants from executing him until the defendants have responded to his discovery (including what appears to be the inevitable time it will take to litigate motions to compel as Mr. Johnson has had to do) and until this Court has adjudicated his underlying claim for relief on the merits (including the time it would take for any appeal from the disposition). 73. Second, the plaintiff seeks a declaratory judgment holding that the defendants’ current means, methods, practices, procedures, and
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customs regarding execution by lethal injection violate the Eighth and Fourteenth Amendments.
74. Plaintiff seeks a permanent injunction preventing the defendants from using their current means, methods, practice, procedures, and customs regarding execution by lethal injection.
75. Finally, the plaintiff seeks an order granting him reasonable attorney fees under 42 U.S.C. § 1988 and the laws of the United States; for his costs of suit; and for such other and further relief as the Court deems appropriate.
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WHEREFORE, the plaintiff prays the Court for its orders as

aforesaid.

Respectfully submitted,

SINDEL, SlNDE
wdu$
RICHARD H. SINDEL

E.D. Mo. Bar No. 4380 Mo. Bar Enrollment No. 23406 8008 Carondelet, Suite 301 Clayton, Missouri 63105
(314) 721-6040 FAX (314)721-8545

E.D. Mo. Bar No. 5676 Mo. Bar Enrollment No. 34535 2683 South Big Bend Blvd., # 12 St. Louis, Missouri 63143-2100
(314) 645-1776 FAX (314) 645-2125

Attorneys for Petitioner

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Declaration of Verification COMES NOW the declarant, John William Simon, and as authorized by 28 U.S.C. § 1746, states and declares under penalty of perjury all as follows: 1. My name is John William Simon. 2. I live in Richmond Heights, Missouri. 3. I am a member of the Missouri Bar (Enrollment No. 34535), and of the bars of the Supreme Court of the United States, the United States Court of Appeals for the Seventh and Eighth Circuits, and of the United States District Courts for the Eastern and Western Districts of Missouri. 4. I hold an A.B. summa cum laude, Phi Beta Kappa, with distinction in Philosophy and Political Science from Boston University; an A.M. and a Ph.D. in Political Science from Harvard University; and a J.D. from the Yale Law School. 5. I taught constitutional law and other subjects in the discipline of political science for eight and one‐half years. 6. I have practiced law full‐time since my admission to the bar in 1985, having worked as a summer clerk or law clerk from my first summer of law school until my admission.
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7. I have handled capital cases in federal habeas corpus and in state court from both sides since 1991, first for the State of Missouri and its privies, and thereafter for persons accused of capital crimes or sentenced to death by the federal government or the State of Missouri.
8. I have personally prepared the foregoing pleading. 9. Insofar as I am a witness to the transactions and occurrences set forth in the foregoing pleading, such as pleadings filed and responses and orders received in this plaintiff's cases and in those of Donald Jones, the statements in the pleading are true and correct according to my personal knowledge and belief. 10. The documents I have attached to this pleading are true and correct copies of the masters or originals in my possession, custody, and control. Further, the declarant saith naught. I declare under penalty of perjury that the foregoing is true and correct.
% h @ 5 Executed:

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Certificate of Service I hereby certify a true and correct copy of the foregoing was forwarded for transmission via Electronic Case Filing (ECF) or otherwise e‐ mailed this tenth day of May, 2005, to the offices of:
Stephen David Hawke, Esq. Assistant Attorney General P.O. Box 899 Jefferson City, Missouri 65102 stephen.hawke@ago.mo.gov
/s/ John William Simon Attorney for Plaintiff
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 Case 4:05-cv-00746-CEJ Document 2-2 Filed 05/10/2005 Page 1 of 10
TEMPORARY RESTRAINING ORDER & PRELIMINARY INJUNCTION REQUESTED EXECUTION SCHEDULED FOR 12:01 A.M. ON MAY 18, 2005
IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

VERNON BROWN, Plaintiff,
v.
LARRY CRAWFORD, et al., Defendants.

) ) ) ) ) ) No. ____________________ ) ) ) )

MEMORANDUM OF LAW IN SUPPORT OF COMPLAINT COMES NOW the plaintiff, Vernon Brown, by and through counsel, Richard H. Sindel and John William Simon, and in support of his complaint under 42 U.S.C. § 1983, states and alleges all as follows:1 1. In Timothy Johnston v. Gary B. Kempker, No. 4:04‐CV‐01075‐DJS (E.D. Mo. Mar. 31, 2005) (memorandum in support of motion to compel

1Plaintiff has addressed, in the body of the complaint, the defendants’ contention in previous actions that he had to exhaust administrative remedies, and has submitted documentary evidence that there is no administrative remedy on this issue. If the Court desires further briefing on this issue, the petitioner’s counsel requests a reasonable time in which to generate it and points out the necessity of a temporary restraining order or preliminary injunction to keep the defendants from avoiding accountability for their choice of chemicals by proceeding to kill the plaintiff with the very

Case 4:05-cv-00746-CEJ Document 2-2 Filed 05/10/2005 Page 2 of 10
answers filed by plaintiff Johnston’s counsel), and Donald Jones v. Larry Crawford, No. 4:05‐cv‐00653‐RWS, the defendants in similar actions alleged that the plaintiffs’ complaints under 42 U.S.C. § 1983 were not “really” what they were, but were “really” successive federal habeas corpus petitions.
2. Defendants raise this objection because if this section 1983 action were “really” a federal habeas corpus petition, it would be successive, and would therefore require leave of the United States Court of Appeals to be filed. 28 U.S.C. § 2244(b)(2). It isn’t, and it doesn’t.
3. The objection is a snare and a delusion. Plaintiff does not here attack his conviction and sentence; he does not here attack the death penalty; he assumes lethal injection is, in the abstract, a form of execution consistent with Gregg v. Georgia,2 its progeny, and the historic practices and decisions on which they are based. Although he believes he should not be executed at all, he is pursuing this objective through other, appropriate, means. It ill‐behooves the defendants to avoid being held responsible for
chemicals which are at issue here. 2Gregg v. Georgia, 428 U.S. 152, 173 (1976) (plurality opinion). ‐ 2 ‐

Case 4:05-cv-00746-CEJ Document 2-2 Filed 05/10/2005 Page 3 of 10
their inhumane acts and omissions by accusing the plaintiff of dishonesty in the framing of this meritorious complaint.
4. The first case in point is Nelson v. Campbell.3 There, as here, an Alabama prisoner under sentence of death challenged the constitutionality of a particular incident of a given lethal injection procedure which was unnecessary to bring about his death. In Nelson, it was a particular form of “cut‐down” procedure to gain access to a vein; here, it is a particular set of chemicals which are only a few of many which could be used to bring about “the mere extinguishment of life.”
5. In Nelson, the Supreme Court rejected the section 1983 defendants’ argument that the plaintiff was “really” doing something besides what the papers his counsel filed did:
Respondents at oral argument conceded that § 1983 would be an appropriate vehicle for an inmate who is not facing execution to bring a “deliberate indifference” challenge to the constitutionality of the cut‐down procedure if used to gain venous access for purposes of providing medical treatment. . . . We see no reason on the face of the complaint to treat petitionerʹs claim differently solely because he has been condemned to die.
3541 U.S. 637, 124 S.Ct. 2117 (2004). ‐ 3 ‐

Case 4:05-cv-00746-CEJ Document 2-2 Filed 05/10/2005 Page 4 of 10
Respondents counter that, because the cut‐down is part of the execution procedure, petitionerʹs challenge is, in fact, a challenge to the fact of his execution. They offer the following argument: A challenge to the use of lethal injection as a method of execution sounds in habeas; venous access is a necessary prerequisite to, and thus an indispensable part of, any lethal injection procedure; therefore, a challenge to the State’s means of achieving venous access must be brought in a federal habeas application. Even were we to accept as given respondents’ premise that a challenge to lethal injection sounds in habeas, the conclusion does not follow. That venous access is a necessary prerequisite does not imply that a particular means of gaining such access is likewise necessary. Indeed, the gravamen of petitioner’s entire claim is that use of the cut‐down would be gratuitous. Merely labeling something as part of an execution procedure is insufficient to insulate it from a § 1983 attack. If as a legal matter the cut‐down were a statutorily mandated part of the lethal injection protocol, or if as a factual matter petitioner were unable or unwilling to concede acceptable alternatives for gaining venous access, respondents might have a stronger argument that success on the merits, coupled with injunctive relief, would call into question the death sentence itself. But petitioner has been careful throughout these proceedings, in his complaint and at oral argument, to assert that the cut‐down, as well as the wardenʹs refusal to provide reliable information regarding the cut‐down protocol, are wholly unnecessary to gaining venous access. Petitioner has alleged alternatives that, if they had been used, would have allowed the State to proceed with the execution as scheduled. . . . No Alabama statute requires use of
‐ 4 ‐

Case 4:05-cv-00746-CEJ Document 2-2 Filed 05/10/2005 Page 5 of 10
the cut‐down, see Ala.Code § 15‐18‐82 (Lexis Supp.2003) (saying only that method of execution is lethal injection), and respondents have offered no duly‐promulgated regulations to the contrary.4 6. So here, nothing in Missouri’s statute on lethal injection requires the defendants to use the three‐chemical sequence of sodium pentothal, pancuronium bromide, and potassium chloride. It does not use lethal doses of the first two. The third is one of many it could use to bring about his death. It is like a brutal cut‐down as opposed to some other means of gaining venous access. 7. In the previous actions, the defendants have cited Fugate v. Department of Corrections5 for the proposition that a section 1983 action by a Georgia death row prisoner raising constitutional infirmities in the specific way in which specific corrections officials, officers, and employees planned to carry out a lethal injection. Plaintiff acknowledges the existence of this per curiam, out‐of‐circuit order, which is not mandatory authority. It says, “[a] complaint seeking relief under 42 U.S.C. § 1983 from a sentence of death as cruel and unusual punishment ‘constitutes the “functional
4Id. at 2123‐24. 5301 F.3d 1287, 1288 (11th Cir. 2002).
‐ 5 ‐

Case 4:05-cv-00746-CEJ Document 2-2 Filed 05/10/2005 Page 6 of 10
equivalent” of a second habeas petition,’ and ‘the district court [i]s subject to the law applicable to successive habeas petitions.’”6 The same per curiam goes on to say that if Mr. Fugate had sought permission of the same court of appeals to file a successive habeas corpus petition on the basis on which he sought relief under section 1983, it cited one of its own decisions and said would have denied leave on the general ground that it disagree that such claims would ever justify granting leave to file a successive petition.7 That the Eleventh Circuit so held before the LANCET article appeared is no reason why this Court should try to put a square peg into a round hole in order to deny this plaintiff the relief he deserves under this remedial statute, in order to deny him any relief at all.
8. To the extent that Nelson suggested that some ambiguity remained about the borderline between section 1983 actions and section 2254 actions, the Supreme Court resolved the ambiguity in the plaintiff’s favor in Dickinson v. Dotson,8 announced on March 7, 2005. In it the Court held that state prisoners could raise a constitutional challenge to state parole
6Id., Hill v. Hopper, 112 F.3d 1088, 1089 (11th Cir.1997), citing Felker v. Turpin, 101 F.3d 95, 96 (11th Cir.1996).
7Id., citing In re Provenzano, 215 F.3d 1233, 1235‐36 (11th Cir. 2000). ‐ 6 ‐

Case 4:05-cv-00746-CEJ Document 2-2 Filed 05/10/2005 Page 7 of 10
procedures under section 1983 in spite of the state corrections officials’ contention that doing so was, as here, “really” a federal habeas corpus petition. The Court analyzes its decisions on the borderline between 1983 and 2254, and held that because these prisoners’ actions did not call into question the validity of their convictions or sentences, and would not necessarily result in a speedier release from confinement, they did not fall within the “core” of claims for which federal habeas corpus (with its time limitations and severe limitations on successive petitions) would be the exclusive federal‐court remedy.9
9. Dickinson dooms the defendants’ avoidance of the merits of this case. Plaintiff does not attack the validity of his conviction or his sentence. (He does attack the latter in other actions, but that fact is irrelevant to this action except by showing that he has selected his remedies correctly.) A judgment for the plaintiff would not invalidate the judgment against him in the Circuit Court of the City of St. Louis. A judgment for him would not result in his release from confinement at all; it would not even excuse him from the death penalty, unless the defendants refused to conform to the
8125 S.Ct. 1242 (2005). ‐ 7 ‐

Case 4:05-cv-00746-CEJ Document 2-2 Filed 05/10/2005 Page 8 of 10
Eighth and Fourteenth Amendments in the manner in which, within the spacious words of the state statute on executions, they choose to kill him.
10.Although the defendants made the same unfounded argument in the Jones case, and Mr. Jones was executed using their three‐chemical sequence, they were on notice—in Johnston, because Mr. Johnston’s counsel had filed a memorandum calling this Court’s attention to Dickinson—that the Supreme Court had, since Nelson and trumping Fugate, drawn the bright line the plaintiff explains here: because this action does not implicate the validity of the judgment against him in the state trial court, and a favorable decision will not necessarily (or at all) result in his immediate release from confinement, it is proper under section 1983.
9Id. at 1248. ‐ 8 ‐

Case 4:05-cv-00746-CEJ Document 2-2 Filed 05/10/2005 Page 9 of 10

WHEREFORE, the plaintiff renews his prayer for the relief he

requests in his complaint and accompanying papers. Respectfully submitted,

SINDEL, SINDEL & NOBLE, P.C.

RICHARD H. SINDEL
E.D. Mo. Bar No. 4380 Mo. Bar Enrollment No. 23406 8008 Carondelet, Suite 301 Clayton, Missouri 63105
(314) 721‐6040 FAX (314) 721‐8545

s/John William Simon JOHN WILLIAM SIMON
Of Counsel E.D. Mo. Bar No. 5676 Mo. Bar Enrollment No. 34535 2683 South Big Bend Blvd., # 12 St. Louis, Missouri 63143‐2100
(314) 645‐1776 FAX (314) 645‐2125

Attorneys for Petitioner

‐ 9 ‐

Case 4:05-cv-00746-CEJ Document 2-2 Filed 05/10/2005 Page 10 of 10
Certificate of Service I hereby certify a true and correct copy of the foregoing was forwarded for transmission via Electronic Case Filing (ECF) or otherwise e‐ mailed this [Click here and type ordinal number of day of month] day of May, 2005, to the offices of:
Stephen David Hawke, Esq. Assistant Attorney General P.O. Box 899 Jefferson City, Missouri 65102 stephen.hawke@ago.mo.gov
/s/ John William Simon Attorney for Plaintiff
‐ 10 ‐

 
 Case 4:05-cv-00746-CEJ Document 10-1 Filed 05/13/2005 Page 1 of 11

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MISSOURI EASTERN DIVISION

VERNON BROWN, Plaintiff,
v. LARRY CRAWFORD, et al.,
Respondents.

)

)

)

)

) No. 4:05-CV-746 (CEJ)

)

ECF

)

)

)

MOTION TO DISMISS/SUGGESTIONS IN OPPOSITION TO MOTION FOR TEMPORARY RESTRAINING ORDER

This court should dismiss this action under Federal Rule of Civil Procedure 12(b)(1)

and (6) because the court lacks jurisdiction and because the complaint fails to state a claim

for which relief should be granted in that Brown’s claims are proper only in a federal habeas

corpus proceeding under 28 U.S.C. §2254. Further, this court should deny the motion for a

temporary restraining order as Plaintiff Brown has unnecessarily delayed pre senting his claim

to this court.

Procedural History

On October 24, 1986, Brown strangled nine-year-old Janet Perkins to death with a

rope. State v. Brown, 902 S.W.2d 278 (Mo. banc 1995). Brown was convicted in the Circuit

Court of the City of St. Louis of first degree murder, §565.020, RSMo. 1994 and sentenced

to death. The M issouri Supreme Court affirmed the conviction and sentence and affirmed

the denial of post-conviction relief. State v. Brown, 902 S.W.2d 278, 283-84 (Mo. banc

1995), cert. denied, 516 U.S. 1031 (1995).

Case 4:05-cv-00746-CEJ Document 10-1 Filed 05/13/2005 Page 2 of 11
Plaintiff then filed a petition for writ of habeas corpus in the United States District Court for the Eastern District of Missouri. That court denied habeas relief on July 5, 2000. Vernon Brown v. Michael Bowersox, No. 4:95-CV-2326 (CEJ) (E.D. Mo.). The court of appeals affirmed. Vernon Brown v. Michael Bowersox, No. 00-3903 (8th Cir. Feb. 23, 2001), cert. denied sub nom. Brown v. Luebbers, 534 U.S. 1135 (2002). Plaintiff is also under a second death sentence. State v. Brown, 998 S.W.2d 531 (M o. banc 1999).
On April 15, 2005 the Missouri Supreme Court issued an order setting Brown’s execution date for May 18, 2005 for the Janet Perkins murder conviction. I. This court lacks jurisdiction over plaintiff’s §1983 claim challenging lethal
injection because this type of claim should have been raised in his federal habeas petition. The complaint should be dismissed for lack of jurisdiction because 42 U.S.C. §1983 is not an appropriate vehicle to challenge the sentence of death and plaintiff could have litigated the issue of lethal injection in his earlier federal habeas corpus action.1 This §1983 challenge to lethal injection is the “functional equivalent of a successive habeas petition.” Fugate v. Department of Corrections, 301 F.3d 1287, 1288 (11th Cir. 2002). Plaintiff makes
1Plaintiff seems to have implicitly recognized this fact in that he filed a Rule 91 state habeas corpus petition in the Missouri Supreme Court. State ex rel. Brown v. Roper, No. 86762 (Mo. banc, May 3, 2005). The Missouri Supreme Court summartily denied the petition.
2

Case 4:05-cv-00746-CEJ Document 10-1 Filed 05/13/2005 Page 3 of 11
no showing of cause for his failure to raise this issue in the prior habeas petition. Thus, 28 U.S.C. §2244(b)(2) bars habeas review of plaintiff’s claim.
A state prisoner may not obtain equitable relief under §1983 when the federal habeas corpus statute is the exclusive remedial mechanism for obtaining the relief requested. Prieser v. Rodriguez, 411 U.S. 475, 487-90 (1973). When a §1983 action involves a challenge to an inmate’s sentence, it must be raised by a habeas action. Heck v. Humphrey, 512 U.S. 477 (1994). The court of appeals has held that “a challenge to the manner of execution is a challenge seeking to interfere with the sentence itself, and thus, is properly construed as a petition for habeas corpus.” William v. Hopkins, 130 F.3d 333, 336 (8th Cir. 1997) (challenge to ele ctrocutio n), cert. denied, 522 U.S. 1010 (1997) quoting In Re Sapp, 118 F.3d 460, 462 (6th Cir. 1997), cert. denied sub nom. McQueen v. Sapp, 521 U.S. 1130 (1997); accord Felker v. Turpin, 101 F.3d 95, 96 (11th Cir. 1996), cert. denied, 519 U.S. 989 (1996); Hill v. Hopper, 112 F.3d 1088 (11th Cir. 1997); (§1983 challenge to constitutionality of electrocution “functional equivalent” of habeas petition, subject to procedural requirements governing second or successive habeas petition); but see Fierro v. Gomez, 77 F.3d 301 (9th Cir. 1996), vacated, Gomez v. Fierro, 519 U.S. 918 (1996). A challenge to the method of the imposition of sentence constitutes a successive application for habeas relief. See Harvey v. Horan, 278 F.3d 370, 374-80 (4th Cir. 2002); Buchanan v. Gilmore, 139 F.3d 982, 983-84 (4th Cir. 1998).
3

Case 4:05-cv-00746-CEJ Document 10-1 Filed 05/13/2005 Page 4 of 11
Plaintiff contends that he is not challenging the fact or duration of his confinement; thus, his case should not be deemed a federal habeas corpus petition (Complaint, page 23, paragraph 71). Plaintiff’s assertion, however, is undercut by his prayer for relief seeking preliminary and permanent injunctive relief against the “current means, methods, practice, procedures and customs regarding execution by lethal injection.” Not only does plaintiff request a permanent injunction as his objective, but also, he provides no “acceptable alternatives to the chemical used for injection.” In Nelson v. Campbell, 541 U.S. 637 (2004), the offender offered acceptable alternatives to a “cut-down” procedure. 124 S.Ct. 2117, 2124 (2004). “Nelson’s holding clearly requires that a capital defendant in order to assert a §1983 method-of-execution claim, must allege that, because there are alternative methods of execution, the challenged protocol is wholly unnecessary to proceeding with the execution.” Aldrich v. Johnson, 388 F.3d 159 (5th Cir. 2004).
Plaintiff also refers to Dickinson v. Dotson, 125 S.Ct. 1242 (2005) (Memorandum of Law in Support of Complaint, page 6, paragraph 8). That decision concerned whether a modification to a parole file sounds in §1983 and did not address whether a method-ofexecution claim is properly brought in a §1983 suit. Dotson is inapposite to the case at bar. II. Brown is not entitled a temporary restraining order. A. Standard of Review
The United States Court of Appeals for the Eighth Circuit has set out four factors for evaluating motions for a temporary restraining order:
4

Case 4:05-cv-00746-CEJ Document 10-1 Filed 05/13/2005 Page 5 of 11
(1) the probability of the movant’s success on the merits; (2) the threat of irreparable harm to the movant; (3) the balance between this harm and the injury that granting the injunction will inflict on other interested parties; and (4) whether the issuance of the preliminary injunction is in the public interest. See Dataphase Sys., Inc. v. C L Sys., Inc., 640 F.2d 109, 114 (8th Cir. 1981) (en banc). Coca-Cola Co. v. Purdy, 382 F.3d 774, 782 (8th Cir. 2004). Although AEDPA’s restrictions on successive petitions do not strictly govern plaintiff’s pending case, those provisions direct this court’s review of plaintiff’s belated demand for extraordinary and equitable relief. Notably, the Supreme Court has held that even though a federal court considers a motion or action that is not subject to the restrictions of AED PA, those provisions still “‘certainly inform [its] consideration’ of whether the Court of Appeals abused its discretion.” Calderon v. Thompson, 523 U.S.538, 558, 118 S.Ct. 1489, 140 L.Ed.2d (1998). B. Brown failed to present timely his claim to this court. As this traditional standard for interim injunctive relief must be viewed in light of AEDPA, the temporary restraining order (TRO) should not issue. Plaintiff’s guilt and punishment have been the subject of litigation since the October 24, 1986 murder of nineyear-old Janet Perkins. Plaintiff’s attempts to bring this §1983 claim would create further delay and subvert Congress’ efforts to achieve meaningful reform of the process by which federal courts review the states’ criminal justice systems. Legal challenges to lethal injection are not new. Plaintiff could have brought his challenge long before now. Challenges to lethal injections have been raised and rejected for
5

Case 4:05-cv-00746-CEJ Document 10-1 Filed 05/13/2005 Page 6 of 11
two decades. See Heckler v. Chaney, 470 U.S. 821, 823 (1985) (claim in civil suit that drugs used for execution by lethal injection not properly tested and likely to be administered by untrained personnel); Woolls v. McCotter, 798 F.2d 695, 697-98, cert. denied, 478 U.S. 1032 (1986) (claims administration of sodium thiopental by untrained personnel in improper dosage violates the Eighth Amendment); State v. Moen, 786 P.2d 111, 143 (Ore. 1990) (claim chemicals used by state violated Eighth Amendment); Hill v. Lockhart, 791 F.Supp. 1388, 1394 (E.D. Ark. 1992) (possible difficulty locating a vein suitable for lethal injection claimed to be cruel and unusual punishment); State v. Deputy, 644 A.2d 411 (Del. 1994) (claim that state’s procedures for lethal injection unconstitutional by failing to provide appropriate selection and training of person administering lethal injection); State v. Hinchey, 890 P.2d 602 (Ariz. 1995) (lethal injection allegedly unconsisutional because if carried out incorrectly it could be painful); State v. Webb, 750 A.2d 448, 453-54 (Conn.), cert. denied, 531 U.S. 835 (2000) (claim lethal injection creates a “high risk” inmate will experience “excruciating pain” because execution protocol does not ensure sufficient amount of thiopental sodium will be administered to render inmate unconscious); Sims v. State, 754 So.2d 657 (Fla.), cert. denied, 528 U.S. 1183 (2000) (claim of lack of specific guidelines controlling the dosage, sequence, and delivery rates of lethal chemicals violates Eighth Am end me nt).
Despite nearly two decades of legal precedent identifying challenges made to lethal injection, plaintiff failed to raise any challenge to it in federal court until now.
6

Case 4:05-cv-00746-CEJ Document 10-1 Filed 05/13/2005 Page 7 of 11
Federal jurisprudence reflects an “enduring respect for ‘the State’s interest in the finality of convictions that have survived direct review within the state court system.’” Calderon v. Thompson, 523 U.S. at 555. In addressing the compelling state interest in finality, the Supreme Court has said:
Only with an assurance of real finality can the State execute its moral judgment in a case. Only with real finality can the victims of crime move forward knowing the moral judgment will be carried out. (citation omitted). To unsettle these expectations is to inflict a profound injury to the “powerful and legitimate interest in punishing the guilty,” (citation omitted), an interest shared by the State and the victims of crime alike. 523 U.S. at 556. In cases in which an inmate has attempted to use a §1983 action to halt his execution, the Supreme Court has held that “equity must take into consideration the State’s strong interest in proceeding with its judgment” and that “a court may consider the lastminute nature of an application to stay execution in deciding whether to grant equitable relief.” Gomez v. U.S. Dist. Court for the N. Dist. of California, 503 U.S. 653, 654, 112 S.Ct. 1652, 118 L.Ed.2d 293 (1992). The Supreme Court further has held that “before granting a stay, a district court must consider not only the likelihood of success on the merits and the relative harms to the parties, but also the extent to which the inmate has delayed unnecessarily in bringing the claim” and “there is a strong equitable presumption against the grant of a stay where a claim could have been brought at such a time as to allow consideration of the merits without requiring entry of a stay.” Nelson v. Campbell, 541 U.S. 637, 124 S.Ct. 2117, 2126, 158 L.Ed.2d 924 (2004). In Harris v. Johnson, 376 F.3d 414 (5th
7

Case 4:05-cv-00746-CEJ Document 10-1 Filed 05/13/2005 Page 8 of 11
Cir. 2004), the court of appeals denied a TRO on the basis that the inmate delayed filing his request of a TRO until the “eve of execution,” six weeks before the execution.
Plaintiff brutally strangled nine-year-old Janet Perkins eighteen years ago, and his rights have been the focus of litigation since. The fairness of his trial and validity of his conviction and sentence have been examined and repeatedly upheld in state and federal courts. Plaintiff Brown could have raised his complaint concerning the method of execution long before now. Plaintiff has been on notice that he would be executed by lethal injection since his sentencing by the St. Louis City Circuit Court. If plaintiff had genuine issues concerning lethal injection, he could have sought relief from this court long before a week before his scheduled execution. The filing of this lawsuit is merely an attempt to delay the carrying out of his execution. The court should deny the motion for a temporary restraining order. III. Plaintiff has not exhausted administrative remedies.
The complaint also may be dismissed because plaintiff fails to allege sufficiently that he has exhausted administrative remedies as required by 42 U .S. C. §1197(e)(a). This circuit has held that in the absence of proof of exhaustion of administrative remedies, dismissal is appropriate. McAlphin v. Morgan, 216 F.3d 680, 682 (8th Cir. 2000). Inmates are required to abide by the exhaustion requirements, even in capital cases. Nelson v. Campbell, 541 U.S. at 637.
8

Case 4:05-cv-00746-CEJ Document 10-1 Filed 05/13/2005 Page 9 of 11
Plaintiff has filed an “Informal Resolution Request,” an IRR, requesting postponement of all executions until “other remedies have been looked over” and “retesting of these chemicals” occurs. Plaintiff has been informed that the issue cannot be resolved at the institution level. He also was informed of his ability to appeal (Exhibit A).
The steps for exhausting administrative remedies are not complex. First, an inmate must file an Informal Resolution Request (IRR). Second, the inmate must file an Inmate Grievance form. Third, if the inmate is not satisfied with the grievance response, he or she may file an appeal within five working days of the response. Smith v. Stubblefield, 30 F.Supp. 2d 1168, 1174 (E.D. Mo. 1998). Plaintiff has not completed this process.
Plaintiff argues that defendants are inconsistent in asserting the administrative remedy requirement (Complaint, Para. 44, 54). He asks this Court to infer that because the state did not challenge in pre-trial motions the assertion that Johnston’s IRR was “non-grieveable.” that there are no administrative remedies for inmates to exhaust. However, in his IRR Johnston asked the local institution to change Department of Corrections policy with regard to lethal injection. This change in policy could not be made by the institution and Johnston did not appeal to a higher level, as he could have done. Because Johnston failed to appeal, he did not exhaust his administrative remedies. While the district court in Johnston will have to resolve the legal and factual issues, the state has consistently maintained in that case and this case that an inmate must exhaust administrative remedies.
9

Case 4:05-cv-00746-CEJ Document 10-1 Filed 05/13/2005 Page 10 of 11
In both the Jones litigation and the now-pending Johnston litigation, defendants asserted the exhaustion defense. In Jones, the offender had made no effort to exhaust administrative remedies (Complaint, para 54). In Johnston, the document showed the offender filed an IRR, but pursued no administrative appeal of the IRR’s resolution, as required in the Smith decision. Given the nature of Johnston’s IRR, it would require a change in Department of Corrections’ policy to postpone his execution, not the policy of the local institution. Accordingly, an appeal by him to the Department level would be necessary of exhaustion of administrative remedies. Moreover, Mr. Johnston requested relief in the IRR was that he not be executed, a request that plaintiff attempts to distance himself from in his complaint (Complaint). The Department of Corrections is not inconsistent in its position. The facts of the specific cases are different.
Conclusion Wherefore, for the reasons herein stated, respondents pray that the Court dismiss the petition for lack of jurisdiction and failure to state a claim for which relief could be granted under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Further, defendants pray the court deny the motion for a temporary restraining order.
10

Case 4:05-cv-00746-CEJ Document 10-1 Filed 05/13/2005 Page 11 of 11

CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing was sent via this court’s ECF service to the following on this 13 day of May, 2005, to:
John W. Simon Attorney at Law 2683 South Big Bend Blvd., Suite 12 St. Louis, MO 63143

Respectfully submitted,
JEREMIAH W. (JAY) NIXON Attorney General
\s\ Stephen D. Hawke STEPHEN D. HAWKE Assistant Attorney General Missouri Bar No. 35242
P. O. Box 899 Jefferson City, MO 65102 (573) 751-3321
Attorneys for Respondent

\s\ Stephen D. Hawke Stephen D. Hawke Assistant Attorney General

11

 
 Case 4:05-cv-00746-CEJ Document 18 Filed 05/16/2005 Page 1 of 80

05130505 1

1

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF MISSOURI, EASTERN DIVISION

2

VERNON BROWN,

)

3 -------------------- Plaintiff,

)

)

4

)

)

5

)

vs.

) Case No.

6

) 4:05-CV-746-CEJ

)

7

)

LARRY CRAWFORD, DIRECTOR

)

8 MISSOURI DEPARTMENT OF

)

CORRECTIONS,

)

9 -------------------- Defendant.

)

10

11

BEFORE THE HONORABLE CAROL E. JACKSON

12

UNITED STATES DISTRICT JUDGE

TEMPORARY RESTRAINING ORDER HEARING

13

MAY 13, 2005

14

15

16 FOR THE PLAINTIFF: SINDEL, SINDEL & NOBLE, P.C.

BY: JOHN WILLIAM SIMON, ESQ.

17

2683 S. BIG BEND BLVD., SUITE 12

ST. LOUIS, MISSOURI 63143

18

314.645.1776

19 FOR THE DEFENDANT: STATE OF MISSOURI

ATTORNEY GENERAL'S OFFICE

20

BY: STEPHEN HAWKE, ESQ.

DENISE McELVEIN, ESQ.

21

111 N. 7TH STREET, SUITE 934

ST. LOUIS, MISSOURI 63101

22

314.340.7861

23

COURT REPORTER:

GARY BOND, RMR, RPR

24

THOMAS F. EAGLETON COURTHOUSE

111 S. TENTH STREET, THIRD FLOOR

25

ST. LOUIS, MISSOURI 63102

314.244.7980

•

2

1

ST. LOUIS, MISSOURI; MAY 13, 2005

2

2:14 p.m.

3

THE COURT: Good afternoon. This is Vernon Brown v.

Page 1

Case 4:05-cv-00746-CEJ Document 18 Filed 05/16/2005 Page 2 of 80

05130505

4 Larry Crawford, and it is before the Court on the plaintiff's

5 motion for a Temporary Restraining Order and for the purpose

6 of determining in conjunction with that request whether the

7 plaintiff should be allowed to proceed in this matter or

8 whether the Court lacks jurisdiction to hear this matter.

9

You are Mr. Simon?

10

MR. SIMON: Yes, Your Honor. John William Simon for

11 the plaintiff Vernon Brown.

12

THE COURT: And who is here for the defendant?

13

MR. HAWKE: Steven Hawke with the Missouri Attorney

14 General, Your Honor.

15

MS. McELVEIN: And Denise McElvein with the Attorney

16 General.

17

THE COURT: Thank you. The plaintiff's motion and

18 the complaint and related papers were filed several days ago,

19 and it appears that service was made on the defendant. So I

20 assume that you all have everything that's been filed?

21

MR. HAWKE: We have received e-mail copies of the

22 material from the plaintiff, Your Honor.

23

THE COURT: Okay. Good. All right. Are you all

24 ready to proceed?

25

MR. SIMON: Yes, Your Honor.

•

3

1

THE COURT: All right. Why don't we start with you,

2 Mr. Simon? If you'll just come up to the podium and present

3 whatever argument you'd like to make? And before we get too

4 far into this, I know that Mr. Brown is scheduled to be

5 executed on May 18th. So, certainly, time is of the essence

6 in reviewing this matter.

7

And because of the time considerations and of course

8 depending on how much information you all want to present to

Page 2

Case 4:05-cv-00746-CEJ Document 18 Filed 05/16/2005 Page 3 of 80

05130505

9 me this afternoon, it may be that I will not be able to

10 prepare a written decision. I will make a decision on the

11 record in the event that there isn't enough time to place my

12 ruling in writing. And I would hope that that would be

13 sufficient to the Eighth Circuit, because I assume that one

14 of you will be taking an appeal from whatever decision I

15 make. So why don't we proceed in that fashion?

16

MR. SIMON: Your Honor, this is a case about torture

17 and about human rights; but the defendant's counsel are

18 trying to turn it into a case about paperwork. And this is

19 one in which the declarations that we have presented with the

20 verified complaint and the Verified Memorandum in Support of

21 Temporary Restraining Order show that this is at least a 43

22 percent chance that if Vernon Brown is executed by the

23 defendants on May 18th he will be conscious at the time of

24 his death.

25 •

The method of lethal injunction that the defendants 4

1 use in this state is the chemical equivalent the garrote. A

2 garotte, for the record, is a form of punishment that was

3 used in Spain and Portugal until they abolished the death

4 penalty a few decades ago. The essence of execution by

5 garotte is strangulation. The condemned person suffers

6 suffocation and the pain of strangulation.

7

The way that lethal injections are performed in

8 Missouri, the condemned citizen suffers suffocation and

9 instead of the pain of strangulation suffers the worst pain

10 of potassium chloride flowing through his veins to his heart

11 and giving him a heart attack. It is not the kind of penalty

12 that the jury had in mind in this case. It is not kind of

13 penalty that the sentencing judge or the prosecutor or any of

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14 the judges including this Court that affirmed his sentence

15 had in mind.

16

It is not the kind of penalty that I had in mind

17 when I prepared the responses to show cause in five cases for

18 the Attorney General's Office, four of which the

19 plaintiff's -- petitioners -- were executed. It is a

20 different punishment from what the law presumed, and these

21 defendants should not be able to carry it out. The evidence

22 is all on one side in this matter. Under the Dataphase

23 standards, this isn't even a close case on probability of

24 success on the merits.

25 •

What are the defendants's defenses? One of them is 5

1 that, although this client is not here attacking his

2 conviction and sentence and he is not attacking the death

3 penalty as such and he is not attacking lethal injection as

4 such, that although it doesn't attack any of these things

5 that fall within the core of habeas corpus, because they feel

6 they have to say something, they say, "Well, it is not a

7 1983. It is a habeas corpus." And of course that means they

8 win, because this isn't an appropriate claim for federal

9 habeas corpus. Your Honor?

10

THE COURT: Well, the claim itself may be

11 appropriate for habeas corpus. But the problem here is that

12 if it is construed as habeas corpus, then it would be a

13 successive petition for which plaintiff has not secured

14 permission to file from the Eighth Circuit. And so I would

15 not have jurisdiction.

16

MR. SIMON: Understood, Your Honor. And that's what

17 they're saying. The reason I know it is not appropriate for

18 federal habeas corpus is that I've tried making analogous

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19 arguments in federal habeas corpus.

20

THE COURT: In what case?

21

MR. SIMON: Analogous arguments in both of the John

22 Middleton cases and in the David Barnett case. The claim was

23 that the clemency procedures in Missouri failed to maintain

24 the due process in regard to under Woodard. And you know

25 what the Attorney General's Office said? "Well, that's not

•

6

1 ripe. You can't raise that in federal habeas corpus. For

2 all you know, you're going to get clemency, or we don't know

3 what the clemency process is going be like when you reach

4 clemency." You see?

5

Your Honor, if you've got a winning claim in federal

6 habeas corpus, you're always raising it too early or too

7 late. And this is a situation in which if Vernon Brown had

8 put this in the habeas corpus petition that this Court

9 adjudicated, they would have argued that the claim wasn't

10 ripe; that at the time of the offense, Missouri provided for

11 lethal gas. At the time of the sentencing, it provided for

12 lethal gas or lethal injection; that there is more than one

13 way of doing a lethal injection.

14

Frankly, Your Honor, I can't believe they're still

15 doing that three-chemical sequence. And if Miss Trog and

16 Mr. Sindel had raised this claim in the original petition for

17 Writ of Habeas Corpus in 1995, frankly, I believe it would

18 have been unripe. What they are trying to do is create a

19 legal no man's land in which one can never raise this claim.

20 But this is a very meritorious claim, and it is up to us to

21 figure out how you can raise it.

22

THE COURT: Let me ask you a couple of questions,

23 first of all, Mr. Simon, before you continue. Mr. Brown did

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24 file a federal habeas petition in this Court. He did not

25 raise this particular issue in those proceedings.

•

7

1

MR. SIMON: Correct, Your Honor.

2

THE COURT: And the habeas petition was filed -- I

3 am sorry. I thought I brought everything with me.

4

MR. SIMON: It was a 1995 case, Your Honor.

5

THE COURT: All right. And it was ruled in what?

6 2000?

7

MR. SIMON: I believe it was 2000, Your Honor.

8

THE COURT: 2000? First of all, you state that had

9 you raised this issue or had Mr. Brown's counsel in the

10 habeas petition raised the issue in 1995 or anytime between

11 when it was filed and when it was ruled, then you anticipate

12 that the State would have argued that the claim was

13 premature?

14

MR. SIMON: Exactly, Your Honor.

15

THE COURT: Well, we couldn't know that, because it

16 wasn't raised; and so there wasn't any response to it. So I

17 guess that would be really speculative.

18

MR. SIMON: Your Honor --

19

THE COURT: But more to the point --

20

MR. SIMON: -- I think it would have been premature.

21 I wouldn't argue with that.

22

THE COURT: Well, more to the point, though, how do

23 you respond to the fact that in 1997 the Eighth Circuit in

24 Williams v. Hopkins ruled that a challenge to the

25 constitutionality of the execution -- and in that case I

•

8

1 think involved electrocution -- was in essence a habeas Page 6

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2 claim?

05130505

3

Now, in that case, the claimant I believe had

4 asserted that claim by way of Section 1983. But the Eighth

5 Circuit said, "No, it's a habeas claim." The Court didn't

6 say it was premature. And there were cases that were decided

7 before the Williams case in other circuits where the courts

8 ruled the same way. So even if this had been an argument

9 made by the state that this claim was premature in a habeas

10 petition, certainly, there was case law to suggest that

11 habeas is the way to bring this claim.

12

MR. SIMON: Your Honor, that decision was rendered

13 years before the Wilkinson decision of last March. It is our

14 position that Wilkinson changed the legal landscape.

15

THE COURT: The tell me about Wilkinson. Do you

16 have a citation to that?

17

MR. SIMON: Yes, Your Honor. In fact, that was a

18 subject of a separate pleading in this case which includes a

19 full copy of Wilkinson decision. It is one in which the

20 Memorandum of Law in Support of the Verified Complaint

21 mistakenly referred to the case as "Dickenson." I caught

22 this almost immediately and called up the people who were

23 processing the filing at the Court, and I filed a Notice of

24 Error and Submission of Opinion. And so the entire opinion

25 is in the court file, and it is "Wilkinson."

•

9

1

And if I may address it for a minute? It was a

2 parole case.

3

THE COURT: Hold on for just a moment. Let me see

4 if I can locate that. Tell me again what pleading was it

5 attached to?

6

MR. SIMON: The pleading began Notice of Error.

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7

THE COURT: When did you submit that?

8

MR. SIMON: The same day that the case was filed.

9

THE COURT: Okay.

10

MR. SIMON: And, Your Honor, if I may bring my

11 computer over here, I can be a good deal more helpful to the

12 Court.

13

THE COURT: Okay. That's fine. And maybe someone

14 can get that attachment for you.

15

MR. SIMON: Indeed, Your Honor, if I plug my printer

16 back in, I can print it out.

17

THE COURT: That's all right. I'll get it.

18

MR. SIMON: I am pulling this up, Your Honor. By

19 the way, Your Honor, I received the defendant's responsive

20 pleading when they got to court; I having been here first.

21 And it addresses that. Apparently, they didn't catch the

22 error in the name either. And they rely on the fact that it

23 is a parole case.

24

Well, that isn't the way the law works. If an

25 appellate court decides a case laying down principles of law

•

10

1 that provide a rule of decision, it doesn't follow that

2 because one case is about a horse and other is about a mule

3 that the principles of law doesn't apply. What the Court

4 held in Wilkinson is the fact that something looks like an

5 attack on a conviction and sentence doesn't mean it is an

6 attack on the conviction and sentence. Wilkinson answered

7 any question that was left after Nelson about whether a case

8 like this sounds in 1983.

9

Now, if Vernon Brown were contending in this case

10 that his sentence should be waived, this would not be a 1983.

11 It would be a federal habeas. I would be the first to

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05130505 12 proclaim that, but this isn't about whether he should be

13 executed. It isn't about whether he should be executed by

14 lethal injection. It is about the specific operations that

15 state employees are planning on carrying out on the 18th that

16 will inflict a death sentence on him which he is not here

17 contesting; but that they will inflict it on him in a way

18 that creates gratuitous pain.

19

According to the Lancet article -- and the Lancet

20 article was based upon empirical search on states -- the

21 jurisdictions -- that did autopsy toxicology reports and that

22 kept them and were confident enough in their own competence

23 to share those results with the scholars who prepared the

24 Lancet article. There, they found there was a 43 percent

25 chance that the condemned citizen was conscious at the time

•

11

1 that potassium chloride was burning through his veins and

2 giving him a heart attack.

3

And when it is 43 percent in the cleanest states in

4 the country, the odds have to go up in the places that

5 wouldn't come clean. And of course Missouri is one of them.

6 So Wilkinson means that if something doesn't becomes a habeas

7 corpus just because you take it and that it has something to

8 do with the carrying out of conviction and sentence. If that

9 were the rule, there would be no prisoner suits.

10

Now, I know that would make a lot of people happy;

11 but there would be no prisoner suits if you applied the

12 defendant's reasoning. I mean I don't bring these. But if I

13 had a client who brought a suit that said that the beans were

14 too cold in the institution, by the same reasoning that the

15 defendants are using in this case, they could argue that that

16 was really an attack on his conviction and sentence, because

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05130505 17 if he hadn't been convicted of a crime and sentenced to

18 prison, he wouldn't be eating those cold beans. This is

19 purely and simply a case that falls squarely under Section

20 1983.

21

It is a case in which persons, acting under color of

22 state law, will, absent action by this Court, violate the

23 constitutional rights of my client, Vernon Brown, by killing

24 him in a manner that creates the foreseeable risk of

25 excruciating pain which is completely unnecessary. Some of

•

12

1 the indicia of a 1983 as opposed to a federal habeas is that

2 the plaintiff does not contest the conviction and sentence;

3 that he does not contest the legality of the statute -- the

4 constitutionality of the statute -- under which he was

5 sentenced to death; that the statute does not require the use

6 of pancuronium bromide or a short-acting anesthetic; that the

7 statute commits to defendant Campbell the choice of what

8 means to use. Defendant Campbell could choose lethal gas.

9 He could choose a form of lethal injection such as

10 pentobarbital that is a long-acting anesthetic.

11

And in their response, the defendants claim that,

12 "The petitioner has not shown an alternative." The

13 alternatives are either present in the declarations and in

14 the pleadings, or I have just missed them somewhere. I mean,

15 it is conceivable they aren't there; but it is virtually

16 self-evident. If you take the obverse of Dr. Heath's

17 testimony, using a long-acting barbiturate -- a lethal dose

18 of a long-acting barbiturate is a main, simple, obvious

19 alternative. It goes without saying.

20

This is what the veterinarians use. They

21 specifically use pentobarbital. If the defendant's

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05130505 22 veterinarians put an animal down the way they intend to put

23 Vernon Brown down, they would lose their licenses. The State

24 of Missouri would not allow them to practice veterinary

25 medicine. And yet the State of Missouri intends to do that

•

13

1 to Vernon Brown on May 18th unless this Court stops them.

2 And if the merits of this case weren't enough, there is more

3 to it.

4

THE COURT: Well, let me ask you this: If the Court

5 were to grant the restraining order, exactly what would you

6 expect the Court to enjoin the defendants from doing?

7

MR. SIMON: Carrying out the execution. It would be

8 a two-part order, Your Honor.

9

THE COURT: All right.

10

MR. SIMON: First of all, I don't mean to be

11 needlessly repetitive, but because I anticipate what we're

12 going to hear from the other side of the room, I feel I have

13 to say this. We are not asking the Court to stop them from

14 executing Vernon Brown. We are not asking the Court to --

15

THE COURT: Just tell me what it is that you would

16 expect the Court to enjoin the defendants from doing?

17

MR. SIMON: In the short term, from executing Vernon

18 Brown.

19

THE COURT: Okay. I thought you just said you're

20 not asking for that?

21

MR. SIMON: No. To enjoin; not to stop. Obviously,

22 we would in order for them to respond to the discovery that

23 we've propounded, the way that the pleading were drawn

24 initially, they could have responded to the discovery today.

25 Now, the Lancet co-authors are waiting for whatever data the

•

14

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1 Department of Corrections is willing to provide. I am sorry,

2 Your Honor.

3

THE COURT: It's off the point again. Let me try

4 again. Tell me specifically what it is that you expect the

5 Court to enjoin the defendants from doing? You said enjoin

6 them from --

7

MR. SIMON: "Executing the plaintiff --

8

THE COURT: Okay.

9

MR. SIMON: -- until further order of the Court" is

10 what the draft order says. And I would anticipate that that

11 further order of the Court could be granted if and when the

12 defendants make a showing of facts about their plans to

13 execute Vernon Brown; that the expert testimony, including

14 that of the Lancet co-authors -- who are waiting for this

15 data and virtually clamoring for the data -- until they can

16 evaluate the data and render a professional opinion whether

17 Mr. Brown will be unconscious at the time of his death. And,

18 Your Honor, this is something that they could have provided

19 months ago.

20

THE COURT: Okay. Is there anything else that you

21 are asking the Court to enjoin the defendants from doing?

22

MR. SIMON: Your Honor, I could draft another order

23 that would enjoin them from executing him in a manner that

24 would create the foreseeable risk of gratuitous suffering and

25 pain. And that actually would be closer to the nub of what

•

15

1 we're looking for. What we're looking for is a change in the

2 method of execution that ensures that the condemned citizen

3 will not suffer the pain of potassium chloride and the

4 suffocation caused by the pancuronium bromide.

5

THE COURT: Okay. Under the statute, as I read it,

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6 the Missouri statute -- and I guess it is cited in your

7 complaint -- the statute that provides for the lethal

8 injection or how the death penalty is to be executed, as I

9 understand it, the statute allows for lethal gas or lethal

10 injection. Those are the only two choices that the state

11 has.

12

MR. SIMON: Yes, ma'am.

13

THE COURT: All right. And I don't know for how

14 long, but Missouri has used lethal injection for some period

15 of time.

16

MR. SIMON: Since 1989, Your Honor.

17

THE COURT: All right. And the three drugs that are

18 used in a lethal injection procedure are the ones that you

19 and your experts claim are unconstitutional; and that they

20 result in an unnecessary infliction of pain on the inmate who

21 is being executed?

22

MR. SIMON: As a matter of candor, Your Honor, I

23 want to make clear that the Lancet co-authors would not rule

24 out that there was some possible way of conducting a lethal

25 injection using those three chemicals that would not create

•

16

1 that risk. They would need to review in the fine grain the

2 quantities of each chemical that were used; the timing that

3 was used; the training of the staff. But, Your Honor, the

4 whole thing is that simply choosing those three chemicals, as

5 opposed to a single, lethal dose of pentobarbital is asking

6 for trouble.

7

THE COURT: All right. If the defendants in this

8 case were to respond by stating that Mr. Brown would not be

9 executed using these three chemicals and that -- was it

10 pentobarbital?

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11

MR. SIMON: Pentobarbital.

12

THE COURT: -- will be used or if the State decided

13 to use lethal gas, which is the other option, what then?

14

MR. SIMON: Your Honor, for one thing, the State of

15 Missouri no longer has the physical capability to use lethal

16 gas.

17

THE COURT: Well, I understand that. But I am

18 talking about what if I were to enjoin the defendants from

19 using these three chemicals --

20

MR. SIMON: Uh-huh.

21

THE COURT: -- and a month from now they geared up

22 and obtained the capability of using lethal gas?

23

MR. SIMON: Your Honor, based on intervening

24 decisions, we would oppose the use of lethal gas.

25 Intervening decisions have made findings that a person being

•

17

1 executed by lethal gas suffers a good deal. It has the

2 same -- it has the same flaws as the three-chemical sequence

3 with the difference that the pancuronium bromide shields the

4 observers, for instance, the pangs of death from the

5 condemned citizen is suffering; whereas in a gas chamber,

6 unless they put a hood over the condemned citizen, well, you

7 could see the pangs of pain in the body.

8

THE COURT: Right.

9

MR. SIMON: But --

10

THE COURT: Have there been any decisions that

11 you're aware of in courts anywhere in the country where

12 lethal gas is used? Have there been any decisions in which

13 the courts have found that the use of lethal gas per se is

14 cruel and unusual punishment?

15

MR. SIMON: Your Honor, as of this moment, I don't

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16 know. But I think there have been, but I am not going to

17 represent to the Court that there are.

18

THE COURT: All right.

19

MR. SIMON: I will certainly be happy to research

20 that and report to the Court on what there is and what there

21 isn't. The other part of the Court's question was: What if

22 they provide some second option for lethal injection? Well,

23 Your Honor, that's the object of this lawsuit. This lawsuit

24 is not out to stop executions. That's a whole different

25 question.

•

18

1

The point of this is that lethal injections can be

2 done in a humane manner. Every veterinarian in the United

3 States does the equivalent thing. These defendants won't.

4 It is a willful infliction of gratuitous pain on people. It

5 is in fact a badge of slavery. I have a witness here who is

6 prepared to testify that one of the ways in which the

7 punishments for slaves differed from the punishments for

8 masters was that for any given offense where there was going

9 be an execution, it'd be more painful for the slaves.

10

And given the linkage that the witness will testify

11 to between the presence in a given county in Missouri of

12 slavery, lynching, and death sentences, this is all one ball

13 of wax. They're inflicting pain on these people on purpose.

14 They could use pentobarbital or any number of other lethal

15 doses of things that don't cause pain and don't cover up the

16 suffering, but they use these instead because they've chosen

17 to.

18

THE COURT: All right. And is that the gist of what

19 your witness would testify to?

20

MR. SIMON: Yes, Your Honor.

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21

THE COURT: All right. Well, I'm not going to hear

22 any testimony on that issue, because I believe that it puts

23 us too far away from the important point, and that has to do

24 with the lethal injection and whether this is in fact a 1983

25 action or a habeas action. So --

•

19

1

MR. SIMON: Your Honor, may I address the point of

2 exhausted administrative remedies?

3

THE COURT: Well, in a moment. I have a few other

4 questions for you before you get into that, and that's one of

5 them. I did want to ask you about the status of the

6 exhaustion issue. Can you tell me that, if the State were to

7 agree to use pentobarbital only in a dosage high enough to

8 produce death, would that satisfy Mr. Brown?

9

MR. SIMON: If this is what they were doing, this

10 lawsuit would not have been brought.

11

THE COURT: All right.

12

MR. SIMON: I'm not here in a position to stand here

13 and make a deal right on the spot.

14

THE COURT: No, I am not asking you to. I am trying

15 to figure out what are the limits are of what you are asking

16 for.

17

MR. SIMON: The Court has assessed the limits

18 perfectly well. That is the best example that I know of an

19 alternative to the three-chemical sequence.

20

THE COURT: All right. Now, why did it take so long

21 for Mr. Brown to raise this issue? He's been under a death

22 sentence for some time. And as you're stated, the current

23 protocol that's used for lethal injection have been in place

24 for a number of years while Mr. Brown has been under the

25 death sentence. It wasn't raised in his habeas petition.

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•

20

1

MR. SIMON: Uh-huh.

2

THE COURT: He has not requested permission from the

3 Eighth Circuit to file a successive petition in order to

4 raise that issue. And this 1983 action, which assuming this

5 is the right vehicle, wasn't filed until earlier this week.

6 Why has it taken this long?

7

MR. SIMON: Among other things, Your Honor, this

8 issue came in on little cat's feet. There were arguments

9 made in one state. Arguments made in another State. It

10 percolated up to the point where in Missouri in August my

11 friend, Michael Gorla filed the 1983 on behalf of Timothy

12 Johntson.

13

I was following the Johnston case to see what was

14 going to happen. There has been a Motion to Dismiss filed by

15 the defendants in the Johnston action who are substantially

16 identical to the defendants here; the main difference between

17 that Mr. Kempker was director of the Department of

18 Corrections at the time and now Mr. Crawford is.

19

The Motion to Dismiss has been filed. A response to

20 it has been filed. A reply has been filed. Both sides have

21 filed exhibits. The main thing that is holding the Johnston

22 action up is the defendant's failure to make discovery.

23 There are multiple Motions to Compel out. And that is a good

24 deal of the delay in getting to this issue is definitely not

25 attributable to Mr. Brown.

•

21

1

Another factor in Mr. Brown's case is that he was

2 told by staff that he had heard through the grapevine that if

3 a prisoner asked a staff member for an IRR they were likely

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05130505 4 to be told they couldn't even have the IRR form, because it

5 was not a grievable issue. Mr. Brown did request an IRR. He

6 filled it out. He has now received a response, and the

7 response was that this is not within the responsibility of

8 the Department of Corrections; that this is not grievable

9 within the grievance system.

10

I would have a copy of it, Your Honor. But he just

11 got his response. And the staff at the institution refused

12 to fax it to me to provide to the Court. I have the name of

13 the man who refused that information for the Court. And if I

14 had that here, Your Honor, I could obviously be more

15 persuasive of what they've done. It is their position that

16 it is not grievable.

17

THE COURT: And I also am aware that Mr. Brown did

18 file a Rule 91 petition in the State Supreme Court which

19 is --

20

MR. SIMON: Your Honor, I have information to add

21 about that as well as.

22

THE COURT: Okay.

23

MR. SIMON: Indeed, that will loop me back to

24 another point that I need to make in response to the Court's

25 original question. Today, I filed another Rule 91 that takes

•

22

1 advantage of the expert and investigative services that were

2 recently authorized. Those were previously filed with the

3 Board of Probation and Parole and the governor's legal

4 counsel.

5

THE COURT: And this second Rule 91 motion was filed

6 today?

7

MR. SIMON: It was filed today. This is one of the

8 points that it raises. Another point is that the State of

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05130505 9 Missouri does not have a legal death penalty because of the

10 persuasive discrimination and other reliance on arbitrary

11 factors in selecting who to prosecute for the death penalty

12 and who in fact to execute once that decision has been made.

13 Those are the two points in that state habeas action that was

14 filed this morning. Or early this morning or late this

15 afternoon.

16

THE COURT: And the first issue again?

17

MR. SIMON: The lethal injection issue, Your Honor.

18

THE COURT: All right.

19

MR. SIMON: Indeed, Your Honor --

20

THE COURT: I am sorry to keep interrupting you.

21

MR. SIMON: That's your job, Your Honor.

22

THE COURT: But the first Rule 91 motion only raised

23 the issue of the lethal injection?

24

MR. SIMON: Yes, ma'am. There were two grounds for

25 relief. The first was the merits of the lethal injection

•

23

1 issue -- the 814 and Missouri constitutionally merits -- The

2 second was one that we actually did include in the second

3 Rule 91 petition as well. And that it shows a want of comity

4 to proceed with the execution while the Johnston litigation

5 is getting very long on the tooth and while we have this

6 action pending. So there are actually three points: The

7 racial discrimination and other arbitrate factors; the merits

8 of the lethal injection claim; and the want of comity.

9

Now, another factor that the Court is I am sure

10 aware of that while this issue came in on little cat feet and

11 some of us I am sure were a little dubious about it -- we're

12 not anesthesiologists. These people are using a lot of big

13 words. And for all we know, they have some ax to grind --

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05130505 14 but the day after the Missouri Supreme Court set Vernon

15 Brown's execution date, the Lancet published the work of Dr.

16 Lubarsky and his three co-authors. And this gave worldwide

17 medical science recognition, first of all, to the underlying

18 theory of this.

19

But more than just recognizing it as theory, these

20 researchers found that in practice in the jurisdictions that

21 were as close as you could come to being as clean as a

22 hound's tooth, there was a 43 percent chance that the victim

23 of these defendant's practices was not anesthetized at the

24 time of his death.

25 •

In other words, the world changed about this issue 24

1 on April 16th. And for any defense that the defendants want

2 to assert where manifestation of the claim is at issue, it is

3 my position that it is manifested on April 16th.

4

THE COURT: Well, you're not asserting -- are

5 you? -- that this Lancet article is conclusive on the issue

6 that there is a 43 percent likelihood that someone who is

7 administered the chemicals that are used in lethal injection

8 are going to experience pain?

9

MR. SIMON: Your Honor, I would say that 43 percent

10 is a floor. Now, I don't know about "conclusive." I just

11 don't know what the Court means about that.

12

THE COURT: Well, I wouldn't call this "conclusive"

13 by any stretch of the imagination. I did read the Lancet

14 article. And I'll confess that there is some medical

15 terminology that I may not fully understand. But there is

16 language in here that I think really weakens the point that

17 you're trying to make.

18

As I read this article -- and where I'm looking at

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05130505 19 page 1413 -- the authors -- apparently what they did in

20 states that were that were willing to provide them with the

21 information that they requested -- and there weren't many of

22 them -- they wrote that "The only available" -- and I am

23 going back now -- "The only available objective data were

24 postmortem concentrations of thiopental." I am sorry. I am

25 looking at page 1412.

•

25

1

And then they go on to say on page 1413 that

2 "Extrapolation of antemortem depth of anesthesia" -- that is,

3 any kind of conclusion that you would draw about the level of

4 anesthesia of an individual before death -- "based on

5 postmortem" -- after death -- "blood thiopental

6 concentrations is admittedly problematic."

7

MR. SIMON: Uh-huh.

8

THE COURT: So they're saying that the objective

9 data that they had was problematic in terms of making any

10 kind of extrapolations or drawing any conclusions. Yet they

11 go ahead and make the conclusion anyway or not really a

12 strong conclusion. They say that the data suggests that the

13 lethal injection methods are flawed. The data suggests that

14 there was a problem.

15

But they also note that there are some variables

16 that they were not able to control; one being the autopsy

17 that was conducted or the anesthesia methods. And of course

18 they either didn't have any information about those things or

19 the information they had was not sufficient. Are you

20 familiar with the Reid case that came out of the Fourth

21 Circuit?

22

MR. SIMON: No, Your Honor.

23

THE COURT: I noted it wasn't cited in any of your

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05130505 24 papers, nor were some of the other cases that I was able to

25 find in my research on this, but I am referring to Reid v.

•

26

1 Johnson, and it is reported at 333 F.Supp. 2d 543.

2

That was the District Court opinion following remand

3 of the case by the Fourth Circuit. And just to give you a

4 little history, this was an action brought by a Virginia

5 inmate who was challenging under Section 1983 the protocol

6 that was used for lethal injection. And in the Reid case the

7 protocol involved using the three drugs that I believe are

8 involved in the Missouri protocol.

9

First was the sodium thiopental. The second

10 injection was pancuronium bromide, and then the third

11 injection was potassium chloride. I don't know whether the

12 dosages used in Virginia are the same as in Missouri, but we

13 know they were the same three substances. And the plaintiff

14 in Reid made the same argument that you are making here:

15 That there was an insufficient dosage of the thiopental who

16 produces the anesthesia. And because of that, there was a

17 likelihood that an inmate would be conscious during the

18 administration of the second and third drugs, which could be

19 quite painful. At least the third would be very painful, but

20 the second would paralyze him so that he couldn't exhibit the

21 pain.

22

MR. SIMON: Uh-huh.

23

THE COURT: Initially, the District Court denied

24 Mr. Reid's complaint or dismissed it because the Court said,

25 "This is a habeas petition, and it's a successive petition

•

27

1 which the Court doesn't have jurisdiction over."

2

But the case went up to the Fourth Circuit, and the

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05130505

3 Fourth Circuit made a very interesting ruling. The Court

4 ruled that the claim that the challenge to the protocol was

5 distinct from a challenge to lethal injection, in general, as

6 a method of execution. And because of that distinction and

7 because the plaintiff was only challenging the protocol and

8 was not claiming that he should not be executed, he was not

9 challenging the judgment or the sentence. He was simply

10 saying, "The protocol that the State has chosen to use" --

11

MR. SIMON: Uh-huh.

12

THE COURT: And it sounds like the Virginia statute

13 is similar to Missouri's -- the Virginia statute did not

14 specify you have to use these particular substances --

15

MR. SIMON: Uh-huh.

16

THE COURT: -- it was the policy of the Department

17 of Corrections in Virginia to use these three drugs. But the

18 Fourth Circuit said that the challenge to the protocol is one

19 that can be presented by way of a 1983 action and remanded

20 the case to the District Court.

21

I encourage you to read the District Court's opinion

22 on remand. That's the citation I gave you, because it was

23 interesting for a number of reasons. Number one, the remand

24 decision was in 2004. And one thing that I noted was that

25 the Court considered whether the plaintiff was entitled to a

•

28

1 Temporary Restraining Order on his 1983 challenge and went

2 into a lengthy discussion of the lethal injection protocol

3 that was used in Virginia and mentioned the name that is

4 familiar to all of us: Dr. Mark Heath. I am not sure if

5 that's his first name. But it is Dr. Health, who is your

6 expert, who submitted an affidavit in this case.

7

MR. SIMON: The basic science expert, Your Honor.

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05130505

8

THE COURT: Right. And Dr. Heath is also mentioned

9 in the Reid case. So I am taking a long time to make the

10 point which is that if you were to examine the Reid opinion,

11 I think that you would find a lot of information in here that

12 is reflected in your papers.

13

And when I compare the Reid decision to the Lancet

14 article which came out I guess last month in April, the

15 question is: What do the reporters in the Lancet article

16 contribute to the discussion? You know, it doesn't sound

17 like much more was learned that we didn't know about in 2004

18 when Reid was decided.

19

The only difference I think is that in the Lancet

20 article the authors actually had some hard data that they

21 obtained from the states regarding execution. And based on

22 that data, they were able to draw some conclusions. But as

23 far as the underlying science is concerned, that's the same.

24

MR. SIMON: Uh-huh.

25 •

THE COURT: That hasn't changed. They haven't 29

1 learned anything new about that. The bottom line is that I

2 did not find the Lancet article very persuasive at all. But

3 that point I think is more appropriately addressed in terms

4 of whether Mr. Brown can show a likelihood of success on the

5 merits, but we may get to that later. But I thought there

6 were too many may be's and too many uncertainties in the

7 Lancet article that the authors recognized.

8

MR. SIMON: Well, Your Honor, the declaration of Dr.

9 Lubarsky, the senior co-author of the Lancet, is a good deal

10 clearer than the article was as applied to the facts of this

11 case and to the data that the Lancet co-authors would have to

12 have in order to render an opinion that this execution would

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13 be consistent with the Eighth Amendment.

14

And this is important enough to do right. This is

15 not a case about the death penalty. But if the United States

16 is going to engage in the death penalty, it can do it without

17 engaging in torture. And the fact that there is some risk is

18 enough to make a constitutional difference. That was what

19 Judge Bataillon found in Palmer v. Clark, the Nebraska

20 electric chair case.

21

Now, Judge Bataillon granted penalty phase relief on

22 other grounds. But if the Nebraska respondents had appealed

23 and won, then one would have been driven back to Judge

24 Bataillon's declaration that the electric chair was

25 unconstitutional. And it was unconstitutional for the same

•

30

1 reason that this three-chemical sequence is unconstitutional.

2 Judge Bataillon held -- well, he didn't find. The respondent

3 in that case admitted that there was a 20-second gap in jolts

4 of electricity; and that there was both expert testimony and

5 eyewitness testimony.

6

Expert testimony as a general rule of medical fact

7 and eyewitness testimony about the Willie Otey execution that

8 during that 20-second gap a person could, in the abstract,

9 regain consciousness and that Willie Otey had regained

10 consciousness. And Judge Bataillon found that there was a

11 foreseeable risk of the gratuitous infliction of pain; and

12 therefore, Nebraska, which provided no alternative at the

13 time, could not execute, could not execute the petitioner in

14 that case.

15

I'll be candid that he said it is not ripe. I mean,

16 he made the finding but prefaced it by the fact that it was

17 not ripe. So, Your Honor, obviously, he's my boy, because he

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05130505

18 both agrees that a claim like this isn't ripe in federal

19 habeas; but he comes to the constitutional conclusion that an

20 analogous form of infliction of death in a gratuitously

21 painful manner, it is unconstitutional, even if there isn't a

22 certainty of gratuitous pain.

23

Where the State is engaging in ceremonial killing of

24 one of its own citizens, it can do it without the foreseeable

25 risk of gratuitous infliction of pain. And these defendants

•

31

1 should be made to do that. That's the point of this lawsuit.

2

THE COURT: I also noticed in your papers that you

3 did not make any mention of -- and maybe I just overlooked

4 it -- but it doesn't appear that you made any mention of the

5 Eighth Circuit's decision in Williams v. Hopkins. And that

6 was the decision authored by Judge Hansen in which the

7 plaintiff challenged the constitutionality of execution by

8 electrocution.

9

And in that case, the Eighth Circuit ruled that the

10 plaintiff's 1983 challenge was the functional equivalent of

11 habeas -- and in this case a successive habeas petition --

12 which ultimately -- well, which the District Court had

13 insisted and the Court of Appeals affirmed that dismissal.

14

Tell me why you think Mr. Brown's challenge is

15 different or why you think the Williams case should not be

16 controlling?

17

MR. SIMON: Your Honor, I don't think Williams is

18 controlling after Nelson and Wilkinson. Actually, Nelson is

19 a good deal closer, but Wilkinson, as we discussed earlier,

20 deals with the global question of what goes in 1983 and what

21 goes in 2254 based on what one is attacking. And, Your

22 Honor, I think Judge Hansen would decide this case the way

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23 that I am advocating it to be decided. I think that he can

24 count chevrons, and that's the Supreme Court of the United

25 States saying that Mr. Nelson had a 1983 despite arguments

•

32

1 like the defendants are making here.

2

And I think that the Court in Nelson, in light of

3 the bulk of its opinion, is quizzical that they said that the

4 District Court will need to look at the question of the

5 general metes and bounds of 1983 vis-a-vis 2254. But I think

6 that that hypothetical that the Court raised, after holding

7 that Mr. Nelson had a 1983, that was resolved in Wilkinson

8 and not for the lethal injection cases but for parole cases

9 and many other cases that 1983 defendants have argued to be

10 habeases for purposes of boxing-out the accused citizen from

11 any relief at all.

12

This is just like Nelson in terms of the Court's

13 jurisdiction under 1983, because Nelson involved a cut-down

14 procedure that wasn't necessary to execute the man. It

15 wasn't necessary to make him dead. It wasn't necessary to

16 satisfy the statute. There was no reason for them to do it

17 that way as opposed to some way that didn't cause gratuitous

18 pain and suffering. And the Supreme Court of the United

19 States said, "Yes. That's a 1983." So is this.

20

THE COURT: Yes. But the difference here is that in

21 Nelson the focus was on the means by which the prisoner

22 authorities would be able to get access to the prisoner's

23 vein in order to administer the lethal injection.

24

MR. SIMON: Uh-huh.

25 •

THE COURT: There wasn't any challenge to the 33

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05130505 1 chemicals that were going to be injected. It was this

2 surgical procedure that the State said was necessary to be

3 done in order to carry out the lethal injection. So that was

4 the focus there.

5

We're not talking about in this case any kind of

6 surgical procedure that would precede the administration of

7 the lethal drugs to Mr. Brown. We're not talking about

8 anything other than the drugs that will be given to him to

9 execute him.

10

MR. SIMON: Well, Your Honor --

11

THE COURT: And in Nelson, Justice O'Connor

12 specifically left open and said that the Court was

13 specifically leaving open the question of whether a challenge

14 to the particular method of execution is one that can be made

15 under 1983 or whether it is in fact the subject of a habeas

16 action.

17

MR. SIMON: Your Honor, I am well-aware of that

18 language. That's what I find quizzical, in light of what the

19 Court in fact held. That is clearly dicta. What it held was

20 that Mr. Nelson's claim sounded in 1983. And the

21 distinction --

22

THE COURT: Right. Mr. Nelson's claim. I mean the

23 facts of his case determined the Court's ruling, and the

24 Court I believe limited its ruling to Mr. Nelson's situation

25 and did not make any blanket ruling that in every case would

•

34

1 be construed as a 1983 action.

2

But my point is that Mr. Nelson's situation is very

3 different. We're talking about a surgical procedure that was

4 going to be done and that had nothing to do with the drugs

5 that were being used. In this case, we're only talking about

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6 the drugs.

05130505

7

MR. SIMON: Your Honor, I think that if the Supreme

8 Court were to decide this case on the merits, it would find

9 no distinction between those two sets of facts.

10

THE COURT: Well, that's possible. And I think what

11 helps you is that Reid case that I cited, even though on the

12 merits the Court denied injunctive relief, I think that the

13 Fourth Circuit's reasoning helps your case immensely. But I

14 am not persuaded by your argument that the Nelson case and

15 the Wilkinson case make Williams v. Hopkins inapplicable

16 here, because I don't think Nelson or Wilkinson help you.

17

MR. SIMON: Well, Your Honor, I would certainly like

18 to address Williams in writing, as it appears to call for

19 that.

20

THE COURT: Well, I don't know that that's going to

21 be necessary. Well, let's go ahead, and I want to go ahead

22 with your argument. I am sorry. Let me go back to something

23 you said about this new Rule 91 motion that you filed --

24

MR. SIMON: Yes, Your Honor.

25 •

THE COURT: -- do you have any indication of how 35

1 quickly the Supreme Court is likely to rule on that? Is that

2 a motion that you are asking to be heard on or is it just

3 submitted on your written papers?

4

MR. SIMON: The way that generally works, Your

5 Honor, is that by the time the other attorney will file it in

6 Jefferson City has returned to St. Louis, it will be denied.

7

THE COURT: Okay.

8

MR. SIMON: The other factors under Dataphase and of

9 course one of the things that Dataphase was written to make

10 clear is that likelihood of success on the merits is not a

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05130505 11 50-percent-plus 1 test. If one could show that one was going

12 to win, one probably wouldn't need a TRO.

13

The other factors to be considered are the

14 irreparable nature of the harm. And of course I've addressed

15 that toward the end of the Verified Memorandum in Support of

16 Temporary Restraining Order. This is a situation in which

17 we'll see this happen every time someone has an execution

18 until the Courts are willing to deal with this issue. The

19 issue won't go away. And the only thing they can do in this

20 case is kill the evidence; is bury the evidence.

21

This is not a situation in which we are attempting

22 to stop the execution; only to get the data about the

23 execution on the basis of which a Court can make a decision.

24 There is no actual data from the defendants in this action

25 except the names of the three chemicals and the three

•

36

1 chemicals are the problem; not the solution.

2

If they were required to respond to the discovery on

3 an expedited basis and the Lancet co-authors were given a

4 reasonable opportunity -- and I stress "reasonable"; not

5 "dilatory" -- but an opportunity to review this data with the

6 care that is appropriate to the subject of the litigation,

7 the defendants would really suffer nothing.

8

They have waited about 20 years to execute

9 Mr. Brown. Now, that's not a situation in which Mr. Brown

10 should be in. If we're going to talk about dilatory conduct

11 and sleeping on one's rights, I think that's 99 percent on

12 the defendants and one percent on Mr. Brown. Whether the

13 Court find the Lancet article to clinch the case or not, at

14 the very least, it gives it the imprimatur of a worldwide

15 scientific community that it didn't have before.

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16

No one can dismiss this as a crank claim now after

17 the Lancet article. And I don't think that this is any foul

18 at all in not bringing this action until the Lancet came out.

19 I don't think there is any foul in not bringing it until I

20 had experts, rather than just citing an article. In fact,

21 one of the main reasons, Your Honor, why we filed the Rule 91

22 in the Missouri Supreme Court is that the previous Rule 91

23 just tacked on the Lancet article.

24

But when the Court doesn't find it completely

25 persuasive, I mean, that's a good reason for filing a second

•

37

1 Rule 91 with an affidavit from Dr. Heath and an affidavit

2 from Dr. Lubarsky. So the dilatory conduct in the Johnston

3 litigation -- I mean but for the defendant's dilatory conduct

4 in the Johnston litigation, we wouldn't be here, because this

5 issue would have been resolved in Johnston. The Court in

6 Johnston doesn't have access to the data that we're asking

7 for here; that the Lancet co-authors and Mr. Brown and I are

8 asking for in this case.

9

And the only thing that is going bring that data

10 into this Court is the prospect that they won't get to kill

11 somebody quite as soon as they want to. They've taken this

12 long. There is no reason why they can't take a few days or a

13 few weeks in order to do it consistently with the Eighth

14 Amendment or to rule out a good-faith challenge that they

15 have been doing it inconsistently with the Eighth Amendment.

16

The balance of equities between the parties

17 distinctly favors the plaintiff in this case, because he is

18 facing at least the 43 percent chance of being tortured to

19 death; and they are facing not ordering a pizza for a few

20 days. That is really what it boils down to. They can wait

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05130505 21 perfectly well while the Court gets this data and hears from

22 the experts.

23

The public interest is the last factor, and this is

24 not a case about the death penalty. But the country

25 obviously wants to have the death penalty, and we're not here

•

38

1 to stop them. All we're saying is what it should be

2 delivered by these defendants the way it's been promised by

3 the politicians, which is, it is like putting a dog to sleep.

4 And I don't mean to belabor the point. But it is certainly

5 worth repetition that any veterinarian who put a dog down the

6 way these people intend to kill Vernon Brown would lose his

7 license.

8

It would violate their own state's law to do this to

9 a dog. And my client is a human being. He should not be

10 treated like a dog. He should not be treated worse than a

11 dog. It hurts the United States that these defendants and

12 the defendants in all but two of the other lethal injection

13 jurisdictions use this three-chemical formula. And whether

14 the Court finds the Lancet article to be clincher or not, it

15 is going to hurt the standing of the United States in the war

16 against terror if other countries believe that we torture our

17 own citizens.

18

They will not cooperate with us in producing people

19 if there's a risk those people will get the death penalty in

20 the manner that these defendants propose to use it on Vernon

21 Brown. From a legal, technical point of view, this is a case

22 about discovery, because if we get the discovery, the odds

23 are that either they will clean up their act before providing

24 the delivery or that our experts will find that what they

25 have been doing comes within some minimum acceptable level of

•

39

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1 suffering under the Eighth Amendment. I don't know what that

2 is. But I am just -- I am just seeing this is not an attack

3 on death penalty.

4

It is not an attack on lethal injection. It is in

5 fact on one particular set of means analogous to one

6 particular cutdown. And this Court should put the United

7 States on the boards against terror against torture and in

8 favor of a strict enforcement of Eight and Fourteen Amendment

9 and the Thirteenth as well, as we'll be raising in a

10 supplemental pleading.

11

THE COURT: Let me just try to clarify what I said

12 earlier about the Lancet article. I did state that I didn't

13 find it persuasive, but I didn't mean to imply that in order

14 to be entitled to injunctive relief that this Lancet article

15 would have to be essentially a slam dunk. That's not the

16 standard that I would hold the plaintiff to. That's much too

17 high.

18

My concern is that the Lancet article as well as the

19 declarations that have been submitted, are not persuasive, in

20 that I don't believe that they show any likelihood of success

21 on the merits. The Lancet article and the statements of the

22 experts are really the core of the plaintiff's claim.

23

MR. SIMON: Uh-huh.

24

THE COURT: And I just felt that they contained more

25 speculation than I believe is appropriate in order to

•

40

1 demonstrate likelihood of success on the merits. But, again,

2 I wasn't expecting articles that would establish beyond a

3 reasonable doubt that this is what happens.

4

MR. SIMON: Your Honor, the reason the experts could

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05130505

5 not say, "This set of defendants using this set of chemicals

6 will cause unconstitutional pain and suffering" is because

7 they don't have the data.

8

THE COURT: No, I understand that. I understand

9 that they were working with the data they had.

10

MR. SIMON: Uh-huh. Uh-huh.

11

THE COURT: But I think they started with a

12 presumption about what they thought the data would bear out,

13 and they found that the data was problematic, in terms of

14 supporting a presumption that they had. Yet, they went ahead

15 and said, "Well, we still think we're right about this. Even

16 though there are some problems with drawing these conclusions

17 from this data, we still think we're right."

18

So I thought that there was a bias going in when

19 they began this article. And I understand there were limits

20 on the study that they could do, and I also understand that

21 the data from Missouri was not obtained. No, I am not

22 holding it against you that you don't have the Missouri

23 data --

24

MR. SIMON: Uh-huh.

25 •

THE COURT: -- because I am sure if you did you 41

1 would present that. And I understand also that you are

2 seeking to get that data in the hopes of having it examined

3 and analyzed by your experts.

4

MR. SIMON: And the "we" is broadly defined, Your

5 Honor, to include Michael Gorla and Chris McGraw, both of

6 them who I have known for years and with whom I have

7 corresponded regularly about this issue. The delivery was

8 filed on November 24, and they have the names of the three

9 chemicals. Well, a lot of things that just say, "Drop dead."

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10 And that's where they are in discovery. I think there might

11 be something else, but it is so insignificant that I can't

12 remember.

13

THE COURT: All right.

14

MR. SIMON: It is going to stay that way as long as

15 they can kill people without providing the data.

16

THE COURT: Is there anything else you want to say?

17 I'll give you another chance --

18

MR. SIMON: Okay.

19

THE COURT: -- to respond to the defendants. But is

20 there anything else that you want to say right now?

21

MR. SIMON: Your Honor, I would orally request leave

22 to file an amendment by interlineation of the 13th Amendment

23 claim which came to my attention on the basis of a telephone

24 conversation with Dr. Lenza last night.

25 •

THE COURT: Tell me what you want to amend by 42

1 interlineation?

2

MR. SIMON: The Verified Complaint.

3

THE COURT: Oh.

4

MR. SIMON: And I would provide a declaration from

5 Dr. Lenza and a copy of his Ph.D. thesis.

6

THE COURT: That's fine.

7

MR. SIMON: Thank you, Your Honor.

8

THE COURT: Good afternoon.

9

MR. HAWKE: Good afternoon. May it please the

10 Court, my name is Steven Hawke, an Assistant Attorney General

11 with the State of Missouri. With me at counsel's table is

12 Denise McElvein, also an Assistant Attorney General with the

13 State of Missouri, and we are representing the defendants

14 this afternoon.

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15

Before I go into the text of the comments this

16 afternoon, I represent the State of Missouri's interest in

17 federal habeas litigation out of Jefferson City. Denise

18 McElvein works in 1983 litigation out of the St. Louis office

19 here. So in terms of discussion today here, I'll probably

20 be --

21

THE COURT: You are the habeas expert and she's the

22 1983 expert.

23

MR. HAWKE: Thank you, Your Honor.

24

THE COURT: Okay. I got it. Now, tell me why you

25 think this is a habeas action? Because I assume that's the

•

43

1 position that the State is going to take?

2

MR. HAWKE: That's correct.

3

THE COURT: Tell me why.

4

MR. HAWKE: This afternoon about 1:45, I received

5 word from Jefferson City that the people down there were able

6 to file with the Court a Motion to Dismiss as well as

7 Suggestions in Opposition to the Motion for Temporary

8 Restraining Order. And that should be filed --

9

THE COURT: As we speak?

10

MR. HAWKE: -- as we speak. Hopefully, a little bit

11 before that. I gave Mr. Simon a copy of that response five

12 or ten minutes before the hearing began, because that's when

13 I had it.

14

THE COURT: It was being filed electronically?

15

MR. HAWKE: Yes, ma'am.

16

THE COURT: All right. We'll check on that.

17

MR. HAWKE: So why is this a habeas? Before looking

18 at the factors to look at why this is a habeas, I'll point

19 out that the Court's description of the circuit case law is

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20 from Williams v. Hopkins, which dealt with a case out of

21 Nebraska involving a challenge to the method of execution in

22 Nebraska at that time; it being electrocution, where the

23 Eighth Circuit found that it was a proper habeas claim.

24

The plaintiff this afternoon drew that circuit

25 conclusion into question by suggesting that the legal

•

44

1 landscape has changed since Nelson v. Campbell. Nelson v.

2 Campbell, as the Court pointed out, involved a challenge to

3 the use of a cut-down procedure upon an offender in order to

4 obtain access to the veins for the execution.

5

And in Nelson, again, what the Court pointed out

6 and, again, what I think is important to note is that the

7 offender offered an alternative to the cut-down procedure.

8 And in fact the State of Alabama during the course of the

9 Supreme Court litigation agreed that the cut-down was not

10 necessary and that the alternative was an acceptable means of

11 gaining access to the offender's veins.

12

So in that situation, the U.S. Supreme Court said

13 that the offender's claims sounded in 1983. And one of the

14 reasons why it sounded in 1983 was because the offender was

15 not asking that the execution be called off forever. And in

16 fact the offender offered an alternative to calling off the

17 execution to forever. So --

18

THE COURT: Got it.

19

MR. HAWKE: Excellent. That is the lesson in

20 Nelson. What you look at Nelson and look at what the

21 offender presents to you in this piece of litigation, it

22 sounds in habeas; not in 1983. The three things I think you

23 should look at or four things I think you should look at:

24 First, what is in the prayer for relief? The prayer for the

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25 relief or in the prayer for relief was to enjoin the

•

45

1 execution temporarily and then there is a second paragraph or

2 another paragraph that asks the Court to enjoin the execution

3 permanently. So that's what the complaint prays for: That

4 the execution be enjoined.

5

Second place I think you can look is at the proposed

6 order offered by the petitioner. The proposed order from the

7 petitioner -- proposed order granting Temporary Restraining

8 Order -- also cancels, postpones, or eliminates the

9 execution.

10

The third thing that I think you can look for is:

11 Does the petitioner offer a specific alternative? And the

12 answer to that is "no." He does not offer a particular drug

13 and a particular dosage that he finds acceptable for his

14 execution.

15

THE COURT: Well, if he were to do that, would that

16 be acceptable to the State?

17

MR. HAWKE: I can't answer that.

18

THE COURT: Okay.

19

MR. HAWKE: It would depend on whether or not it

20 would be lethal dose; whether it worked. So I am not really

21 in this position to say "yes" or "no" to that.

22

THE COURT: Well, let's talk about this a little bit

23 more, because are you suggesting that the State would be

24 amenable to some alternative? An alternative to the current

25 protocol of the three drugs that it uses now? I mean, is

•

46

1 that an option?

2

MR. HAWKE: The statute does not specify the drugs

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3 that are to be used.

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4

THE COURT: Right.

5

MR. HAWKE: Now, whether or not an alternative could

6 be used by the Department of Corrections, I am not able to

7 say. That's a technical policy issue that I am not able to

8 answer.

9

THE COURT: Okay.

10

MR. HAWKE: But in terms of --

11

THE COURT: So the fact that he hasn't offered an

12 alternative really isn't a valid argument, because you don't

13 even know whether the Department of Corrections would

14 consider any proposed alternative?

15

MR. HAWKE: I think I could speak for the department

16 that it would consider an alternative. I can't say that it

17 would immediately accept one at all. That would be purely

18 within the discretion of the director of the Department of

19 Corrections.

20

THE COURT: Okay.

21

MR. HAWKE: The fourth place that I think you can

22 look to see if this litigation is a habeas or if it is a 1983

23 suit probably occurred about 30 minutes into the plaintiff's

24 comments this morning or this afternoon when you asked the

25 question once, twice, three times: "You know, what does the

•

47

1 plaintiff want? What do you want the order to say?" And the

2 first answer that he gave was, "Enjoin the execution until

3 further order of the Court." He was asking for habeas relief

4 when you asked him that question, and he gave you that

5 answer.

6

Now, two or three minutes later, I think you asked

7 the same question again, and the answer was rephrased. I

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05130505 8 think the words that we were used were, "Well, I could "--

9 "I" being Mr. Simon -- "could draft an order that would say

10 that, 'The execution is enjoined until the State of Missouri

11 is able to avoid a gratuitous risk of pain'" or words to that

12 effect. Again, you know, a little bit different language.

13 But, again, language that says, "Enjoin the execution," and

14 that is habeas relief that is requested there.

15

So I think you can look to those four places to see

16 whether this particular litigation is a habeas litigation or

17 a 1983 suit: The complaint; the proposed order; whether a

18 specific alternative is given; and the questions to you this

19 afternoon. So those four places I think emphasize that what

20 the plaintiff is requesting is habeas relief.

21

Now, during your discussion with Mr. Simon this

22 afternoon, you asked about the Reid case out of Virginia and

23 suggested that Mr. Simon take a look that litigation. And I

24 think when you look that litigation closely, it does mesh

25 into the defendant's position this afternoon. When you look

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48

1 at the August 2, 19 -- I believe 1984 opinion out of Fourth

2 Circuit, the offender offered an alternative to the drugs

3 that he was complaining about.

4

And there is a citation in the Court of Appeals'

5 opinion to some piece in the record where that alternative

6 was given. So based upon the petitioner -- the plaintiff --

7 giving that alternative, the Court of Appeals found that it

8 was properly a 1983 suit, which of course fits in I believe

9 to the defendant's analysis of the litigation before the

10 Court.

11

THE COURT: Well, you keep going back to this

12 alternative being proposed, and the point you make here is

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05130505 13 that Mr. Brown hasn't proposed any alternative, and in the

14 Reid case an alternative was proposed. Mr. Brown is not the

15 first Missouri inmate who has challenged the method of

16 execution -- the lethal injection. Am I right?

17

MR. HAWKE: That's correct.

18

THE COURT: Mr. Johnston has challenged it. I don't

19 know who else. But certainly Mr. Brown is not the first.

20 Have there ever been any discussions that you're aware of in

21 the office of the director of the corrections department that

22 anyone in that department has ever considered changing the

23 protocol?

24

MR. HAWKE: I am unaware of any such discussions.

25 •

THE COURT: Okay. So I keep going back to my point 49

1 that the fact that the plaintiff hasn't proposed any

2 alternative to me doesn't seem to be a fair argument, because

3 it's up to the director of the Department of Corrections to

4 determine the protocol. And the determination has been made

5 to use this particular protocol, but certainly the director

6 is free to change that; right?

7

MR. HAWKE: I believe so.

8

THE COURT: A policy of the department can be

9 changed by the department. They've never done that. And

10 they don't need a lawsuit to force them to do it. They can

11 do it without a lawsuit.

12

So if the director of the Department of Corrections

13 looks around the country and saw that some other states were

14 using a different protocol, then he could consider that; and

15 he could he could change the Missouri policy and use a

16 different protocol. So I don't think it's fair to harp on

17 the fact that there are no proposed alternatives. But you

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05130505 18 heard Mr. Simon when I asked him if the State were to switch

19 its protocol and use it on this pentobarbital drug, his

20 response was, "We wouldn't even be here if that were the

21 case."

22

So you do have a proposal of sorts. A proposal

23 alternative of sorts. But it's up to the director of the

24 Department of Corrections to determine what the protocol will

25 be, and he's made the determination that it's going to be

•

50

1 this. But he's free to change that at any time.

2

MR. HAWKE: If I may interject there, Your Honor?

3 What I wrote down when you asked that question of the

4 plaintiff this afternoon was -- and what I wrote down and

5 what I wrote this quote marks is, "I am not going to

6 bargain."

7

THE COURT: Right. My point is you don't need --

8 that is, the Department of Corrections is free to make a

9 change in the protocol in its policy if it so chooses. And

10 it doesn't require the impetus of a lawsuit; whether it is a

11 1983 lawsuit by a prisoner or a habeas petition. You don't

12 need that.

13

So all right. I'm going to let you go on. As I

14 understand it, the defendant's believe that the Nelson -- I

15 am sorry -- the Williams v. Hopkins case in which the Eighth

16 Circuit ruled that challenges to the method of execution fall

17 under the habeas procedure, as opposed to 1983 procedure.

18 And your position is that that is the case that governs, and

19 other cases that preceded it and followed it reach the same

20 conclusion.

21

MR. HAWKE: Yes. Williams governs, and Nelson does

22 not overturn.

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23

THE COURT: Okay.

24

MR. HAWKE: Probably the rigid method of thinking

25 about it.

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51

1

THE COURT: Well, I will agree with you there. I

2 don't believe that Nelson governs in this case; however, I

3 think it is instructive in that the Supreme Court appears to

4 recognize that there may be circumstances in which a claim

5 that might appear to be a habeas claim is really a 1983

6 claim. I think that's what they found in the Nelson case.

7 They found that Mr. Nelson's claim was a 1983 claim.

8

So I don't believe that the Supreme Court had ruled

9 out the possibility that there can be a challenge to a method

10 of execution that would be viable under 1983. So I don't

11 think that the Nelson case hurts the plaintiff's position. I

12 don't think it necessarily helps. And I agree with you that

13 I don't believe that given the circumstances and the facts of

14 Nelson that it governs in this case. But go ahead.

15

MR. HAWKE: Okay.

16

THE COURT: Now you've told me why you think this is

17 a habeas. And one of the things you focus on is the relief

18 that the plaintiff is seeking, which is to enjoin the

19 execution. In the typical habeas case, though, what the

20 petitioner is asking for is to have the sentence vacated. In

21 other words, that the death sentence be vacated because of

22 some constitutional infirmity.

23

I don't understand Mr. Brown to be asking that. I

24 don't understand that he is asking this Court to disturb the

25 judgment of the state court -- that is, the conviction -- or

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52

1 that he is arguing that the death penalty should not have Page 43

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2 been imposed. I mean, he made that argument in his habeas

3 petition; but he's not saying here that, "The Court should

4 never have imposed the death penalty in my case." What he is

5 saying is, "That the death sentence has been imposed. I am

6 not questioning that. I am not challenging that. What I am

7 challenging is how the State is going to implement it." And

8 I don't think he's arguing that lethal injection can never be

9 used. "And it can't be used in my case under any

10 circumstances, because lethal injection is always cruel and

11 unusual punishment." I mean, are you reading something into

12 his complaint that maybe I'm missing?

13

MR. HAWKE: What I am seeing at the end of his

14 complaint is a request that the Court enjoin temporarily and

15 then permanently his execution. Now --

16

THE COURT: Well, let's put aside the "permanently"

17 part. Let's say I decide right now that he's not entitled to

18 an injunction that would prevent on a permanent basis his

19 execution. What about the "temporary" part of it? In your

20 view, why does that request in your view make this sound in

21 habeas?

22

MR. HAWKE: Let's step back and walk through the

23 criminal process and then get to May 18 of 2005. The

24 offender was convicted of first-degree murder here in St.

25 Louis City. As a result of that jury verdict, he was

•

53

1 sentenced to death. That conviction has been affirmed by the

2 Missouri Supreme Court on direct appeal. And on

3 post-conviction review, that conviction and sentence have

4 been affirmed -- not affirmed -- federal habeas corpus relief

5 has been denied by the federal district and appellate courts.

6

So, as a result of that litigation, at the

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05130505

7 conclusion of that litigation, the Missouri Supreme Court did

8 what or issued a warrant based upon the judgment of the St.

9 Louis City Circuit Court. And that warrant requires the

10 director of the Department of Corrections to carry out the

11 judgment of that Circuit Court. That judgment being that the

12 offender be executed.

13

Now, if the offender had prevailed on direct appeal

14 in state court or a post-conviction in state court, that

15 sentence would have been set aside. If he had prevailed in

16 federal habeas at any level, that conviction and sentence

17 would have been set aside, depending on the claim, of course.

18 On the type of claim.

19

And in this situation, if the offender were to

20 prevail and receive the relief that he is requesting -- that

21 being that his execution be permanently enjoined -- that is

22 tantamount to the functional equivalent of which is the

23 language that the Courts use in describing 1983 challenges to

24 the method of execution. That is the fundamental equivalent

25 of a federal habeas corpus petition, because that is the type

•

54

1 of relief that you would get if you prevailed in a federal

2 habeas corpus petition.

3

Now, during the course of a federal habeas corpus

4 petition, you know, the Federal District Court has the power

5 to issue a stay of execution as part of its habeas power.

6 And that is similar to if not the same as or perhaps in the

7 language of cases the "functional equivalent" of -- a

8 Temporary Restraining Order would be the functional

9 equivalent of such a stay of execution. It's the same thing.

10 It has the same effect; the effect being that the director of

11 the Department of Corrections would not be able to follow the

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12 lawful order of the Missouri Supreme Court.

13

Sort of long-winded answer, but it sort of gets us

14 from 1986 to 2005.

15

THE COURT: Okay.

16

MR. HAWKE: Long-winded answer, because it covers 19

17 years. So I don't think you can separate, you know, a

18 permanent injunction. I don't think you can say a permanent

19 injunction is like a federal habeas but a temporary

20 injunction is not. Because a temporary injunction, if it

21 lasts long enough, can have the effect of a permanent

22 injunction in this situation.

23

THE COURT: I see. Let me ask you a question that

24 is a little bit off the subject that you were just

25 addressing. This is a "what if" question. If the State

•

55

1 decided to change the protocol tomorrow, whatever new

2 protocol were put in place would apply to Mr. Brown and every

3 other inmate who is awaiting execution. Am I right?

4

MR. HAWKE: As I understand the department's policy,

5 there is one protocol per inmate. So one protocol applies to

6 one individual.

7

THE COURT: Well, right now, the State does not

8 administer lethal gas, although the statute would allow for

9 that.

10

MR. HAWKE: That is correct.

11

THE COURT: If the State decided to go back to

12 lethal gas, then under the statute, you could do that; right?

13

MR. HAWKE: I believe so. Yes.

14

THE COURT: Okay. And so you have the authority to

15 use the lethal injection, but the statute doesn't dictate

16 what chemicals you have to use; right?

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17

MR. HAWKE: That is correct. Yes.

18

THE COURT: And that's within the decision-making

19 authority of the Department of Corrections?

20

MR. HAWKE: Yes, that's correct.

21

THE COURT: So, if the Department of Corrections

22 decided tomorrow that in Mr. Brown's case that it was going

23 to change the protocol of using the three drugs that we've

24 been talking about, then the department could do that,

25 provided whatever that new protocol was would still have the

•

56

1 effect of being a lethal injection, as required by the

2 statute.

3

MR. HAWKE: I believe that's correct. But I've, you

4 know, thought it for the 15 seconds that you've asked the

5 question.

6

THE COURT: Well, if the State did change the

7 protocol to use a different drug to carry out the lethal

8 injection and if it were undisputed that that new drug was

9 one that was extremely caustic and painful when administered

10 producing violent reactions in an inmate, how would someone

11 like Mr. Brown be able to challenge the use of a drug that

12 everyone agrees -- including the director of Department of

13 Corrections -- is extremely painful and may not be

14 constitutional, how could Mr. Brown do that at this point?

15 What would he need to do?

16

MR. HAWKE: Okay. Let me add to your hypothetical

17 there and assume away the state court --

18

THE COURT: Right.

19

MR. HAWKE: -- remedies. And, you know, that's a

20 big assumption, because I think your question was focusing,

21 you know, "What are the federal remedies?"

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22

THE COURT: Right.

23

MR. HAWKE: I just wanted to lay that out on the

24 table. At that point, if the offender were to file this

25 lawsuit. But instead of the three chemicals that are listed

•

57

1 there, you know, you would have the insertion of the caustic

2 chemical. I believe through the remedy to that situation

3 would lie in a 1983 suit but in an application to file a

4 successive federal habeas permission. And that application

5 should be filed in the Eighth Circuit.

6

THE COURT: Okay. If that were the case, would you

7 agree that, if Mr. Brown's lawyer had half a brain, he would

8 also ask for a stay of execution or an injunction to enjoin

9 the Department of Corrections from administering the drug

10 until the issue could be resolved?

11

MR. HAWKE: In our hypothetical situation here, I

12 would hypothetically agree that a habeas petitioner's counsel

13 would file whatever appropriate motions would be necessary.

14

THE COURT: Okay.

15

MR. HAWKE: So I guess what I would like to do from

16 your hypothetical is abstract from that specific to the

17 general. And that abstraction would be that the nature of

18 chemical does not really change the nature of the lawsuit.

19 In a hypothetical, my answer was, it should be filed as an

20 application to file a successive habeas corpus petition. And

21 that's my same answer or my second or the government's

22 position as to this lawsuit. I think that sort of concludes

23 what I was wanting to say from the habeas side of the

24 litigation.

25 •

THE COURT: And you're particular with the Reid 58

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1 case; are you not?

2

MR. HAWKE: Yes.

3

THE COURT: How do you address the distinction that

4 the Court in Reid made between a challenge to protocol and a

5 challenge to lethal injection and the method of execution in

6 general?

7

MR. HAWKE: And to answer that question, that refers

8 back to the discussions of a few minutes ago. What you're

9 looking at I believe is the District Court decision in Reid.

10

THE COURT: No, I am looking at the Fourth Circuit's

11 decision --

12

MR. HAWKE: Okay.

13

THE COURT: -- because it was the Fourth Circuit

14 that drew that distinction. As you'll recall, initially, the

15 District Court dismissed the 1983 claim as a successive

16 habeas. And, on appeal, the Fourth Circuit took a different

17 view.

18

MR. HAWKE: Right. And the reason articulated by

19 the Fourth Circuit for taking that different view was because

20 the offender offered a specific alternative to the method of

21 execution.

22

THE COURT: I am sorry. I guess you did mention

23 that before, but you think that was the reason?

24

MR. HAWKE: That's what the Fourth Circuit

25 articulated, yes. If I may? "Rather he" -- the plaintiff,

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59

1 petitioner -- "asserts only that the particular protocol the

2 State plans to use is impermissible. He acknowledges that

3 other protocols would pass constitutional muster."

4

THE COURT: Right.

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5

MR. HAWKE: Then there is a citation to the

6 offender's reply.

7

THE COURT: So, you're not suggesting -- are you? --

8 that if Mr. Brown were to amend his complaint here and make a

9 specific proposal as to other drugs that could be used, that

10 that would somehow convert this into a 1983 case?

11

MR. HAWKE: What I'm suggesting is that he has to

12 propose -- not suggesting -- what I am stating he has to give

13 a specific alternative. He can't just say something else

14 other than in those three and leave it.

15

THE COURT: Well, if I give him leave to amend to

16 propose a specific drug or specific drugs as an alternative

17 to the three that are used now, will you concede that this a

18 Section 1983 case?

19

MR. HAWKE: He would have to give a specific

20 alternative. And by "specific," I mean he would have to give

21 the name.

22

THE COURT: And the dosage and -- what's the

23 word? -- "concentration." If he were to do that, the State

24 would concede that this is a 1983 action?

25

MR. HAWKE: Yes.

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60

1

THE COURT: Mr. Simon?

2

MR. SIMON: Judge? Yes, Your Honor.

3

THE COURT: You know, I don't know what your

4 reaction to that is?

5

MR. SIMON: It is basically one of agreement. But I

6 would need to check. I am not competent to specify the

7 dosage or the concentration. I believe it is inferable from

8 the pleadings originally filed in this case that

9 pentobarbital was an alternative.

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10

I don't think that it is a screen hit to say that no

11 alternative was presented. I don't have settlement authority

12 because I would need to have the input from the experts, and

13 I would need to have the signoff from the client. And I fail

14 to see how that's at all unreasonable. I am not an

15 anesthesiologist, and I am not the one they're trying to

16 kill; however, I think this action is clearly a 1983.

17

I think that the pleadings were sufficient from that

18 point of view. But if what is needed to get us into 1983 for

19 absolutely certain then the chemical is pentobarbital. And

20 all I basically I would need to have the review of the

21 experts and principally the Lancet experts. They would need

22 to have some physical facts about Mr. Brown.

23

And the one thing that neither the Court nor the

24 defendant's counsel has addressed as of this point that is

25 addressed in the declarations and in the pleadings is the

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61

1 qualifications of the staff. In other words, if we here and

2 the experts at the University of Miami and New York City came

3 up with an ideal chemical cocktail for lethal injection but

4 it were employed by people who didn't have the qualifications

5 to sharpen a pencil, then obviously, that would not satisfy

6 the Eighth Amendment?

7

There would still remain that risk. But what I have

8 in mind as a alternative is pentobarbital. And indeed, lest

9 there be any doubt, this is not some revelation that has

10 occurred to me in the last five minutes. The pleading that

11 we filed in the Missouri Supreme Court on January 21st led of

12 with the fact that the State could use a single lethal does

13 of an otherwise legitimate anesthetic. In other words, I'll

14 defer to the transcript as to whether I ever said, "I am not

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05130505 15 going to bargain." Actually, I think this would be an

16 appropriate case for settlement.

17

THE COURT: No, I am not suggesting any kind of

18 settlement.

19

MR. SIMON: Uh-huh.

20

THE COURT: My point is simply this: Right now, you

21 and the defense counsel disagree about whether this is a

22 habeas case --

23

MR. SIMON: Uh-huh.

24

THE COURT: -- or a 1983 case.

25

MR. SIMON: Uh-huh.

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62

1

THE COURT: And what Mr. Hawke has just said is that

2 that disagreement would be eliminated if the plaintiff were

3 to propose an alternative and make a specific proposal about

4 an alternative. He's not saying that the State agreed to

5 that proposal. But --

6

MR. SIMON: Uh-huh.

7

THE COURT: -- what he's saying is that gets you

8 over the jurisdictional hump.

9

MR. SIMON: In that case, Your Honor, I would agree

10 as well. I will agree to provide a specific alternative.

11 And the only thing I think that's lacking as of this point is

12 the amount and the concentration. And I think as long as

13 that gets us over the statutory jurisdiction hurdle, then we

14 can litigate the qualifications of the staff and other

15 ministerial questions. But I would concur with the Court's

16 initiative if that's how I should construe it.

17

THE COURT: I am quite surprised to hear that: This

18 concession on the State's part. I wasn't expecting that from

19 you, but if that's all it takes. I mean if in the State's

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05130505 20 view jurisdiction in this case depends on whether the

21 plaintiff has made a specific allegation about a specific

22 proposed alternative, then I think you're going to be seeing

23 more of these down the road, Mr. Hawke, because I am sure

24 that other counsel who represent people awaiting execution

25 will take your concession to heart and pursue it.

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63

1

MR. SIMON: Your Honor, I don't think they will see

2 any more. I think if this gets resolved once, it'll be the

3 last one.

4

THE COURT: Well, maybe. Maybe not. We'll see.

5 Okay. All right. Let's -- and I would add to this that I

6 don't read the Reid decision in the same way you do, Mr.

7 Hawke, because I don't believe that the Court in Reid meant

8 that all the plaintiff had to do was make a proposal to the

9 contrary of the protocol that was in place; and that would be

10 enough to get the plaintiff over the jurisdictional hurdle.

11

I think that would have been much too simplistic a

12 result. I think in Reid, unlike Williams v. Hopkins and the

13 cases that the Eighth Circuit cited in Williams v. Hopkins,

14 in Reid, the focus was on the specific protocol that was in

15 place; not on lethal injection as a rule.

16

And in this case, Mr. Brown is not saying that under

17 no circumstances is lethal injection constitutional. What he

18 is saying is that lethal injection may be constitutional, but

19 the way that the plaintiffs -- I mean the defendants are

20 implementing it is unconstitutional. And that's why I asked

21 you about this change in the protocol to using a drug that

22 was admittedly painful.

23

But, anyway, while I understand that the Eighth

24 Circuit was presented with a challenge to the

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25 constitutionality of electrocution, there was no challenge to

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64

1 protocol of the electrocution. That is, in Williams, the

2 plaintiff was saying the electrocution is unconstitutional as

3 cruel and unusual punishment.

4

He wasn't arguing that execution that is carried out

5 in a particular way in the prison in Nebraska is

6 unconstitutional. He was saying, "Electrocution, the way

7 it's done in Nebraska; the way it's done in Oregon; the way

8 it is done in any other state that has electrocution and the

9 death penalty is unconstitutional." And so that's why the

10 Eighth Circuit I believe rejected this as a habeas claim.

11

I think that the difference here is that if

12 Mr. Brown wins this lawsuit, the effect on that would be that

13 the State would be required to find a different chemical or

14 array of chemicals or different protocol for lethal

15 injections. The state would not be required to abandon

16 lethal injection altogether, it would just have to do it a

17 different way. And so that's not habeas, because Mr. Brown

18 is still subject to executions once the protocol changes.

19

So all right. Well, you know, coming into this I

20 had a sense that the jurisdictional issue might weigh more in

21 favor of the plaintiff than the defendants. And based on

22 what I've heard from both of you and based on the Reid case,

23 I'm convinced that the Court does have jurisdiction. And I

24 am also convinced that the plaintiff's claim that is based on

25 Section 1983 is not frivolous; and that 1983 is a permissible

•

65

1 vehicle by which Mr. Brown can challenge the protocol by 2 which the lethal injection form of execution is to be carried 3 out.
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4

Now, the next issue is whether he's entitled to a

5 Temporary Restraining Order. And I'd like you to address, if

6 you would, or I don't know if Miss McElvein is going to do

7 that whether this issue of likelihood of success on the

8 merits, because that of course is one of the elements that

9 has to be established.

10

MR. HAWKE: And that is within Miss McElvein's

11 scope.

12

THE COURT: Okay. Thank you.

13

MS. McELVEIN: Your Honor, the plaintiff is not

14 entitled to a Temporary Restraining Order. As I think we

15 pointed out on pages five and six of our memorandum, which I

16 believe you have a copy of now?

17

THE COURT: Yes, I just received it maybe 30 minutes

18 ago.

19

MS. McELVEIN: That challenges to lethal injection

20 are not new. And, certainly, Brown could have brought his a

21 lot sooner. The murder of this nine-year-old child occurred

22 in 1996. He was convicted in 1991, and that was 14 years

23 ago.

24

The cases that we cited on page six and particularly

25 looking down through them you can see that basically, there's

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1 been like 20 years of challenges to lethal injection. In the

2 Heckler case, that was 1985. That was a challenge -- a civil

3 rights suit -- challenging the drugs used for execution by

4 lethal injection as not being properly tested; likely to be

5 administered by untrained necessary. That's one of the

6 issues that the plaintiff brought up just a few minute ago.

7

We also have a 1995 Arizona case, State v. Hinchey,

8 lethal injection allegedly unconstitutional, because, if it

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9 carried out incorrectly, could be painful.

10

State v. Webb, that was a 2000 case which claimed

11 that lethal injection creates a high risk: "Inmate will

12 experience excruciating pain because execution protocol does

13 not ensure sufficient amount of thiopental sodium would be

14 administered to render an inmate unconscious."

15

The Simms case. That is another 2000 case which

16 claims a lack of specific guidelines and controlling the

17 dosage sequence and delivery rates of lethal chemicals

18 violates the Eighth Amendment. Those are just like four of

19 the cases that we cited. So I think that, despite that, the

20 plaintiff has failed to raise until now until basically the

21 last minute.

22

And the plaintiff has not cited any reported

23 decision where a judge has found that execution by lethal

24 injection has been held unconstitutional. So, therefore, he

25 is not entitled to a TRO. And I think as United States

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67

1 Supreme Court has said in the Gomez case, you know, at some

2 point, the Supreme Court has taken into consideration that

3 the State's strong interest in proceeding with its

4 judgments -- since his conviction in 1991, it has been 14

5 years.

6

And in this case, I think given the history of the

7 litigation and lethal injection, there is a strong equitable

8 presumption that he is going to be able to prevail on the

9 merits anyway. What I want to do also is previously address

10 where he talks about the Lancet article, and I just wanted to

11 point out for the record on that that that was based on -- it

12 was an article. It wasn't a study.

13

And it was also based on four other states' review

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14 of I think it is toxicology reports and autopsy reports from

15 four other states; none of those states being Missouri. And,

16 again, as I think as the Court already pointed out, we're

17 talking very soft language, as far as "suggest" or "seems to

18 suggest." That type. But it also most importantly did not

19 include any data from Missouri.

20

So I don't think it has any relevance to how

21 executions are carried out in Missouri. And, finally, what I

22 would like to argue is that the plaintiff has not exhausted

23 his administrative remedies. As we pointed out on page eight

24 of our memorandum, McAlphin v. Morgan, an Eighth Circuit case

25 and also the U.S. Supreme Court case of Nelson v. Campbell,

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68

1 that inmates are required to abide by the execution

2 requirements; and that, as pointed in Nelson, includes

3 capital cases.

4

And under the Eighth Circuit precedent, they are

5 required to exhaust it before filing the Section 1983

6 lawsuit; not while it's pending. And I think the plaintiff

7 submitted this like the IRR that he filed. And I think in

8 the response, he received a response to his Informal

9 Resolution Request that he should proceed.

10

THE COURT: The Informal Resolution Request was

11 filed before the complaint was filed in this case; am I

12 right?

13

MS. McELVEIN: Yes, Your Honor. I think that the

14 complaint -- well, wait a minute. This was dated May 11th.

15 I am not sure what date the complaint was filed.

16

THE COURT: I think --

17

MS. McELVEIN: May 11th? So that would have been

18 two days ago.

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19

THE COURT: The complaint was filed May 11th.

20 Hadn't the Informal Resolution Request been filed before

21 that?

22

MS. McELVEIN: No, the date that I have on here is

23 that it was signed May 11th.

24

THE COURT: Oh, really?

25

MS. McELVEIN: Yes, Your Honor.

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69

1

THE COURT: Okay. This lawsuit was filed on

2 May 10th and you're saying that the IRR was filed on

3 May 11th?

4

MS. McELVEIN: Yes, Your Honor.

5

THE COURT: Okay.

6

MS. McELVEIN: No, Your Honor. In fact, Vernon

7 Brown's signature on here, if you look at the Informal

8 Resolution Request, you have the offender's signature. It is

9 next to his signature. I mean the only dates that I can find

10 on here are May 11th after his signature. And the only other

11 date is at the bottom where he signed again, and that was

12 dated May the 12th.

13

THE COURT: Okay. The reason I thought the IRR had

14 preceded the filing of the complaint is that I believe the

15 complaint refers to the IRR. Yes. On page 22, paragraph 68

16 of the complaint, it states that, "Mr. Brown has filed an

17 IRR." And it says that it is attached as an Attachment H.

18 There was no Attachment H to my copy. But my point is that

19 the complaint makes it appear as if the IRR had already been

20 filed, but you're saying that the dates don't --

21

MS. McELVEIN: And I don't know why that is. All I

22 all I have is a copy here of the IRR. I don't have any other

23 date on this, other than May 11th and then at the very bottom

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24 May 12th. But even if he had filed it on May 10th, it is not

25 enough to file the IRR for exhaustion of administrative

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1 remedies.

2

THE COURT: Now, Mr. Simon mentioned earlier that

3 the IRR has been responded to by the prison officials; and

4 that that response is that the challenge to the execution

5 protocol is not grievable. Are you aware of any response

6 that's been given by the prison officials?

7

MS. McELVEIN: Yes, Your Honor. Would you like me

8 to read that into the record as well?

9

THE COURT: Yes, please.

10

MS. McELVEIN: What I have here is the Informal

11 Resolution Request. And I have the findings on the Informal

12 Resolution Request for Vernon Brown. And for the record,

13 this is IRR number ERDCC05-1156.

14

And it says and the findings state: "Your IRR and

15 all pertinent information have been received and reviewed.

16 After investigating your complaint, it appears that your

17 proposed action after delaying all executions cease while the

18 method of execution is examined is outside the scope of our

19 responsibility and authority. Execution procedure is

20 determined at a level outside this institution; and,

21 therefore, ERDCC is unable to address your complaint. Should

22 you wish to pursue this matter further, we suggest persisting

23 to the grievance appeal level, where the issue can be

24 effectively reviewed. Therefore, your IRR is denied."

25 •

THE COURT: And the appeal level under the IRR 71

1 appear would involve Mr. Brown asking for relief. What would Page 59

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2 be the next level?

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3

MS. McELVEIN: Okay. Your Honor, I think we have

4 Smith v. Stubblefield at 30 F.Supp.2d 1158 Eastern District

5 of Missouri 1998. And that's cited on page nine and kind of

6 sets forth what an offender must do to exhaust administrative

7 remedies.

8

So the next thing that the plaintiff would do in

9 this case is to file a grievance. Once your IRR is denied,

10 then the next step a grievance. And the grievance is

11 reviewed. And once there is a decision on the grievance,

12 then the offender may file a grievance appeal. So then the

13 appeal would be determined by -- and that goes to the central

14 office.

15

So once the appeal is determined and once he's gone

16 through -- this is also a way for them to do a second appeal.

17 But the department considers the issue exhausted once the

18 offender completes the appeal of the denial of his grievance.

19

THE COURT: All right. So all right. At this

20 point, the IRR has been denied.

21

MS. McELVEIN: Yes, Your Honor.

22

THE COURT: And the denial of the IRR is done by

23 whom? Who makes that decision? What individual or what

24 committee within the institution reviews the IRR's?

25 •

MS. McELVEIN: Usually, Your Honor, that's the case 72

1 worker.

2

THE COURT: And is that what happened in Mr. Brown's

3 case?

4

MS. McELVEIN: I see a staff signature on here, and

5 it's "C.N.D." It is "RYCCW," and that indicates to me that

6 that's the correction classification worker, which would be

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7 the case worker.

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8

THE COURT: Okay. So, had he pursued a grievance,

9 which is the next step in the process, to whom would that

10 grievance go?

11

MS. McELVEIN: The grievance goes to the

12 superintendent, unless if it is medical, then it wouldn't go

13 to the superintendent. You know --

14

THE COURT: Right.

15

MS. McELVEIN: -- if it was like a claim against CMS

16 or something different. But, generally speaking, it would go

17 to the superintendent --

18

THE COURT: All right.

19

MS. McELVEIN: -- for his review.

20

THE COURT: All right. And then it proceeded past

21 the grievance level, it would go to the central office?

22

MS. McELVEIN: Yes.

23

THE COURT: Okay. Now, let me ask you this: To

24 your knowledge, does a case worker -- case classification

25 worker?

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73

1

MS. McELVEIN: Yes. They call them a "case worker."

2 I think the formal name is "corrections classification."

3

THE COURT: Would a corrections classification

4 worker have any authority to change the lethal injection

5 protocol?

6

MS. McELVEIN: No, Your Honor.

7

THE COURT: To your knowledge, does the

8 superintendent of this institution have any authority to

9 change the protocol for the lethal injection?

10

MS. McELVEIN: No, Your Honor.

11

THE COURT: Any change in the protocol, as I

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05130505 12 understand it, based on what Mr. Hawke told me, is made at

13 the level of director of the Department --

14

MS. McELVEIN: Yes, Your Honor.

15

THE COURT: -- of Corrections? Okay. Okay. Go

16 ahead. So you're saying he didn't exhaust?

17

MS. McELVEIN: Yes, Your Honor.

18

THE COURT: All right.

19

MS. McELVEIN: And so, for that reason, his Section

20 1983 action cannot go forward, because he has failed to

21 exhaust his administrative remedies.

22

THE COURT: When you use the term, "central office,"

23 are you referring to the director's office?

24

MS. McELVEIN: Oh, yes. Yes, Your Honor. I am

25 sorry. I am referring to Jefferson City. What happens, just

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74

1 to be clear for the record, the IRR and the grievance,

2 they're handled at the individual institutions.

3

THE COURT: All right.

4

MS. McELVEIN: And then from there, the appeals go

5 to central office, which would be at the director's level.

6

THE COURT: Okay.

7

MS. McELVEIN: And in this case, given the nature of

8 his IRR by the require a change in the Department of

9 Corrections's policy and not the policy of the local

10 institution. So, therefore, an appeal by him to the

11 department level would be necessary for exhaustion of

12 administrative remedies.

13

THE COURT: Okay. Could Mr. Johnston have bypassed

14 the IRR procedure and the grievance? Since it is clear that

15 no one at the institution had authority to make any changes,

16 could he have bypassed the institutional officials and gone

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05130505 17 directly to the director with his complaint?

18

MS. McELVEIN: No, Your Honor. Not that I am aware

19 of.

20

THE COURT: Okay.

21

MS. McELVEIN: I think that the policy of the

22 department -- and just for the record, are you meaning

23 Mr. Brown? You said "Mr. Johnston."

24

THE COURT: I am sorry. Mr. Brown?

25

MS. McELVEIN: Just for the record.

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75

1

THE COURT: Thank you.

2

MS. McELVEIN: But, no. Mr. Brown, there is not a

3 method by which the offenders can go and jump over all of

4 these steps and go directly to the departmental level.

5

THE COURT: All right. Thank you.

6

MS. McELVEIN: And, you know, in many cases are

7 involved at the IRR level.

8

THE COURT: Right. But clearly, this is not an

9 issue that could have been resolved at the IRR level or at

10 the institution level at all. I guess my question is: Are

11 there any exceptions? Certainly, you don't want every inmate

12 to send every complaint directly to the director's office.

13 But certainly there are some complaints that only the

14 director has any authority in. So does the policy allow for

15 admitting these kinds of complaints directly to the head of

16 the Department of Corrections?

17

MS. McELVEIN: As far as I know, the policies always

18 require them to follow this procedure.

19

THE COURT: Okay.

20

MS. McELVEIN: Start with the IRR. They can't even

21 jump like say to the grievance level. If they believe that

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05130505 22 this is something that a case worker can't do or can't

23 resolve, they can't just file a grievance. They always have

24 to file the IRR before the grievance.

25

THE COURT: All right. Thank you.

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76

1

MS. McELVEIN: That's all I have, Your Honor.

2

THE COURT: All right.

3

MR. SIMON: Your Honor, may it please the Court?

4

THE COURT: You probably have a number of things

5 that you want to say, Mr. Simon. But if you would indulge me

6 before I forget about this? I wanted you to address the

7 exhaustion issue first --

8

MR. SIMON: Absolutely.

9

THE COURT: -- while it is still fresh in my mind.

10

MR. SIMON: Absolutely, Your Honor. And I have

11 taken the liberty of printing a copy of Attachment H, since

12 it is apparent that the Court didn't have one.

13

THE COURT: Thank you.

14

MR. SIMON: Did the counsel for the defendants not

15 get Attachment H?

16

MR. HAWKE: No.

17

MR. SIMON: I'll take care of that. It is the

18 affidavit of Vernon Brown describing how and when he filed

19 the grievance. The Court will see that in the place that was

20 filled out there were no dates.

21

The dates that were added relate to the discussion

22 section, unless there is a different form. You see, Your

23 Honor, the one I am looking at is the more relevant form.

24 The one I am looking at is the one in Timothy Johnston's

25 case, which is Attachment E. And I was asking since there

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1 was a problem about Attachment H, is there any problem about

2 Attachment E? Is anyone lacking Attachment E?

3

THE COURT: Hold on. I don't remember seeing

4 anything pertaining to Mr. Johnston. It was an attachment to

5 your complaint?

6

MR. SIMON: Yes, Your Honor.

7

THE COURT: Okay. I am not saying it wasn't filed.

8 I may not have received a complete copy, and I am not saying

9 it wasn't filed. That's something that we can determine

10 later.

11

MR. SIMON: Well, Your Honor, the reason --

12

THE COURT: I don't have it.

13

MR. SIMON: -- why it is so important to the Court's

14 question is that the data that Vernon Brown had to rely on

15 before filing this case was all in the direction of saying,

16 "You can't do it. You can't grieve it. It is nongrievable."

17 I didn't hear any response from defense table about them not

18 getting Attachment E. They didn't have to get it, because

19 they get it in Johnston. And what it says in Johnston is,

20 "This is a nongrievable issue." Now, that's the information

21 that Vernon Brown had.

22

THE COURT: And how was that communicated to Mr.

23 Johnston?

24

MR. SIMON: In the same manner that the new response

25 that they made up after we filed this 1983 action was

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78

1 communicated to Mr. Brown.

2

THE COURT: Okay. Hold on. I want to talk about

3 Mr. Johnston.

4

MR. SIMON: Yes, ma'am.

5

THE COURT: He filed an IRR --

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6

MR. SIMON: Uh-huh.

7

THE COURT: -- and was told in response to that that

8 his challenge to the protocol was not grievable?

9

MR. SIMON: Yes, ma'am.

10

THE COURT: Okay. Do you know whether Mr. Johnston

11 presented that challenge up through the appeals process the

12 director?

13

MR. SIMON: I don't believe so, ma'am. If it is not

14 grievable, it is not grievable. Look. It doesn't fall

15 within the statute.

16

THE COURT: Okay.

17

MR. SIMON: There are several levels at which the

18 defendants have no case for nonexhaustion. The first one

19 is -- let's start with the statute, 42 US Code 1997(e) is

20 limited to prison conditions. Prison conditions, is that the

21 beans aren't warm enough in the chow line. It is not the

22 selection, quantity, and sequence of lethal injection

23 chemicals.

24

If Vernon Brown had not raised this action and he

25 was going to be executed on May 18th and instead of wheeling

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79

1 out a gurney, they wheeled out a garotte, these people would

2 have argued that he would had to have filed a grievance.

3 That's garbage. That's and Eighth Amendment violation.

4

THE COURT: Maybe I am not sure about the

5 terminology and maybe that's one thing that needs to be

6 addressed.

7

MR. SIMON: Is using a garotte instead of lethal

8 injection a prison condition?

9

THE COURT: I understand the difference between a

10 garotte and lethal injection. But the terminology I don't

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11 believe so is "nongrievable." I don't know what that means

12 within the context of the exhaustion process. And maybe Miss

13 McElvein can address that, because if a prisoner's

14 complaint -- whatever it may be -- is determined by the

15 institution -- either by the case worker or by the

16 superintendent to be nongrievable -- what does that mean?

17 Does the appeal process only apply to claims that are

18 grievable? I don't know. Maybe you can help out. I don't

19 know what that means. You'll have to come up to the

20 microphone.

21

MR. SIMON: Your Honor, should I print out another

22 copy of Attachment H, since the defendant's counsel don't

23 appear to have one?

24

THE COURT: We'll take care of it.

25

MR. SIMON: Thank you, Your Honor.

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80

1

MS. McELVEIN: Your Honor, I think that under the

2 Prison Litigation Reform Act, the offender is required to

3 exhaust. Whatever they write in there as a response, the

4 offender still needs to take it through to completion. So,

5 if they say it may be that that's nongrievable because the

6 case worker can't address it, then that doesn't mean that the

7 superintendent won't be able to or the director won't be able

8 to.

9

THE COURT: Well, that's what I am asking: Whether

10 "nongrievable" means, you know, shutting the door in your

11 face. And, you know, you can't take this any further,

12 because this is not a subject that you can get any kind of

13 consideration or relief on.

14

MS. McELVEIN: No, Your Honor.

15

THE COURT: Okay.

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16

MS. McELVEIN: What I would like to do is object for

17 the record as far as all this discussion about the Johnston

18 case, because that's not an issue in this case. And in that

19 case, just for the record, there is a Motion to Dismiss that

20 is pending and is still pending.

21

THE COURT: Well, I asked the question about

22 Johnston only because if Mr. Johnston had taken his grievance

23 or his complaint all the way up to the director and been

24 told, you know, "This is not something that the department is

25 going to change. You have no reason or any cause or right to

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81

1 challenge the protocol," then I think that would have some

2 bearing on whether Mr. Brown should have been required to do

3 the same thing. That is, if the director has already told

4 one inmate, "We're not going to change it and you can't

5 complain about it," then I wonder whether it would be

6 appropriate to require Mr. Brown to go to the director only

7 to be told the same thing?

8

I know the statute requires exhaustion. But, you

9 know, it is a basic principal that an individual is not

10 required to pursue exhaustion if it is going be futile. So

11 that's why I wanted to know at what level something could

12 have been done and whether Mr. Johnston had received an

13 unfavorable response from the director. But I understand he

14 didn't get that far.

15

MS. McELVEIN: Right, Your Honor. My understanding

16 is -- well, first of all, too, for the record, Vernon Brown

17 is incarcerated at the ERDCC. And Mr. Johnston is

18 incarcerated at Potosi. So they would have no knowledge of

19 each other, and they shouldn't anyway of each other's

20 grievances or IRR's. Offenders do not have access to other

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21 offender files, but they are incarcerated at two different

22 locations. My understanding is that Mr. Johnston has not

23 filed a grievance from his IRR.

24

THE COURT: Okay. Now, Mr. Simon, it is not

25 disputed that Mr. Brown didn't submit a grievance or a

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82

1 complaint beyond the IRR stage?

2

MR. SIMON: He hasn't yet, Your Honor. But the fact

3 that 42 US Code Section 1997(e) doesn't apply to this issue.

4 This is not a prison condition within the meaning of

5 Subsection A of 42 US Code Section 1997(e). It does not fall

6 within the legislative intent. It doesn't fall within the

7 plain English.

8

It doesn't fall within the administrative

9 regulations that the Department of Corrections has

10 promulgated to take advantage of Section 1999(e). As they're

11 posted on the Internet, they relate to all aspects of

12 institutional life. This is more like whether the State uses

13 the garotte or the State uses legal injection. That's

14 exactly the kind of issue it is with a slight difference that

15 it is worse than the garotte.

16

There is no excuse from them running from the merits

17 of this issue by virtue of nonexhaustion, and that's exactly

18 what they're to do by moving the goalposts in the response

19 they have made to Vernon Brown.

20

THE COURT: I want to understand what you're

21 arguing. You're saying that there is no requirement in a

22 1983 action --

23

THE WITNESS: Uh-huh.

24

THE COURT: -- this 1983 action and that Mr. Brown

25 exhaust his remedies prior to filing the suit?

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83

1

MR. SIMON: Exactly, Your Honor. This is not a

2 prison condition. Section 1999(e) did not immunize every

3 legitimate claim from a Section 1983 action. First of all,

4 it didn't fall within the federal statute. Second, it

5 doesn't fall within the state regulations. Third, state

6 agents with due and apparent authority have told a steady

7 string of prisoners that they can't file. If either they

8 refused them the form or if they let them have the form, they

9 get a response back like Timothy Johnston did. Only when

10 they were faced the Lancet co-authors did they come up with a

11 different policy. I got this after the hearing started.

12

THE COURT: Okay. All right. All right. Well, I

13 wanted you to address the exhaustion issue, and you've done

14 that. Do you have any other reply to make?

15

MR. SIMON: Yes, Your Honor. For the defendants in

16 this case to fault the Lancet co-authors and Dr. Heath in

17 their analysis of the facts of this case as applied to

18 Missouri and for them to fault these experts who know what

19 they're doing by saying that they don't have Missouri data

20 when these same people represent the Johnston defendants, it

21 is like the man who murdered his parents and argued for mercy

22 because he was an orphan.

23

THE COURT: I have already, I think, addressed that

24 point, Mr. Simon. I am not holding it against you that you

25 don't have Missouri data. I am also not holding it against

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84

1 you or Mr. Brown that the authors of the Lancet article were 2 not able to get data from certain states because those states 3 refused or either they didn't have it or they refused to
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05130505 4 provide it. I understand that the Lancet article is based on

5 an examination of data from just a few states. And I don't

6 question the author's statement about efforts that they made

7 to get more data than they actually received.

8

MR. SIMON: Your Honor, the question of timeliness

9 here -- and I will not be repetitive -- except to note for

10 the record that what my experience has been in at analogous

11 area at clemency challenges and that if this had been brought

12 twenty years ago, ten years ago, five years, three years, or

13 two years they would argue it is too soon.

14

We bring it at just the right time. When we have a

15 ripe claim and when we know what the procedure is going to be

16 to the best of our ability and when the only obstruction we

17 have to finding out exactly what their plans are is that they

18 won't tell us. We bring it at the right time.

19

Now they say it is too late; and that this is like

20 Gomez. This is not like Gomez. A person and a citizen of

21 the United States raising a claim under the Constitution and

22 under fundamental ethics at the right time and the right

23 Court. And the United States should turn its face against

24 torture. The Court has made clear and examined in its

25 examination of the defendant's counsel that only the federal

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85

1 courts will make these people shape up under the

2 Constitution; and that absent the action of this Court, this

3 issue will never be resolved. They'll be one more fractious

4 piece of litigation on the eve of an execution after another

5 until they decide to do the right thing.

6

And the balance of equities clearly favors the

7 plaintiff, who does not seek to challenge the judgment of the

8 Circuit Court of the City of St. Louis or any of the previous

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05130505 9 Courts but only the practice of these defendants to go out of

10 their way to choose a subdivision of the method of execution

11 which the plaintiff does not challenge that ratchets up the

12 pain from what it has to be in order to satisfy their

13 statutory duty to kill him.

14

For that reason, Your Honor, we pray the Court for

15 its order granting a Temporary Restraining Order so that this

16 matter can be litigated, and the defendants can't bury their

17 mistakes.

18

THE COURT: All right. Thank you. I have the

19 attachments that were referred to in the complaint. So

20 here's what I need: I need just a little time to review my

21 notes and take a closer look at the defendant's response as I

22 was trying to read it as you were presenting your argument.

23 But I need to give it a little more consideration than that.

24

So why don't we take a short recess. And as I said

25 before, I intend to give you my decision on the record before

•

86

1 we adjourn today. So we'll be in recess.

2

(Whereupon, a recess took place.)

3

THE COURT: Okay. I'm going to try not to repeat

4 what I've already said. You know, I'll try to be as

5 organized as I can in making this ruling.

6

And as I said before, there will not be a written

7 order, in view of the fact that I don't believe that there is

8 sufficient time for me to do that in order to enable you all

9 to pursue any review of the order with the Eighth Circuit

10 before May 18th. So you will be able to get a transcript of

11 the proceedings, and the record of the proceeding will

12 include my ruling. And that's what you'll be basing any

13 appeal on.

Page 72

Case 4:05-cv-00746-CEJ Document 18 Filed 05/16/2005 Page 73 of 80

05130505

14

This is a motion for a Temporary Restraining Order

15 which, as we all know by now, is governed by the Dataphase

16 case, which sets out specific elements that the plaintiff is

17 required to demonstrate in order to prevail in his request.

18 The elements that the Court has to consider include the

19 probability of success on the merits of case; the threat of

20 irreparable harm to the party seeking the injunction or in

21 this case the TRO; the balance of harms between the alleged

22 harm and the injury that may be inflicted on the parties; and

23 of course the public interest.

24

Ultimately, the question is whether the balance and

25 equities is such that it favors the movant such that justice

•

87

1 would require the Court to grant injunctive relief in order

2 to maintain the status quo until the merits of the case can

3 be determined.

4

In this situation, you all have addressed orally and

5 in your memoranda some of the issues that the Court has to

6 consider. We focused today on one issue perhaps more than

7 others, and that is the likelihood of success on the merits.

8 There are two subparts to this. We've overcome the

9 jurisdictional hurdle, as I've already indicated.

10

But if this is a Section 1983 action -- which I

11 believe it to be -- then under the PLRA, the plaintiff must

12 receive an exhaustion requirement. Specifically, the PLRA

13 requires exhaustion before a prisoner can seek judicial

14 relief under 1983 or in any action brought with respect to

15 prison conditions.

16

In this instance, the Department of Corrections for

17 the State of Missouri does have a grievance procedure. As

18 Miss McElvein outlined, that procedure involves several

Page 73

Case 4:05-cv-00746-CEJ Document 18 Filed 05/16/2005 Page 74 of 80

05130505 19 steps, the first of which is the filing of an Internal -- an

20 Informal -- excuse me -- Resolution Request or an IRR.

21

In this case, Mr. Brown did file an IRR. While it's

22 disputed when he filed it, it is not disputed that he did

23 file one; and that he received a response to that IRR from a

24 case worker. And the response was that the claim that he was

25 raising, which is the same claim he is raising in this

•

88

1 lawsuit, was not grievable.

2

Mr. Brown did not go beyond the IRR level. The next

3 step would have been to file a grievance with the

4 superintendent of the institution. If he didn't obtain

5 relief at that level, then the next step would have been to

6 submit a grievance to the director of the Department of

7 Corrections. But Mr. Brown has not gone past the first step

8 of the grievance procedure.

9

I don't think there's any dispute that a case worker

10 at the facility -- at the prison -- does not have authority

11 to change the protocol for lethal injection. I don't think

12 that there is any serious dispute that a superintendent of

13 that facility has the authority to change the type of drugs

14 or the manner in which they're administered in carrying out

15 an execution by lethal injection. So I don't think it was

16 any surprise that the case worker did not do anything beyond

17 responding to Mr. Brown's IRR.

18

Only the director of the Department of Corrections

19 has the authority to change the policy of the department;

20 specifically, the policy that governs the protocol for the

21 lethal injection. Mr. Brown never presented his complaint to

22 the director of the department. He never presented his

23 grievance to the director. I don't know what the outcome

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Case 4:05-cv-00746-CEJ Document 18 Filed 05/16/2005 Page 75 of 80

05130505 24 might have been. I mean we can speculate as to what the

25 director's position might have been, but I can't say that it

•

89

1 would have been futile for him to present the issue for the

2 director to consider.

3

Now, the plaintiff has taken the position that the

4 exhaustion requirement doesn't apply to him because under

5 1997(e) the exhaustion requirement only applies in actions

6 brought with respect to prison conditions. And his argument

7 is that this is not a prison conditions case. And so he was

8 not required to satisfy the exhaustion requirement.

9

I don't think you're right about that, Mr. Simon.

10 And I would support my conclusion by citing the

11 Porter v. Nussle case, N-u-s-s-l-e, which was decided by the

12 Supreme Court in 2002. The citation is 534 US 516. And in

13 this case, the plaintiff who was a prisoner had filed a

14 lawsuit involving excessive use of force by one of the

15 corrections officers. And the question was whether he was

16 required to exhaust prior to pursuing that claim.

17

And ultimately the Court said that the exhaustion

18 requirement did apply in his case. And I will just read a

19 part of this opinion to you, because I think it's important

20 and relevant here. The Court wrote, "For the reasons stated,

21 we hold that the PLRA's exhaustion requirements applies to

22 all inmate suits about prison life, whether they involve

23 general circumstances or particular episodes and whether they

24 allege excessive force or some other wrong."

25 •

So I think it is clear that the term "prison 90

1 conditions" in 1997(e) is to be construed broadly, and I 2 certainly would think that if it would apply in an excessive
Page 75

Case 4:05-cv-00746-CEJ Document 18 Filed 05/16/2005 Page 76 of 80

05130505

3 use of force case, which is in this context an Eighth

4 Amendment claim, then it would also apply to an Eighth

5 Amendment claim as the one plaintiff is bringing in this

6 case.

7

So, I think it's clear that Mr. Brown was subject to

8 the exhaustion requirement. It does apply to him. He did

9 not meet the exhaustion requirement, and so he did not

10 satisfy a right to file this lawsuit under Section 1983. On

11 that ground alone, I believe that the likelihood of success

12 on the merits cannot be demonstrated by the plaintiff. But

13 I'm going to go ahead and address some additional points,

14 because I want to provide as complete a record as possible on

15 this.

16

The other basis for the plaintiff's assertion that

17 he does have a likelihood of succeeding on the merits

18 consists of the expert declarations from Dr. Heath and Dr.

19 Lubarsky. Dr. Lubarsky was one of the authors of the Lancet

20 article; am I right? Yes. He was involved in the Lancet

21 article that is also a basis for the plaintiff's claim that

22 he's likely to succeed on the merits.

23

And I have talked a little bit about the Lancet

24 article already, and I have explained I hope clearly why I

25 believe that the Lancet article and these expert declarations

•

91

1 do not "carry the day," as it were. And, again, I am not 2 suggesting that plaintiff has to prove his case at this 3 point. But he does have to present some information or 4 evidence that would indicate a likelihood of success on the 5 merits. And I don't believe that the Lancet article or the 6 declarations are persuasive, in that they all contain so much 7 speculation.
Page 76

Case 4:05-cv-00746-CEJ Document 18 Filed 05/16/2005 Page 77 of 80

05130505

8

And as I've already pointed out, even the Lancet

9 article authors expressed their belief that the conclusions

10 that they were drawing from these toxicology reports that

11 they say examined were problematic. So I am not sure that

12 even these doctors convinced that they're on the right track.

13 I think, at best, the declarations and the Lancet article

14 suggest that there is a possibility that the method by which

15 the lethal injection procedure is carried out using these

16 three drugs may produce pain the prisoner.

17

But I think they looked at all of these reports and

18 said, "Well, gee. There may be something there." Well,

19 again, that's speculation. And that may be sufficient for

20 medical researchers to proceed to the next step, but I don't

21 believe sufficient for the issuance of a Temporary

22 Restraining Order.

23

And this kind of ties into the other element, which

24 is irreparable harm. I don't believe either of you really

25 talked about that. And it may be that you are accepting that

•

92

1 there is irreparable harm in this case or there would be if

2 the TRO were denied. And while it is true that Mr. Brown is

3 scheduled to be executed and if that execution takes place,

4 then that's the end of any arguments that he can make. But

5 the execution is a result of his conviction and sentence. It

6 doesn't flow from protocol for the lethal injection.

7

I think it is also important to point out that --

8 and this is again a weakness in the Lancet article and in the

9 declarations -- there is certainly a concern about anyone

10 being subjected to pain, whether it is a medical procedure or

11 in this case an execution. But at this point, there isn't

12 any evidence that would support a conclusion that the pain if

Page 77

Case 4:05-cv-00746-CEJ Document 18 Filed 05/16/2005 Page 78 of 80

05130505

13 any that Mr. Brown might suffer is such that would rise to

14 the level of a constitutional violation.

15

I'm not prepared at this point and I don't believe

16 that the evidence supports any assertion that this procedure

17 amounts to torture or excruciating, unnecessary infliction of

18 pain. I just don't believe at this stage there is sufficient

19 evidence to support drawing that kind of conclusion.

20

One of the points that I wanted to talk about is the

21 equities here. And I asked I believe Mr. Simon why Mr. Brown

22 did not bring this claim sooner. And if I am not mistaken,

23 the language that you used was that this information came on

24 "little cat's feet"; and my impression is that what prompted

25 the filing of this lawsuit was the Lancet article.

•

93

1

But as I have indicated, there has been information

2 presented for quite some time -- many years before now --

3 suggesting that possibly a plaintiff could make a viable

4 challenge to this protocol. And, in fact, one of the

5 participants in a Lancet article -- I am sorry -- not a

6 participant -- but one of the experts whose declarations was

7 submitted who is Dr. Heath who provided information to the

8 District Court in Virginia in the Reid case, which was

9 decided back in 2004. So none of this is new.

10

I don't believe that this is an issue that the

11 plaintiff could not have included in his habeas petition.

12 And even if he did not include it in his habeas petition, I

13 don't believe that it is a claim that he could not have

14 asserted in a 1983 action brought sooner than two days ago.

15 The timeliness factor is one that the Court can consider and

16 that is relevant to the equities here.

17

And the plaintiff is seeking equitable relief, and

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Case 4:05-cv-00746-CEJ Document 18 Filed 05/16/2005 Page 79 of 80

05130505

18 it is appropriate for the Court to determine and to assess

19 this essentially last-minute effort to present a claim that

20 could have been presented much sooner.

21

I guess my conclusion is that the plaintiff has not

22 established his entitlement to a Temporary Restraining Order.

23 And for the reasons I've stated, the motion for a Temporary

24 Restraining Order will be denied.

25 •

Is there anything else from the plaintiff, 94

1 Mr. Simon?

2

MR. SIMON: May it please the Court, I understand

3 from the Court that the transcript will be prepared?

4

THE COURT: You have to request it. You have to

5 talk to Mr. Bond and make those arrangements.

6

MR. SIMON: I just wanted a clarification on that.

7 Thank you, Your Honor.

8

THE COURT: Okay. Anything else from the

9 defendants?

10

MS. McELVEIN: No, Your Honor.

11

THE COURT: All right. Thank you. We're adjourned.

12

13

(Whereupon, the proceedings concluded at 6:04 p.m.)

14

15

* * *

16

17

18

19

20

21

22

Page 79

Case 4:05-cv-00746-CEJ Document 18 Filed 05/16/2005 Page 80 of 80

23
24
25 •

05130505

UNITED STATES OF AMERICA EASTERN DISTRICT OF MISSOURI, EASTERN DIVISION

) ) ss: )

C E R T I F I C A T E I, Gary Bond, Certified Shorthand Reporter in and for the United States District Court for the Eastern District of Missouri, do hereby certify that I was present at and reported in machine shorthand the proceedings had the 13th day of May, 2005, in the above mentioned court; and that the foregoing transcript is a true, correct, and complete transcript of my stenographic notes. I further certify that I am not attorney for, nor employed by, nor related to any of the parties or attorneys in this action, nor financially interested in the action. I further certify that this transcript contains pages 1 through 94 and that this reporter takes no responsibility for missing or damaged pages of this transcript when same transcript is copied by any party other than this reporter. IN WITNESS WHEREOF, I have hereunto set my hand at St. Louis, Missouri, this 16th day of May, 2005.
/s/Gary Bond Gary Bond, RPR, RMR Certified Shorthand Reporter
•

Page 80

 
 Case 4:05-cv-00746-CEJ Document 19 Filed 05/16/2005 Page 1 of 9
TEMPORARY RESTRAINING ORDER & PRELIMINARY INJUNCTION REQUESTED EXECUTION SCHEDULED FOR 12:01 A.M. ON MAY 18, 2005
IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

VERNON BROWN, Plaintiff,
v.
LARRY CRAWFORD, et al., Defendants.

) ) ) ) ) ) No. 4:05‐CV‐746‐CEJ ) ) ) )

MEMORANDUM IN SUPPORT OF MOTION TO SET ASIDE
ORAL DENIAL OF TEMPORARY RESTRAINING ORDER COMES NOW the plaintiff, Vernon Brown, by and through counsel, Richard H. Sindel and John William Simon, and in support of his motion to set aside the Court’s oral denial of his motion for temporary restaining order, and instead to grant the motion, states and alleges all as follows: 1. At the hearing of May 13, 2005, the defendants relied on mere procedural defenses to allow them to execute the plaintiff in a manner his expert declarations showed and their refusal to respond to discovery in the Johnston action confirms to be tortuous and therefore a badge of slavery.

Case 4:05-cv-00746-CEJ Document 19 Filed 05/16/2005 Page 2 of 9
2. Their first defense was that this section 1983 action was not “really” a section 1983 action, but a federal habeas corpus action. This court properly rebuffed the assertion, reasoning—as is eminently correct— that any other rule would allow the defendants to substitute an even more tortuous form of lethal injection for the one they have now, and get away with it because the condemned person would not be able to go back and put it in their federal habeas corpus petition because the defendants had just made it up. Transcript of TRO Hearing (hereinafter “Transcript”) at 55‐58 & 64‐65.
3. The same reasoning shows that the defendants’ second avoidance mechanism malfunctions. On the very same facts the Court posited, the defendants would assert that the condemned prisoner would have to file a string of papers as long as one’s arm before he could even file a section 1983 action. It would not be enough to show that he had, like Mr. Johnston, received a response to his Informal Resolution Request (IRR) which said that the issue was not grievable. It would not be enough that he had received notice, through counsel, of the response to the IRR in Mr. Johnston’s case, which is published on the Internet by this very Court. He would have to file it, get it back, grieve it, appeal it, etc., until it gets to the
‐ 2 ‐

Case 4:05-cv-00746-CEJ Document 19 Filed 05/16/2005 Page 3 of 9
Director. In the Court’s scenario, the change had been made so close in time to the execution that no one could do through this process.
4. Is this case any different? Descriptively so, but not in principle. None of us know whether the defendants have changed the lethal‐injection chemicals to increase the likelihood of causing pain and suffering: they won’t disclose the relevant facts in Johnston, and they hope to kill the plaintiff in time to avoid responding to the more comprehensive interrogatories, guided by the experts who prepared the LANCET article, in this case.
5. Here, instead of openly changing the selection of chemicals, as in the Court’s scenario, they have changed the response to the plaintiff’s IRR. Plaintiff’s counsel downloaded the Johnston IRR response and shared its contents with the petitioner. Petitioner filed in IRR in an abundance of caution, knowing what the response was in Johnston.
6. Specifically, the response in Johnston was: “This is a non‐grievable issue per D5‐3.2.” (Attachment E.) It was signed by a duly appointed and acting agent of the Department of Corrections, Freda Moore CCA, on July 26, 2004. She or some other person with control of the paper wrote “Complete” in the box labeled “Staff Findings/Response.”
‐ 3 ‐

Case 4:05-cv-00746-CEJ Document 19 Filed 05/16/2005 Page 4 of 9
7. Plaintiff herewith provides the Court a copy of the regulations Ms. Moore cited in her honest, correct response to Mr. Johnston’s IRR. (Attachment P.) The subdivision defining “grievable issues” says:
All matters related to institutional life except probation and parole matters; actions of state legislature or other federal, state and local agencies; actions in institutions where the offender does not reside, unless said actions personally involve or directly affect the offender; judicial proceedings; conditions which affect another offender without affecting the grieving offender personally. 8. To say that a matter related to institutional death is included in the phrase “institutional life” flies in the face of common sense. Only a lawyer would say something like that. The decision what specific means the Department uses to bring about an institutional death falls squarely into the phrase “actions of state legislature or other . . . state— . . . agencies,” i.e., the statute prescribing lethal gas or lethal injection and empowering the Director to fill in the details, and the Director’s action in doing so. The substantive issue before this Court is not a grievable issue, and—before they were facing Dr. Lubarsky and his co‐authors—the defendants admitted it.
‐ 4 ‐

Case 4:05-cv-00746-CEJ Document 19 Filed 05/16/2005 Page 5 of 9
9. The Court found that a caseworker did not have the authority to change the chemicals used in lethal injections. (Transcript 88.) But a caseworker does have the authority to speak for the Department about the metes and bounds of the grievance process. In the Johnston action, when that plaintiff’s counsel introduced the IRR response as refuting the defendants’ assertion of nonexhaustion, by showing that the issue was one for which the state’s administrative grievance process did not provide a remedy, the defendant’s counsel filed a reply to the overall pleading but dropped that point. (Attachment F.) Plaintiff Johnston had a right to rely on their responses. So did this plaintiff.
10.Rather than admitting to changing the chemicals, which they may well have done, the defendants have changed the response. Confronted with the plaintiff’s world‐class experts, the defendants have moved the goalposts. In the Johnston action they had admitted, through their agents Moore and McElvein, that the Department of Corrections grievance process did not extend to claims like these plaintiffs’. Here, however, they introduced new weasel language into the response to this plaintiff’s IRR, and refused to provide it to the plaintiff’s counsel on his request in advance of the hearing; they did not provide it to the counsel until the hearing was
‐ 5 ‐

Case 4:05-cv-00746-CEJ Document 19 Filed 05/16/2005 Page 6 of 9
underway. (Transcript 21 & 83.) By itself, the latter acts and omissions
within the litigation shifts the balance of equities in the plaintiff’s direction
on the question of granting a temporary restraining order.
11.In the response to this plaintiff’s IRR, the post‐LANCET position
became: “Unable to resolve matter at this level.” (Exhibit A to
Respondent’s Motion to Dismiss at 2.) It is signed “R White” and dated
“5/11/05.)
12.On a separate page that the defendants’ counsel could not find a
professional oath‐taker to sign, someone presumably purporting to act in
our names as citizens of the State of Missouri says: Your IRR and all pertinent information have been received and reviewed. After investigating your complaint, it appears that your proposed action of delaying all executions cease while the method of execution is examined is outside the scope of our responsibility and authority. Execution procedure is determined at a level outside this institution and therefore ERDCC is unable to address your complaint. Should you wish to pursue this matter further, we suggest persisting to the grievance appeal level where the issue can be effectively reviewed. Therefore your IRR is denied.1
1Exhibit A to Respondent’s Motion to Dismiss at 3. ‐ 6 ‐

Case 4:05-cv-00746-CEJ Document 19 Filed 05/16/2005 Page 7 of 9
13.Plaintiff is addressing in another place the question whether using a garrote or its functional equivalent instead of lethal gas or lethal injection is a “prison condition.” He has shown that before the incentive to avoid scrutiny by the LANCET co‐authors arose, the defendants and their predecessors in office admitted that the issue was non‐grievable. The words of the regulation on grievances make it so even if they hadn’t.
14.Although the Court dismissed the declarations of Drs. Heath and Lubarsky as “so much speculation” (Transcript 91) it did not dispute their expert status. It did not explain why the evidence that the problem with these three chemicals is “speculation” as applied to executing people while at the same time this problem is sufficient to make it illegal to use them when euthanizing animals. It would be paranoid to suggest that the AVMA guidelines, and the state statutes and administrative regulations driven by a “bias” for or against capital punishment.
15.Killing this plaintiff now will exacerbate the blind man’s bluff of litigating this issue. It is a chicken‐egg problem. As long as the defendants can manipulate the courts by changing their position so that a court can always find some administrative remedy which hasn’t been tried, or can argue as these defendants did that the plaintiff’s experts didn’t have
‐ 7 ‐

Case 4:05-cv-00746-CEJ Document 19 Filed 05/16/2005 Page 8 of 9

Missouri data, or can rely on a court to find the experts’ conclusions

“speculative” because executioners generally don’t gather, keep, or provide

enough data, there will never be a perfect case in which a court can decide

this as if it were an intersection collision suit. When one is looking into the

abyss of terminating someone else’s life in the name of a political

subdivision of the United States in the year 2005, there is no need to wait

for the perfect case, at least when, as here, the defendants are completely

responsible for the lack of data on the basis of which an expert could make

a dead‐bang finding without some qualifications. This case is close

enough.

WHEREFORE, the plaintiff prays the Court for its order as aforesaid.

Respectfully submitted,

SINDEL, SINDEL & NOBLE, P.C.

RICHARD H. SINDEL
E.D. Mo. Bar No. 4380 Mo. Bar Enrollment No. 23406 8008 Carondelet, Suite 301 Clayton, Missouri 63105
(314) 721‐6040 FAX (314) 721‐8545

s/John William Simon JOHN WILLIAM SIMON
Of Counsel E.D. Mo. Bar No. 5676 Mo. Bar Enrollment No. 34535 2683 South Big Bend Blvd., # 12 St. Louis, Missouri 63143‐2100
(314) 645‐1776 FAX (314) 645‐2125

Attorneys for Petitioner ‐ 8 ‐

Case 4:05-cv-00746-CEJ Document 19 Filed 05/16/2005 Page 9 of 9
Certificate of Service I hereby certify a true and correct copy of the foregoing was forwarded for transmission via Electronic Case Filing (ECF) or otherwise e‐ mailed this sixteenth day of May, 2005, to the offices of:
Stephen David Hawke, Esq. Assistant Attorney General P.O. Box 899 Jefferson City, Missouri 65102 stephen.hawke@ago.mo.gov
/s/ John William Simon Attorney for Plaintiff
‐ 9 ‐

 
 Case 4:05-cv-00746-CEJ Document 24 Filed 05/17/2005 Page 1 of 1

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

VERNON BROWN, Plaintiff,
v. LARRY CRAWFORD, et al.,
Defendants.

) ) ) ) ) No. 4:05-CV-746(CEJ) ) ) ) )

ORDER

This matter is before the Court on the plaintiff’s motion to

set aside the order denying his motion for a temporary restraining

order. The Court has already considered the arguments the

plaintiff restates in his motion to set aside. Additionally, the

new information plaintiff submits does not persuade the Court that

its earlier ruling should be altered.

IT IS HEREBY ORDERED that the motion of plaintiff Vernon Brown

to set aside the denial of a temporary restraining order [Doc. #19]

is denied.

____________________________ CAROL E. JACKSON UNITED STATES DISTRICT JUDGE
Dated this 17th day of May, 2005.

 
 Case 4:05-cv-00746-CEJ Document 35 Filed 05/27/2005 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MISSOURI EASTERN DIVISION

VERNON BROWN, Plaintiff,
v. LARRY CRAWFORD, et al.,
Respondents.

)

)

)

)

) No. 4:05-CV-746 (CEJ)

)

ECF

)

)

)

SUGGESTION OF DEATH UPON THE RECORD

Defendants Larry Crawford, et al., suggest upon the record, pursuant to Federal Rule

of Civil Procedure Rule 25(a)(1), the death of plaintiff Vernon Brown during the pendency

of this action.

Respectfully submitted,

JEREMIAH W. (JAY) NIXON Attorney General

\s\ Stephen D. Hawke STEPHEN D. HAWKE Assistant Attorney General Missouri Bar No. 35242
P. O. Box 899 Jefferson City, MO 65102 (573) 751-3321
Attorneys for Respondent

Case 4:05-cv-00746-CEJ Document 35 Filed 05/27/2005 Page 2 of 2
CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing was sent via this court’s ECF service to the following on this 27 day of May, 2005, to: John W. Simon Attorney at Law 2683 South Big Bend Blvd., Suite 12 St. Louis, MO 63143
\s\ Stephen D. Hawke Stephen D. Hawke Assistant Attorney General
2

 
 Case 4:05-cv-00746-CEJ Document 38 Filed 06/14/2005 Page 1 of 10

MICHAEL E, GANS
Clerk of Coun

UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT
THOMAS F. EAGLeTON COURT HOUSE ROOM 24.329
111 S. 10TH STREET
ST.lOUIS. MISSOURI 63102
June 13, 2005

vOice (3141 244--2400 FAX (314) 244·2780
www.ca8.uacourta.gov

MI. James G. WoodwaId CleIk U.S, DISTRICT COURT, EASTERN MISSOURI 111 S. Tenth StIeet St. Louis, MO 63102
Re: 05·2310 VeInon BIown vs. LaIIY CIawfoId

DeaI CleIk: The mandate of this COllIt is being sent to the cleIk of the
distIict COllIt, togetheI with a receipt. The clerk of the distIict court is Iequested to Sign, date, and retuIn the Ieceipt to this office.
Any district court Iecords in thiS COUIt'S possession will be returned shortly. (5175 -010199)
Sincerely,
PttchdJt;~ Michael E. Gans Clerk of COllIt cmd EnclosUIe

(LEITER FOR INFORMATIONAL PURPOSES ONLY) cc: HonoIable Carol E. Jackson
John William Simon Richard Holland Sindel Stephen David Hawke Andrew William Hassell
DistIict Court/Agency Case NumbeI(S):

4:05-cv-746 CEJ

Case 4:05-cv-00746-CEJ Document 38 Filed 06/14/2005 Page 2 ofI1q0D~!f:l­

FILEO

Case No. 05-2310

United States Court of Appeals FOR THE EIGHTH CIRCUIT

MAY 1 72005
MICHAEL GANS CLERK OF COURT

Vernon Brown,

*

*

Appellant,

*
* Appeal from the United States

v.

* District Court for the Eastern

* District of Missouri

Larry Crawford; James D. Purkett, *

Superintendent, Missouri Eastern *

Reception Diagnostic & Correctional *

Center; Does 1-666, Anonymous *

Executioners,

*

*

Appellees.

*

Submitted: May 16,2005 Filed: May 17,2005
Before BYE, BOWMAN and BEAM, Circuit Judges

This matter comes before the court on Appellant's motion for a stay of execution of a sentence of death. The court has carefully considered the motion and the Appellees' response, and the motion is denied. It is further ordered that the appeal is dismissed.

ATRW COPY OFniE ORIGINAL

MlCHAfIL B. OANS, CLERK

YNlTIID BTl.TES COURT OF APP!ALI

,.

Cjdn.t.- .~VOi H1]i£,~NRtJkI.ULr

Case 4:05-cv-00746-CEJ Document 38 Filed 06/14/2005 Page 3 of 10
BYE, Circuit Judge, dissenting.
I respectfully dissent from the order denying Vernon Brown's motion for a stay of execution pending this appeal.
Brown challenges the chemical protocol used by Missouri to carry out lethal injections. He contends the three-chemical sequence used by Missouri - sodium pentothal, pancuronium bromide, and potassium chloride - creates a foreseeable risk of the gratuitous infliction of unnecessary pain and suffering in violation of the Eighth Amendment.
I briefly summarize what this record shows about the chemical prntocol used by Missouri to carry out lethal injections. The first drug administered is sodium pentothal, a barbiturate sedative used to induce unconsciousness. The second drug administered is pancuronium bromide, a paralytic agent. Pancuronium bromide causes the person to whom it is administered to suffocate, eventually, because the lungs stop moving; at the same time, the drug's paralytic effect prevents the person from manifesting this suffering, or any other sensation, by facial expression, hand movement, or speech. The third drug administered is potassium chloride. Potassium chloride bums intensely as it goes through the veins toward the heart. When potassium chloride reaches the heart, it induces a heart attack.
In this action under 42 U.S.C. § 1983, Brown contends the state - before executing him - should be required to demonstrate the levels of sodium pentothal it administers are sufficient to render him unconscious throughout the execution, and the personnel who administer the three-drug protocol are sufficiently trained to administer it correctly. For ifthe sodium pentothal has not done its job (i.e., rendered a state ofunconsciousness) when the potassium chloride takes effect, Brown will feel the excruciating pain caused by that drug, and the pain of the heart attack. In
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addition, because the state administers pancuronium bromide as a paralytic agent, no one will be able to tell whether Brown is conscious and therefore experiencing gratuitous pain because his entire body will be paralyzed so that he cannot express himself in any way. The possibility of gratuitous suffering through the use of this three-chemical protocol is enhanced by the fact sodium pentothal precipitates when it is exposed to pancuronium bromide, that is, it loses it effectiveness as an anesthetic. In other words, the use of this three-chemical sequence results in a possibility the person to whom it is administered will be conscious when the inherently painful potassium chloride takes effect, yet no one will know because ofthe paralytic effects of the pancuronium bromide.
"It is undisputed that 'substantial pain and suffering can occur when the inmate receives an inadequate dosage of sodium pentothal and therefore retains consciousness and sensation during the injection ofthe second and third chemicals."' Beardslee v. Woodford, 395 F.3d 1064, 1074 (9th Cir. 2005) (quoting Deborah W. Denno, Getting to Death: Are Executions Constitutional?, 82 Iowa L. Rev. 319, 380 (1997)). The possibility of such cruel, conscious suffering has resulted in nineteen states passing laws "banning, in whole or in part, the use of neuromuscular agents as a means of euthanizing animals." Id. at 1071. As Brown's district court pleadings indicate, Missouri is "using a combination of chemicals they knew or should have known would cause an excruciating death when they were telling the public it was like putting a dog to sleep, when their own veterinarians would lose their licenses for using the same chemicals on a stray." Brown y. Crawford, No. 4:05-CV-746-CEJ, Motion for Temporary Restraining Order at 19. Brown contends there are alternative chemical protocols - for example, a lethal dose ofpentobarbital- Missouri could use to carry out an execution without unnecessarily inflicting gratuitous pain and suffering.
Brown's § 1983 action is based in part upon a recently-published article. See
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L.G. Koniaris, M.D., Inadequate anaesthesia in lethal injection for execution, 365 The Lancet 1412 (Apr. 16,2005). This article appears to be the first published empirical research showing the three-chemical process used by some states to carry out lethal injections has the possibility ofcausing unnecessary cruelty and suffering. The study outlined in the article analyzed autopsy toxicology results from forty-nine executions carried out in Arizona, Georgia, North Carolina and South Carolina. The authors conclude in twenty-one of those cases - or 43% - the post-mortem levels of thiopental (sodium pentothal) were consistent with consciousness. In other words, the deceased was likely conscious when the potassium chloride was administered.
In support ofhis motion for a temporary restraining order, Brown submitted the declarations of Dr. David Lubarsky and Dr. Mark Heath. Lubarsky was one of the authors of the article in The Lancet. Notably, Lubarsky averred that n[e]ach of the propositions of fact set forth in the LANCET article as aforesaid reflects my opinion to a reasonable degree of scientific certainty." Lubarsky Decl. at 3.
Lubarsky's declaration further indicated:
Based on our research, the article concluded that toxicology reports from the four lethal-injection jurisdictions which provided them showed that post-mortem concentrations of thiopental (sodium pentothal) in the blood of persons who had been executed were lower than that required for surgery in 43 of 49 cases reported (88%) and 21 (43%) inmates had concentrations consistent with awareness.
On the basis of the data which ... the State of Missouri has provided, and from the fact that according to these data. the procedure in Missouri is not substantially dissimilar to the procedure in the states which kept and provided toxicology data, I draw the inference, to a reasonable degree of medical certainty, that the levels of thiopental
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(sodium pentothal) in the bloodstreams of persons executed by lethal injection in Missouri are, at best, similar to those levels executed in the four states which kept and provided toxicology data.
Id. at 4.
Dr. Lubarsky then goes on to list the data the State of Missouri would have to provide for him to rule out the possibility that Missouri's execution protocol is insufficient to produce unconsciousness throughout an execution. rd. at 5-9.
Similarly, Dr. Heath, a board-certified anesthesiologist, filed a declaration in this action in which he states:
Based on the information the [defendants1 have chosen to release [in a separate death penalty matter1, it is my opinion to a reasonable degree of medical certainty that the defendants' lethal injection practices create a foreseeable risk that the plaintiff/petitioner will not be anesthetized to the point ofbeing unconscious and unaware ofthe pain for the duration ofthe execution procedure, when this risk is absolutely unnecessary to the statutory purpose of bringing about the death of the plaintiff/petitioner.
Heath Dec!. at 18-19.
Significantly, at this point the record does not show the dosage of sodium pentothal used by Missouri. The record does not show the qualifications of those administering Missouri's three-drug protocol. Missouri has not countered Brown's medical evidence with any medical evidence of its own, but rather relied solely on procedural and legal defenses to this action. The state's failure to counter Brown's medical evidence leaves Brown's evidence uncontroverted. Thus, this case is unlike those in which similar challenges to this three-drug protocol were rejected, because in those cases the state presented medical evidence to counter the prisoner's claim he
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would be conscious and suffer extreme, unnecessary pain during an execution. See Beardsley, 395 F.3d at 1075 (discussing the opinion ofthe state's expert setting forth the sodium pentothal dosage level used by California and the minimal chances a person would be conscious within sixty seconds from the start ofthe administration ofthat dosage level); Reid v. Johnson, 333 F. Supp. 2d 543,546-47 (E.D. Va. 2004) (discussing dosage level of sodium pentothal used by Virginia and the minimal chances of an inmate regaining consciousness within ten minutes). On the current state of this record, where the State of Missouri has not presented any evidence to counter Brown's medical evidence, I believe it is clear Brown is entitled to a stay of his execution. See Reid y. Johnson. 105 Fed. Appx. 500, 502 (4th Cir. 2004) (granting a stay of execution in case involving Virginia's three-chemical execution protocol, and remanding to the district court for a consideration of the merits of inmate's claim).
One of the procedural arguments the state made in this case, and with which the district court agreed, was the claim Brown failed to exhaust his administrative remedies prior to filing this action. I disagree. The record in this case shows there was no administrative process available to Brown to grieve this particular claim.
In the case ofJohnston v.Kempker, No.4:04-CV-I075DJS (E.n. Mo.), inmate Timothy Johnston raised the same claim raised in this case, that is, a challenge to the three-drug protocol used by Missouri to carry out lethal injections. Johnston attempted to exhaust his administrative remedies regarding the claim by taking the first step in the Missouri Department ofCorrections inmate grievance procedure, that is, he filed an Informal Resolution Request (IRR) with the proper authorities at the institution where he was incarcerated. The response Johnston received was that a challenge to the chemical protocol used to carry out an execution was "a nongrievable issue per D5-3.2."
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•
• •
Death penalty counsel in this case relied upon the "non-grievable" position the state took in the Johnston case to contend there are no administrative remedies to exhaust in this case. In an abundance of caution, however, Brown filed an IRR challenging the three-chemical protocol. Unlike Johnston, who was told his claim was "non-grievable," the state informed Brown:
[Y]our proposed action ofdelaying all executions cease (sic) while the method of execution is examined is outside the scope of our responsibility and authority. Execution procedure is determined at a level outside this institution and therefore ERDCC is unable to address your complaint. Should you wish to pursue the matter further, we suggest persisting to the grievance appeal level where the issue can be effectively reviewed. Therefore your IRR is denied.
It is undisputed Brown did not pursue the matter further than the initial IRR.
On May 13, 2005, the district court held a hearing on Brown's motion for a temporary restraining order in this action. During the hearing, the issue ofexhaustion of administrative remedies was discussed at some length. The state represented the complete exhaustion of administrative remedies requires three steps: I) the filing of an IRR, 2) the filing of a grievance, and 3) the filing of a grievance appeaL T.R.O. Rr'g Tr. at 60. The state further represented the grievance is filed with the superintendent ofthe institution where the prisoner is incarcerated, and the grievance appeal is addressed by "the central office," that is, the Director ofthe Department of Corrections. Id. at 61-62.
The state conceded the corrections classification worker who would address the initial IRR has no authority to change the lethal injection protocoL Id. at 61. The state further conceded the superintendent of the institution where the prisoner is
incarcerated has no authority to change the protocol for the lethal injection. :w.,. The
state admitted the only person with authority to change the protocol would be the
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..•
Director of the Department of Corrections. Id. at 62. Significantly, when asked whether an inmate had the ability to bring an initial grievance before the Director, the state conceded there was no procedure for that:
THE COURT: Okay. Could Mr. [Brown] have bypassed the IRR procedure and the grievance? Since it is clear that no one at the
institution had authority to make any changes, could he have bypassed the institutional officials and gone directly to the director with his complaint?
MS. McElvein: No, your Honor. Not that I am aware of.
Id. at 62-63.
I believe the state's concession on this point conclusively demonstrates there was no administrative process available to Brown to grieve this particular claim. The Director's role in the normal administrative process is to function as an appellate body, reviewing the disposition ofthe grievance filed with the superintendent ofthe institution where the prisoner is incarcerated. In this case, the state concedes the superintendent had no authority - no jurisdiction ifyou will- to change the protocol for lethal injections. Thus, as the appellate body reviewing any decision made by the superintendent, the only role the Director would serve would be to determine whether the superintendent correctly determined he had no authority to change the protocol.
There is a fundamental difference between reviewing a decision as an appellate body, and making the initial decision; a difference as fundamental as that between the original jurisdiction enjoyed by district courts over actions filed in federal court and the appellate jurisdiction exercised by the courts of appeals. Thus, the Director's appellate role in the normal administrative process cannot serve as the functional equivalent ofits role as the initial decisionrnaker. Here, the state concedes there was no administrative procedure available to allow the Director to function in the role of
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Case 4:05-cv-00746-CEJ Document 38 Filed 06/14/2005 Page 10 of 10
the initial decisionmaker, rather than in the role of an appellate body reviewing a decision which the superintendent had no authority to make.

For the above reasons, I respectfully dissent from the order denying Vernon Brown's motion for a stay of execution pending this appeal.

A True Copy Attest:
IuLich~J(" ~
Michael E. Gans, Clerk of Court United States Court of Appeals for the Eighth Circuit

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 Case 4:05-cv-00746-CEJ Document 40 Filed 11/22/2005 Page 1 of 1

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

VERNON BROWN,

)

)

Petitioner,

)

)

vs.

)

No. 4:05-CV-746 (CEJ)

)

LARRY CRAWFORD, et al.

)

)

Respondents.

)

ORDER

The Court has received a Suggestion of Death in the above-

captioned case. The suggestion reports that petitioner Vernon Brown

died during the pendency of the action.

Brown was before the Court seeking § 1983 relief in regard to

the State of Missouri’s procedure for lethal injection. Because his

imprisonment ended upon his death and no motion to substitute party

has been filed, the action will be dismissed as moot.

Accordingly,

IT IS HEREBY ORDERED that respondents’ motion suggestion of

death [#35] is granted.

IT IS FURTHER ORDERED that the above-captioned action is

dismissed as moot.

____________________________ CAROL E. JACKSON UNITED STATES DISTRICT JUDGE
Dated this 22nd day of November, 2005.

 
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U.S. District Court Eastern District of Missouri (LIVE) (St. Louis) CIVIL DOCKET FOR CASE #: 4:05-cv-00746-CEJ

CLOSED

Brown v. Crawford et al Assigned to: Honorable Carol E. Jackson Cause: 42:1983 Prisoner Civil Rights Plaintiff Vernon Brown
V. Defendant Larry Crawford Director, Missouri Department of Corrections

Date Filed: 05/10/2005 Jury Demand: Plaintiff Nature of Suit: 550 Prisoner: Civil Rights Jurisdiction: Federal Question
represented by John William Simon JOHN W. SIMON, JD PhD P.O. Box 26412 Kansas City, MO 64196-9998 314-604-6982 Fax: 816-889-2088 Email: simonjw1@yahoo.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Andrew W. Hassell ATTORNEY GENERAL OF MISSOURI Assistant Attorney General 221 W. High Street P.O. Box 899 Jefferson City, MO 65102-0899 573-751-3321 Fax: 573-751-3825 Email: andrew.hassell@ago.mo.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Bill L. Thompson MISSOURI SUPREME COURT P.O. Box 150 Jefferson City, MO 65102 573-751-7317 Fax: 573-751-2573 Email: blawthomp@yahoo.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

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Defendant James D. Purkett Superintendent, Missouri Eastern Reception Diagnostic & Correctional Center
Defendant Does 1-666 Anonymous Executioners

Stephen D. Hawke ATTORNEY GENERAL OF MISSOURI Assistant Attorney General 221 W. High Street P.O. Box 899 Jefferson City, MO 65102-0899 573-751-3321 Fax: 573-751-3825 Email: stephen.hawke@ago.mo.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Andrew W. Hassell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Bill L. Thompson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stephen D. Hawke (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Stephen D. Hawke (See above for address) ATTORNEY TO BE NOTICED

Date Filed 05/10/2005 05/10/2005 05/10/2005 05/10/2005

#

Docket Text

1 MOTION for Leave to Proceed in forma pauperis under 42:1983 (prisoner) by Plaintiff Vernon Brown. (Attachments: # 1 Memorandum in Support)(CDD, ) (Entered: 05/10/2005)
2 DCM COMPLAINT Jury Demand,, filed by Vernon Brown. (Attachments: # 1 Memorandum in Support# 2 Exhibit 1# 3 Exhibit 2# 4 Civil Cover Sheet # 5 Original Filing Form)(CDD, ) (Entered: 05/10/2005)
3 MOTION for Leave to File in Excess of Page Limitation for Memorandum in Support of TRO by Plaintiff Vernon Brown. (CDD, ) (Entered: 05/10/2005)
4 MOTION for Temporary Restraining Order by Plaintiff Vernon Brown. (Attachments: # 1 Memorandum in Support# 2 Proposed Order For TRO)(CDD,

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05/10/2005 05/10/2005 05/10/2005 05/11/2005
05/12/2005
05/13/2005 05/15/2005 05/15/2005 05/16/2005
05/16/2005 05/16/2005 05/16/2005 05/16/2005

) (Entered: 05/10/2005)
5 MOTION to Expedite Discovery by Plaintiff Vernon Brown. (Attachments: # 1 Memorandum in Support )(CDD, ) (Entered: 05/10/2005)
6 MOTION for Leave to Propound more than 25 Interrogatories by Plaintiff Vernon Brown. (Attachments: # 1 Memorandum in Support)(CDD, ) (Entered: 05/10/2005)
7 NOTICE by Plaintiff Vernon Brown Filing of Inmate Account Statement, with Statement Following Pleading, in Support of Motion for Leave to Proceed IFP: (Simon, John) (Entered: 05/10/2005)
8 ORDER: Re 4 MOTION for Temporary Restraining Order filed by Vernon Brown, Motion Hearing set for 5/13/2005 02:00 PM before Honorable Carol E. Jackson.. Signed by Judge Carol E. Jackson on 5/11/05. (LLW, ) (Entered: 05/11/2005)
9 ORDER granting 1 Motion for Leave to Proceed in forma pauperis under 42:1983 (prisoner)for Vernon Brown Initial Partial Filing Fee due by 6/13/2005 in the amount of $16.25; Clerk shall not issue process; failure to pay will result in dismissial w/o prejudice. Signed by Judge Carol E. Jackson on 5/12/05. (CQL, ) (Entered: 05/12/2005)
10 MOTION to Dismiss Case and Suggestions in Oppostion to motion for TRO by Defendants Does 1-666, Larry Crawford, James D. Purkett. (Attachments: # 1 Respondent's Exhibit A)(Hassell, Andrew) (Entered: 05/13/2005)
11 AMENDED DOCUMENT by Plaintiff Vernon Brown. Amendment by Interlineation by Leave of Court. (Simon, John) (Entered: 05/15/2005)
12 MEMORANDUM re 11 Amended Document Amendment by Interlineation by Leave of Court by Plaintiff Vernon Brown. (Simon, John) (Entered: 05/15/2005)
13 NOTICE by Plaintiff Vernon Brown of Filing of Attachment J: (Attachments: # 1 Affidavit Attachment J Declaration of Michael Lenza, Ph.D.# 2 Exhibit Declaration Exhibit 1 Curriculum Vitae from January 2005)(Simon, John) (Entered: 05/16/2005)
14 NOTICE by Plaintiff Vernon Brown of Filing of Attachment K: (Attachments: # 1 Exhibit Attachment K Dissertation of Michael Lenza)(Simon, John) (Entered: 05/16/2005)
15 NOTICE by Plaintiff Vernon Brown of Filing of Attachments L Through O: (Attachments: # 1 Exhibit Attachment L Galliher Study# 2 # 3 # 4)(Simon, John) (Entered: 05/16/2005)
16 MOTION for Leave to File Memorandum in Support of Amendment by Plaintiff Vernon Brown. (Simon, John) (Entered: 05/16/2005)
17 MEMORANDUM in Support of Motion re 16 MOTION for Leave to File Memorandum in Support of Amendment Raising New Claim and New Jurisdictional Predicate filed by Plaintiff Vernon Brown. (Simon, John) (Entered: 05/16/2005)

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05/16/2005
05/16/2005 05/16/2005 05/16/2005
05/16/2005 05/16/2005 05/17/2005 05/17/2005 05/17/2005 05/17/2005 05/17/2005 05/18/2005

18 ORIGINAL TRANSCRIPT (Pilot) procedings of Temporary Restraining Order Motion Hearing held on 5/13/05 before Judge Carol E. Jackson. Court Reporter: G. Bond. The transcript filed with the court will not be remotely available until such time as the period for redaction has expired or a request for redaction has been received and the redacted transcript filed. For additional information see the Notice/Instructions to the Bar regarding Electronic Availability of Civil Transcripts on the Court's website at www.moed.uscourts.gov (KCM, ) Additional attachment(s) added on 5/17/2005 (KCM, ). (Entered: 05/16/2005)
19 MOTION to Set Aside Order/Judgment Denying Temporary Restraining Order to Keep Defendants from Burying the Evidence by Plaintiff Vernon Brown. (Simon, John) (Entered: 05/16/2005)
20 MEMORANDUM in Support of Motion re 19 MOTION to Set Aside Order/Judgment Denying Temporary Restraining Order to Keep Defendants from Burying the Evidence filed by Plaintiff Vernon Brown. (Attachments: # 1)(Simon, John) (Entered: 05/16/2005)
21 Minute Entry for Motion for Temporary Restraining Order proceedings held before Judge Carol E. Jackson : the Court heard oral arguments from the parties; plntf's mtn for TRO is denied, in accordance with the ruling made on the record; In Court Hearing held on 5/16/2005. (Court Reporter or FTR Gold Operator initials:Gary Bond.) (proceedings started: 2:15.) (proceedings ended: 6:05.) (KKS, ) (Entered: 05/16/2005)
22 REPLY re 19 MOTION to Set Aside Order/Judgment Denying Temporary Restraining Order to Keep Defendants from Burying the Evidence filed by Defendants Does 1-666, Larry Crawford, James D. Purkett. (Hawke, Stephen) Modified on 5/17/2005 (LLW, ). (Entered: 05/16/2005)
23 REPLY to Response to Motion re 19 MOTION to Set Aside Order/Judgment Denying Temporary Restraining Order to Keep Defendants from Burying the Evidence filed by Plaintiff Vernon Brown. (Simon, John) (Entered: 05/16/2005)
24 ORDER denying 19 Motion to Set Aside Judgment of a temporary restraing order Signed by Judge Carol E. Jackson on 5/17/05. (CQL, ) (Entered: 05/17/2005)
25 MOTION for Leave to Appeal Denial of TRO & Motion to Set Aside In Forma Pauperis by Plaintiff Vernon Brown. (Simon, John) (Entered: 05/17/2005)
26 MEMORANDUM in Support of Motion re 25 MOTION for Leave to Appeal Denial of TRO & Motion to Set Aside In Forma Pauperis filed by Plaintiff Vernon Brown. (Simon, John) (Entered: 05/17/2005)
27 NOTICE by Plaintiff Vernon Brown of Appeal, In Forma Pauperis, Denial of TRO & of Motion to Set Aside Denial Thereof: (Simon, John) (Entered: 05/17/2005)
28 ORDER granting 25 Motion for Leave to Appeal Signed by Judge Carol E. Jackson on 5/17/05. (LLW,cc: email notification to Michael Gans, Clerk of the U.S. Court of Appeals) (Entered: 05/17/2005)
29 LETTER from USCA; re appellant's motion for stay of execution, the appeal has been docketed the matter is refered to a panel of judges for consideration USCA

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05/18/2005 05/20/2005 05/20/2005 05/25/2005 05/25/2005 05/27/2005 06/01/2005 06/01/2005 06/14/2005
06/29/2005 11/22/2005

Appeal #: 05-2310(LLW, ) (Entered: 05/19/2005)
34 ORDER of USCA Regarding: Appellants Motion for a Stay of Execution USCA Appeal #: 05-2310 (LLW, ) (Entered: 05/26/2005)
30 MOTION to Appoint Counsel Nunc Pro Tunc by Plaintiff Vernon Brown. (Simon, John) (Entered: 05/20/2005)
31 MEMORANDUM in Support of Motion re 30 MOTION to Appoint Counsel Nunc Pro Tunc filed by Plaintiff Vernon Brown. (Simon, John) (Entered: 05/20/2005)
32 MOTION for Leave to Receive Compensation for Transcript from the Unappropriated Fund by Plaintiff Vernon Brown. (Simon, John) (Entered: 05/25/2005)
33 MEMORANDUM in Support of Motion re 32 MOTION for Leave to Receive Compensation for Transcript from the Unappropriated Fund of $413 with Invoice Attached filed by Plaintiff Vernon Brown. (Simon, John) (Entered: 05/25/2005)
35 SUGGESTION of Death by Defendants Does 1-666, Larry Crawford, James D. Purkett. (Hawke, Stephen) Modified on 6/1/2005 (KLH, originally docketed as motion, motion terminated, text modified). (Entered: 05/27/2005)
36 ORDER granting 30 Motion to Appoint Counsel nunc pro tunc is granted, John Simon is appointed as counsel for pltf Signed by Judge Carol E. Jackson on 6/1/05. (LLW, ) (Entered: 06/01/2005)
37 ORDER granting 32 Motion for Leave to receive compensation for transcript, the sum of $413.60 shall be paid to pltf's counsel John Simon Signed by Judge Carol E. Jackson on 6/1/05. (LLW,cc: Finance) (Entered: 06/01/2005)
38 MANDATE/Opinion from USCA. Appeal #: 05-2310. The court has carefully considered the motion and the Appellees' response, and the motion is denied. It is further ordered that the appeal is dismissed. (with dissenting opinion)(KLH, ) (Entered: 06/15/2005)
39 Letter to John Simon from Financial Clerk Re:Check reimbursement (CQL, ) (Entered: 06/30/2005)
40 IT IS HEREBY ORDERED that respondents' motion suggestion of death 35 is granted. FURTHER ORDERED that the above-captioned action is dismissed as moot. Signed by Judge Carol E. Jackson on 11/22/05. (KLH, ) (Entered: 11/22/2005)

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