IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION

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JACK E. ALDERMAN,

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Plaintiff,

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v.

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JAMES E. DONALD, in his capacity as )

Commissioner of the Georgia Department )

of Corrections; HILTON HALL,

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in his capacity as Warden, Georgia

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Diagnostic and Classification Prison;

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DOES 1-50, UNKNOWN

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EXECUTIONERS, in their capacities

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as employees and/or agents of the

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Georgia Department of Corrections.

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Defendants.

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Civil Action No.

COMPLAINT FOR INJUNCTIVE RELIEF AND DECLARATORY JUDGMENT Jack Edward Alderman ("Plaintiff Alderman") brings this action for prospective relief pursuant to 42 U.S.C. § 1983 challenging not his sentence of death, but rather the manner in which Defendants will execute him and the failure of Defendants to take necessary measures to minimize the risk that he will experience unintentional pain from the terrifying sensation of asphyxiation and

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suffocation due to the paralysis of his respiratory system, the burning of Potassium Chloride in his veins and, finally, the pain and suffering associated with cardiac arrhythmia and complete cardiac arrest.
As provided in the Department of Corrections Administrative and Execution Procedures, Lethal Injection, Under Death Sentence, effective May 1, 2000, which were superseded on September 9, 2002, ("Procedures") and has occurred in all lethal injections administered so far, Georgia has first injected the person to be killed with a ultrashort-acting barbiturate anesthetic to produce unconsciousness, followed by a neuromuscular blocking drug, which completely paralyzes the muscles, but does not affect cognition or any form of sensation, and, based on prior executions, it is likely that there will be delivery of less than the intended dose or improper injection procedures. Thus the anesthetizing agent will wear off, as occurs with ultrashort-acting barbiturates and has occurred on numerous occasions, causing the condemned to experience terror and excruciating pain without being able to signal his distress. Moreover, the paralysis will make it impossible for any witness observing the killing to determine whether the condemned is experiencing pain before dying. The way in which Georgia now administers lethal injections would not receive the approval of the American Veterinary Medical Association ("AVMA") for use on animals.
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In addition, Georgia's Procedures for administering lethal injection authorizes an outdated and discarded procedure - the "cut down" procedure for central venous cannulation - when a suitable vein cannot be found. This procedure results in unnecessary and painful mutilation of the body.
The method to be used by Defendants to execute Jack E. Alderman threatens and violates his right to be free from cruel and unusual punishment in violation of the Eighth and Fourteenth Amendment to the United States Constitution, to be free from arbitrary and capricious procedures and protocols in violation of the Fifth and Fourteenth Amendments to the United States Constitution, and to be free from the deliberate indifference of the Defendants to Alderman's health and safety in violation of the Eighth and Fourteenth Amendments to the United States Constitution. Accordingly, he seeks equitable and injunctive relief requiring the Department of Corrections to meet its constitutional responsibility to minimize the unnecessary risk of pain and mutilation during his execution. He asks that the Department be restrained from carrying out his execution until such time as it has minimized the risk of unnecessary pain, suffering, and mutilation.
PARTIES
1. Plaintiff Alderman was sentenced to death for his alleged involvement in the murder of his wife. Since that time he has been in the custody of the Georgia
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Department of Corrections ("GDC") at the Georgia Diagnostic and Classification Prison ("GDCP") in Jackson, GA. Plaintiff Alderman is a United States citizen and a resident of the State. He is currently a death-sentenced prisoner under the supervision of the GDC. He is held at GDCP, Jackson, Georgia, 30233.
2. Defendant James E. Donald ("Donald") is the Commissioner of Corrections for the State of Georgia and is the chief administrative officer of the GDC. He is authorized by statute to supervise, direct and execute the functions vested in the GDC, including the administration and execution of the death penalty. See O.C.G.A. § 42-2-6(b). Donald is being served in his official capacity for prospective relief.
3. Defendant Hilton Hall ("Hall") is the Warden of the GDCP. He is authorized by statute to supervise, direct and execute the functions vested in the GDC, including the administration and execution of the death penalty. See O.C.G.A. § 42-2-6(b). Hall is being served in his official capacity for prospective relief.
4. Plaintiff Alderman is ignorant of the true names of Does 1-50 but alleges that they have or will participate in Plaintiffs execution by virtue of their roles in designing, implementing, and/or carrying out the lethal injection process.
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When Plaintiff Alderman discovers the Doe Defendants' true identities, he will amend his Complaint accordingly.
JURISDICTION AND VENUE
5. This action is brought pursuant to 42 U.S.C. § 1983 for violations and threatened violations of the right of Plaintiff Alderman to be free from cruel and unusual punishment under the Eighth and Fourteenth Amendments of the United States Constitution, to be free from arbitrary and capricious procedures and protocol in violation of the Fifth and Fourteenth Amendments to the United States Constitution and to be free from the deliberate indifference of Defendants toward his health and safety in violation of the Eighth and Fourteenth Amendments to the United States Constitution. Plaintiff seeks temporary, preliminary, and permanent injunctive relief to prevent the Defendants from executing him by means of lethal injection, as that method of execution is currently used in Georgia. Plaintiff contends that lethal injection, as performed in Georgia, unnecessarily risks infliction of pain and suffering. Plaintiff further contends that the use of Pancuronium Bromide, also known as Pavulon, a neuromuscular blocking agent that acts as a chemical veil over the lethal injection process, unnecessarily disguises from observers the pain and suffering to which he may be subjected.
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6. Plaintiff additionally contends that Defendants, as a result of their failure to use appropriate procedures and properly trained personnel, have inflicted unnecessary and unintentional pain on several executed prisoners in the past, making it likely that Plaintiff will suffer the same fate.
7. This Court has jurisdiction pursuant to 28 U.S.C. § 1331 (federal question), § 1343 (civil rights violations), § 2201 (declaratory relief), and § 2202 (further relief). This action arises under the Fifth, Eighth and Fourteenth Amendments to the United States Constitution and under 42 U.S.C. § 1983.
8. Because the statutory office of the Commissioner of the GDC is in the City of Atlanta, see O.C.G.A. § 42-2-10, venue is proper in this Court. See 28 U.S.C. § 1391(b).
EXHAUSTION OF ADMINISTRATIVE REMEDIES
9. Without conceding that the provisions for exhaustion of administrative remedies are applicable to his claims, the Plaintiff has exhausted all administrative remedies to the extent that they were available and has satisfied the exhaustion requirements of 42 U.S.C. § 1997e(a).
10. Exhaustion of administrative remedies through a prison grievance policy is not required for this type of action because the injuries are prospective in
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the sense that the injuries will not occur until the execution takes place. Thus, no administrative challenge to the lethal injection protocol is possible here.
11. Notwithstanding the fact that exhaustion of administrative remedies through a prison grievance policy is not required for this type of action, Plaintiff filed, with the GDC, an informal grievance on April 16, 2007 on the appropriate GDC Inmate Grievance Form (a copy of the receipt is attached at Appendix A). Plaintiff has also requested the proper form to file a formal grievance. However, to date a response has not been provided.
12. Moreover, on April 12,2007 Plaintiff sent a letter to the GDC Ombudsmen's Office seeking a change to the Procedures. (Appendix B). However, to date the GDC Ombudsmen's Office has failed to respond.
ALLEGATIONS
13. On an unknown future date, the clerk of Chatham County Superior Court will issue a death warrant in the case of Alderman v. State, 241 Ga. 496, 246 S.E.2d 642, 644-45, cert. denied, 439 U.S. 991, 99 S. Ct. 593, 58 L.Ed.2d 666 (1978), reh 'g denied, 439 U.S. 1122,99 S. Ct. 1036,59 L.Ed.2d 84 (1979), setting the date of execution of judgment of death on a date certain.
14. At the time Mr. Alderman was sentenced to death by the Chatham County Circuit Court, Georgia executed persons using electrocution. Thereafter,
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the Georgia legislature adopted lethal injection as the method of execution for any death sentence imposed after May 1,2000. See O.C.G.A. § 17-10-38. In 2001, the Georgia Supreme Court held that electrocution, which had been used to put people to death in Georgia since 1924, violates the State Constitution. See Dawson v. State, 554 S.E.2d 137 (Ga. 2001). Pursuant to that ruling, Mr. Alderman is scheduled to be executed by lethal injection on an unknown date.
15. The Georgia General Assembly directed the GDC to adopt and enact relevant protocols and procedures. Accordingly, the GDC adopted the Administrative and Execution Procedures, Lethal Injection, Under Death Sentence, effective May 1, 2000 (Appendix C), which were superseded on September 9, 2002 (Appendix D)(referred hereinafter to as "Procedures,,).1 The issues raised in the Nance Hearing and outlined in this Complaint are consistent in both sets of Procedures.
16. However, in carrying out sixteen executions since Dawson, the GDC has failed to administer lethal injection in a way that minimizes the risk of
These Procedures were described in the testimony of Deputy Warden Terry L. Duffey at the evidentiary hearing conducted in Georgia v. Nance, No. 95-B2461-4 (Gwinnett County Superior Court, Apr. 30,2002 and May 1,2002) at 60-65 (referred hereinafter to as "Nance Hearing").
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unnecessary pain, suffering and mutilation as required by the United States Constitution.
17. The statute prescribes no specific drugs, dosages, drug combinations, or the manner of intravenous line access to be used in the execution process; nor does the statute prescribe any certification, training, or licensure required of those who participate in the execution process. All of the details of the execution process are to be determined by the GDC.
18. The Department of Corrections has decided to execute Plaintiff by poisoning him with a lethal combination of three chemical substances: Sodium Pentothal, a ultrashort-acting barbiturate; Pavulon, a drug which paralyzes all voluntary muscles; and Potassium Chloride, an extremely painful chemical which activates the nerve fibers lining the prisoner's veins and interferes with the heart's contractions, causing cardiac arrest. This method of execution, as conducted under the GDC's Procedures is likely to be more cruel and unusual than using the electric chair for execution.
19. In adopting the Procedures, Georgia conducted no independent official analysis of why these three drugs should be used as opposed to other alternatives and also conducted no independent official analysis of what dosages of the drugs to
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administer.2 Georgia uses a manual process, requiring that each chemical agent be administered individually through separate syringes, thereby increasing the risk of inserting the drugs in an improper sequence and maximizing the potential for other problems associated with administration of the agents. See, e.g., State v. Webb, 750 A.2d 448, 451 (Conn. 2000).
20. These three drugs are dangerous and carry inherent risks of inflicting extreme and excruciating pain and suffering when used by unqualified persons in circumstances like those extant in the Georgia execution chamber.
21. Sodium Pentothal is a very ultrashort-acting anesthetic. When given in an appropriate amount and administered properly, it renders a person unconscious quickly, but, in typical clinical doses, it begins to wear off quickly. The half-life of Sodium Pentothal in the brain, where it is meant to work as an anesthetizing agent, in clinical doses may be as short as one to two minutes. A dose of 2.5 grams, which is 25% more than the dose administered in Georgia, would dissipate within five to seven minutes. See Webb, 750 A.2d at 451-52. In other words, almost as soon as it begins working, Sodium Pentothal begins to dissipate. As a result, during surgical procedures, Sodium Pentothal is typically used to render a person unconscious, but
2 See testimony of Deputy Warden Duffey, Nance Hearing, at 78.
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additional drugs are administered almost immediately thereafter to keep a patient unconscious and pain-free.
22. The Procedures make no provision for basing the amount of Sodium Pentothal on the well-recognized factors affecting its efficacy, including body weight, body fat, prior drug usage, the presence of other sedating agents, the level of anxiety or stress, and the person's food consumption in the hours before the execution. If the inmate eats or drinks six-to-eight hours before the execution, he may choke or gag from the injection of Sodium Pentothal.
23. The Procedures contain conflicting provisions regarding the amount of Sodium Pentothal to be administered one part of the Protocol calls for 2 grams of Sodium Pentothal to be administered,3 and another part calls for 1 gram of Sodium Pentothal.4 These contradictory instructions make it impossible for anyone to know how much Sodium Pentothal is intended to be given. This is a critical flaw, because the amount of Sodium Pentothal that is administered is vital to ensuring
3 Paragraph 10 of the Georgia Diagnostic and Classification Prison's "Controlled Chemical Handling Procedures for Execution by Lethal Injection" states that "Chemicals will be drawn up as follows: Sodium Pentothal 50 cc's (2gms) - Syringe #1 and #la." 4 Section 2.1 of Annex IC of the Procedures, titled "Injection Procedure" talks only about the use of "Syringe #1 (Sodium Pentothal)" - there is no mention of syringe 1a.
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that the person is unconscious while being put to death. The possible 1 gram dose is far too low to assure a prolonged deep anesthesia for the duration of all executions. See Testimony of Mark Dershwitz, Tr. Evid. Hr. Vol. 3, p. 264, Taylor v. Crawford, No. 05-4l73-CV-S-FJG (June 13,2006)( "... I would say that probably the minimum acceptable dose would be 1.5 grams ...."). (Appendix E)
24. The second drug administered, Pavulon, is a paralyzing agent. It interferes with the nerve impulse emanating from the brain to the muscles by blocking the neurotransmitters that "direct" muscles to move. This includes the muscles which enable a person to breathe, swallow, speak, blink, or move extremities. Pavulon leaves the muscles in a flaccid state so that the person to whom it has been administered appears calm and relaxed.
25. The use of Sodium Pentothal and Pavulon together creates an unnecessary risk of severe pain and suffering. If the Sodium Pentothal wears off, which can occur even in the hospital setting where surgery is conducted by several physicians, patients can awaken during surgery. If such an occurrence were to take place in an execution, the inmate would become conscious, experience suffocation, feel the burning of the Potassium Chloride in his veins, and then experience a massive heart attack. Because Pavulon is such a thorough paralytic agent, onlookers would not realize that the person was experiencing excruciating pain,
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including the terrifying sensation of asphyxiating and suffocating, choking on vomit, and cardiac arrest. Pavulon creates a serene appearance because the person being executed is totally paralyzed.
26. Under the Procedures, there are no directions as to how to make a determination as to whether the Sodium Pentothal has taken effect. Therefore, the chemical agents used to execute the prisoner may be administered without proper unconscIOusness.
27. The third drug, Potassium Chloride, causes cardiac arrest, which, if untreated, leads to brain death after several minutes. If the Sodium Pentothal wears off or never achieves effectiveness by the time the Potassium Chloride is administered, the condemned would experience excruciating pain. The sensation of the Potassium Chloride flowing through the veins would cause extreme and excruciating pain. Once the drug reaches the heart, the condemned would experience all of the pain and suffering associated with complete cardiac arrest.
28. The GDC has not only failed to minimize this risk, it has increased it by failing to follow its own Procedures in two of the first six executions by lethal injection. In the executions of Ronald Spivey and Tracy Housel, the execution
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personnel discovered residual heart activity after the first course of injections.s Despite the fact that the Procedures provide for the administration of another set of all three drugs,6 the GDC's personnel did not inject the first two and instead injected a second dose of Potassium Chloride.7 The lapse of time between the administration of the first drug - Sodium Pentothal - and the administration of the Potassium Chloride significantly increased the likelihood that Spivey and Housel regained consciousness and felt acute, excruciating pain, asphyxiating and suffocating, intense burning, and a massive cardiac arrest. The GDC began administering drugs to Spivey at 7:24; he was not pronounced dead until 7:34 - ten minutes later. 8 Drugs began flowing into Tracy Housel at 7: 17; he was not pronounced dead until 7:28.9 As noted earlier, supra ~2l, even a 25% higher dose of Sodium Pentothal than was administered to Mr. Housel and Mr. Spivey could have worn off within five to seven minutes.
29. The Procedures also direct that the Warden or another designee shall direct that the catheter be inserted into the prisoner. Even a well-trained person may have difficulty finding a vein. Thus, the catheter can be inserted into a
S See GDC's records, Nance Hearing, at 525, 585. 6 See Procedures § 16.3.l9. 7 See GDC's records, Nance Hearing, at 525, 585. 8 See Commissioner's Command Post Activity Log, Nance Hearing at 524-25.
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sensitive area of the body, such as the groin or hand; in the wrong direction so that chemicals flow away from the inmate's heart and therefore hinder their absorption; or intramuscularly or subcutaneously instead of intravenously.
30. The Procedures also mandate the use of a "cut down" procedure if the person inserting the IV line into the inmate cannot find a suitable vein. 10 The Procedures provide that "[t]he IV team will place intravenous ports into the veins of both arms of the condemned. The heart monitor leads will be applied to the condemned. If the veins are such that an IV cannot be started, a contract physician will perform the cut down procedure to establish an intravenous port.,,11
31. The "cut down" procedure involves unnecessary mutilation of the human body and is a grossly outdated medical procedure. In fact, the "cut down" procedure for central venous cannulation is rarely even taught in U.S. medical schools. Instead, there is another procedure, percutaneous central venous cannulation, that is routinely used by highly trained personnel in hospitals in situations where a suitable vein cannot be found. Thus, the procedure currently mandated by the Procedures subjects the inmate's body to unnecessary and painful mutilation.
9 See Commissioner's Command Post Activity Log, Nance Hearing at 538. 10 See Procedures § 16.3.
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32. When Jose High was executed, GDe's personnel took thirty-nine minutes to start the IVs. The intravenous ports that were established were not placed in Mr. High's arms. Rather, one was placed in his hand, and the other near his collarbone. 12 The autopsy photographs make clear that the IV sites in his hand were infiltrated, a condition where the needle is in subcutaneous tissue, not in the vein. Moreover, the contract physician did not follow the Procedures, but performed a percutaneous central venous cannulation instead of a "cut-down" on Mr. High when the nurse could not establish an intravenous port. While the percutaneous central venous cannulation is the accepted medical procedure, it requires specialized drugs and medical equipment to handle complications, and their absence exposed Mr. High to an unwarranted risk of excruciating pain and suffering.
33. The GDe has failed to minimize the likelihood of miscommunication and failure to discover when the injection goes into the subcutaneous tissue, and not a vein, resulting in excruciatingly painful necrosis of the tissue. The GDe uses an inadequate and unacceptable arrangement whereby the nurse in the death chamber watches the injection sites remotely (not at the condemned's side) and thus, she
II See Procedures § 16.3 .11 (emphasis added). 12 See testimony of Deputy Warden Duffey, Nance Hearing, at 86-93 ..
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does not receive information about the pressure required to push the syringe down when she is advising the staff on how fast to inject the drugs. The nurse cannot recognize any excessive pressure, which suggests infiltration. Excessive pressure can also be due to other problems in which the drugs are not being properly injected into the blood stream.
34. The ODe has also failed to minimize the risk of unnecessary pain by deviating from regular medical practice by using large syringes to administer the drugs, which increases the possibility of improper administration of the drugs. Large syringes offer minimal tactile feedback, which makes it difficult to determine whether infiltration is occurring or not.
35. The Procedures also lack necessary safeguards, thus increasing the risk that Plaintiff will suffer unnecessary pain during the lethal injection process. There is no standardized time to administer each of the three chemicals. The Procedures identify no protocol for ensuring that the anesthetic agent is properly flowing into the prisoner. The Procedures identify no protocols for ensuring that the prisoner is properly sedated prior to the administration of the lethal chemicals as would be required in any medical or veterinary procedure before the administration of a neuromuscular blocking agent, such as Pavulon, or the administration of a painful potassium chloride overdose.
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36. The Procedures address an event in which the condemned person is not killed by the injection of one series of these drugs. However, GDC has not followed this part of the Procedures, thus creating further risk of unnecessary pain. In the event the condemned person is not killed by the first series of injections, the Procedures call for a second series of injections of the three drugs. 13 As discussed above, supra ~28. In two of the first six lethal injection executions in Georgia the execution staff significantly deviated from these Procedures. For these two condemned persons, heart activity was observed after the first series of drugs had been injected. Dr. Rao - who had not read the Proceduresl4 - ordered that rather than follow the Procedures and inject the drugs in the predetermined sequence (Sodium Pentothal, Pavulon, Potassium Chloride) the injection team was to inject only additional Potassium Chloride. IS If the Sodium Pentothal had worn off at this time, the condemned person may have been conscious yet paralyzed and unable to communicate.
37. The Procedures also do not establish any minimum qualifications or expertise required of the personnel who perform all of the tasks in the lethal
13 See Procedures § 16.3.19. 14 See testimony of Dr. Rao, Nance Hearing, at 294. 15 See testimony of Charles Kelley, Nance Hearing, at 180.
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injection process. There are no guidelines upon which these personnel can rely if they are required to exercise their discretion during the process. The protocol has no plan in place if the Plaintiff requires medical assistance during the execution.
38. Appended to this Complaint are the declarations of Dr. Mark Heath, M.D., a cardiac anesthesiologist, and Dr. Randall L. Tackett, Ph.D., a professor of pharmacology at the University of Georgia's College of Pharmacy, both of which were previously attached to Complaint filed with this Court in Fugate v. Department a/Corrections, et. ai., (Appendices F and G, respectively); pertinent provisions of the Procedures (see Appendices C and D); and excerpts from documents and testimony from the Nance Hearing regarding the administration of lethal injection in Georgia (Appendix H). Mr. Alderman hereby incorporates by reference these appendices as if fully set out herein.
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COUNT I USE OF LETHAL INJECTION IS A VIOLATION OF RIGHT TO BE FREE FROM CRUEL AND UNUSUAL PUNISHMENT PURSUANT TO THE EIGHTH AND FOURTEENTH AMENDMENTS TO THE UNITED
STATES CONSTITUTION (42 U.S.C. § 1983)
39. Plaintiff realleges and incorporates by reference the allegations contained in paragraphs 1 through 38.
40. Defendants are acting under color of Georgia law in using an arbitrary, capricious and irrational method of execution by administering to Plaintiff chemicals that will cause unnecessary pain in the execution of a sentence of death, thereby depriving Plaintiff of his rights under the Fifth, Eighth and Fourteenth Amendments to be free from cruel and unusual punishment and treating him with deliberate indifference to his health, safety and serious medical needs in violation of his rights under the Eighth and Fourteenth amendments to the United States Constitution entitling him to re1iefunder 42 U.S.C. § 1983.
41. The Procedures, which specify the State's lethal injection protocol, violate Plaintiff s rights under the cruel and unusual punishment clause of the Eighth Amendment because (a) the Procedures create the unreasonable and unacceptable risk of unnecessary physical and psychological pain; (b) the Procedures do not comport with contemporary norms and standards of society; (c)
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the Procedures offend the dignity of the person and society; and (d) the procedures constitute deliberate indifference to the condemned's safety, health and serious medical needs.
42. The failure of the ODC to take sufficient measures to minimize the risk of unnecessary, extreme and excruciating pain and mutilation, when that risk could easily be minimized, violates the Eighth and Fourteenth Amendments to the United States Constitution.
PRAYER FOR RELIEF 43. WHEREFORE, Plaintiff Jack E. Alderman prays for:
a. Temporary, preliminary, and permanent injunctive relief to enjoin the Defendants, their officers, agents, servants, employees, and all persons acting in concert with them from executing Plaintiff by lethal injection using the current Procedures or any similar procedure;
b. In the event that the Procedures are not enjoined in its entirety as violating the Fifth, Eighth and Fourteenth Amendments, temporary, preliminary, and permanent injunctive relief to enjoin Defendants, their officers, agents, servants, employees, and all persons acting in concert with them from administering Pavulon during the execution process;
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c. In the event that the Procedures are not enjoined in its
entirety as violating the Fifth, Eighth and Fourteenth Amendments,
temporary, preliminary, and permanent injunctive relief to enjoin
Defendants, their officers, agents, servants, employees, and all persons
acting in concert with them from allowing personnel who lack
sufficient training, credentials, certification, experience, or proficiency
to conduct the lethal injection procedure;
d. Reasonable attorneys' fees pursuant to 42 U.S.C. § 1983
and the laws of the United States;
e. Cost of suit; and
f. Any such relief as the Court deems just and proper.
This 20th day of April, 2007.
Jack E. Alderman
By: ------~--~--~~-+-William E. Hoffm , J Georgia Bar No: 359825 KING & SPALDING LLP 1180 Peachtree Street Atlanta, Georgia 30309 Telephone: (404) 572-3383 Telecopier: (404) 572-5136 bhoffmann@kslaw.com
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Jason R. Edgecombe Georgia Bar No. 239606 KING & SPALDING LLP 1180 Peachtree Street Atlanta, Georgia 30327 Phone: (404) 572-4600 Fax: (404) 572-5139 jedgecombe@kslaw.com
Thomas H. Dunn GEORGIA RESOURCE CENTER 303 Elizabeth Street Atlanta, Georgia 30309 Phone: (404) 222-9202 Fax: (404) 404 506-2680
James Ringer Michael A. Siem Elizabeth K. Quinn CLIFFORD CHANCE US LLP 31 West 52nd Street New York, NY 10019-6131 Phone: (212) 878-8000 Fax: (212) 878-8375
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TabB

(404) 222-9202

GEORGIA RESOURCE CENTER
303 Elizabeth Street Atlanta, Georgia 30307

FAX (404) 222-9212

Via Facsimile and U.S. Mail [Fax No. 404-651-6537]
12 April 2007
Georgia Department of Corrections Ombudsman's Office Shevondah Fields #2 M.L.K. Jr. Dr. S.E. East Tower, Suite 766 Atlanta, GA 30334
RE: Jack E. Alderman, UNO-385463
Dear Georgia DOC Ombudsman:
This office represents .Jack E. Alderman, UNO -385463, who is currently incarcerated on death row at the Georgia Diagnostic Prison in Jackson, Georgia. Mr. Alderman is nearing the conclusion of his appeals process and recognizes that if his appeals are denied, he will be executed by the State of Georgia using the method outlined in the Georgia Department of Corrections Lethal Injection Administrative and Execution Procedures (hereinafter Procedures). In accord with the Georgia Department of Corrections grievance system, Mr. Alderman intends to file both an informal and formal grievance pertaining to these Lethal Injection Procedures. It does not appear, however, that a grievance of this kind is grievable under the DOC's grievance system. As such, on behalf of Mr. Alderman, I write to alert you to the intended violations of his constitutional rights as guaranteed by the 8th and 14th Amendments should these Procedures be utilized.
The current Procedures fail to take necessary measures to minimize the risk that Mr. Alderman will experience terror or excruciating pain caused by asphyxiation and suffocation due to the paralysis of his respiratory system, the burning of Potassium Chloride coursing through his veins and, finally, the extreme pain and suffering associated with cardiac arrhythmia and complete cardiac arrest.
As Georgia's Procedures provide, and has occurred in all lethal injections administered so far, the person to be killed is first injected with a short-acting barbiturate anesthetic to produce unconsciousness, followed by a neuromuscular blocking drug, which completely paralyzes the muscles, but does not affect cognition or any form of sensation. As a result, if through delivery of less than the intended dose or improper injection procedures, the anesthetizing agent wears off, as can occur with short-acting barbiturates and has occurred on numerous occasions, the condemned will experience terror and excruciating pain, but will be prevented from signaling any distress. Moreover, the paralysis will make it impossible for any witness observing the killing to determine whether the condemned is experiencing pain before dying. Georgia's current procedure for the administration of lethal injections would not receive the approval of the AVMA for use on animals.
TIU! Georgia Appellate Praci;ce and Educational Resource Center, Inc. itO a non-profit organization gOL·ern ..d by a Board of Directors. 711(' Center was eslabJislwd by the Slate Bar of Georgia and is affiliafed «-,ilk the Georgia Slate University College of Law.

Re: Jack E. Alderman 12 April 2007 Page 2
Georgia could minimize the risk of unnecessary pain and suffering, as constitutionally required, by substituting a long-acting anesthetizing agent for the short-acting barbiturate anesthetic currently used, by employing qualified persons to closely monitor the vital signs of the person being put to death, or by eliminating administration of the paralyzing agent and instead causing death through the use of agents that produce cardiac arrest without causing pain upon administration.
In addition, Georgia's Procedures for administering lethal injection authorizes a grossly outdated and discarded procedure - the "cut down" procedure for central venous cannulation - when a suitable vein cannot be found. This procedure results in unnecessary and painful mutilation of the body. Georgia can prevent such unnecessary and painful mutilation by utilizing another procedure, percutaneous central venous cannulation, that is routinely used by the medical profession.
While Mr. Alderman was sentenced to die over 31 years ago, his death sentence did not include sUbjecting him to extreme and excruciating pain and mutilation. Accordingly, through undersigned counsel, Mr. Alderman fonnally requests that the Georgia Department of Corrections adapt procedures that minimize the risk of pain and mutilation during his execution.
We look forward to your prompt attention to this matter and ask that you provide a response no later than April 18,2007.

cc: Jack E. Alderman Michael A. Siem, Esq.

Executive Director

TIU! Georgia Appel/ale Pradice and Educational R"source Cent...r, J,1C. is a non-profit organization 80L'ern ...d by a Board of Dir...dars. TIle Center «.'0" e"tabli"lwd by tlu.· Stat... Bar of Georgia and i" affiliated with the Geor9ia State Univ...r$ity College of Law.

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CORRECTIONS

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ADMINISTRATIVE AND EXECUTION PROCEDURES
LETHAL INJECTION
UNDER DEATH SENTENCE

MAY 1, 2000 60'='

00709

. . ... :, ....,:, PREFACE
~. -". ,
GEORGIA LAW PROVIDES THAT WHEN A PERSON IS CONVICTED OF A CAPITAL
CRIME AND RECEIVES A DEATH SENTENCE, THAT SENTINCE IS AUTOMATICALLY
APPEALED TO THE GEO.RGi~..:s.:--G~ -.p" ·~. ~£~E .c6. .d~:L -tHIS, ALONG WITH OTHER LEGAL
REMEDIES AVAILABLE TO PERSONS UNDER DEATH SENTENCE RESULTS IN INMATES WITH DEATH SENTENCE5 BEING HElD IN THE CUSTODY OF THE GEORGIA DEPARTMENT OF CORRECTIONS FOR LENGTHY PERIODS OF TIME.
AN EXECUTION MAY ACTUALLY OCCUR WHEN THE PAROLE BOARD HAS CONSIDERED AND DECLINES TO MODIFYTHE DEATH SENTENCE, OR WHEN THE APPEAL PROCESS HAS BEEN EXHAUSTED, OR WHEN THE INMATE IS DEMANDING THAT THE SENTENCE BE CARRIED OUT.

ii .CJ · I0 ( .

00710

GORGIA DEPART;'>;IENT 01 CORRECTlONS
:. '
:. EXECUTION PROCEDURES AUT.H~. O-Rl1.EDD-IS.TRlBUT10N

Copy 11 Copy #2 Copy #3 Copy #4 Copy #'5 Copy #6 Copy #7 Copy #8 Copy #9

Governor State of Georgia
Attorney General Stale of Georgia
Commissioner
Facilities Division Director
Director Special Operations
warden Georgia Diagnostic and Classification Prison
Warden Gear'- ~ldgnostic and Cla.~slfication Prison
Warden Metro State Prison
General Counsel Legal Services
iij

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0071.L

--00"'
.TASLEOF CONTENTS
I. RECEPTION OF UDSCASES

Section
1.0 1.1
1.2
1.3 1.4 2.D 2.1 2.2 2.3 2.4

. 0 . " ° .~.",
The se~{e~g0~.;.::· :".:,:~'. /:-:: .' i.
Sentehce6rDeath - Certified Copy of Sentence - Ten (10) Days Prior to Execution Change of Date - Reasons for Change - Reset Order for Execution - Delivery of Reset Order Acknowledgment of Notification Notification of Others Delivery of the Condemned Person Delivered to the Commissioner Delivery by Sheriff Orders to Sheriff Transferto Execution Site

3.0

Admission Processing

4.0

Confinement

II. HOLDING AND PREPARATION FOR EXECUTION

5.0

Preparation for Execution

6.0

Notification

7.0 7.1 7.2 7-.7..1 7.2.2 7.2.3 7.2.4 7.2.5 7.2.6 7.2.6.1 7.2.6.2

Death Watch Special Escort Team Observation Security of Execution Chamber Log of Activities of Condemned Meals for Condemned Telephone Communication Check Disinterested Person Visitation Medical Sick Call RequeSt!; for Medical Attention

IV
Gb-J

Page
1 1
1
1 1 1 1 1
2 2
2
2
3
3
3
4 4 4 4 4 4 4 4 4 4 5
00712

Sedion
8.0 8.1 8.2 8.3 8.4
9.0 9.1 9.2 9.3 9.4
9.5
10.0
11.0 11.1 11.2 11.3 11.4
12.0 12.1 12.2 12.3 12.3.1 12.4 12.4.1 12.4.2 12.4.3
13.0 13.1 1-3.2 13.3 13.4
14,0 14.0.1 14.0.2 14.0.3

.. ".

Personal Property of the Condemned

Inventory and Sealing of Personal Property

Supervised Process

.

Sign Inventory.Sheet._. ,: . _'

Recipienfpf'PerS'o~al~;b'tJe~

.

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

.;

State Issue Items List of Items Items Allowed Upon Request Approval of Exceptions Disallowed Items Destrudion of Personal State Issued Items

Funeral Arrangements

DeSignation of Witnesses Notification of Witnesses Witnesses Who Shall be Present Record of Witness Notification Restridions

Witnesses That May be Present Space Limitations Witness Restriction Witnesses Requested by the Condemned Contact of Witnesses Other Witnesses Approval of Witnesses Required by Law Arrival of Witnesses Requested by Condemned Arrival of Witnesses Approved by Commissioner

Media and Public Information Office Interviews with the Condemned News Media Representation Media Briefings Live Broadcasts by Media

Visitation by Family Visitor Parking ASSignment of Staff Person (Chaplain) Visitation Room - Limitations

G'I U v

,-

Page

". ~:- .~

5 5 5 5 5

5 5
6 6 6 6

6

6 6 7 7 7

8 8 10 10 10 11 11 11
1'1

11 11 11 11 11

12 12 12 12

00713

, "

Section

"

14.0.4 14.0.5 14.0.6 14.1 14.1.1 14.1.2 14.2

Staff Responsibiiities DuringYisitation

Lunch for Condemned

Dress Code fo/Visitors
VisitatiQ~ 'by Others j;',:<>".
Daily Cliaj:ll§in Visit~ti:Oniif Condemned

AttomeyVisitS

'

Victim Family Remaining During Execution

15.0

Telephone Access of Condemned

III. DAY OF EXECUTION

16_0 16_1 1'6.2 16.3 16.3_18 16.3_20 16.3.26 16.3.27

Day of Execution Three (3) Hours Prior to Execution Two (2) Hours Prior to Execution One (1) Hour Prior to Execution Execution Carried Out Post Execution Interment of Condemned Critical Incident Debriefing

~
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12 12 12 12 12 12 13
13
13 13 14 15 17 17 18 18

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00714

UNDER DEATH SENTENCE

-.:TABLFOFANNEXES - .--: ;"-: .. ."." . . .; .:--, .:~

"' '.""',
~.'

ANNEX#
Annex I Annex II Annex III Annex IV Annex V Annex VI Annex VII Annex VIII Annex IX Annex X

TITLE
Administrative Processing Task Description of Staff Intravenous Team - Detailed Instrudions Injedion Team - Detailed Instrudions Sample Letters Crowd Control on Day of Execution Central Office Security for Special Events Adivity Log - Death Watch U.D.S. Five Day Schedule Atlanta Office Adions Taken After Notification By Attorney General's Office of Pending Execution

PAGE 19-22 23-24 25 26 27-29 30 31-35 36
.J?
38-40

vii
00715

I. RECEPTION OfUNDER.DEATH SENTENCE (UDS) CASES
1.0 THE SENTENCE
1.1 Upon averdid or judgement ofde~ih made by a jury or a judge, it is the
responsibility cifthJ!:t:lerk.,of(:'9yt1,jn-which said sentence is pronounced, to forward a certified :t6py of s~id'sehtence to the Warden of the Georgia Diagnostic ahd Classification Prison not less than ten (10) days prior to the
first day of the seven (7) day execution period as fixed by the court (OCGA
17-10-33).
'1.2 Where the date for execution has passed for any reason, i.e., appeal. habeas corpus, State Board of Pardons and Paroles, etc., the judge of the Superior Court of the county where the case was tried shall have the power and authority to fix a seven (7) day period for the execution of the original sentence.' Such order shall fix the seven (7) day period not less that ten (10) nor more than twenty (20) days from the date of such order. Such order shall be sent immediately to the Warden of the Georgia Diagnostic and Classification Prison (OCGA 17-10-40).
1.3 In either event, described in Paragraph 1.1 or 1.2, the Commissioner and the Warden of the Georgia Diagnostic and Classification Prison will immediately notify one another and immediately forward to the other a copy of the sentence (Execution Order) or other orders.
1.4 In addition, the Commissionerwill reproduce said sentence or order and forward a copy to the Governor (Attention: Legal Counsel, Governor's Office); Attorney General's Office, 'ind the Chairman of the State Board of Pardons and Paroles.
2.0 DELIVERY OF THE CONDEMNED PERSON
2.1 In all cases in which the defendant is sentenced to be executed, it shall be the duty of the trial judge in passing sentence, to direct that the defendant be delivered to the Commissioner of the Georgia Department of Corrections for execution at such state prison as may be designated by said Commissioner, (OCGA 17.Q-38).
2.2 It shall be the duty of the sheriff of the county in which such convicted person is so sentenced to convey such convicted person to said state prison not more than twenty (20) nor less than two (2) days prior to the time fixed in the sentence for execution of the condemned person unless otherwise directed by the State Board of Pardons and Paroles, or unless a stay of
00716

execution has beeri:Glu.~ed by appeal, granting of a new trial, or other order '- -~:

of a courto{ competeriljiJrisdictiori, dnd the expense {or transporting of said

person to the state prison f6r the purpose of execution shall be paid by -

the Ordinary Of the County wherein the conviction was had, or the Board 01 County Comn'lissiOllers,-the Counfy~Commis5ioner, or other person or

persons having:ch~rgeqfJhecounty funds, out of any funds on hand in the

treasury of SUCfrCOlIDtY, (6cdA:rj~ 10-33).

.

-*. • -.:::o-.~.,...

• -•. '•

". '"

2.3 The Commissioner will issue assignment orders to the Sheriff of the County of conviction and forward copies of the Order and sentencing documents to the state prison. Dt'Jivery of the condemned person by the Sheriff will he arranged and coordinated by the Commissioner between the Sheriff of the County concerned .lOd the Warden of the prison.

2.4 Persons under death sentence incarcerated at institutions other than the -institution designatl-ci by the Commissioner as the execution site will be transferred to the execution site approximately two (2) days prior to the scheduled execution date. Details of such transfer will be coordinated by the Commissioner.

3.0 ADMISSION PROCESSING
Upon arrival of the condemned person at the Georgia Diagnostic and Classification Prison or Metro State Prison, he/she will be processed through regular inmate admission procedures. to inelude security search, medical examination. fingerprint, photograph, personal history information, etc., to include a complete diagnostic evaluation, a copy of which will be provided to the Commissioner of the Department of Corredion5, and the State Board of Pardons and Paroles,

4.0 CONFINEMENT

The condemned person will be confined in a cell designated by the Warden:~_
Appropriate safeguards and security measures will be maintained as direded by Ir

Warden. Pending the invoking of the Death Watch, the condemned person wi!:

maintained in accordance with Departmental Rules and Regulations, special

regulations for persons under death sentence, and specific court order. Persons

delivered to the execution site less than thirty-six (36) hours prior to the time of execution, (refer to Paragr~,ph 2.2), will be processed immediately and assigned to

the Death Watch Cell.

.

2
00717

•

Il. HOLDiNG AND PREPARATION FOR EXECUflON

"- .~

5.0 PREPARATION FOR EXECUTlf:JN AND TI.\I£ OF EXECUTION

The order of the court wi II speCify a time" ;pan for the execution. A specific date and time within the ~esignat~dpm~"sp"~~cwi!l be established and announced by the
Commissioner to the iipprllpriate" pers6nnel on a need to know basis. The date and
time for executionshOlJld'be finalized seven (7) days in advance.

6.0 NOTifiCATION

Upon receipt, the Warden or his designee shall read to the condemned inmatf! the Order of Execution issued by the court of convidion. The condemned will sign the Order acknowledging notification of the Order and the signature of the condemned will be witnessed by the slaff member and same will provide the condemned wilh a copy of the Order. If the ("ondemned refuses to acknowledge receipt of the Order of Execution, the Warden or designee shall read the Order of the Court and acknowledge receipt for the condemned, in writing, which shall be witnessed by a slaff member other than the Warden and attached to the Order.

7.0 DEATH WATCH

The condemned shall be moved to a designated cell, and observation shall begin thirtycsix (36) to twelve (12) hours but an optimal eighteen (18) hours prior to the scheduled execution. A minimum of two (2) officers shall he assigned to observe the condemned at all times during Death Watch. If the condemned is a female, security will be maintained by female security personnel. Duties shall be established by the Deputy Warden of Security and the Warden. No other corredional staff, or civilian personnel, except medical personnel, shall be allowed in the Death Watch area without approval of the Warden or designee. No inmates are allowed in the Death Watch area

7.1 Special Escort Team and Other Staff Participants

7.'.'

The identity of all departmental staff performing offic~" duties

relatE'd to the carrying out of an execution shall not be

disclosed.

3
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00718

7.2 Observation

-- -..;.

7.2.1 7.2.2

-Security of the Ixecution Chamber and the Execution Witness

.Room is tbe responsibility of the Warden of the

institution, or designee. Security briefings shall be held as
a#l.,) ,.o~l'j~te:.<_}.):;·~: ""

• ~.:"". -••'1" -.

.• ..'

~ {.

The officer in charge on each shift shall supervise the use of all

items retained by the condemned and shall maintain a log of

all activities of the condemned to include, but not limited to,

the times of feeding, showering and all other occurrences.

7.2.3

All meals for the condemned during the Death Watch shall be prepared/procured and delivered by the Food Service Director, or designee. The activity log sheet shall reflect all names of persons delivering meals, menu items served the condemned and whether they were consumed or returned, to include date and time.

7.2.4

A communication check, by telephone/radio, shall be made every thirty (30) minutes, on a continuous basis, during this period by the Death Watch Officer to the institution's control center. This communication ched. shall be logged.

7.2.5

The Warden will discuss with the Commissioner the possibility of requesting a disinterested person to visit the Death Watch area daily or as frequently as desired during the Death Watch period for the purpose of reassuring the Commissioner, the Warden, and the public that Rules and Regulations, procedures, and proper treatment are being observed. The disinterested observer will be briefed and/or provided c(" --0<; of pertinent regulations and procedures;"(for review or _.:ior to such visit and will be requested to provide a,_ -;t1en report immediately for the Commissioner and Departmental records.

7.2.6

Medical

7.2.6.1

Sick call will be in accordance with institution Rules and Regu lations prior to the Death Waich period. During the Death Watch, sick call '" be in the Death Watch area.

00719

.. · "

"

7.2.6:2 •co', Request for medical attention by the

~ ..

condemned, in addition to sick call, will be

provided in the Death Watch area unless

determined inappropriate by the Medical

Authority. A medical determination to examine

, ,;:"', ':: ,:',: ':--;, or,treatthe condemned in other than the Death ':"(',::,::: ' W.at'd:(a(e~ should be coordinated with the

,;' .'. .

Warden as soon as possible.

8.0 PERSONAL PROPERTY OF THE CONDEMNED

8.1 The condemned shall personally take inventory, pack and seal his personal property at the beginning of the Death Watch.

8.2 The inventory process and sealing of personal property shall be performed under the supervision of an institutional officer and another staff person designated by the Warden.

8.3 The condemned shall sign a completed inventory sheet which shall be witnessed by the officer and the other staff member.

8.4 The condemned shall indicate, in writing, on the completed inventory sheet the recipient of all personal property.

9.0 STATE ISSUE ITEMS

9.1 The condemned shall be furnished with the following state-issued items while under Death Watch:

- 1 Mattress

- 1 Pillow

- 1 Pillowcase

- 2 Blankets (as ner

)

- 2 Sheets

- 2 Towels

- 1 Comb (provided as needed)

- 1 Bar of Soap

- 1 Shirt or Jacket

- 1 Pair of Pants

- 1 Pair of Boxer Shorts

- 1 Pai r of Socks

- 1 Pair of Shoes or Shower Shoes

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00720

•

.'.

- 1 Religious Material. ..,

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- 1 Toothbrush and Tube ofToothpaste (provided as needed)

- 1 Use of Electric Razor (Cordless)

9.2 The condemned may "b~ provided the following upon request:
-1 Television S~t:~:t~:{~~a;~ '6'~~ide the Cell
-1 Radio tobeC~t~ted Ou~ide the Cell
- Playing Cards - Stationery
- Newspapers and Magazines (as approved by the Warden) - Items available in the Inmate Store at condemn's expense, excluding those
items in metal, glass containers, or hard plastic. - Personalltems Approved by the Warden or Designee (limited to
essential needs)

9:3 Any variation from the above list shall be approved by the Warden or designee, in writing, and attached to the activity log.

9.4 The condemned will not be provided with the following:

- Razors or Blades (other than cordless electric) - Belts - T-Shirts

9.5 Property issued to the condemned by the State shall be destroyed by burning following the execution.

10.0 FUNERAL ARRANGEMENTS

At the beginning of the Death Watch, if not previously done, the condemned shall specify, in writing, his or her request for funeral arrangements. This information shall be conveyed to the inmate's family or others as appropriate, by the Warden of the institution, or designee at least twelve (12) hours prior to the scheduled execution, (refer to Paragraph 16.3.26).

11.0 DESIGNATION OF WITNESSES

11.1 The following shall be present at each execution and shall be notified by the

Warden in writing by narr.2 and acknowledged a minimum of twelve (12)
hours in advance of f', =time and date of the execution. Notification shall

include date and time of execution, and place to report for assignment. The

Warden has the authority to waive the twelve (12) hour requirement on an

emergency basis (refer to Sample Letters - see Annex V):

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00721

· '

11.2

The' following sh;il.l.;'',b.:epr~sent
i .. . - "." -:..- . •

11.2.1

," \lVarden'~(the correctional facility or Deputy Warden thereof,

, who
'o~t.'

sh':a'l"l

ensure

th. at, the

court

ordered

execution

is

carried

11.2.2

T~jjii~;:i~;;~;i~~'~o~e as directed by the Warden.

"._:-:--,-:.1' :

. • ~.

11.2.3

Two (2) staff physicians - (as designated by the Warden) to determine when death supervenes.

11.2.4

One (1) contract physician - (as designated by Health Services) to provide medical assistance during the execution process.

11.2.5

Intravenous (IV) Team, to consist of two (2) Emergency Medical Technicians to insert intravenous ports.

11.2.6

Six (6) Correctional Officers to serve as a special escort team who will apply restraints to the condemned during the execution process.

11.2.7

Three (3) volunteers, (staff members), to inject solutions into the intravenous ports during the execution process.

11.2.8

One (1) Chaplain to administer to the spiritual needs of the 'condemned and .to provide a prayer on the condemned's behalf upon request.

11.2.9

Security personnel as appropriate.

11.3 Records of notification and acknowledgment will be maintained by the Warden. A tentative list of the above person's names shall be maintaiYled and periodically updated by the Warden.

11.4 Restrictions:

No photographic, recording or computerized equipment will be permitted in the execution chamber or witness room except as specifically authorized by the Warden. All pencils, note pads, etc. will be issued and controlled by designated GDC staff.

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00722

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12.0

WITNESSES

THAT

MAY
: ..

. aE.P.R,.._"E"..S..ENT

.

Witnesses to the exectrtion be~ond those specifically prescribed by law or

elsewhere in this procedure must be apprQvedby the Commissioner prior to

the day of the schedul.ed "€'xicUtion.

12.1 Space Iimitatii~~~JJ i{~it{hi:~~~~r of witnesses to be present in the execUTion wifrit'~s room'. Witnesses will be selected as oUTlined

below:

12.1.1

Five (S)witnesses selected by the condemned. These witnt'sses may not consist of inmate or victim family members unless approved by the Commissioner of the Georgia Department of Corrections.

12.1.2

Six (6) witnesses representing the news media organizations may be present during ..th"e executions. Media representatives shall be determined as follows:

12.1.2.1

The Georgia Bureau Chief of the United Press International Wire Service may designate one news reporter to be its representative.

12.1.2.2

The Georgia Bureau Chief of the Associated Press Wire Services may designate one news reporter to be its media representative.

12.1.2.3

The Georgia Press Association, through its Executive Director, may designate two pool" newspaper reporters to be its media representatives. including one pool reporter from
a newspaper published within the county _~n
which the condemned was convict~d. -.

12.1.2.4

The Georgia Association of Broadcasters, through its President, may designate two pool news reporters to be its representatives for the electronic media, including one television or radio reporter from the county in which the condemned was convicted.

a
00723

12.1.3

.. .....'•
12:1.~C5'~ ..." The names of the news reporters representing' <~

. .

'. .the above mentioned classes or news media and

.designated alternates, shall be communicated

.;

telephol1ically to the Commissioner of the

Department of Corrections at least twenty-four

.. .. ... .~;"':::~i: .::,'':.:. (2t1hQQlJrs, priorto an execution.

--:;:•-. ;'.~.~ :-'.'

.~ .• -:.~' :".

:-- ,.-

-,"

",
~

f:Z:l::2~'6 "A11 approved media witnesses will be certified in

writing by the Commissioner to the Warden of

the Georgia Diagnostic and Classification Prison.

12.1.7..7

In the event thai more than one execution is carried out in a single day, the same media representatives shall be the witnesses for those executions. The newspaper and broadcast representatives from thecounty of conviction will change if the offenders to be executed are from different counties.

12.1.2.8

Upon entering the Georgia Diagnostic. and Classification Prison, each media representative must present sufficient evidence to establish hislher identity to the Warden or designee that he/she is entitled access to the press conference interview. This shall include a current photo 1.0. Pencils. pens, notebooks. etc., will not be allowed; these items will be provided by Department of Corrections slaff.

Not 1,!Ss than five (5) witnesses approved in writing by the Comrnissioner of the Department of Corrections.

12.1.3.1

.::..:
The Commissioner of the Department of Corrections may approve five (5) or more witnesses to be present in the execution witness room. These witnesses may include officials with the Executive, judicial or legislative Branch
of Government, or private citizens. The Commissioner's Office shall maintain a tentative list of witnesses and keep the list updated.

9
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00724

•

12.1.~Lt:;;."
. . ' ..,. -

The Commissioner may approve one execution "..;" witness representing the victim(s). Requests or . ·this nature will be received by the Commissioner
no' later than twelve (12) business hours prior to the day·of the scheduled execution.

. ;fz~r::}i:'::-;·:··AfUp~~~-~edwitnesses will be certified in
by '/'.:/; . ·writing the Commissioner to the Warden of

the Georgia Diagnostic and Classification Prison prior to the time of the scheduled execution, if possible. Prior to the time of the execution, the Warden shall confirm participation.

12.2 Restrictions

11.1.1

No witnesses other than those authorized in paragraph 11.1, 11.2, 12.0, and 12.1 will be permitted.

12.1.2

Witm·sses will not be permitted to have photographic, recording or computerized equipment of any type in the execution witness room <refer to Paragraph 11.4).

12.3 Witnesses: Request ofthe Condemned

If the condemned person so desires, the following may be present at such execution: :,islher counsel. relatives, clergymen and friends, (OCGA 17-1 (). 41), pursuant to approval as outlined in 12.1.1.

The condemned periodically updates/confirms the names of those he/she

desires to be present at the execution with the Warden or Commissioner'S

approval. These names shall be recorded in writing. witnessed and

maintained by the Warden or designee. The Warden will send letters to

these witnesses (refl!r to Sample Letters - Annex V).

-

12.3.1

Not Idter than twelve (12) hours prior to ti,. ;iexecution those witnesses requested by the condemned shall be cont,1(1ed by the Warden or designee in the most expeditious and appropriate method of communication to confirm the request and advise them of the time and date of the execution, assembly, orientation and escort procedures to the execution witness room. A record shall be made of these contllcts, Le., copy of telegram or certified transcript of telephone conversation, letters, personal contacts, etc.

10

00725

< •

12.4 Witnesses - Other

12.4.1 12.4.2

niose witnesses to the execution required by law shall be

under the supervision of the Warden of the institution or

d~signei{ and shall appear at the institution at a time and place

t.n.f ~(jif.e<¥d·13'{ Warden.

, . -.?;.~.,;- ,-- .-.'

-::.•;..• \ ••...: .
"

.. Tho'S({witnesses' requested by the condemned shall appear at

the institution no later than two (2) hours prior to the execution

for orientation and escorted to the execution witness room

(refer to Paragraph 12.2).

12.4.3

Those witnesses to the execution who are approved by the Commissioner of the Georgia Department of Corrections shall appear at the institution no later than two (2) hours priono the execution for orientation and escorted to the execution witness room (refer to Annex V - Sample Letters and Paragraph 16.3.6).

13.0 MEDIA INFORMATION AND PUBLIC INFORMATION OFFICE

13.1 If the condemned expresses his/her willingness, .all interviews with the news media will be conducted on one occasion, at a time and place designated by the VVarden. Media representatives will consist of reporters speCified in paragraphs 12.1.2.1, 12.1.2.2,12.1.2.3 and 12.1.2.4 of this procedure. All interviews will require prior approval from the Commissioner.

13.2 News media representatives shall not be allowed to visit any inmate at the institution during the Death Watch.

13.3 Briefings for news media representatives shall be conducted as appropriate

during the Death Watch and immediately after the execut 'ln by the Director

of Public Information at a time and place designated b·

Varden of the

institution.

1·~.4 Broadcast reporters will be allowed to broadcast live from a pre-designated area on the grounds of the institution during the hours designated by the Warden on the day of the execution. A delay in the execution may require that these hours be adjusted accordingly.

11 00726

•

.. .... '

14.0 VISlTATION BY FA.'V'Ilty, .

'- ....

. J ..

The condemned shall be allowed c"entact visits daily with family, friends and private clergy as approvedby the W.~rc.len.

14.0.1

The CO!laeJjin·~s·:V1siJ9.rs.:>:yiJI·park in the designated parking lot. In the eventt~~.lYisitor{ ~ie'transported by persons not desiring to visit, such'perSons !nay wait in the institutional parking lot.

14.0.2

A staff person (chaplain) will be assigned to the condemned's family.

During the Death Watch, the chaplain should be available to the

family.

.

14.0.4 14.0.5 14.0.6

If possible, all visitors should be processed into the institution at one time and placed in the room provided. A maximum of five (5) visitors at a time shall be allowed in the institution at one time.
One Executive staff member shall be assigned the responsibility of visitatio[l. He/she is to ensure that staff respond in an appropriate manner.
The condemned may eat an institutional meal while in the visiting room with his visitors. Visitors may purchase an institutional meal which may be consumed in the visitation area in the presence of the condemned..
All family visitors to the condemned will abide by the institutional dress code and will depart from the institution immediately after visitation unless delayed by inclement weather. Visitors to the condemned shall not bring in any food or other items.

14.1 VISITATION 13' .;ERS

14.1.1 14.1.2

A Chaplain, designated by the Warden, as well as an administrative staff member approved by the Warden shall be assigned the responsibility of visiting the condemned on a daily basis.
-
Attorney(s) shall be allowed to visit the condemned upon approval of the Warden or designee.

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00727

14.2

-. .", .:;'

VICTIM'S fAMILY/RHAttVE~:..

. :;

~::

A staff member will be·desig~ated io care fmany of the victim's family who remain

within the institution during the execution. A room shall be designated for this

purpose.

. ...; .

. .

15.0 TELEPHONE

..( •..-....,.:. . . ....

Telephone access shall be provided to the condemned, with the following limitations:

15.1 Telephone calls shall be in accordance to institutional rules and regulations prior to Death Watch.

15.2 At least one (1) fifteen (15) minute call per day during Death Watch, unless
otherwise approved by the Warden; a phone will be provided to the
condemned, unless otherwise restricted by the Warden.

15.3 All telephone calls shall be made collect, unless the Warden makes exceptions.

15.4 All telephone calls are to be made between the hours of 8:00 a.m. and 6:00 p.m. unless otherwise approved by the Warden.

15.5 Incoming calls for the condemned will be referred to the Warden or designee for screening and approval. Such calls will be denied unless the purpose involves family and/or legal matters requiring the condemned's involvement.

III. DAY OF EXECUTION

16.0 DAY OF ""KUTION

16.1 . ce (3) Hours Prior to Execution

16.1.1

The IV Team will perform a check of all necessary equipment and instruments. A self-test or diagnostic check will be conducted on the heart monitor.

16.1.2

A communications check will be perforr.:ed.

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1'6'.1 ;2':1", "Telephone - Telephone circuits and priVdte ,'--,~

, ",:", - lines between the Commissioner's Office (CP1),

Warden's Office (CP2), and Execution Chamber

(CP3) will be checked.
. .... :;. ~

'16,1.2.:?- ' . Fax tv\athJne -A test message to Central

. ;:'C;,,~--:': -:' '·"':.O;..f.fit~_.ie~qi-;.. Jesting acknowledgment will be sent.

.

~.-

16.1.2.3 Radio - A radio check between the

Execution Chamber and Warden's Office and

between Central Office and Warden's Office will

be initiated.

16.1.2:4

Execution Chamber and Execution Witness Room will be inspected as directed by Warden.

16.2 Two {2l Hours Prior to Execution

16.2.1

The IV Team will perform a check of all necessary equipment and instruments. A self-test or diagnostic check will be conducted on the heart monitor.

16.2.2

The designated staff member will prepare the lethal injection

solution and deliver it to the execution chamber.

'

16.2.3

Communications Check - The same procedure will be followed as at three (3) hours prior to the execution.

16.2.4

Execution Chamber and Execution Witness Room - These areas will be inspected as directed by Warden.

16.2.5

,The condemned will be prepared in accordance with poor responsibilities previously designated by Warden:

16.2.5.1 The condemned may visit with clergyman.

16.2.5.2

An opportunity for the condemned to make last statement will be provided. (Statement shall be recorded by the Recorder designated by the Warden.)

16.2.5.3

A shower and clear. clothing will be provided to the condemned.

14
Guo

00729

•

16.2.6 16.2.7

Aaesigo"ated staff member shall confirm the presence of

.--"~

witnessesJequired by law to attend the execution. Any final
.'I.i--lstructici~s .sha. ll be issued by the Warden•

"" .A designated staff member shall confirm the presence of the "w.itngsses designated a!}d approved by the Commissioner. " 'lpstru¢lons"wll'Qe:is!iued to the witnesses to assure an ilddwstanding'of ti;"ekcbnduct in the Execution Witness Room
a~d' while being escorted to and from the Execution Witness
Room. All witnesses are to have previously acknowledged, in writing, their understanding and agreement to abide by the rules, regulations and procedures of the Agency (refer to Annex V, Example 3).

16.3 One Hour Prior to Execution

One hour prior to the time of execution, designated members (2) of the special escort team will commence the following:

16.3.1

The IV Team will perform a check of all necessary equipment and instruments. A self-test or diagnostic check will be conducted on the heart monitor.

16.3,.2

Special Escort Team members will ensure all straps are in place and functional on the execution gumey.

16.3.3

Communications Check: The same procedures will be performed as at three (3) hours prior to the execution as specified in paragraph 16.1.2.1. The telephone lines between the Commissioner's Office (CP1), the Warden's Office (CP2) and the Execution Chamber (CP3) are to remain open thirty (30) minutes prior to execution time.

16.3.4

Execution Chamber and Execution Witness Room will be inspected as directed by Warden.

16.3.5

Assistants and those required by law to attend executions are

to be issued additional instructions and escorted to the

Execution Chamber and Execution Witness Room as

appropriate. The condemned's witnesses, media

representatives and the State's witnesses shall be processed,

instructed and transported separately as referenced in this

section.

,

15

00730

•

16.3.6 16.3.7

The:,pres~nce of witnesses requested by the
, condi;mil)i:d, those 'approved by the Commissioner, and ,.approved media representatives will be confirmed. , , Instmctions to the witnesses and media representatives will be
, issuPCI, in writing; r(l,assure that an understanding 01 their
,:cor"!dl!;ct.al1d bE:n;avior,during escoTtto and from the Execution' '"Wrtness·Roori(·Alr~itj,esses are to acknowledge, in writing, 't~ei( understanding and agreement to abide by the rules,
regulations and procedures of the Agency (refer to Annex Yl.
The witnesses will be searched, issued additional instructions and IlScorted to the Execution Witness Room. At least one of the correctional officers present shall be a female. Curtains are clospd; microphone turned off.

16.3.8

The condemned is escorted to the lethal injection gumey by' member(s) of the Special EscoTt Team. ten (10) minutes prior to the time of the execution.

16.3.9

Members of the Special Escort Team are stationed at the gurney and will place the body strap in place Immediately.

16.3.10

The Special Escort Team will attach restraints to arms, legs and

-.-.

body of the condemned.

16.3.11

The IV team will place intravenous ports into the veins of both arms of the condemned. The heart monitor leads will be applied to the condemned. If the veins are SUdl that an IV cannot be started. a contract physician will perform the cutdown procedure to establish an Intravenous port.

, Witness Room curtains will be opened by a designated staff member and the microphone turned on. The Warden will introduce himselfto witnesses and issue final instructions regarding the execution.

16.3.13

The Warden or designee will ask the condemned if he has anything to add to the final statement. Such statements will be
limitc:d to two (2) minutes. (Statement shall be recorded by the Warden or des ignee.) A prayer is offered if condemned requ1!sts. which is limited to two (2) minutes.

16

00731

. -

16.3.14 16.3.15 16.3.16 16.3.17 16.3.18
16.3.19 16.3.20 16.3.21 16.3.22

The- co~demiied is read essential Order of the Court; the
,microphone is turned_ off.
-'--Ail unnec~ss~ry staff shall clear the execution chamber.
. . .~: ~
,: _Ej(.ePJtiql1officials _t~k~ their place behind the partition. :~"~~~:.• ..~:--:.:~:"-"~::":~~~'::':'/::~'::"'.: -
.- Fina!:.f::Qmmunkation is made to Central Office Command Post. (CP #1)

The execution is carried out.

16.3.18.1

Three (3) designated staff members inject lethal solution into intravenous tubing leading to ports in the condemned's arm.

16.3.18.2

After ten (10) minutes have elapsed, or the heart monitor shows a "flat line' display, the condemned will be checked by two (2) physicians to determine ifdeatll has supervened.

If condemned shows residual life signs, repeat 16.3.18.1 and 16.3.18.2.

Microphone is tumed on; the fact of death is then announced to the witnesses by the Warder. or designee; the microphone is turned off. The curtains to the Execution Chamber are then closed.

The witnesses and media representatives are escorted from the Execution Witness Room. Media representatives will be immediately escorted from the prison to the press area. -

The IV's are removed, the body is unstraped and removed from the gurney. Photographs will be taken of the body by the State Crime Lab for evidence purposes. The body is placed in a body bag and placed on a stretcher provided by the State Crime Lab. The body is taken by van to the State Crime Lab for a postmortem examination.

17
r; -- --,
",J 'J .......

00732

16.3.23 16.3.24 16.3.25 16.3.26
16.3.27

Pniss'feiease:The Public Affairs Officer for the Department o{ .,-:~ ;CI;;rreCtioi:J5:will advise news media that Order of the Court has , been carried oqt.

" The Wa',den or designee and attending physicians prepar(<;ef.lific,,:te (J~ ex~aition and certify tJ:!e fact of ~ojlfort The.Fe~i~tat~ is to be forwarded to the Clerk of
. SupefiQr Court 0f the cOlInty in which sentence was
pronounced. A copy is forwarded to the Commissioner.

The last statement of the condemned is forwarded to the Central Office, as appropriate.

Interment: The body may be released to the relatives at their expense or should the nearest relative of the condemned so desire, the body will be carried to the former home of the person 'so executed, if in the State of Georgia The expense of such transportation to the former home shall be paid by the Ordinary, County Commissioners, or person(s) having the charge of county funds in which the person was convicted. (OCGA 17-1 D-43).

16.3.26.1

If the relatives do not claim the body of the executed person, interment will be in accordance with GDC Rule 125-2-4.20.

Staff participants will be seen by the Critical Incident Debriefing Team within 'seventy-two (72) hours of each execution or as soon as possible.

00733

----.-'ANNEXI

ADM1NlsTRATri/E PROCESSING Of UDS CASES

. -;; ~
1. Fundamental Requirefl1en.~;tqA~cept l!DS' Cas-es
1.1 As in ali cases,':~~:dlg~;~~~'~i::t:~ections must receive a copy of the indictment, 'a copy of the Sentence, and Affidavit of Custodian, and a
Personal History Statement.

1.2 When the U.S. Supreme Court overtums a death sentence the Department should immediately seek counsel and advice from the Attorney's General's Office prior to taking any further action._

2. Processing the New UDS Cases

2.1 When the ReceptionlRelease Section receives papers on a death case, those papers are brought to the UDS Administrator. If the papers are not proper and GDC is unable to accept the inmate, the papers will be returned to the Clerk of the Sentencing Court with an explanatory letter. If the papers are proper, a telephone cali will be made to the Warden or 1.0. Room at the Georgia Diagnostic and Classification Prison or Metro State Prison (if the cond.emned is female) to establish a date and time for acceptance of the inmate.

2.2 An assignment order is issued to Reception/Release Section. The assignment order will show: maximum security, sheriff to deliver, date of delivery, and place-of delivery. At least one copy of the assignment order will be mailed to the Sheriff so that he will have the authority to deliver the inmate to the Georgia Diagnostic and Classification Prison or Metro State Prison as directed on the order.

2.3 Pertinent data on the case will be listed ir ;fficial •death log".

2.4 Place signiiicant data on the 'working" list of UDS cases.

2.5 Place name, county of conviction and date to be executed on the 'imminent execution" board if case has an active execution date.

2.6 Mail a form letter with copy of the indictment and sentence to: Governor's Office, Executive Counsel; Attorney General's Office; Parole Board; Information Services (form letter only); Warden; _File (Reception/Release).

19 GJ.l.

00734

2.7 The ReceptionIRe!ti"ase Section prepares all the reg!Jlar admission

.-- ..;i,

documents, has setlt~n<:edata recorded In the computer, and sends all

documents to the Records Office.·The Records Office establishes a file, and

this file is ~etur~ed to the UDSAdministrator who keeps all files on death

cases.

. ::;:. -

3.

Other Processing ,;.:..•..._.•.".:.:..~...:..::..:.-~ .. ':.,.' ,-,:- 0:- .

..

. :'.~.~:.. i·.• ~-..: ~. !.

3.1 Those cases wlii~il'~re not 'automatic appeal and have an adive execution

date are listed on the "imminent" board showing name, county of

conviction, and date to be executed. The UDS Administrator keeps abreast

of this board and when a case gets within five (5) days of the scheduled

execution date he will determine status of any appeal process or the

necessity to go ahead with operation procedures for carrying out the death

sentence. He will confer with the Attorney General's Office, the Parole .

Board, and the Warden of the Georgia Diagnostic and Classification Prison or Metro State Prison daily to determine the Status of each ca~e within the

five (5) day time schedule and document any additional information.
Whenever the ubs Administrator is away from his ofrice for one or more days, he will appoint an interim UDS Administrator. A special 'UDS' five

(5) day schedule log will be maintained and kept up-to-date, (see attached).

A copy of this log is provided to the Director, Facilities Division. each day.

A separate log is kf'pt on each case and is filed in the appropriate UOS file

upon the granting of a stay.

3.2 A stay of execution at this time can be received in several w~ys.

3.2.1 A copy of a court order can be received or a message can be received by phone.

3.2.2. Phone messages could be received from:

3.2.2.1 3.2.2.2
3.2.2.3
3.2.2.4 3.2.2.5

the inmate's attorney; from the Clerk of Court; from the Parole Board; from the Warden; and and from the Attorney General's Office.

3.3 Notification of Stays which are received by telephone must be verified immediately for authenticity with the Attorney General's Office. The appropriate institution, as well as the State Board of Pardons and Paroles
should be notified by telephone and lor fax mac:line upon verification of this

20
r.)'.....;~'-:

00735 ..

':<" " information. All coi.]"cicts. referenced in items 2 and 3 are documented on the'-'~
•5-day' Log.,'- ; '.
4. Other Documents That May 'Be Received
. . -:.: .
4.1 Various length~:()f ~t~y·of.!=xeC!ltiQn.Issued by the courts. Any court order or other action wfiidi'.i:lelays· ai(~ei:utiOlj beyond the scheduled execution prohibits furtherirdion until"a'new e~ecution date is established by the sentencing court and valid documents are received.
4.2 An order may be received confirming the conviction but overturning the sentence, In such a case the District Attorney in the county of conviction would be responsible to have the inmate returned to the county to be resentenced. (If GDC alreac!y has a valid concurrent sentence which the inmate is serving, the Department of Corrections may retain custody.ofthe irimate for service on the concurrent sentence).
4.3 An order may be received which overturns the conviction. In this case, the inmate does not have a sentence, and is not convicted and, again, the District Attorney of the sentencing court is responsible to return this person to the county. As above, if the inmate has a concurrent sentence, we may retain custody of the person for service of the concurrent sentence.
4.4 Should all appeals fail, or not be applied for, the inmate or his attorney could apply to the State Board of Pardons and Paroles for a Stay to take up the question of commutation of the death sentence. This request for a Stay will probably be made at the "eleventh hour". It will be necessary to maintain close communication with the Parole Board during such period.
4.5 The Parole Board may commute the sentence to life or other sentences or decline to grant a commutation, thus upholding the sentence of execution.
:·.6 A court order establishing a new execution date may be received after
receipt of the Parole Board decision (except Parole Board commutation). At that time the inmate's name and execution date would be placed on the 'imminent execution' board as indicated in paragraph II, #5. The case then would be followed through again until another Stay is granted or an execution takes place.
4.7 Upon receipt of each of the documents mentioned in this section, a copy of that document will be mailed, with a form letter, to each of the offices listed in paragraph II, #6.

21
G;.; .,;

00736

•

5. Metro State Prison

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

Women under death-se-ntencei0h~ are confined at Metro State Prison will be

will transferred to the execution site in acCordance to Section I, 2.5 of the 'Execution
Procedures". The two (2J -dayprocedure commence as described in Section III of this document andjhe:i~~erto,_tIle:~xecl!tion site will occur two (2) days prior to the scheduled execi:i~~~:1ate. - ~;::: l".:-_: _!_

00737

'.

-:.- . ".

.
-:.,,--;\

ANNEX
.-

Il

, TASK DESCRIPTIONS OF STAfF

.;.

PHYSICIAN 1

. ...... ,. .

.'.,

Examines

condemned:t¢''d.e:.ter~f~ez:1l. i. ah~~".Q.. rder

of

the

Court

has

been

carried

out.
-

.

. .;_:--,'.7" ;

•• ,'

. PHYSICIAN 2 Administers treatment to participants if the need arises. Confirms findings of Physician 1.

Accompanies Physician 1 to the record office for completion of death certificate.

PHYSICIAN'S ASSISTANT Administers treatment to witnesses and staff if the need arises.

MINISTER/CHAPLAIN/MEMBER OFClERGY Maintains frequent contact with condemned during Death Watch period and up until condemned is removed from cell to Execution Chamber. Assist family, friends and others as indicated. Provides prayer in Execution Chamber if desired by condemned.

RECORDER (Appointed by Warden) Performs check of all recording equipment before the arrival of the condemned in execution chamber. Asks the condemned if he/she wishes to make a last statement. If so, records same and transmits to the Warden's Office as soon as completed. Records two (2) minute addition made by the condemned to hislher last statement just before the execution, if applicable.

DEATH WATCH OFFICERS Assume duties at Death Watch prior to execution time. Maintain strict observation Of the condemned for self-inflicted injury. Report any unusual observations to the Supervisor in accordance with POST orders.

RECORQS OFFICER Prepare death certificate with all pertinent data. Notify family of the deceased that the order has been carried out and to determine disposition of the remains. Notify clerk of court. Prepare and file last statement.

FOOD SERVICE DIRECTOR OR DESIGNEE Frepareslprocures and delivers all meals to the condemned during Death Watch.

23 6~J

00738

CHIEF OF SECURITY (CORRECTIONAL MAJOR)

<~

Schedules Death Watchpersoririek . . .

CoordinatEs with FoodService:DirEctor, or dEsignee, for the condemn's choice

of last meal.

Assigns specific staff to specific fllnctions to'prepare condemned for execution, such

as: shower, clothing, etc.; ..;, " _ . . _ . Assures that adequate'p,~6'nen5,av3i:I~l:iliito es'cort condemned to the execution

chamber.

. " 'i:':"'" '; : ":':' " : ;

Provides for escort of witnesses to execution witness room.

Serves as back-up to staff member designated to obtain, mix and deliver the lethal

injection drugs to the execution chamber.

DEPUTY WARDEN OF SECURITY Through his commissioned officers:
Assures that remaining part of institution is secure from possible adverse action. Assures that only authorized persons enter guard line area. Prepares for crowd control. Assures that communication system is established and maintained. Obtains, mixes and delivers the lethal injection drugs to the execution chamber. Ensures that the execution is carried out in accordance with the laws of the State of Georgia.

DEPUTY WARDEN OF CARE AND TREATMENT Assures that physicians, chaplains and records ofiicer personnel are briefed on their
duties. Supervises Command Post #2. Ensures that the victim's family, if present, are properly supervised.

WARDEN Briefs all personnel assigned tasks during the execution. Telephones Commissioner regarding any change in status. Ensures that the execution is carried out in accordance with the laws of the State of
Georgia.

24
6 ".jL.J~

00739

.....'.,; .

ANNEX 1Il .. ,.. ,'. "

:~,~.;: :

~

'

IV TEMI "DETAILED INSTRUCTIONS

SET UP PROCEDURE:
.

:~~-;:...:::: ~~..~- ~~::.-->. -~~:: ':~: /:~-::. .

1. The Warden or des!gn~~wiU have ~~'inU-;;v~~ous infusion device placed in each

arm of the condemned and a saline solution available for an infusion medium.

Those persons engaged in this activity will be referred to as the IV Team.

2. An IV administration set (Travenol12COO05 or equivalent) shall be inserted into the outlet of the bag of Normal Saline IV solution. Two (2) IV bags will be set up in this manner.

3. The administration set tubing for both set·ups will be connected to the receiving port of the three-way control devices; one for the left arm. the other for the right arm.

4. IV extension tubing (Travenol #2C0066 or equivalent) will be connected to the discharge ports on the rightlleft three-way control device and shall be thereafter be connected to the applicable rightlleft angiocathfcathlon. Extension tubing will be of sufficient length to accommodate distance from the control device to the IV insertion site.

5. The tubing shall be cleared of air and made ready for use.

6. Angiocath!cathlon devices shall be initiated through standard procedure for such devices. Once infusion of IV solution has been assured. the IV devices shall be secured to the rightlleft arm as necessary.

7. At this point. the administration sets shall be running at a slow rate of flow (K'<tO). and ready for the insertion of syringes containing the lethal agents. The Warden or his designee. shall maintain observation of both set-ups to ensure that the rate of flow is uninterrupted. NO FURTHER ACTION shall be taken until the pr~arranged signal to start the injection of lethal agents is given by the Warden
or designee.

25
00740

~.."....<. '.' . ANNEX IV

--,.. ~

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

fNH~c. .tlbN TE. AM.. DETAILED INSTRUCTIONS

. - '~'.
INJECTION PROCEDURE:<~:,..;~i:::}~. ~:':"-:~::'J.~:~ /;~:: :'. .
1. The three-way contrcif'~vice facillfutes the movement of infusion fluid from the saline bag and a/fowS'for the Interdiction of lethal agents. A valve serves to direct which fluid source is entering the IV set-up.

2. When the signal to commence.is given by the Warden:

2.1 Syringe #1 (Sodium Pentothal) shall be inserted into the designated receiving port of the three-way control device.

2.2 The flow of saline solution will be interrupted by moving the three-way valve assembly to the saline solution receiving port.

2.3 The contents of Syringe #1 shall commence with a steady even flow of the lethal agent. Only a minimUm of force will be applied to the syringe
plunger.

2.4 When the contents of Syringe #1 has been injected, the three-way valve assembly will be moved so as to effect the retum of saline infusion.

2.5 Syringe #1 will be replaced by Syringe #2 (Pavulon) and the procedure described in 2.1 through 2.4 will be repeated.

2.6 Syringe #2 will be replaced by Syringe #3 (PotassIum Chloride) and the procedure describE'd in 2.1 through 2.4 will be repeated.

2.7 This procedure shall continue until all three syringes have been used or until the contract physician advises the' -len or designee to cease due to the
absence of life signs.

26
00.7.41

ANNEX V
~. :."; ~'.

~-- .-~

SA.'yIPlE LETTERS

EXAMPLE 1

Letter to Witnesses Required liy~,~~~&r~ tiW.(S6i. r::'0'g";;ph 11.0).

Deliver to addressee - by hand (du-,.l.l.l.i.p\.te).

.: ':':. .

". '-

In Accordance with Georgia Law, the execution of

has been set for

(time and date). Your duties as

require that your presence at this

execution take priority over al/ other matters at the specified time. You should report to the

Warden's Office at

on (date of execution) unless otherwise instructed by me.

Please complete the acknowledgment below and deliver the original to my office.

Sincerely,

Warden

Warden Georgia Diagnostic and Classification Prison Jackson, Georgia 30233

Dear Sir:

I acknowledge receipt of the notification of Execution Date

at (time)

(date)

, and will be present in the Warden's Office at

(time)

on the date of the execution or as otherwise instructed by you to perform my

assigned duties. I hereby declare that I will not hold the State responsible for any physical ~

emotional duress which may occur as a result of observing the execution.

Signature

Distribution: Original: Copy: Copy:

Warden Addressee File

27

00742

EXAMPLE 2

.' ...;-

,
Certified Mail

Return Receipt Requested··

(Personal Address)

The execution of

(name) has been scheduled for

(time),

(date) at the Georgia

Diagnostic and Classification Prison, Jackso'), Georgia

In the event the execution is carried out,

(name) has

requested that you be present at this scheduled execution. In accordance with Georgia

law, this wish is conveyed to you;·however, it should be pointed out that your attendance

is in no w<!,y compelled and is totally voluntary.

Should it be your desire to be present at this scheduled execution, you must sign and return the enclosed acknowledgment to the Warden's Office at Georgia Diagnostic and Classification Prison prior to the specified execution time. Acknowledgment by telephone to my office will be acceptable (telephone 770-504-2011) provided the signed acknowledgment is presented upon arrival at my office. If you desire to attend, you will be contacted by telephone telling you when to present yourself to the Warden of the Georgia Diagnostic and Classification Prison at a stated time of the stated date. Please note the conditions and stipulations upon your attendance, contained in the acknowledgment, to which you will be held should you attend this execution.

Sincerely,

Warden

. Enclosure

28 --, ~_: V

00743

EXAMPLE 3

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

.:-- .--~

Warden Georgia Diagnostic and Classification Prison Jackson, Georgia 30233

Dear Sir:

. . ~.-

This will acknowledge receipt of notification of the request of (name) for my presence at hislher scheduled execution. I further understand that my attendance is voluntary and of my own free will. I further agree to abide by all standards and procedures specified by the Warden prior to the time of the scheduled execution. I understand that no photographic or recording equipment is allowed in the execution witness room and agree to submit to whatever searches may be deemed appropriate by the Warden-of the Georgia Diagnostic and Classification Prison. I fully ·understand that should my presence or my behavior constitute a disturbance or disruption to the proceedings that I may be denied access to the execution or may be ejected from same. I further acknowledge that I may be denied access to the execution or may be ejected from same if, in the judgement of the Warden of the Georgia Diagnostic and Classification Prison, conditions dangerous to the security of the Georgia Diagnostic and Classification Prison arise due to the conduct of actions of others_ Furthermore, I hereby declare that I shall not hold the State responsible for any physical or emotional duress which may occur as the result of observing the execution.

Signature
)
;elephone Number Where You May Be Contacted

29 7vl.

00744

·......: ANNEX VI
. -::.
CROWD CONTROL ON EXECUTION DAY 1.. All visitors to the Georgia Diagnostic and C1a?sification Prison on Execution Day
shall be requested to 5f?-~i(the piJrp~sfo(t!1ei~ visit upon entering the reservation and to fumish appropriqt~..id.entification prior io being allowed to enter. 2. Visitors to the Institutional Reservation shall be directed to one of the following areas and given the appropriate colored arm bands: 2.1 Those Opposing The Death Penalty (Green Arm Band) 2.2 Those Supporting Death Penalty (Blue Arm Band) 3. Media representatives shall be directed to a specified area and given a yellow arm band. 4. Regular inmate visitation will be canceled. 5. Departmental visitors shall be limited to staff that have an official execution function that specifically requires them to be present at the institution.
30 00745

-. ::;<",-: ANNEX VB
" ~~-~(~.# .
CENTRALOFFICE ~si:cuRrTY FOR SPECIAL EVENTS

When notified of a special even.twqidJ__couI9Ifl<ld:to a disruption of normal office routines, the following shall a-~~r:-::t!ie gQ~[i&:-(o.:~n~ure that the orderly conduct of business be maintained-~- ._ <-.:.-,.-; .. -. : - . ;.

1.0 Three or more days prior to a scheduled event:

1.1 Notify the following offices of the anticipated event and advise them of the possibility of disruptions at the Central Oftlce:
1.1.1. Office of the Commissioner 1.1.2 Division DIrectors
~ Facilities - Probation 1.1.3 Board of Pardons and Paroles - Executive Officer 1.1.4 Atlanta Police Bureau 1.1.S Georgia State Patrol 1.1.6 Georgia Building Authority

1.2 Ensure that needed Intemallnvestigations are appropriately scheduled.
1.3 Arrange for all-night security for night prior to event, if indicated.
1.4 Notify tlie Communications Center and arrange for communication back-up after normal work hours.

1.5 Review"Actions to be Considered", evaluate and prepare for response to

,

those deemed appropriate.

.~-

2.0 One day prior to scheduled ~vent:

2,1 Provide agencies with up-to-date information and confirm the anticipated responses of each.

2.2 Survey Central Oftlce for security deficiencies and take necessary actions to resolve each.

2.3 Arrange 'break-room" facilities if stand-by personnel are to be utilized.

31
~.
IUd

00746

-·

2.4 Assign night-Iongse~ur{ty to prevent or immediately detect
intrusionlsabqtage. a'ctsqi'attempts, if indicated_

3.0 Day of Special Event:

3.1 Personnel assigrJ~(Uqr'se~urity purpOses report to designated location for

briefing

by

desitJq.a{ea:dffice(iiJ,~~arge

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

:.. .

,.: ~

and

assignment

of

Post

Orders.

3.2 Officer in Charge shall brief support personnel (i.e., receptionists,

Commissioners Secretary, Division Directors) of special arrangements

and specific procedures for obtaining security assistance if needed.

3.3 Day After Special Event:

3.3.1 Review the overall responses and prepare written critique for future

considerations.

.

3.3.2 Write letters of appreciation to all agencies who provided support.

4.0 Additional Measures for Consideration:

4.1 Will visitors need screening on all floors at the Central Office? If so, alert receptionist (via Office of Board/Special Events) and make arrangements for coverage on all floors. Will eighth floor receptionist be sufficient for coverage on that floor? Arrangements must be make with the Georgia Building Authority conceming scre2ning on the Plaza and other levels.

4.2 Will additional security personnel be needed to maintain an orderly conduct for business? Georgia Building Authority has authority within the James Floyd Veterans Memorial Building and security arrangements with all other Agencies should be coordinated with the Georgia Building Authority.

4.3 Will all-night security be needed the night prior to the Special Event? If so, coordinate through the Georgia Building Authority. Internal Investigations or related staff may be required to perform this function on floors occupied by . the Department of Corrections.

4.4 Are Division Directors and the Board of Pardons and Paroles sufficiently aware of the potentials and the need for each area to be secure? If not, provide necessary security briefings.

32
00747

4.5 Will there be a potefitiill hostage situation involving staff, GEorgia

--",~

Department of Coriectionsofficials and/or families?

. Consider: ", " , . ,~..~.....

.

4.5.1 Security ofhol)l6s and family;
, 4.5.2secuii~:p.e~,$n~'eifron;: 6.~~rgia State Patrol, Georgia Bureau of Investiga~J}i;or Internal Affairi provide immediate escort and protti!ctio'n fot certain persons; or

4.5.3 Provide a combination of the above. Georgia State Patrol to provide physical protection for the Commissioner or others as needed.

4.6 Will additional communications equipment be needed (Le., walkie-talkies)? If so, coordinate with the Facilities Division to obtain necessary equipment.

4.7 Have Central Office personnel who have police/security training and authority through the Georgia Department of Corrections been identified and briefed in event their assistance is needed?

4.8 Has the role of the Board of Pardons and Paroles staff, especially those with police/security training and authority been considered and discussed with the Executive Officer of the Parole Board?

4.9 Are Post Orders up-t<Hlate and sufficient for the anticipated needs?

4.10 Dependent upon severity of anticipated event, is there a listing of all nonGeorgia Department of Corrections employees on'floors shared with other agencies?

4.11 Consider degree of telephone security needed and whether trunk lines' servicing entire building need protection? (See G.B.A.)

4.12 Consider access to be granted or denied the cleaning staff the night pri, , a special event. (Coordinate with G.B.A.)

4.13 Consider traffic blockages, access to building and emergency transportation.

4.14 Consider back-up communications: telephone, teletype, radio and courier.

33 00748

•

',.

5.0 N oti/icanon lL<t:

. ~'.'

. . .:

,".

--- -.~

5.1 Offiee of the Com~i~¢~~

5.1.1 5.1.2

Jim W~herington,Commissioner (or designee) ,Offic{~: (404) 6S~002
):;. :~~'.;::>::: ~-~··~::~/·t i:~::; ~?: -'.
Jci~f?rrero, ,AS!i:istanf Commissioner
Offlc,.;· (404) 656-6002

5.1.3

James Doctor, Director - Facilities Division OfficI': (404) 656-2809

5.1.4

Communication Center - Evenings and Weekends (404) 651-6511

5.2 State Board of Pardons and Paroles

5.2.1

Waltf'r Ray, Chairman Offie,,: (404) 657-9451

5.2.2

Duty Officer· Evenings and Weekends GDC Communications Center (404) 651-6511

5.3 Georgia Building Authority

5.3.1

Helen Scholes, Executive Director OffiCI:: (404) 656-3250

5.4 Georgia State Patrol

5.4.1

Comrnunicatl "irector

(404) 624-701_

34
"
"

it"""~. ... V·j

.-. - ..----

00749

5.5 Georgia Bureau bHnvestigation

~-- .~

5.5.1 5.5.2

','viilton Nix; Dira"'tor

(404) 244-2501

- ..~. .

Chris, Ash, Special Ageqt lei Charge

(404f2~.4:':255A;:<:: '.

", \ __ •__ .

• ~.; _: 1.,_",

,

- ;_:"", ....'1. ,:

5.6 ATLANTA POLICE BUREAU

5.6.1

Beverly Harvard, Chief of Police (404) 817-6900

" -~-

35
.....
( IJ I

00750

. -·~·~)~~~.~_f~!.~~~·-

'0- .•"

..•.. :...

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lUtrtEX VIII
.:i'
"':.:...i..,b.:..l.-..:'''.I,.V.- ITY ~OG - I$ATE WATeR

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'-D.a--te-

Time
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:

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Off:i,.cerst:;taff

,

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·0

36

00751

\.

(,) •... *~

0,".',

ANNEX IX

'.

U.D.S; 5~DAY stHEDULE

NAME:

------.-,.--.--.-.------------. INMATE

g.

:.: .:'...

EXECUTION.

-~-----"-""'---""'-------""

'.

DATE '•

TIMEI' '

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'I.'

"I".

,,.'""

.

t

,)
..

An Dn. c.

.

CONTACT
PERSON. 'tELE#.

CONTACT PERSOll.
. ;LEi.I. TIME, STATus

'" '.

..... ..

P; ETJ\':trS.mO.N' S. TATUS.:..

:. '..

•

DAY ORE

TIME stATUS

.. ' '..'..... c
..,\:.,
: ...
: .•!: ;: '.~ ',,'.;.,\

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.. ,\·1 t~:;:~:.,

,'., "*~':"f::...

.~,.'..,

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",

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;.~:;·,.·.\.··x

iDAYTWO

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c:

t/'·:·.

C· DAYTBREIl

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. '

DAY FOUR DAVFIVF.. II
QQ...
U1 N

if'

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37

II
t, '(.
I~":

. -'. ~'
. . . '.' ~'""." ".
ATLANTA OFFICE ACTIONS TAKEN AFTER NOTIFICATION BY ATTORNEY GENERAL'S OFFICE OF PENDING
. . .." . XXECUTI()N

ACTION.

. ......... .

. ' ..

RESPONSIBILITY

LEst.blisb c::<ccution date and time Commissioner

2. Advise Attorney General's Office f aci!ities Division

3. Advise Jnternal Affairs .
4. NotifY other involved stale agencies and establish meeting time ifnecessary with Commissioner

Facilities Division Facilities Division

S. Obtain wTitten certified copy of execution order.

facilities Division

6. Fwnish copy oforder to Warden f.cilities Division

7. Design.te tactical squad(s)

Facilities Division

8. NotifY Northern Region Director to arrange on-site security
9. Maintain five-day checklist with. Anomey Gen<ral, Parole Board, and Warden

facilities Di,ision facilities Division

10. Prep"!,, updated list ofprior

Facilities Division

e."<ccutions-for GDC Command Post

I 1. Develop list of wilnesses

Commissiooer's Office

12. N"tilY";tnesses ofthe date and Commissioner's Office :ime

BY ACCOl'fIP. DATEfI'lME
!
"-

38
....
( ., ij

00753

A •

ACI101'lRE~~~0S~~.. I ~ .------------------c--~·------------,_--~I------~------~· BY ACCOMP. DAn:rrn.rz
13. NotifY appropriate pross to develop witness list

14. Fmaliz. witness \isIS
15. NotifY all witnesses ofdate onid . "t~~ooer'~ Office
time (appropriate information)

16. Arrange building seanity (ex""utive tower)

lnti:mal Affairs

17. Meet with staff and agency representatives at institution

Facilities Divisioo

18. Verify that all communications

systems are operational (day prior to

cxecutioo)

.

Facilities Division

19. Establish building seanity (night Internal Affairs
before execution)

20. Esrablish and make lim commtmicattoD check (morning of execution) from Commissioner's Command Post

Facilities Divisioo

21. Notify all instirutions to maintain Facilities Division

radio silence one hour before and one

hour after execution

"' .

22. Maintain contact with witnesses Public Affairs until e.xecution

23. Maintain hourly check of communications beginning three (3) hours prior to execution (Command Post)

Facilities Division

39 00754

•

ACTION

- ~.lUSPONSmILITY
--,-,:,\ ,

BY ACCOi'tIP. DAT21TIi'>IE

24. Maintain condemned inmate's official file in GDC Command Past

Faciliii;'" Division

. ..;' -

--

25. Establish op<n line to boadquartc:rs 30 minutes prior to execution

:~ -'~

?•F-"ac-.i:lit:.ie::s--

".I;livision (-~::

{;::.--.

.:--:0

'.

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

~
'- -

26. M<et in Command Past with Attorney Goneral and appropriate !>=oruI

AlIlnvolved

27. Conduct final check for stay with "Jtomq Goneral
appropriate persons

28. Give fmal order for execution

Commissioner

29. Secure tape aod fiJesof execution Commissioner'3 Office

30. Transcribe tapes from Commissioner's Connnand Post and GD&CP

Commissioner"s Office

31. Write letI!'IS to witnesses and other involved agencies

Commissioner" s Office

40
t-(. 1..,,--

00755

TabD

i "
,

. CONF\OEN1\AL

t

GEORGIA DEPARTMENT OF .
. ---CHRREtl'IGNS-- ----- ...----,-,-------
LETHAL INJECTION PROCEDURE SEPTE:MBER 9, 2002

CONFIDENTIAL

., PREFACE
GEORGIA LAW PROVIDES THAT WHEN A PERSON IS CONVICTED OF A CAPITAL CRIME AND RECEIVES A DEATH SENTENCE, THAT SENTENCE IS AUTOMATICALLY APPEALED TO THE GEORGIA SUPREME COURT. THIS, ALONG WITH OTHER LEGAL REMEDIES AVAILABLE TO PERSONS UNDER DEATH SENTENCE RESULTS IN INMATES . WITH DEATH SENTENCES BEING HELD IN THE CUSTODY OF THE GEORGIA DEPARTMENT OF CORRECTIONS FOR LENGTHY PERIODS OF TIME. AN EXECUTION MAY ACTUALLY OCCUR WHEN THE· PAROLE BOARD HAS CONSIDERED AND DECLINES TO MODIFY THE DEATH SENTENCE, OR WHEN THE APPEAL PROCESS HAS BEEN EXHAUSTED, OR WHEN THE INMATE IS DEMANDING THAT THE SENTENCE BE CARRIED OUT.
ii

GEORGIA DEPARTMENT OF CORRECTIONS EXECUTION PROCEDURES
AUTHORIZED DISTRIBUTION

Copy #1

Governor State ofGeorgia

Copy #2

Attorney General State ofGeorgia

-._--_ ._ Copy #3
- - _.....

... -

Commissioner _ _ _ -.- ..- . _... .•.... - ..

.. .. _-.

Copy #4

Facilities Division Director

Copy #5

Director Special Operations

Copy #6

Northern Regional Director

Copy #7

Warden Georgia Diagnostic and Classification Prison

Copy #8

Warden Metro State Prison

Copy #9

General Counsel Legal Services

iii

TABLE OF CONTENTS

I. RECEPTION OF UDS CASES Section

1.0

The Sentence

1

1.1

Sentence of Death

1

- Certified Copy of Sentence

- Ten (10) Days Prior to Execution

1.2

Change of Date

1

- Reasons for Change

- Reset Order for Execution

- Delivery of Reset Order

1.3

Acknowledgment ofNotification

1

1.4

Notification ofOthers

1

------------ ---------- - ---~2~.-(J--~-------Ue1iveWonlleCOnderiiliedPerson-

----1------------ ----------

2.1

Delivered to the Commissioner

1

2.2

Delivery by Sheriff

1

2.3

Orders to Sheriff

2

2.4

Transfer to Execution Site

2

3.0

Admission Processing

2

4.0

Confinement

2

n. HOLDING AND PREPARATION FOR EXECUTION

3

5.0

Preparation for Execution

3

6.0

Notification

3

7.0

-Death Watch

3

7.1

Observation

3

7.1.1

Security ofExecution Chamber

3

7.1.2

Log of Activities of Condemned

3

7.1.3

Meals for Condemned

4

7.1.4

Telephone Communication Check

4

7.1.5

Disinterested Person Visitation

4

7.1.6

Medical

4

7.1.6.1

Sick Call

4

7.1.6.2

Requests for Medical Attention

4

iv

Section

8.0

Personal Property of the Condemned

4

8.1

Inventory and Sealing ofPersonal Property

4

8.2

Supervised Process

4

8.3

Sign Inventory Sheet

4

8.4

Recipient ofPersonal Property

4

9.0

State Issue Items

5

9.1

List ofItems

5

9.2

Items Allowed Upon Request

5

9.3

Approval ofExceptions

5

9.4

Disallowed Items

5

9.5

Destruction ofPersonal State Issued Items

5

6

II.O

Designation of Staff

6

II.I

Notification of Staff

6

1I.2

Restrictions

9

12.0

Witnesses That May be Present

9

12.I

Space Limitations

9

12.2

Witness Restriction

9

12.3

Witnesses Requested by the Condemned

9

12.3.1

Contact of Witnesses

9

12.4

Other Witnesses

10

12.4.1

Arrival of Witnesses Required by Law

10

12.4.2

Arrival of Witnesses Requested by Condemned

10

12.4.3

Arrival ofWitnesses Approved by Commissioner

10

13.0

Media and Public Information Office

10

13.I

Interviews with the Condemned

10

13.2

News Media Representation

10

13.3

Media Briefings

10

13.4

Live Broadcasts by Media

10

14.0

Visitation by Family

10

14.0.1

Visitor Parking

10

14.0.2

Assignment of StaffPerson (Chaplain)

11

14.0.3

Visitation Room - Limitations

11

v

Section

14.0.4

StaffResponsibilities During Visitation

11

14.0.5

Meal for Condemned

11

14.0.6

Dress Code for Visitors

11

14.1

Visitation by Others

11

14.1.1

Daily Chaplain Visitation of Condemned

11

14.1.2

Attorney Visits

11

14.2

Victim Family Remaining During Execution

11

15.0

Telephone Access ofCondemned

12

m. DAYOFEXECUTION

16.0 16.1 1 6 . r ------~ 16.3 16.3.8 16.3.12 16.3.18 16.3.22 16.3.26 16.3.27

Day ofExecution

12

Within Three (3) Hours of the Execution
"-'Within-Two (2) HoursoftlieExecufion

........

--

--

-_.

_.-

.------1n2---..--

--

-.------

Within One (1) Hour ofthe Execution

14

Preparation of the Condemned

15

Administrative Steps Preceding Execution

15

Execution Carried Out

15

Post Execution

16

Interment ofCondemned

16

Critical Incident Debriefing

17

vi

UNDER DEATH SENTENCE
TABLE OF ANNEXES

ANNEX# Annex I Annex II Annex III
Annex V Annex VI

TITLE Task Description of Staff Intravenous Team - Detailed Instructions Injection Team - Detailed Instructions
Activity Log - Death Watch Controlled Chemical Handling Procedures for Execution By Lethal Injection With Attachments

PAGE 18-19 20 21
23 24-29

vii

I. RECEPTION OF UNDERDEATH SENTENCE (DDS) CASES 1.0 THE SENTENCE

1.1 Upon a verdict or judgement ofdeath made by a jury or a judge, it is the

responsibility ofthe Clerk ofCourt, in which said sentence is pronounced, to

forward a certified copy of said sentence to the Warden ofthe Georgia.

Diagnostic and Classification Prison not less than ten (10) days prior to the

first day of the seven (7) day execution period as fixed by the court (OCGA

17-10-33).

.

1.2 Where the date for execution has passed for any reason, i.e., appeal, habeas corpus, State Board ofPardons and Paroles, etc., the judge of the Superior Court ofthe county where the case was tried shall have the power and authority to fix a seven (7) day period for the execution of the original sentence. Such order shall fix the seven (7) day period not less that ten (10)
---------~n·or~morellian-twen1Y (20) days from the date ofsuch order. Such order shall
be sent immediatelyto the Warden ofthe Georgia Diagnostic and Classification Prison (OCGA 17-10-40).

1.3 In either event, described in Paragraph 1.1 or 1.2, the Commissioner and the Warden of the Georgia Diagnostic and Classification Prison will immediately notify one another and immediately forward to the other a copy of the sentence (Execution Order) or other orders.

1.4 In addition, the Commissioner will reproduce said sentence or order and forward a copy to the Governor (Attention: Legal Counsel, Governor's Office); Attorney General's Office, and.the Chairman ofthe State Board of Pardons and Paroles.

2.0 DELIVERY OF THE CONDEMNED PERSON

2.1 In all cases in which the defendant is sentenced to be executed, it shall be the duty ofthe trial judge in passing sentence, to direct that the defendant be delivered to the Commissioner of the Georgia Department of Corrections for execution at such state prison as may be designated by said Commissioner, (OCGA 17-0-38).

2.2 It shall be the duty of the sheriffof the county in which such convicted person is so sentenced to convey such convicted person to said state prison not more than twenty (20) nor less than two (2) days prior to the time fixed in the sentence for execution of the condemned person unless otherwise directed by the State Board of Pardons and Paroles, orunJess a stay of

1

execution has been caused by appeal, granting ofa new trial, or other order of a court of competent jurisdiction, and the expense for transporting of said person to the state prison for the purpose of execution shall be paid by the Ordinary ofthe County wherein the conviction was had, or the Board of County Commissioners, the County Commissioner, or other person or persons having charge of the county funds, out of any funds on hand in the treasury ofsuch County, (OCGA 17-10-33).
2.3 The Commissioner will issue assignment orders to the Sheriff of the County of conviction and forward copies of the Order and sentencing documents to the state prison. Delivery ofthe condenmed person by the Sheriffwill be arranged and coordinated by the Commissioner between the Sheriffofthe County concerned and the Warden of the prison..
2.4 Persons under death sentence incarcerated at institutions other than the institution designated by the Commissioner as the execution site will be transferred to the execution site approximately two (2) days prior to the scheduled execution date. Details ofsuch transfer will be coordinated by the Commissioner.
3.0 ADMISSION PROCESSING
Upon arrival of the condemned person at the Georgia Diagnostic and Classification Prison or Metro State Prison, he/she will be processed through regular inmate admission procedures, to include security search, medical examination, fingerprint, photograph, personal history infonnation, etc., to include a complete diagnostic evaluation, a copy of which will be provided to the Commissioner ofthe Department ofCorrections, and the State Board of Pardons and Paroles.
4.0 CONFINEMENT
The condemned person will be confined in a cell designated by the Warden. Appropriate safeguards and security measures will be maintained as directed by the Warden. Pending the invoking of the Death Watch, the condemned person will be maintained in accordance with Departmental Rules and Regulations, special regulations for persons under death sentence, and specific court order. Persons delivered to the execution site less than thirtysix (36) hours prior to the time ofexecution, (refer to Paragraph 2.2), will be processed immediately and assigned to the Death Watch Cell.
2

ll. HOLDING AND PREPARATION FOR EXECUTION

5.0 PREPARATION FOR EXECUTION AND TIME OF EXECUTION

The order of the court will specify a time span for the execution. A specific date and time within the designated time span will be established and announced by the Commissioner to the appropriate personnel on a need to know basis. The date and time for execution should be finalized seven (7) days in advance.

6.0 NOTIFICATION

Upon receipt, the Warden or his designee shall read to the condemned inmate the Order of Execution issued by the court of conviction. The condemned will sign the Order acknowledging notification of the Order and the signature of the condemned will be witnessed by the staffmember and same will provide the condemned with a copy of the Order. Ifthe condemned refuses to acknowledge receipt of the Order of Execution, the Warden or designee shall read the Order ofthe Court and acknowledge receipt for the condemned, in writing, which shall be witnessed by a staffmember other than the Warden and attached to the Order.

7.0 DEATH WATCH

The condemned shall be moved to a designated cell, and observation shall begin thirtysix (36) to twelve (12) hours but an optimal eighteen (18) hours prior to the scheduled execution. A minimum of two (2) officers shall be assigned to observe the condemned at
all times during Death Watch. Ifthe condemned is II female, security will be maintained
by female security personnel. Duties shall be established by the Deputy Warden of Security and the Warden. No other correctional staff, or civilian personnel, except medical personnel, shall be allowed in the Death Watch area without approval of the Warden or designee. No inmates are allowed in the Death Watch area.

7.1 Observation

7.1.1

Security ofthe Execution.Chamber and the Execution Witness Room is the responsibility of the Warden ofthe institution, or designee. Security briefings shall be held as appropriate.

7.1.2

The officer in charge on each shift shall supervise the use of all items retained by the condemned and shall maintain a log of all activities of the condemned to include, but.not limited to, the times of feeding, showering and all other occurrences.

3

7.1.3

All meals for the condemned during the Death Watch shall be . prepared/procured and delivered by the Food ServiceDirector,
or designee. The activity log sheet shall reflect all names of persons delivering meals, menu items served the condemned and whether they were consumed or returned, to include date and time.

7.1.4

A communication check, by telephone/radio, shall be made every thirty (30) minutes, on a continuous basis, during this period by the Death Watch Officer to the institution's control .center. TIlls communication check shall be logged.

7.1.5

Medical

7.1.5.1

Sick call will be in accordance with institution Rules and Regulations prior to the Death Watch period. During the Death Watch, sick call will be in the Death Watch area.

7.1.5.2

Request for medical attention by the condemned, in addition to sick call, will be provided in the Death Watch area unless determined inappropriate by the Medical Authority. A medical determination to examine or treat the condemned in other than the Death Watch area should be coordinated with the Warden as soon as possible..

8.0 PERSONAL PROPERTY OF THE CONDEMNED

8.1 The condemned shall personally take inventory, pack and seal his personal property at the beginning of the Death Watch.

8.2 The inventory process and sealing ofpersonal property shall be performed under the supervision of an institutional officer and another staff person designated by the Warden.

8.3 The condemned shall sign a completed inventory sheet which shall be wituessed by the officer and the other staff member.

8.4 The condemned shall indicate, in writing, on the completed inventory sheet the recipient of all personal property.

4

9.0 STATE ISSUE ITEMS
9.1 The condemned shall be furnished with the following state-issued items while under Death Watch:
- 1 Mattress - 1 Pillow - 1 Pillowcase - 2 Blankets (as necessary) - 2 Sheets - 2 Towels - 1 Comb (provided as needed) - 1 Bar of Soap - 1 Shirt or Jacket - 1 Pair ofPants - 1 Pair of Boxer Shorts - 1 Pair of Socks - 1 Pair of Shoes or Shower Shoes - 1 Religious Material - 1 Toothbrush and Tube of Toothpaste (provided as needed) - 1 Use of Electric Razor (Cordless)
9.2 The condemned may be provided the following upon request:
- 1 Television Set to be Located Outside the Cell - 1 Radio to be Located Outside the Cell - Playing Cards -Stationery - Newspapers and Magazines (as approved by the Warden) - Items available in the Inmate Store at condemned's expense, excluding those
iierus in metal, glass containers, or hard plastic. - Personal Items Approved by the Warden or Designee (limited to
essential needs)
9.3 Any variation from the .above list shall be approved by the Warden or designee, in writing, and attached to the activity log.
9.4 The condemned will not be provided with the following:
- Razors or Blades (other than cordless electric) " Belts - T-Shirts
9.5 Property issued to the condemned by the State shall be destroyed following the execution.
5

10.0 FUNERAL ARRANGEMENTS

At the beginning of the Death Watch, if not previously done, the condemned shaH specifY, in writing, his or her request for funeral arrangements. This information shaH be conveyed if necessary to the inmate's family, or others as appropriate, by the Warden of the institution, or designee at least twelve (12) hours prior to the scheduled execution, (refer to Paragraph 16.3.28).

11.0 DESIGNATION OF STAFF

11.1 The following shaH be present at each execution and shaH be notified by the Warden and acknowledged a minimum oftwelve (12) hours in advance of the time and date of the execution. Notification shaIl include date and time of execution, and place to report for assignment. The Warden has the authority to waive the twelve (12) hour requirement on an emergency basis.

11.1.1

Warden of the correctional facility or Deputy Warden thereot: who shall ensure that the court ordered execution is carried out.

11.1.2

Two (2) assistants, or more as directed by the Warden.

11.1.3

Two (2) staffphysicians - (as designated by the Warden) to determine when death supervenes.

11.1.4

One (1) contract physician - (as designated by Health Services) to provide medical assistance. during the execution process.

11.1.5 11.1.6

Intravenous (IV) Team, to consist of two (2)or more trained personnel to provide intravenous access.
Six (6) Correctional Officers to serve as a special escort team who will apply restraints to the condemned during the execution process.

11.1.7

Three (3) trained volunteers, (staff members), to inject solutions into the intravenous port(s) during the execution process.

11.1.8

One (1) Chaplain to administer to the spiritual needs ofthe condemned and to provide a prayer on the condemned's behalfupon request.

11.1.9

Security personnel as appropriate.

6

11.2 Restrictions:

No photographic, recording or computerized equipment will be permitted in the execution chamber or witness room except as specifically authorized by the Warden. All pencils, note pads, etc. will be issued and controlled by designated GDC staff.

12.0 WITNESSES THAT MAY BE PRESENT

Witnesses to the execution beyond those specifically prescribed by law or elsewhere in this procedure must be approved by the Commissioner prior to the day ofthe scheduled execution.

12.1 Space limitations may limit the number of witnesses to be present in the execution witness room. Witnesses will be selected as outlined below:

12.1.1 .

Five (5) witnesses selected by the condemned. These witnesses may not consist ofinmate or victim family members unless approved by the Commissioner of the Georgia Department of Corrections.

12.1.2

Five (5) witnesses representing the news media organizations may be present during the executions. Media representatives shall be determined as follows:

12.1.2.1

The Georgia Sureau Chief of the Associated Press Wire Services may designate one news reporter to be its media representative.

12.1.2.2 12.1.2.3

The Georgia Press Association, through its Executive Director, may designate two pool newspaper reporters to be its media representatives, including one pool reporter from a newspaper published within the county in which the condemned was convicte, d.
The Georgia Association of Broadcasters, through its President, may designate two pool news reporters to be its representatives for the electronic media, including one television or radio reporter from the county in which the condemned was convicted.

7

12.1.3

12.1.2.4

The names of the'news reporters representing the above mentioned classes or news media and designated alternates, shall be communicated telephonically to the Commissioner ofthe Department of Corrections at least twenty-four (24) hours prior to an execution.

12.1.2.5

All approved media witnesses will be certified in writing by the Commissioner to the Warden of the Georgia Diagnostic and Classification Prison.

12.1.2.6

In the event that more than one execution is carried out in a single day, the same media representatives shallbe the witnesses for those executions. The newspaper and broadcast representatives from the county of conviction will change if the offenders to be executed are from different counties.

12.1.2.7

Upon entering the Georgia Diagnostic and Classification Prison, each media representative must present sufficient evidence to establish his/her identity to the Warden or designee that helshe is entitled access to the press conference interview. This shall include a current photo I.D. Pencils, pens, notebooks, etc" will not be allowed; these items will be provided by Department ofCorrections staff. Facility policy prohibits witnesses we!lring or bringing jewelry or other personal items into the facility.

Not less than five (5) witnesses approved in writing by the Commissioner ofthe Department of Corrections.

12.1.3.1

The Commissioner of the Department of Corrections may approve five (5) or more witneSses to be present in the execution witness room. These witnesses may include officials with the Executive, Judicial or Legislative Branch of Govermnent, or private. citizens. The Commissioner's Office shall maintain a tentative list of witnesses and keep the list updated.

8

12.1.3.2

The Commissioner may approve one execution witness representing the victim(s). Requests of this nature will be received by the Commissioner no later than twelve (12) business hours prior to the day ofthe scheduled execution.

12.1.3.3

All approved witnesses will be certified in writing by the C~mmissioner to the Warden of the Georgia Diagnostic and Classification Prison prior to the time of the scheduled execution, if possible. Prior to the time ofthe execution, the Warden shall confirril participation.

12.2 Restrictions

12.2.1

No witnesses other than those authorized in paragraph 11.1, 12.0, and 12.1 will be permitted.

12.2.2

Witnesses will not be permitted to have photographic, recording or computerized equipment of any type in the execution witness room (refer to Paragraph·11.2).

12.3 Witnesses: Request of the Condemned

If the condemned person so desires, the following may be present at such execution: hislher counsel, relatives, clergymen and friends, (OCGA 17-10-41), pursuant to approval as outlined in 12.1.1. The condemned periodically updates/confirrils the names ofthose he/she desires to be present at the execution with the Warden or Commissioner's approval. These names shall be recorded in writing, witnessed and maintained by the Warden or designee.

'12.3.1

Not later than twelve (12) hours prior to time ofexecution those witnesses requested by the condemned shall be contacted by the Warden or designee in the most expeditious and appropriate method of communication to confirril the request and advise them of the time and date of the execution, assembly, orientation and escort procedures to the execution witness room.

9

12.4

Witnesses - Other

12.4.1

Those witnesses to the execution required by law shall be under the supervision of the Warden of the institution or designee and shall appear at the institution at a time and place as directed by the Warden.

12.4.2

Those witnesses requested by the condemned shall appear at the institution no later than two (2) hours prior to the execution for orientation and escort to the execution witness room (refer to Paragraph 12.2).

12.4.3

Those witnesses to the execution who are approved by the Commissioner of the GeorgiaDepartrnent ofCorrections shall appear at the institution no later than two (2) hours prior to the execution for orientation and escort to the execution witness room (refer to Paragraph 16.3.8).

13.0 MEDIA INFORMATION AND PUBLIC INFORMATION OFFICE

13.1 News media representatives shall not be allowed to visit any inmate at the institution during the DeathWatch.

13.2 Briefings for news media representatives shall be conducted as appropriate during the Death Watch and immediately after the execution by the Director ofPublic Information ala time and place designated by the Warden of the institution.

13.3 Broadcast reporters will.be allowed to broadcast live from a pre-designated area on the grounds of the institution during the hours designated by the Warden on the day of the execution. A delayin the execution may require that these hours be adjusted accordingly.

14.0 VISITATION BY FAMILY

The condemned shall be allowed contact visits the day prior to and the day ofthe execution with family, mends, private clergy and his legal representatives as approved by the Warden.

14.0.1

The condemned's visitors will park in the designated parking lot. In the event that visitors are transported by persons not desiring to visit, such persons may wait in the institutional parking lot.

10

14.0.2

A staffperson (chaplain) will be assigned to the condemned's family. During the Death Watch, the chaplain should be available to the family.

14.0.3

Ifpossible, all visitors should be processed into the institution at one time and placed in the room provided. A maximum of five (5) visitors at a time shall be allowed in the institution at one time.

14.0.4

One Executive Staffmember shall be assigned the responsibility of visitation. Helsheis to ensure that staffrespond in an appropriate manner.

14.0.5

The condemned may eat an institutional meal whiie in the visiting room with his visitors. Visitors may purchase an institutional meal which may be consumed in the visitation area in the presence of the condemned.

14.0.6

All family visitors to the condemned will abide by the institutional dress code and wilJ depart from the institution immediately after visitation unless delayed by.inc1ement weather. Visitors to the condemned shall not bring in any food or other items.

14.0.7

Any visitor not currently approved must meet all other visitation requirements.

14.1 VISITATIONBYOTHERS

14.1.1

A Chaplain, designated by the Warden, as well as an administrative staff member approved by the Warden shall be assigned the responsibility ofvisiting the condemned on a daily basis.

14.1.2

Attomey(s) shall be allowed to visit the condemned upon approval of the Warden or designee.

14.2 VICTIM'S FAMILYIRELATIVES

A staffmember wilJ be designated to care for any of the victim's family who remain within the institution during the execution. A room shall be designated for this purpose.

11

15.0 TELEPHONE
Telephone access shall be provided to the condemned, with the following limitations:
15.1 Telephone calls shall be in accordance to institutional rules and regulations prior to Death Watch.
15.2 At least one (1) fifteen (15) minute call per day during Death Watch, unless otherwise approved by the Warden; a phone will be provided to the condemned, unless otherwise restricted by the Warden.
15.3 All telephone calls shall be made collect, unless. the Warden makes exceptions.
15.4 All telephone calls are to be made between the hours of 8:00 a.m. and 6:00 p.m. unless otherwise approved by the Warden.
15.5 Incoming calls for the condemned will be referred to the Warden or designee for screening and approval. Such calls will be denied unless the purpose involves family and/or legal matters requiring the condemned's involvement

Ill. DAYOFEXECUTION

16.0 DAY OF EXECUTION

16.1 Within Three (3) Hours of Execution

16.1.1

A communications check will be performed.

16.1.1.1

Telephone - Telephone circuits and private lines between the Commissioner's Office (CPl), Warden's Office (CP2), and Execution Chamber (CP3) will be checked.

16.1.1.2

Fax Machine - A test message to Central Office requesting acknowledgment will be sent.

16.1.1.3

Radio - A radio check between the . Execution Chamber and Warden's Office and between Central Office and Warden's Office will be initiated.

12

16.1.1.4

Execution Chamber and Execution Witness Room will be inspected as directed by Warden.

16.2 Within Two (2) Hours of Execution

16.2.1

The IV Team will perform a check of all necessary equipment and instruments.

16.2.2

Communications Check - The same procedure will be followed as at three (3) hours prior to the execution as specified in Paragraph 16.1.1.

16.2.3

Execution Chamber and Execution Witness Room - These areas will be inspected as directed by Warden.

16.2.4

The condemned will be prepared in accordance with prior responsibilities previously designated by Warden:

16.2.4.1

The condemned may visit with clergyman.

16.2.4.2

An opportunity for the condemned to make last statement will be provided. (Statement shall be recorded by the Recorder designated by the Warden.)

16.2.4.3

A shower and clean clothing will be provided to the condemned.

16.2.5

A designated staffmember shall confirm the presence ofwitnesses required by law to attend the execution. Any final instructions shall be issued by the Warden.

16.2.6

A designated staffmember shall confirm the presence of the witnesses designated and approved by the Commissioner. Instructions will be issued to the witnesses to assure an understanding of their conduct in the Execution Witness Room and while being escorted to and from the Execution Witness Room. All witnesses are to have previously acknowledged, in writing, their understanding and agreement to abide by the rules, regulations and procedures of the Agency.

13

16.3 Within One Hour of Execution

Within one hour of the time of execution, designated members (2) of the special escort team will commence the following:

16.3.1

The IV Team will perfonn a check of all necessary equipment and instruments. A self-test or diagnostic check will be conducted on the heart monitor.

16.3.2 16.3.3 16.3.4 . 16.3.5

The designated staffmembers will prepare the lethal injection solution and deliver it to the execution chamber.
The condemned is offered a mild sedative.
Special Escort Team members will ensure all straps are in place and functional on the execution gurney.
Communications Check: The same procedures will be perfonned as at thfee (3) hours prior to the execution as specified in Paragraph 16.1.1. The telephone lines between the Commissioner's Office (CP1), the Warden's Office (CP2) and the Execution Chamber (CP3) are to remain open thirty (30) minutes prior to execution
time.

16.3.6

Execution Chamber and Execution Witness Room will be inspected as directed by Warden.

16.3.7 16.3.8

Assistants and those required by law to attend executions are to be issued additional instructions and escorted to the Execution Chamber and Execution Witness Room as appropriate. The condemned's witnesses, media representatives and the State's witnesses shall be processed, instructed and transported separately as referenced in this section.
The presence of witnesses requested by the condemned, those approved by the Commissioner, and approved media representatives will be confinned. Instructions to the witnesses and media representatives will be issued, in writing, to assure that an understanding of their conduct and behavior, during escort to . and from the Execution Witness Room. All witnesses are to acknowledge, in writing, their understanding and agreement to abide by the rules, regulations and procedures of the Agency. The witnesses will be searched and issued additional instructions as needed.

14

16.3.9
16.3.10 16.3.11 16.3.12
16.3.13 16.3.14 16.3.15
16.3.16 16.3.17 16.3.18 16.3.19 16.3.20

The condemned is escorted to the lethal injection gurney by member(s) of the Special Escort Team, twenty (20) minutes prior to the time of the execution.

Members of the Special Escort Team are stationed at the gurney and will place the body strap in place immediately.

The Special Escort Team will attach restraints to arms, legs and body of the condemned.

The IV team will provide intravenous access into the condemned. The heart monitor leads will be applied to the condemned. If the veins are such that intravenous access cannot be provided, a contract physician will perform a central line procedure to provide an intravenous access.

The witnesses will be escorted to the Execution Witness Room. At least one of the correctional officers present shall be a female.

The Warden will introduce himself to witnesses and issue final instructions regarding the execution.

The Warden or designee will ask the condemned ifhe has anything to add to the final statement. Such statements will be limited to two (2) minutes. (Statement shall be recorded by the Warden or designee.) A prayer is offered ifcondemned requests, which is limited to two (2) minutes.

The condemned is read essential Order ofthe Court.

AU unnecessary staff shall clear the execution chamber.

Execution officials take their place behind the partition.

The Attorney General or designee will advise the Commissioner and/or the Warden as to whether or not to proceed.

The execution begins.

16.3.20.1

Three (3) designated staffmembers inject lethal solution into intravenous tubing.

16.3.20.2

The contract physician will advise the Warden when the monitor shows a ''flat line" display. The condemned will be checked by two (2) physicians to determine if death has occurred.

15

16.3.21

If condemned shows residual life signs, repeat 16.3.20.1 and 16.3.20.2.

16.3.22 16.3.23 16.3.24
16.3.25 16.3.26
16.3.27 16.3.28

The fact of death is then announced to the witnesses by the Warden or designee. The curtains to the Execution Chamber are then closed.

The witnesses and media representatives are escorted from the Execution Witness Room. Media representatives will be immediately escorted ·from the prison to the press area.

The IV lines are detached, the straps are removed, the body is
removed from the gurney. The body is placed in a body bag and placed on a stretcher provid~ by the State Crime Lab. The body is taken by van to the State Crime Lab for a postinortem examination.

Press release: The Public Affairs Officer for the Departinent of Corrections will advise news media that Order of the Court has been carried out

The Warden or designee and attending physicians prepare certificate ofexecution and certify the fact of execution. The certificate is to be forwarded to the Clerk of Superior Court of the county in which sentence was pronounced. A copy is forwarded to the Commissioner.

The last statement ofthe condemned is forwarded to the Central Office, as appropriate.

Intennent: The body may be released to the relatives at their expense or should the nearest relative of the condemned so desire, the body will be carried to the former home of the person so executed, ifin the State ofGeorgia. The expense of such transportation to the former home shall be paid by the Ordinary, County Commissioners, or person(s) having the charge of county funds in which the person was convicted. (OCGA 17-10-43).

. 16.3.28.1

If the relatives do not claim the body of the executed person, interment will be in accordance with ODC Rule 125-2-4.20.

16

16.3.28.2

Staff participants will be seen by the Critical Incident Debriefing Team within seventy-two (72) hours of each execution or as soon as possible.

17

ANNEX I
TASK DESCRIPTIONS OF STAFF
PHYSIClANl Examines condemned to detennine that the Order of the Court has been carried out.
PHYSICIAN 2 Administers treatment to participants if the need arises. Confinns findings ofPhysician 1. Accompanies Physician 1 to the. record office for completion of death certificate.
PHYSICIAN'S ASSISTANT Administers treatment to witnesses and staff ifthe need arises.
MINISTERlCHAPLAlNIMEMBER OF CLERGY Maintains frequent contact with condemned during Death Watch period and up until condemned is removed from cell to Execution Chamber. Assist family, friends and others as indicated. Provides prayer in Execution Chamber if desired by condemned.
RECORDER (Appointed by Warden) Perfonns check of all recording equipment before the arrival of the condemned in execution chamber. Asks the condemned ifhe/she wishes to make a last statement. Ifso, records same and transmits to the Warden's Office as soon as completed. Records two (2) minute addition made by the condemned to hislher last statement just before the execution, if applicable.
DEATH WATCH OFFICERS Assume duties at Death Watch prior to execution time. Maintain strict observation of the condemned for self-inflicted injury. Report any unusual observations to the Supervisor in accordance with POST orders.
RECORDS OFFICER Prepare death certificate with all pertinent data. Notify clerk of court.
FOOD SERVICE DIRECTOR OR DESIGNEE Prepares/procures and delivers all meals to the condemned during Death Watch.
18

CIDEF OF SECURITY (CORRECTIONAL MAJOR) Schedules Death Watch personnel. Coordinates with Food Service Director, or designee, for the condemned's choice oflast meal. Assigns specific staffto specific functions to prepare condemned for execution, such as: shower, clothing, etc. Assures that adequate personnel is available to escort condemned to the execution . chamber. Provides for escort ofwitnesses to execution witness room. Serves as back-up to staffmember designated to obtain, mix and deliver the lethal injection drugs to the execution chamber.
DEPUTY WARDEN OF SECURITY TItrough his commissioned officers:
Assures that remaining part ofinstitution is secure from possible adverse action. Assures that only authorized persons enter guard line area. Prepares for crowd control. Assures that communication system is established and maintained. Obtains, mixes and delivers the lethal injection drugs to the execution chamber. Ensures that the execution is carried out in accordance with the laws ofthe State of Georgia.
DEPUTY WARDEN OF CARE AND TREATMENT Assures that physicians, chaplains and records officer personnel are briefed on their duties. Supervises Command Post #2. Ensures that the victim's family, ifpresent, are properly supervised.
WARDEN Briefs all personnel assigned tasks during the execution. Telephones Commissioner regarding any change in status. Ensures that the execution is carried out in accordance with the laws of the State of Georgia.
19

ANNExn
IV TEAM - DETAILED INSTRUCTIONS SET UP PROCEDURE: 1. The Warden or designee will have two (2) intravenoUs infusion devices placed in veins of
the condemned and a saline solution available for an infusion mediwn. Those persons engaged in this activity will be referred to as the N Team. 2. An N administration set shall be inserted into the outlet of the bag ofNormal Saline N solution. Two (2) N bags will be set up in this manner. 3. The N tubing shall be cleared of air and made ready for use. 4. The standard procedure for inserting N Access will be used. 5. The N tubing for both set-ups will be connected to the receiving port ofthe N access. One for the primary vein, the other for the secondary vein. 6. At this point, the administration sets shall be running at a slow rate offlow (KYO), and ready for the insertion of syringes containing the lethal agents. The Warden or his designee, shall maintain observation ofboth set-ups to ensure that the rate of flow is uninterrupted. NO FURTHER ACTION shall betaken until the prearranged signal to start the injection oflethal agents is given by the Warden or designee.
20

ANNEX III
INJECTION TEAM - DETAILED INSTRUCTIONS INJECTION PROCEDURE: 1. When the signal to commence is given by the Warden:
1.1 Syringe #1 through iff, shall be inserted into the designated receiving port in numerical order.
1.2 The contents shall be injected with a steady, even flow of the chemical. 2. The contents ofthe syringes are as follows:
2.1 Syringe #1 and #IA - Sodium Pentothal 2.2 Syringe #2 - Saline 2.3 Syringe #3 - Pavulon 2.4 Syringe #4 - Saline 2.5 Syringe #5 - Potassium Chloride 2.6 Syringe #6 - Saline This procedure shall continue until all syringes have been used.
21

ANNEX IV CROWD CONTROL ON EXECUTION DAY 1. All visitors to the Georgia Diagnostic and Classification Prison on Execution Day shall be requested to state the purpose of their visit upon entering the reservation and to furnish appropriate identification prior to being allowed to enter. 2. Visitors to the Institutional Reservation shall be directed to one ofthe following areas and given the appropriate colored arm bands: 2.1 Those Opposing The Death Penalty (Green Ann Band) 2.2 Those Supporting Death Penalty (Blue Ann Band) 3. Media representatives shall be directed to a specified area and given a yellow arm band. 4. Regular inmate visitation will be canceled. 5. Departmental visitors shall be limited to staffthat have an official execution function that specifically requires them tobe present atthe institution.
22

ANNEX V ACTMTY LOG - DEATH WATCH
INMATE NAME:------------------------- 1.0. NUMBER-: -------------
NOTE: ALL ENTRIES MUST INCLUDE THE DATE, TIME AND THE OFFICER'S SIGNATURE. ALL ENTRIES MUST BE LEGIBLE.
23

ANNEX VI

CONTROLLED CHEMICAL HANDLING PROCEDURES FOR EXECUTION BY LETHAL INJECTION

The following procedures will be utilized to obtain controlled chemicals, transport the chemicals to the Execution Chamber at the Georgia Diagnostic and Classification Prison (GDCP), dispose of and/or return unused chemicals to the GDCP Pharmacy.

1. The certificate issued by the Drug Enforcement Agency (DEA), United States Department ofJustice will be posted in the medical room of the GDCP Execution Chamber. A copy of the certificate will be kept on file at the GDCP Pharmacy.

2. All controlled materials, blank "Controlled Chemical Disposition Record" forms and a lockable transport case will be kept in the GDCP Pharmacy.

3. The designated key ring, located in the Tunnel Entrance Restricted Key Box, will be utilized to gain access to the chemical storage containers, transport case and the temporary chemical storage containers located in the Execution Chamber. Access to this key ring and the receipt and/or transportation of chemicals is restricted to: Deputy Warden for Security, Correctional Major, and designated Pharmacist. In an emergency, the Warden ofGDCP may designate another official this duty.

4. On the day ora scheduled execution, one ofthe authorized staffmembers will draw the proper keys, proceed to the pharmacy and procure the appropriate amount of chemicals.

5. The appropriate amount of chemicals to be issued is as follows: Sodium Pentothal - 6

packages each containing Ig of chemical. PaVIlIon (pancuronium Bromide) -15 vials

each containing IOmg. Potassium Chloride - 9 vials each containing 40 meq.

Note: The PaVIlIon is normally refrigerated. It may be left un-refrigerated for no more

than 24 hours.

.

6. During the procedures outlined in step #4, the "Controlled Chemical Disposition Record" will be initiated at this time. The Pharmacy will keep a temporary copy upon issuance. The original will be kept with the chemicals in the transport case. The appropriate sections will be completed as needed.

7. Chemicals will be delivered to the Execution Chamber and locked in the chemical storage container. PaVIlion will be stored in the locked refrigerator.

8. _Within one hour of the scheduled execution, the chemicals will be drawn into the 60cc syringes to be used by the injection team.

24

9. Chemicals will be drawn up as follows:
Sodium Pentothal -lg each - S)Tinge #1 and #la Pavulon - 50mg - Syringe #3 Potassium Chloride - 120meq - S)Tinge #5 Saline Solution - 60cc each - Syringe #'s 2, 4 and 6.
10. A secondary set ofsyringes will be prepared as outlined above. .
II. The remaining chemicals, along with seven 60cc s)Tinges will be locked in the transport case and placed in the mechanical room in the event they are needed.
12. At the conclusion of the execution, the amount of each chemical injected into the condenmed inmate is to be recorded on the Controlled Chemical Disposition Record fonn, along with the date, time, inmate name and number.
13. Any chemical loaded into a s)Tinge that is not used will destroyed by flushing chemicals down the sink located in the medical room ofthe execution chamber. This must be witnessed and the section completed and signed on the Controlled Chemical Disposition fonn.
14. Any unused chemicals will be returned to the pharmacy via the transport case and the remainder ofthe Controlled Chemical Disposition Record fonn will be completed.
15. The originalControlled Chemical Disposition Record fonn will be retained by the Pharmacy. A copy will be sent to the Wat;den's office for inclusion into the Execution . file. The temporary copy generated in step #6 will be destroyed at this time.
16. An inventory will be kept by the Pharmacy of each chemical used. The Controlled Chemical Disposition fonn and the inventory logs will be kept in a red binder attached to the chemical storage container.

Attachments:

Controlled Chemical Disposition Fonn Inventory Log for Sodium Pentothal Inventory Log for Pavulon Inventory Log for Potassium Chloride

25

: CONTROLLED CHEMICAL-DlSPOSITION RECORD""" "'(LETHAL INJECTION)
GEORGIA DEPARTMENT OF CORRECTIONS - GDCP

ANNEXVI-ATTACRMENTI

CHEMICALS DISPENSED BY GDCP PHARMACY

Name of Chemical- Amount

PENTOTIiAL PAVULON POTASSIUM CHWRIDE

6 GRAMS 150MGM 360MEQ

.

Date Issued

Lot #

Expiration

# of Vials

ISSUED BY: (SIGN AND PRlNf NAME)

RECEIVED BY: (SIGN AND PRlNf NAME)

DEPflLOCAll0N

CHEMICALS ADMINISTERED BY INJECTION TEAM

DATE TIME

INMATE NAMEINUMBER

CHEMICALS

PENTOTHAL PAVULON POTASSIUM CHWRIDE

QTY

CHEMICALS DESTROYED
CHEMICALS DESTROYED QTY
PENTOTHAL PAVULON POTASSIUM CHLORIDE

# OF SYRINGES DATE DESTROYED

.
DEPTILOCATION

DESTROYED BY: (SIGN AND PRlNf NAME)

WITNESSED BY: (SIGN AND pRlNf NAME)

DEPTILOCATION

CHEMICALS RETURNED TO GDCP PHARMACY

DATE RETURNED

CHEMICAL RETURNED

PENTOTIiAL PAVUWN POTASSIUM CHWRIDE
-

QTY RETURNED

# OF VIALS

RETURNED BY: (SIGN AND PRlNf NAME)

RECEIVED BY: (SIGN AND PRlNf NAME)

DEPTILOCATION

26

CONTROLLED CHEN.UCAL INVENTORY LOG
GEORGIA DEPARTMENT OF CORRECTIONS - GDCP

ANNEX VI - ATTACHMENT 2 CHEMICAL -SODIUMPENTOTHAL

DATE

PACKAGE BEGINNING AMOUNT

DATE

SUBTOTAL AMOUNT

DATE

TOTAL INITIALS

SIZE

INVENTORY DISPENSED DISPENSED

RETURNED RETURNED INVENTORY

--~

27

CONTROLLEDGBENUCAL~NTORYLOG GEORGIA DEPARTMENT OF CORRECTIONS - GDCP

ANNEX VI- ATTACHEMENT 3 CHEMICAL - PAVULON

DATE
,
I

PACKAGE BEGINNING AMOUNT

DATE

SUBTOTAL AMOUNT

DATE

TOTAL

INITIALS I

SIZE

INVENTORY DISPENSED DISPENSED

RETURNED RETURNED INVENTORY

I

---_.-

.

.

28

CONTRL ...LED c'IIEMICAL INVENTORY LOG GEORGIA DEPARTMENT OF CORRECTIONS ':"GDCP

ANNEXVI-ATTACHEMENT4 CHEMICAL -POTASSIUM CHLORIDE

DATE

PACKAGE BEGINNING AMOUNT

DATE

SUBTOTAL AMOUNT·

DATE

TOTAL INITIALS

SIZE

INVENTORY DISPENSED DISPENSED

RETURNED RETURNED INVENTORY

I

.
. .

.

... -

-- -

' - - - _ . _ -

... _ - - -

29

I
I
I
I

.' "
Georgia Diagllostic and Classification Prison P.O. Box3877
Ja~on.Geo~a30233

CONTROLLED CHEMICAL HANDLING PROCEDURES FOR EXECUTION BY LETHAL INJECTION
The following procedures will be utilized to obtain controlled chemicals. tRnsport the chemicals 1:0 the Execution Chamber at the Georgia Diagnostic and Classification Prison (GDCP). dispose ofand/or return unused chemicals to the GDCP Pharmacy. 1. The: certificate issued by the Drug Enforcement Agency (DBA), United States
DBllartment ofJustice will be posted in the medical room ofthe GDCP Ex~tion Chllmber. A copy ofthe certificate will b~ kept on file at the GDCP Pharmacy. 2. All controlled materials, blank "Controlled Chemical Disposition Rcx:ord" forms and a lockable transport case will be kept in the GDCP Pbarmacy. 3. Til(, designated key ring, located in the Tunnel Entrance Restricted Key Box, will be utilized to gain access to the chemical storage containers, transport case and the temporary chemical storage containers localed in the Execution Chamber. Ace.eSB to this key ring and the receipt andlor transportation ofchemicals is restJicted to: Deputy Warden for S~rity, Correctional Major, and designated PhamJaCiS!. In an emergency, the Warden ofGDCP may designate another official this duty. 4. On the clay ofa scheduled execution, oae ofthe authorized staff members will draw proper keys, proceed to the pharmacy and procure the appropriate amount of chemicals. S. The appropriate amount ofchemicals to be issued is as follows: Sodium Pentothal- 6 packages each containing 1 gm of chemical and SOcc's of sterile

SOO/ZOO'd LS6!#

1
OSZZ vos OLL zS'so zooz,£t'~nY

water. Pavulon (pancuronium Bromide) - IS vials each containing 10mgm. Potass.ium Chloride - 9 vials each containing 40 meq.
........
Note: The Pitvulon is normally refrigerated. It may be left un-refrigerated for no more then 24 hours. 6. Whik not a part ofthe execution process, a sedative (type to be detennined by the
facility physician) may be placed in the transport case. A presCriptiOD MUST be written for this sedative. A separate receipt is required and will not be listed with the chemicals for lethal injection. 7. During the procedures outlined in step #4, the "Controlled Chemical Disposition Record" wJ1l be initiated at this time. The Pharmacy will keep a lempor/lIy copy upon issuance. The original will be kept with the chemicals in the transport case. The a;JPTopriate sections will be completed as needed. 8. Cherni{lals will be delivered to the Execution Chamber and locked in the chemical
storage container. Pavuion will be stored in the locked refrigerator.
9. One hour prior to the scheduled execution, the chemicals will be drawn into the 60cc syringes to be used by the injection team.
]0. Chemi.cals will be drawn up as follows: Sodium Pentothal- SOcc'S (2grns) - Syringe #1 and #1 a. Pavulon - SOcc's (SO rngrn) - Syringe #3 Potassium Chloride - 60cc's - (120 meq) - Syringe #5 Saline Solution - 60cc's - Syringe #'s 2, 4 and 6.
11. A seccmdazy set of syringes will be prepared as outlined ahove. 12. The remaining chemicals, along with seven 60cc syringes will be locked in the
transP,l)rt case and placed in the mechanical room in the event they are needed.

800/£00 '" L86H

2
oszz ~Og OLL Zg:SO ZOoz.£t·~nv

]3. At the conclusion ofthe execution, the amount ofeach chemical injected into the

condemned inmate is to be recorded OD the Controlled Chemical Oisposition

Record form, along with the date, time, inmate name and number.

14. Any chemical loaded into a syringe that is not used will be destroyed by flushing

Ghemkals down the sil1k located in the medical room ofthe execution chamber.

This must be witnessed and the section completed and signed on the Controlled

Chemical Disposition form.

15. Any unused chemicals will be returned to the pharmacy via the transpon case and

the remainder ofthe Controlled Chemical Disposition Record form will be

completed.

16. The original Controlled Chemical Disposition Record form will be retained by the

Pharmacy. A copy wiIJ be sent to the Warden's office for inclusion into the

Execution file. The temporary copy generated in step #7 will be destroyed at this

.----

time.

17. A perpetua1 inventory will be kept by the Pharmacy ofeach chemical used. The

Controlled Chemical Disposition form and the inventory lo~ will be kept in a red

binder attached to the chemical storage container.

Attachments:

Controlled Chemical Disposition form Perpetual Inventory log for SodiUm Pentothal Perpetual Inventory log for Pavulon Perpetual Inventory log for Potassium Chloride

3
800/~OO'd L86T#

.' . eON'"tROLLED CJlI!!MJCAL DISPOSmON RECORD (LETSAL INJECTION) GEORGIA DEPARTbIENT OF CORRECTIONS - GDCP

CHEMICALS DISP)!:NSED BY GDer PHARMAcY

Nlime or Chemical - Amount

PENTOTHAL

6 GRAMS

PAVUlON

150MGM

POTASSIUM

tIDE 360M&}

ISSUEDllY: (SIGN AND PlllNTNAM£)

Dllteluued

Lot Ii

I=VED IIY: (SIGN AND PlllNT NAMB)

Explratio.rl

tI of Viall

IDEPTIl.OCATIGN

CHEMICALS ADMJNISIERED BX INJECTION TEAM

DATE TIME

INMATE NAMEINUMBER

CHEMICALS

PENrOTIiAL PAVULON POTASSruM CHLORIDE

QTY

CHEMICALSD~OYED

CHEMICALS DESmOYED QTV

PENTOTHAL PAVUWN
:POTASSIUM CIn.ORlI)E

.

.

.

D£STilOYI!D BY: (SIGN AlID PRINT NAME)

Ii OF SYRINGES DATE DESTROfED
WITNESSED BY: (SIGN AND PRlNTNAME)

DEPTILOCATION DEPT/LOCAnON

CHEMICALS RETI,JRNED TO GDCP PHARMACY

DATE RETURNED

CHEMICAL RETURNED

QTY R£1lJllNED

tlOJlVIALS

I'BNfOrnAL PAWLON
POTASSRJM CHLoRIDE

RE'fUmED BY, (SIGN ANi. PlUNr NAME)

IRECeIVED BY; (SION AND l'RINT NAME)

IDEPTILOCATION

I

soo/soo"a Lan*,

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TabE

Page 1 of 124

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

MICHAEL TAYLOR,

Plaintiff , vs.

Case No. 05-4173-CV-S-FJG

LARRY CRAWFORD, et al., Defendant.

JUNE 13, 2006

VOLUME III PAGES 262 - 395

TRANSCRIPT OF BENCH TRIAL PROCEEDINGS

BEFORE THE HONORABLE FERNANDO J. GAITAN, JR. U.S. DISTRICT JUDGE

For the Plaintiff: For the Defendants:

MS. GINGER D. ANDERS MR. ERIC BERGER MR. MATTHEW S. HELLMAN Jenner & Block, LLP 601 13th Street NW Washington DC 20005
and MR. JOHN WILLIAM SIMON 2683 South Big Bend Blvd. St. Louis, MO 63143-2100
MR. MICHAEL PRITCHETT MR. STEVEN HAWKE Missouri Attorney General's Office P.O. Box 899 Jefferson City, MO 65102

Donna M. Turner RMR U.S. Court Reporter, Room 7552 Charles Evans Whittaker Courthouse
400 East Ninth Street Kansas City, MO 64106 (816) 512-5641

I NDE X
http://www.law.bcrkeley.cdu/ciinics/dpclinic/LcthaJ%20Injection%20Documents/Missouri... 4/20/2007

JUNE 12, 2006
DR. MARK HEATH Direct Examination by Ms. Anders Cross-examination by Mr. Hawke Redirect Examination by Ms. Anders
DR. STEPHEN JOHNSON Direct Examination by Mr. Hellman Cross-examination by Mr. Hawke Redirect Examination by Mr. Hellman
DR. THOMAS HENTHORN Direct Examination by Mr. Berger Cross-examination by Mr. Pritchett Redirect Examination by Mr. Berger Recross-examination by Mr. Pritchett
JUNE 13, 2006
DR. MARK DERSHWITZ Direct Examination by Mr. Pritchett Cross-exarniation by Ms. Anders Redirect Examination by Mr. Pritchett Recross-examination by Mr. Anders
TERRY MOORE Direct Examination by Mr. Pritchett Cross-examination by Mr. Berger
LARRY CRAWFORD Direct Examination by Mr. Pritchett Cross-examination by Mr. Hellman Redirect Examination by Mr. Pritchett

Page 2 of 124
9 86 134
137 169 185
188 232 253 260
262
262 301 332 338
340 348
363 374 393

EXHIBIT INDEX

PLAINTIFF'S

DESCRIFTION

1 - 23

Discovery materials

24

Dr. Heath's CV

26

Print-out of package insert

28

Photo of triple lumen kit

29

Still picture of execution chamber

30

Still picture of execution chamber

RECEIVED 86 10 32 62 74 86

http://www .Iaw .berkelcy.edulclinicsldpclinic/LethaJ %20Injection%20Documents/Missouri... 4/20/2007

Page 5 of 124

15 Does?

16

A

Yes.

17

Q

And did it also include a review of the deposition of

18 Dr. John Doe One?

19

A

Yes.

20

Q So are you aware that the dose of thiopental used at

21

the last several executions in Missouri was not five grams

22

as we understood in January?

23

A

Yes.

24

Q

How, if at all -- excuse me. What is your

25

understanding of the amount of thiopental that was actually

264

1

given at the last several executions?

2

A

I believe it was 2.5 grams.

3

Q HOW, if at all, does the administration of 2.5 grams

4

of thiopental the last few executions impact your opinions

5 regarding executions in Missouri?

6

A

By decreasing the dose from five grams to 2.5 grams,

7

the probability of consciousness increases by a tiny and

8 minuscule amount. Other states use as little as two grams

9 of thiopental, and even in that situation the likelihood of

10

consciousness during the period of time that an execution

11 requires is a tiny fraction of one percent.

12

Q

What's the key factor, in your opinion, regarding the

13

humaneness of executions in Missouri in particular and then

14

throughout the country in general?

15

A

tv'ell, in my opinion for an execution to be humane an

16

adequate dose of hypnotic agent like thiopental has to be

17 administered prior to the paralytic or the potassium

http://www.law.berkelcy.edu/clinics/dpclinic/Lcthal%20Injection%20Documents/Missouri... 4/20/2007

Page 6 of 124

18

chloride. And in the other states in which I have

19 performed calculations I would say that probably the

20

minimum acceptable dose would be 1.5 grams, and anything

21

above that is associated with diminishing likelihood of

22

consciousness.

23

Q

Did your review of the new discovery in this case

24

alter your opinions that you gave back in January with

25

regard to the drugs used in Missouri and the dosages as

265

1

we now understand them?

2

A

Well, I redid the calculations, and changing the

3 dose from five grams to 2.5 grams has a minuscule and not

4 clinically relevant effect on the probability of

5

consciousness throughout the duration of time that an

6

execution requires.

7

Q

Did your review of the new discovery in the case alter

8

your opinions as given back in January with regard to the

9 use of the femoral catheter as a means of administration of

10 the drugs?

11

A

No.

12

Q

Can you explain why?

13 A well, since the thiopental is given after the femoral

14 catheter is placed, the dose of thiopental itself has no

15 meaningful effect on the placement of the femoral catheter.

16 Q In reaching your conclusions as expressed in your

17 earlier testimony, what definition of unconsciousness were

18 you using?

19 A The definition of consciousness that I typically use

20

is that which is used as a standard in the field of

http://www .law .berkeley.edu/clinics/dpc1 inic/Lethal%20Iniection%20Documents/Missouri.. 412017 007

TabF

(

(

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

WALLACE M. FUGATE. III,

)

)

Plaintiff.

)

)

vs

)

)

THE DEPARTMENT OF CORRECTIONS. and )

JIM WETHERINGTON,

)

Commissioner, Department of Corrections. )

)

Defendants.

)

--------------------------)

Civil Action No._ _ _ _ __
Execution scheduled for 7:00 p.m. on Wednesday, August 14, 2002

DECLARATlON OF DR. MARK HEATH. M.D. Pursuant 10 28 U.S.C. § 1746, I declare the following: I. My name is Dr. Mark Heath. I am a resident of New York state. 2. I am a physician. certified by the American Board of Anesthesiologists. and I practice as a cardiac anesthesiologist at Presbyterian Hospital in New York. I am a member of the American Society of Anesthesiologists. the International Anesthesia Research Society and the Society of Cardiovascular Anesthesiology. I am also a Clinical Assistant Professor of Anesthesiology at Columbia University in New York. Moreover, I conduct anesthesiology research funded by the National Institutes of Health and have published over ten articles relating to anesthesiology. 3. In my capacity as a cardiac anesthesiologist, I am highly experienced with the administration of drugs involved in the administration of the lethal injection in Georgia and am also an expert in procedures such as "central venous cannulation" and the establishment of

(
intravenous access, which are a critical and flawed component of the current Georgia lethal injection protocol.
4. With these qualifications. I was presented and accepted as an expert witness in May 2002 by Judge Michael Clark of the Gwinnetl County Circuit Court in order to discuss the deficiencies of the current lethal injection protocol.
5. I have reviewed the Georgia lethal injection statute, including O.e.G.A. § 17-10-
41 and 17-10-44, and the Georgia Department of Corrections' "Administrative and Execution Procedures, Lethal Injection. Under Death Sentence" dated May I, 2000 [hereinafter Lethal Injection Protocols]. I have also reviewed the records of all six lethal injections carried out in Georgia so far.
6. Based on my review of the materials listed above, it is my conclusion that the lethal injection as currently administered in Georgia has critical shortcomings, which lead to a significant risk that the inmate will be exposed to unnecessary. severe pain and suffering. I believe that these problems. which are discussed below. can be remedied with relative ease and with very little expenditure of resources.
7. First, the particular drugs being used in the lethal injection process in Georgia' are accompanied by a significant risk of infliction of unnecessary and severe pain and suffering depending on how they are used, prepared, measured. titrated and administered. While the problems with the drugs are critical, they can be remedied with relative ease by either simply
'The Lethal Injection Protocols provide for the use of three drugs as part of the lethal injection procedure: Sodium Pentothal, which is the trademark name for sodium thiopental; Pancurium Bromide, commonly known as Pavulon; and. Potassium Chloride. While Sodium Pentothal is an ultra short-acting barbiturate that induces brief general anesthesia. Pavulon paralyzes the respiratory system. Potassium Chloride then kills the inmate by stopping the heart.
2

(
substituting other commonly available drugs for one or more of the drugs now being used to administer the lethal injectionl or by more closely monitoring the inmate's vital signs during the
administration of the drugs, as is usually done when these drugs are administered in a therapeutic
setting.
8. Second, the "cut down" procedure - which is mandated by the Lethal Injection
Protocols when a vein cannot be found - involves unnecessary mutilation of the human body and
is a grossly outdated medical procedure. In fact, the "cut down" procedure for "central venous
cannulation" is rarely even taught in U.S. medical schools. Instead, there is another procedure,
"percutaneous central venous cannulation" Ihat is routinely used by trained personnel in hospitals
in situations where a suitable vein cannot be found. In other words, the procedure currently
mandated by the Lethal Injection Protocols subjects the inmate's body to unnecessary and painful
mutilation. This problem can be readily rectified by substituting the appropriate and regularly
used medical procedure - "percutaneous central venous cannulation - in place of the outdated
and discarded "cut down" procedure.'
'Because Sodium Pentothal is an ultra-short acting barbiturate and Pavulon is a longacting paralyzing agent, there is no justification for the use of Sodium Pentothal and Pa~'ulon together. On the contrary, the use of both drugs unnecessarily introduces the risk of severe pain and suffering. This is because if there are problems injecting the entire dose of Sodium Pentothal, but the full dose of Pavulon is nevertheless injected, there is a risk that the prisoner will become conscious, experience suffocation, feel the burning of the Potassium Chloride in his veins, and then experience a massive heart attack. This risk can be eliminated by substituting a long-acting anesthetizing agent for Sodium Pentothal or eliminating Pavulon.
'In the hearing before Judge Michael Clark. Dr. Rao - the contract physician hired by the Department of Corrections to be present at Mr. Jose High's execution -testified that he took it upon himself to disregard the Department's Protocols by performing "percutaneous central venous cannulation" rather than the venous "cut down" procedure. There is no guarantee that any other physician at a future execution will also choose to willfully ignore the express language of the Protocols and perform the more appropriate medical procedure.
3

(

«

9. Third, there are significant deficiencies in the Department of Corrections' Lethal
Injection Protocols, including, but not limited to:
(a) the conflicting provisions in the Protocol for the amount of Sodium
Pentothal to be administered - while one part of the protocol calls for 2 grams of Sodium
Pentothal to be administered, while another part of the protocol calls for I gram of Sodium Pentothal to be administered. Specifically, Paragraph I0 of the Georgia Diagnostic and
Classification Prison's "Controlled Chemical Handling Procedures for Execution by Lethal
Injection" states that "Chemicals will be drawn up as follows: Sodium Pentothal - SOcc's
(2gms) - Syringe #1 and #Ia." By contrast, Section 2.1 of Annex rVofthe Protocols, titled
"Injec/ion Procedure" talks only about the use of "Syringe #1 (Sodium Pentothal)" -there is no mention of syringe la. These contradictory instructions make it impossible for anybody, whether expert or not, to confidently divine the intent of the protocol. This flaw in the protocol is critical because the amount of Sodium Pentothal that is administered is vital to ensuring that the execution is humane. This problem can easily be addressed, and it is important to do so before it is used to dictate the actions of the personnel carrying out the lethal injection procedure.
(b) the failure to adopt safeguards to ensure that the second and third drugs in
the three drug injection set - Pavulon and Potassium Chloride - are administered before the anesthetic effect of the first drug - Sodium Pentothal- wears off;'
'Sodium Pentothal is a very short-acting anesthetic, meaning that, when given in an appropriate amount and administered properly, it not only renders a person unconscious quickly, but it also begins to wear off quickly. In fact, the half-life of Sodium Pentothal in the brain,
where it is meanl/o work as an anesthetizing agent, may be as short as one to two minutes. In
other words, almost as soon as it begins working, Sodium Pentothal begins to dissipate. (As a result, during surgical procedures, Sodium Pentothal is typically used to render a person unconscious but additional drugs are administered almost immediately thereafter to keep a patient unconscious and pain-free.) Therefore, if the three drugs are not administered in a timely
4

(

(

(c) the one-size-fits-all Protocol's failure to ensure that the amount of the
anesthetic first drug administered take into account the well-recognized factors affecting its
efficacy. including body weight body fat. prior drug usage. the presence of other sedating agents,
the level of anxiety or stress. and the person's food consumption' in the hours before the
execution;
(d) the failure to delineate the qualifications of any of the medical personnel
taking part in administering the lethal injection;"
manner, the Sodium Pentothal would wear off. permitting the inmate to regain consciousness during the execution.
Potassium Chloride - the third drug to be administered - causes cardiac arrest, which, if
untreated, leads to brain death after several minutes. Should the Sodium Pentothal have worn off or never have achieved effectiveness by the time the potassium chloride is administered, the condemned would again experience excruciating pain. The sensation ofthe Potassium Chloride coursing through the veins causes extreme and excruciating pain. Once the drug reaches the heart. the condemned would experience all of the pain and suffering associated with going into complete cardiac arrest.
'If the inmate eats or drinks six-to·eight hours before the execution. he may choke or gag from the injection of Sodium Pentothal.
"Under the cur:rent procedures. it is possible that the physician involved might not have a medical license, might never have performed "central venous cannulation:' or might even have been barred because of incompetence by the state licensing board from performing invasive procedures.
The absence of qualified personnel poses a significant problem. For example, the nurse who starts the IV and observes the prisoner and injection sites during the execution, watches the prisoner to make sure that he is unconscious. However, because the nurse lacks basic understanding of anesthesia and how the drugs work, the signs she watches for are not correlated with a patient being paralyzed yet conscious. Therefore, while the unqualified nurse may believe that the prisoner is unconscious. the prisoner may in fact be paralyzed but conscious.
In addition, the danger of having an inexperienced or unqualified person administer the· drugs is illustrated by noting the dangers in wrongful administration of the Sodium Pentothal. Since Sodium Pentothal works as an anesthetizing agent only in the brain, it is critically important that the drug reach the brain in its full dosage. It must, therefore, be administered in such a way that it goes into a vein and not into muscle or subcutaneously. Were the latter to happen. it would not have an anesthetizing effect and would instead cause necrosis to the tissue into which it flowed, causing excruciatingly pain.
5

{

(

(e) the failure to require that the person injecting the drugs titrate the amount of the drugs to ensure that the inmate has been rendered fully unconscious, adjusting and increasing the amount of drug necessary;7
(1) the failure to require that the person administering the anesthetic drug monitor the inmate's vital signs to ensure that the inmate remains unconscious;!
(g) the failure to delineate the amount of drugs to be administered, as expressed in tenns of their volume, their concentration, their rate of administration and the time intervals between the injection of each of the drugs;
(h) the failure to delineate how the drugs should be obtained, transponed and stored so as to maintain their efficacy;

7As noled earlier, the dosage needed for effective use of Sodium Pentothal is susceptible to a number of factors, some well-recognized, others that are unknown. It is for this reason that, during surgeries. a medically qualified anesthesiologist makes an educated guess before surgery as to the amount of the Sodium Pentothal to administer. and then titrates that amount as it is going into the patient to ensure that the patient has been rendered fully unconscious, adjusting and increasing the amount of the drug as necessary.
!Pavulon, the second ofthe drugs injected according to the protocol, is a paralytic agent. It interferes with the nerve impulse emanating from the brain to the muscles by blocking the neurotransmitters that "direct" muscles to move. This includes the muscles which enable a person to breathe, swallow, speak, blink, or move extremities. Pavulon leaves the muscles in a flaccid state so that the person to whom it has been administered appears calm and relaxed. That is. Pavulon creates the serene appearance that witnesses often describe of a lethal injection execution because the inmate is totally paralyzed. This is, however, simply a chemical maskbecause it is such a thorough paral)1ic agent, the person could be experiencing excruciating pain, including the terrirying sensation of asphyxiating and suffocating. or choking on vomit, but none of this activity would be apparent to onlookers. Nevertheless, this extreme but unseen sutTering would result ifthe Sodium Pentothal had begun to wear otT, had not been fully effective in the first place, or had been injected improperly.
6

(
(i) the failure to discuss the manner in which the IV catheters are to be inserted into the inmate and the criteria that will be used to detennine when eflorts at inserting the IV catheters should be abandoned and the "cut down" procedure begun;
Ul the failure to explain how the IV tubing. three-way valve. saline solution,
heart monitoring system and other apparatus should be modified or filled jf there is a malfunction;'
(k) the failure to discuss how, if the IV line is introduced into someplace other than the inmate's arms, the IV line should be monitored for problems such as puffing at the injection site or how the tubing should be monitored for problems such as leaks. separations and kinks;'"
(I) the increased likelihood of miscommunication because of the convoluted arrangement whereby the nurse in the death chamber watches the injection sites and
"The problem with this lack of discussion of how to remedy malfunctions has been manifested in at least two executions so far. those of Mr. Spivey and Mr. Housel, where after discovering heart activity after the first course of injections, the staff skipped steps in the procedures and injected a second dose of Potassium Chloride instead of beginning with a fresh administration of all three drugs. As noted earlier. the lapse of more than anticipated time after
the administration of Sodium Pentothal significantly increases the risk that the prisoner will
regain consciousness and feel acute, excruciating pain. '''This lack of discussion about the IV lines and the tubing is problematic because if the·
staff is unable to introduce the IV lines into the prisoner's anns, they would have to introduce the IV line in the prisoner's groin. leg, or fOOl. which are all covered by a sheet. This is what happened in Mr. High's execution. The nurse who is supposed to watch the prisoner and communicate with the injecting team would then likely be prevented from observing any problems with the IV lines or tubing, such as puffing at the injection site or a leak. separation or kink in the tubing.
7

(
communicates to a person in the Control Room, the person in the Control Room then communicates to another nurse, who in tum supervises three injection staff members;" and
(m) the deviation from regular medical practice in the use of large syringes to administer the drugs, which increases the possibility of improper administration of the drugs. '2
Pursuant to 28 U.S.C. § 1746.1 declare under penalty of perjury that the foregoing is true and correct. Executed on August 8, 2002.
Dr. Mark Heath
"The nurse who supervises the injection team staff that injects the lethal drugs has to advise the staff members on the correct speed with which to inject the drugs. which ,s related to the pressure exerted on the syringe. Since the nurse observing the injection staff is not touching the syringe. she does not receive information about the pressure required to push the syringe down when she is advising the staff on how fast to inject the drugs. This is a significant problem because excessive pressure suggests infiltration, which is a condition where the needle is in subcutaneous tissue, not in the vein, or other problems in which the drugs are not being properly injected into the blood stream. As discussed earlier, infiltration causes necrosis of the tissue and can be excruciatingly painful to the prisoner.
'1Large syringes offer significantly less tactile feedback when compared to the use of small syringes. In fact, in therapeutic settings, medical professionals use a small syringe in instances when they are not sure if infiltration is occurring or not in order to obtain this tactile information.
8

(

(

C urnculum '.I"~ ae

1)

Date of preparatIon· February 8. 2C01

2) Name:

Mar!( J. S. Heath

BIrth dale: Bir1hplace:
Cili~n'Ship:

March 28. 1960 New York. NY
Unfted States. Unded Kingdom

3)

Academic Training·

Harvard University

B.A._ Biology. 1983

University of North Carolina. Chapel Hill

M.D .. 1987

Medical License

4,

Traineeship:

New York: 177101-1

1987 - 1988 Irdemship. Inlernal Medicine. Georg~ Wa:;hinglon Unrlersily Hospital.
Washinglon. DC.

198a - 1991 Residency. AnEs1hesiotogy. Columbia College of Ph~icians and Surgeons. NEW York. NY

1991 - 1':193 FellowshIp. Aneslhesiology Columbia College of Physicians and Surgeons. New )'ork. "JY

51

Board Oualification·

Diplomale. American Board of Anesthesiology. Oclober 1991.

61

Mildary Service:

None

7)

Professional Organizations·

American Sociely of Anesthesiologists Inlernational Anesthesia ResearCh Society SOCIety of Cardiovascular Ane slhes1ology

61 Academic Appointmenls.

1993 - preserrl

Assistant Professor of Anesthesiology. Columbia University. New Yorlc. NY

9) HospilalfClinical AppOirrlment s:

1993 - present

Assistant AHending Anesthesiologist. Presbyterian
Hospital. New Yorlc. NY.

10) Honors:

Magna cum laude. Harvard University Alpha Omega Alpha. University ot North CaroUna oil Chapel Hill Firsl Prize. New Yorlc Slate Society of Anesthesiologists Resident Presentations. 1991

111 Fellowship and Grant Support:

Foundation for AnestheSia Educati:ln and Research. Research Slarter Grant Award. PrinCipal Investigator. funding 7/92 - 7/93. $15.000.

Foundation tor Anesthesia Education and Research Young Investigafor Award. Principal Investigator. funding 7/93 - 7/96. $70.000.

NIH Inducible knockout o( Ihe NK 1 receplor Prineipallnves"gator. funding 12/98 - 11101. $43 t.94 7

1:2/ Departmental and University Commitlees: Research Allocalion Panel (1996 - 20011
13i Teaching: lecturer and clinicalleacher: Aneslhesiology ReSidency Program. Columbia University MId PreSbyterian Hospital. New York. NY Advanced Cardiac Life Support Training
Invited lecturer:
Anxiety. men. and the NK 1 receptor. University or Chic ago.
Department of Anesthesia and Critic!" Care. July 2000 A.~estlRtic Considi!rations of LWID Implantation. UniverSity of
Chicago. Departmen1 o( Anesthesia and Critical Care. July 2000
14/ Gr;ml Re·JiewCommit!ees: None

i

•,.

15) Publications.

OriginOl' peer reviewed articles
* Santarefli. L .• Gobbi. G .. Debs~ P .C.. SibiUe, E. L .. Slier. P .. Hen. R .• Heath, M.J.S. <'2001).
Genelic and pharmacological disruption of neuroldnin 1 receptor !\lndion decreases anxiely-
related behaviors and increases serotonergic !\lnction. Proc. N n. "'""d. Sci .. 98(4J. t 912 -
1917.
• • King. T.E . . He$ M. J. S •. Oebs. P. Davis. MB. Hen. R. Barr. G. (2000). The
developmenl ot nociceplive responses in neuroltinin-l receplor knockOut mice.
Neuroreport.;11(3/.587-91 /) aulhors contributed equally 10 Ihis work
• Heath. M. J. S•. lints. T .• lee. C. J .. Dodd. J. (1995). Functional expression of the ladlykinin NK. receptor by noor plale cells in Ihe embryonic rat spinal cord and brainsiem
Journal of Physiology 496.1. 139 -148.
He~, ..... J. S.. Womac!( MO. MacDermoll. A 6. \19941. Subsance P elevates infracellular calcium in bolh neurons and glial cells from Ihe dorsal horn of Ihe spinal cord. Journaf of NeurophysiologY 72(3). 1192 - 1197.
McGehee. D. S .. Heath, M. J. S .. Gelber. S . DeVay.P .. Role.l.W. (1995, Nicolint. enhancemenf of fast excftalory synaptic transmission in Ihe eNS by presynaplic recepiors. Science 269. 1692· 1696.
Morales D. Madigan J. CuRinane S. Chen J. Heath, M. J. 5. Oz M. Oliver JA. Landry OW. (1999). Reversal by vasopressin of intractable hypolension 10 Ihe late phase of hemOrrhagiC shock. Circu!aI.on. JuI 20;10(13):226-9.
Lofurco. J. J.• Owens. D. F .. Heath, M. J. S. Davis. M. 8. E .. Krigstein. A. R. (1995). GABA and glulamale depolarize co:fical progennor cells and inllibd DNA synthesiS. Neuron 15.12871298.
KyroZis A.• Goldstein P. A.. Heath, M. J. 5 •. MacDermott. A. S. (1995). Calcium enfry through a subpopulalion of AMPA receptors desensitized neighboring NMOA receptors in ral dorsal hom neurons. Journal of Pltysiolo9y485.2. 313 - 381.
McGehee. D.S .. Aldersberg. ,..... Liu. K.-P .. Hsuing. S .. Heath. M.J.S.. Tamir. H. (1997).
Mechanism ot extracellular Ca:'·receplor stimUlated hormone relene from sheep thyroid
parafolicular calls . .Journal of Physiology: 502.1.31 - 44.
Kao. J .. Houc!t. K .. Fan. Y.. Haehnel. I.. ligulfi. S. K .. Kayton. M. L .. Gril(scheil. T . Chabol. J. NOVlygrod. R.. Greenberg. S.• Kuang. W.J .. Leung. O. W .• Hay..o;ard. J. R .. KiSiel. W.. Heath, M.
J. S•. Srell. J.. Slem. D. (1994). Characterization ot a noveltumor·derived cy1okine. Journal <If
aicloqic~1 ChemiStry 269.25106·25119.

v.(. . Dodd. J .. Jah•. C.E .. Hr .•flon. P N.. Heath, M.J.S.. Matlhew.

Jessell. T M. (1983)

Cytochemical and physiolOgical properties of sensory and dorsal hom neuronslhallransmit

cutaneous sensation. Cold Spring H~rlIor Svmposl~ of Quantitiftive 8ioloqy46. 66S .695.

Pinsky.O.J. Naka, Y .. liao.H .. Oz. NI. 0 .. Wagner. O. D .. Mayadas. T. N .. Johnson. R. C .. Hynes. R. 0 .. HuUl, M.J.S.. Lawson. C.A. stem. D.NI. Hypoxla·induced exocylosis of endothelial cen Weibel-Palade bodies. Journat of Clinicallnvestigalion 97(2).493.500.

Case reports

none

Review. chapfers, ealtori~s

•

Heath, M. J. S.. Dickstein. M. L. (2000,. Perioperative management oUhe lelf

ventricular assist device recipienl. Prog Cardiovasc 0;5.:43(1):47·54.

.s. Heath, M• S. and Hen. R. (1995). Genetic insights Info serolonin fundion. CUtTent
Biology 5.9.997 ·999.

Heath, M.J.S.. Mathews D 11990). Care of Ihe Organ Donor. Anesthesiology Report 3.344·348.

Heath., M. J. S., Basic physiology and pharmacology orlhe central synapse. (199B)
Anesthesiology Clinics of North Americ;J 151.3).473' 485

AbsfTacfs
Heath, M.J.S., Davis, M .. Sanlarelli L .. Hen H. ('2002). Expression of Subslance P and NK 1 Receptor in the Murine Locus Coeruleus and Dorsal Raphe Nucleus. Anesthesia and Analgesia 93: 5·212
HeJttt, M.J.S., Santarelli l, Hen H. (2001) The NKI receptor is necessary for the stress·evoked expression of c·Fos in the paravenlricular nucleus otthe hypothalamus. AnestheSia and Analgesia 92: 5233.
HeaHl, M.J.S., SanlarEJ'i l. Debs p. Hen H. (2000). Reduced anxiely and sUess responses in mice lacking Ihe NKI receptor. AnesthesiolOgy 93: 3/\ /\·755.
Heath, M.J.S., King. T .. Debs, p.e .• Davis M .. Hen R., Barr G. (2000). NKl receptor gene disruption alters Ihe development of nociceplion. Anesthtfsia and Analgesia: 90: SJI5.
He.alh, M.J.S., Lee. J.H .. Debs. p.e .. Davis. M. (199T1. Delinl'ation or Spinal cord grial subpopulahons expressing the NK 1 receptor. Anesthesiology: 81: 3A: A6J9.
HeOlUI. M.J.S., MacDermott A.B. (1992/. Substance P elevates intracellular catcium in dorsal room cells wilt; neuronal and glial properties. Society lor NeurOSCience Abstracts: 18: 123.1.
Heath, M.J.S., LeI? CJ .. Dodd J. (1994) ontogeny of NK 1 receptor·iike Immunoreactivity in the r3t spina! cord SOCiety for Neuroscience Abstracts. 20.115.16.

~99111S01lurane ~annel I
Heath, M.J.S.,.Berman M.F.

•
modulation of calcium

cunents in spinal

cord dorsal hom neurons. Anesthesiology 75. 3A: A1037.

Heath, M.J.S., Davis. M .• Santarelli L .. Hen H. (2002). Expression of Subslance P and NK1 Receplor in Ihe Murine locus Coeruleus and Dorsal Raphe Nucleus. Aneslhesia and Analgesia 93: S-212

TabG

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

WALLACE M. FUGATE, III,

)

)

Plaintiff,

)

)

vs

)

)

THE DEPARTMENT OF CORRECTIONS,

)

and, JIM WETHERINGTON,

)

Commissioner, Department of Corrections, )

)

Defendants.

)

----------------------------)

Civil Action No.- - - - - -
Eucutioll scheduled (or 7:00 p.m. on Wednesday, August 14,2002

DECLARAnON OF DR. RANDALL L. TACKET[, PH.D.

v.s.c. Pursuant to 28

§ 1746, I declare the following;

I. My name is Randall L. Tackett. I am a resident of Athens, Georgia.

2. I received my Ph.D. in Pharmacology from the University of Georgia in 1979 and

have been a professor of pharmacology at the University of Georgia'S College of Pharmacy since

1981. I am a member of the American Society ofPhannacology and Experimental Therapeutics

and the International Society on Toxicology. I have published over 80 articles on

pharmacological issues, and have also published a large number of professional publications and

abstracts. In addition, J have served a reviewer for numerous journals, including Journal of

Pharmaceutical Science, Pharmacology Biochemistry and Behavior, Journal of Phannacology and

Experimental Therapeutics and Biophannaceutical Drug Disposition.

3. Sodium thiopental is a barbiturate which serves as a sedative. IfproperIy

administered it can serve as a short-acting anesthetic. However, its Use requires carefully

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«

monitoring by a physician and this frequently encompasses monitoring of vital signs (blood pressure. heart rate, respiration) as well as level ofanesthesia which can only be done by a trained professional. Due to the short duration of action and the variability in response between patients, sodium thiopental's popularity as an anesthetic and sedative has declined in favor ofother agents which are available with longer durations of action and more predictable responses. These alternatives are equally inexpensive to obtain, costing less than 520 for the amount used in the lethal injection procedure. It is important to note that the use of Pavulon further emphasizes the need for close physiological monitoring ofthe level of anesthesia otherwise, the patient will not be at a proper level of anesthesia resulting in asphyxiation or suffocation and the excruciating pain of the potassium chloride.
4. Pancuronium (Pavulon) is a neuromuscular blocking agent which acts to prevent the functioning ofthe nerves ofthe skeletal muscles, ultimately contributing to the death of the individual by paralyzing the muscles necessary for respiration. Pancuronium, however, does not affect cognition or any form of sensation, whether that be a benign sensation such as touch or itching or a painful sensation such as burning, crushing, asphyxiation etc. So, even if a person who is administered pancuronium eXIJeriences sensations or has active thought processes, he would not be able to express those emotions or ideas because of the paralysis of the skeletal muscles. As a result, pancuronium causes a form ofchemical entombment (mask) that would make it impossible for a witness observing the inmate to determine whether the inmate is experiencing pain. Moreover, as noted above, while pancuronium will prevent the muscle spasms associated with intravenous administration of potassium chloride, it will not prevent asphyxiation/suffocation or the excruciating pain of the potassium chloride if the pentothal wears

2

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off. Furthermore, the use of pancuronium makes it very difficult to assess the level of anesthesia produced by sodium thiopental unless the patient is closely monitored by a trained individual.
S. Potassium chloride's primary role is to produce a fatal cardiac arrhythmia by interrupting the ionic currents in the heart at high concentrations. However, administration of high concentrations of potassium chloride necessary to produce death is extremely irritating and painful. When injected intravenously, potassium depolarizes nerves and muscles resulting in extreme pain and severe muscular spasms over the entire body. These symptoms would be experienced if the patient was improperly sedated which can occur with short-acting barbiturates. More importantly, the presence of a neuromuscular blocking drug such as Pavulon would paralyze the patient and prevent him from expressing the extreme pain although he would fully experience it.
6. If! were to use a cocktail containing the above three drugs in animal experiments, I would have to assure the 1.A.C.U.C. (Institutional Animal Care and Use Committee) ofthe fol/owing before approval:
(a) The animal was at a proper level of anesthesia prior to the administration of potassium chloride and that:
(b) Even if I were not administering potassium chloride, I would have to assure the Committee that I could monitor the level of anesthesia produced by sodium thiopental when used with pancuronium.
7. Any Protocol that did not meet the above two conditions would not be approved by the animal care committee.
J

(
Pursuant to 28 U.S.C. § 1746, I declare under penalty ofperjury that the foregoing is true and correct. Executed on August 8, 2002.
Dr. Randall L. Tackett, Ph.D.
4

(

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CURRICULUM VITAE
Randall L. Tackett, Ph.D.
Department of Clinical and Administrative Sciences College of Pharmacy. University of Georgia Athens. Georgia 30602 Phone: (706) 542-5415 FAX: (706) 542-5228 [-mail: rtackef,@mail.rx.uga.edu

: CITIZENSHIP: EDUCATION:
PROFESSIONAL EXPERIENCE:

u.s.
1977-1979
1975-1977
1972-1975

)
University of Georgia Athens, GA Ph.D. Pharmacology
Auburn University Auburn, AL M.S. Pharmacology
Jacksonville University Jacksonville, FL B.S. Biology

2000-present

Adjunct Clinical Professor Departmenl of Psychology Fairleigh Dir.kenson Univers~y

1997-present

Professor Department of Clinical and Administrative Sciences College of Pharmacy Un iversity of Georg ia

1995-1997

Professor Department of Pharmacology and Toxicology College of Pharmacy Ur.iversity of Georgia

1989-1994

Head Department of Pharmacology and Toxicology College of Pharmacy University of Georgia

1987-present Adjunct Professor

(

('

Dept. Physic!ogy/PharmocolC>;Jy College of Veterinary Medicine University of Georgia

1986-1994

Associate Professor of Pharmacology College of Pharmacy University of Georgia

1985-1989

Coordinator for Research and Graduate Studies College of Pharmacy University of Georgia

198,.,985

Assistant Professor of Pharmacology College of Pharmacy University of Georgia

1979-1981

Postdoctoral Fellow Dept. Pharmacology Medical University of South Carolina

Professional Affiliations

American Society of Pharmacology and Experimental Therapeutics S:gmaXi International Society on Toxicology Rho Chi Pharmaceubcal Honor Society New York Academy of Science Phi Lambda Sigma Pharmacy Leadership Society Phi Kappa Phi Honor Society Society of Neuroscience American Heart Association Council on Circulation Intemational Society on Hypertension in Blacks Listed in Who's Who in Medicine and Healthcare

Honors and Awards

Invited speaker at Gordon Conference on Magnesium (1982) Phi Della Chi Teacher of the Year (1983-1984) Selected to give charge to June graduating class (1984) Received the Dean's Award for Outstanding Teaching (1987) Recognized as Outstanding Teacher of the Year from the University of Georgia, College of Pharmacy by the American Association of the Colleges of Pharmacy (1987) Received 1987 Georgia Pharmacist Magazine Dedication Nominee for Josiah Meigs Award for Excellence in Teaching, College of Pharmacy (1989) Chaired Session on "Cocaine" at FASEB meeting', New Orleans, March, 1989. Received 1990 Georgia PharmaCist Magazine Dedication P,-esident, l'.1iversity of Georgia Chapler of the Society for Neuroscienc.; (1 !;90-91) Received 1994 Georgia PharmaCist Magazine Dedication 1994 FASEB MARC/MBRS Visiting Scientist University of Georgia Panhellenic Council Outstanding Faculty Member of the Year Nominee(1993-1994)

2

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1996 Fellow of the International Society on Hypertension in Blacks' Recipient of Wyeth-Ayerst Stipend for University of Utah School of Alcoholism and Other Drug Dependencies (Summer. 1997) E1hm'city & Disease Field Editor (1998 -2000) Georgia Psychological Association Distinguished Faculty Award. 1999 College of Pharmacy Teacher of the Year Nominee. 2000 Key Note Speaker, Rho Chi Banquet, 2000 American Psychological Association Presidential Citation. 2000.
Refereed Publications
Tackett, R L. and Holi. J E.: Histaminergic Mechanisms Involved in the Centrally Mediated Effects of Ouabain. J. Pharmacoi. Exp. Ther. 215: 552-556. 1980.
Tackett. R L.. Webb. J. G. and Privitera, P. J.: Cerebroventricular Propranolol Elevates Cerebrospinal
Fluid Norepinephrine and Lowers Blood Pressure. Science 213: 911-913, 1981.
Tackett, R L. and HolI, J. E.: Decreased Inotropism and Increased Automaticity to Ouabain in Furosemide-Induced Hypomagnesemia. J. Cardiovascular Pharmacoi. 3: 1269-1277, 1981.
Plunkett, L. M. and Tackett, R. L.: Central Alpha Receptors and Their Role in Digoxin Cardiotoxicity. J.
Pharmacol. Exp. Ther. 227: 683-666, 1983.
Rydzik, R" Terragno, A. and Tackett, R L.: Picogram Detection of Eicosanoids by UV Absorbance After Narrow Bore HPLC. J. Chromatograph. 308: 31-41,1984.
Chu, C. K., Wander, J.~., Tackett, R. L., Iturrian, W. B, Schmitz, J. P., Garner, G. E. and Chae. K.: A
Novel Serolonin Antagonist 2'2-Biol[3-2-N,N-dimethylaminoethyl)indoylj sulfide (BOIS). J. Heterocyclic Chem. 21: 1901-1903. 1984.
Kaswan. R. L., Tackett, R L" Martin, C. L. and Bartell, D. E.. Intraocular Penetration of Cyclosporin in rabbits. Invest. Opthalmo/. Suppl. 25: 37. 1984.
Plunkett. L. M.. Gokhale, RD., Valiner, J. J. and Tackett, R. L.: Prazosin Alters Free and Total Plasma Digoxin Levels in Dogs. Am. Heart J. 109: 847-853,1985.
Heric, E. and Tackett. R. L: Altered Vascular Reactivity in the Rabbit During Hypercholesterolemia.
Pharmacal. 31: 72-81, 1985.
Plunkett, L. M. and Tackett, R. L: The Effects of Central Beta Receptor Antagonism on Digoxin Cardiotoxicity. Res. Comm. Path. Pharmacal. 48: 209-220,1965.
Arnold, T. H. and Tackett. R. L.: Effects of Magnesium on the Action of Vasodilatory Agents. Pharmacol.
31: 218-224,1965.
Arnold, T. H., Valiner. J. J. and Tackett, R. L: Age-related Changes in the Pharmacodynamics of
Verapamll. Am. Heart J. 110: 981-966. 1985.
Tackett, R. L., Webb, J. G. and Privitera, P. J.: Site and Mechanism of the Centrally Mediated
Hypotensive Action of Propranolol. J. Pharmacal. Exp. T,~er. 235: 66-70. 1965.
Arnold, T. H.. Tackett, R. L. and Vallner, J. J.: Comparison of the Pharmacokinetics of Verapamil After IV.
Oral and Intranasal Administration. Biopharm. Drug Disposition 6: 447-454, 1985.

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Bjorlin9. D. E. and Tackett. R L: Reactivity of Denervated Vascular Grafts in Dogs. Am. Coli. Vet. Surg. 15: 13-14A. 1986.
Rawlings. C.. Tackett. R L. Bjorling. O. and Arnold. T. H.: Stress Response Following Anesthesia and Major Surgery in the Student Lab Am. Coli. Vet. Surg. 15: 32A. 1986.
Tackett. R. L.: Enhanced Sympathetic Activity as a Mechanism for Cardiac Glycoside Toxicity in
Hypomagnesemia. Pharmacal. 32: 141-146. 1986.
Rydzik. R.. Terra9no. N.. Tackett. R L. and Terragno. A:. Estradiol Inhibits Arachidonic Acid Metabolism in Renal and Vascular Tissue. CUn Exp. Hypertension in Prey. B5: 51-68. 1986.
Plunkett, L. M. and Tackett. R L.: Central Dopamine Receptors and Their ROle in Digoxin-Induced Cardiotoxicity in the Dog. J. Pharm. Pharmacol. 39: 29-34. 1987.
Plunkett, L. M. and Tackett. R. L.: Increases in CSF Norepinephrine Associated with the Onset of Cardiac Glycoside Toxicity. Eur. J. Pharmacol. 136: 119-122, 1987.
Obeng. E., Vallner. J. J., Cadwallader, D. E. and Tackett. R. L.: Pharmacokinetics of Tiazofurin in Dogs. Biopharm. Drug Disposition 8: 125-132. 1987
Radwan. M., Price, J. and Tackett, R: Analysis of Disopyramide by HPLC with UV Detection. Anal. Letters 20: 1125-1131, 1987.
Baxter, G. M.. LaSKey. R. E., Tackett. R L. and Moore. J. N.: Vascular Reactivity of Equine Dig~al Vessels. Vet. Surg. 16: 83A, 1987.
Tackett, R. L. and Laskey, R. E.: Naloxone Antagonizes the Central Hypotensive Action 01 BHT-933. Life
Sci. 41: 2063·2067, 1988.
Jones, L. F. and Tackett. R. L.: Interaction of Propranolol with Central Serotonergic Neurons. Life Sci. 43:
2249-2255,1988.
Arrendale, R. F.. Stewart, J. T. and Tackett, R. L.: Determination 01 Clonidine in Human Plasma by Cold on Column Injection Capillary Gas Chromatography/Selecled Ion Monitoring/Mass Spectrometry. J. Chroma/og. 432: 165·175.1988.
Sprockel, O. L, Price, J. C., Jennings, R. Tackett, R. L.. Hemingway, S., Clark, B. and Laskey, R. E.: In
Vi/rolin Vivo Evaluation of a Liquid Sustained Release Dosage Form of Chlorpheniramine. Drug Develop. Indust. ?harm. 15: 1393-1404. 1989.
Hoffman, W. H.. DiPiro, J. T., Tackett, R. L., Arrendale, R. F. and Han, O. A.: Relationship of Plasma Cionidine to Growth Hormone Concentrations in Children and Adolescents. J. C/in. Pharmacal. 29: 538-
542,1989.
Jones. L. F. and Tackett, R. L.: Calecholaminergic and Opioidergic Mechanisms Involved in the
Hypotensive Response of Pindolol. Ei.lr. J. Pharmacal. 165: 123-128, 1989.
S3xter. G. M.. Tar.kett. R. L. and Moore. J.: Reactivity 01 Equine Palmar Arteries and Veins to Vasodilating Agents. Vet. Surg. 18: 221-226, 1989.
Rawlings, C. A, Tackett, R. L., Sjorling. D. E. and Arnold, Jr.. T. H.: Cardiovascular Function and Serum
Catecholamine Concentrations Following Anesthesia and Surgery in the Dog. Vet. Res. 18: 255-260, 1989.

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Baxter. G. M.. Laskey. R. E.. Tackett. R. L. and Moore. J. N.: In Vitro Reactivity of Equine Digital Arteries and Veins to Vasoconstrictive Mediators in Healthy Horses and in Horses with Early Laminitis. Arner. J.
Vet. Res. 50: 508-517. 1989.
Laskey. R. E. Jones. L. F. and Tackett. R. L Naloxone Pretreatment Blocks the Hypotensive Effects of
Atenololln SHR and WKY Rats. Pharmacal. 39: 109-114. 1989.
Jones. L. F. and Tackett. R. L: Central Me~hanisms of Action Involved In Cocaine-Induced Tachycardia.
Life Sci. 46 723-728. 1990.
Jones. L. F. and Tackett, R. L: Enhanced Pressor Response to Cocaine in SHR Is Mediated Through
Peripheral Alpha Receptors. Res. Comm. Substance Abuse II: 1-9.1990.
Rawlings. C. A and Tackett. R. L: Postadulticide Pulmonary Hypertension of Canine Heartworm
O'sease: Succes.!ul Treatment with Oxygen and Failure ofAntihistamires. Amer. J. Vet. Res. 51: 15651569. 1990
laFlamme. D. P.• Tackett. R. L.. Davis. R. and Huber, T. L A Simplified Technique for Chronic
Cerebrospinal Fluid Collection in the Conscious Dog. Brain Res. Bull. 25: 783-85. 1990.
Jones. L. F. and Tackett. R. L.: Chronic Cocaine Treatment Enhances the Responsiveness of the Left Descending Coronary Artery and the Femoral Artery to Vasoactive Substances. J. Pharmacol. Exp. Ther. 255: 1366-1370. 1990.
Soliman. A S. and Tackett, R. L.: Altered Responsiveness of Saphenous Vein Grafts to Norepinephrine and Tyramine: Relation to Tissue Catecholamine Stores. J. Cardiovas. Pharmacol. 17: 154-57,1991.
Baxter, G. M.. Moore, J. N. and Tackett. R. L.: In Vitro Responses of Equine Digital Vessels to Dopamine
and Fenoldopam. Equine Vet. J. 23: 48-52, 1991.
Jones. L. F. and Tackett. R. L: Differential Routes of Cocaine Administration Indicate a Peripheral Cardiotoxic Action. Pharmacol. Biochem. SehBV. 38: 601-603. 1991.
Fischer. J .. Johnson. M. A and Tackett, R. L.: The Effect of Copper Deficiency on Adriamycin Toxicity.
Toxicol. Lell. 57: 147-158, 1991.
Gallo. J. M.. Sanzgiri, Y.• Finco. T. S.. Howerth. E. W .. Wilson. J.. Johnston. J.• Tackett. R. L. and Budsberg. S. C.: Zidovudine Serum, Cerebrospinal Fluid and Brain Concentrations Following Chronic Administration of a New Zidovudlne Formulation Via an Implantable Pump in Dogs. J. Pharm. Sci. 61: l·t-15, 1992.
Soliman. A S. and Tackett. R. L.: Early Alterations in Vascular Reactivity of Autogenous Saphenous Vein
Grafts. Coronary Art. Dis. 3: 523-527. 1992.
Barber. DA and Tackett. R. L.; Hemodynamic Effects of Centrally Administered Norcocaine in the Rat. Life Sci. 51: 1269-76. 1992.
Fischer. J.. Tackett. R. L., Howerth. E. and Johnson. MA: Copper and Selenium Deficiencies do not Enhance the CardiotoxiCl1y in Rats Due to Chronic Doxorubicin Treatment. J. Nutrition 122: 2128-2137;.
1992.
F'scher. J. G.. Ta~kEtt. R. l., Howerth. E. W. and Johnson. M. A: Copper Deficient Rat Heart Ca~ Compensate for Doxorubicin-Induced Oxidant Stress. BioI. Trace Element Res. 37: 233-251. 1993.

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Barber. D. A. and Tackett. R. L: OploiderglC Receptors in the Arcuate Nucleus are not Involved in the Cardiovascular Effects of Clonidine. Pharmacol. Biochem. Behavior 49: 579-582. 1994.
Dallas. C. E.. Chen. X. M.. Muralidhara. S., Varkonyi, P., Tackett. R L, ana Bruckner, Jv.: Use 01 Tissue Disposition Data Irom Rats and Dogs to Determine Species Differences in Input Parameterslor a Physiological Model for Perchloroethylene. Environ. Res. 67: 54-67, 1994.
Barber, D. A., Holmes. C. R., Lee. C., and Tackett. R. L, Angiotensin II Antagonists and Potassium Channel Openers; Cardiovascular Therapy of the Future. Pharmacy Times 60 48-59, 1994.
Barber, D. A.. Zumbro. G L. Rubin. J. W .. and Tackett. R L.: The Use of Methylene Blue as an Extravascular Surgical Marker Impairs Vascular Responses of Human Saphenous Veins. J. Thor Cardiovasc. Surg. 109: 21-29.1995.
Barber. D.A.• Do. N.H.. Tackett. R.L and Capomacchia. A.C.: Non-superoxide Lucigenin-Enhanced C,emilumin"scen~e From Phospholipids ·and Human Sapt,enous Vein~. Froe Rad. Bioi Med. 18: E65-69. 1995.
Dallas. C. E., Chen. X. M.. Muralidhra. S.• Varkonyi. p. Tackett. R L. and Bruckner, J. V.: A Physiologically-Based Pharmacokinetic Model Useful in the Prediction of the Influence of Species. Dose and Exposure Route on Perchloroethylene Pharmacokinetics. J. Toxico!. Environ. Health 44: 301-17. 1995.
Winecoff. A.P., Tackett. RL. and Jones. L.F.: Insulin Attenuales Aortic Contractions in Normotensive but not Borderline Hypertensive Rats. Clin. Exp. Hyperten. - Part A. 17: 787-801. 1995.
Barber. DA. Hotmes. C.R.. Bivin, C.. and Tackett. R.L., Angiotensin II Receptors and Potassium Channels: Target~ for New Cardiovascular Drugs. J. Pract. Nursing. 4'5: 32-42. 1995.
Tackett. R.L.: Update on Hypertension. Clin. Trends Pharm. Pract. 10: 67-73. 1995.
Ergul. A., Tackett, R.L., and Puett. D.: Identification of Receptor Binding and Activation Sites in Endolhelin-l Using Site Directed Mulagenesis. Girc. Res. 77: 1087-94. 1995.
Radwan. M.. Price. J.C., and Tackett. R.L. In Vitro Release of Disopyramide From Cellulose Acetate Butyrate Microspheres. Drug Dev. Ind. Pharm. 21' 1453-1462.1995.
Shoemaker, K., Rubin, J.W., Zumbro. G.L. and Tackett. RL: Evans Blue and Gentian Violet: Alternatives
to Methylene Blue as a Surgical Marker Dye. J. Thor. Cardiovasc. Surg. 112: 542-544. 1996.
Smith, J.D., Allen. S.'N.. Quandt, J.E. and Tackett, RL: I"dicators of Postoperative Pain in Cats and Correlation With Clinical Criteria. Amer. J. Vet. Res. 57: 1674-78. 1996.
Zhao, L and Tackett, RL.· Oxidized Low Density Lipoprotein Inhibits Acetylcholine-Induced Vasorelaxation
and Increases 5-HT-lnduced Vasoconstriction in Isolated Human Saphenous Vein. J. Pharmacol. Exp.
Ther. 284: 637-43. 1998.
Ergul. A.. Shoemaker. K., Puett, D.• and Tackett. R.L.: Gender Differences in the Expression of Endothehn Receptors in Human Saphenous Veins. J Pharmaco/. Exp. Ther. 285: 511-17. 1998.
Severson. K. R. and Tackett. R. l.: Enhanced Hemodynamic Response to ID-ala', D-met'J-Methionine
Enkephalin (DAME) in Streptozotocln-Induced Diabetic Rats Is Reversed By Insulin Replacement. Life S~i. 62: 22'9-30. 1998

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Josey, E. and Tackett, R.L. SI. John's Wort: A New Alternative For' Depression. Int J Clin Phannacol. Ther. 37: 111-19, 1999.
Ergul, A., Tackett, R.L., and Puett, D. Distribution of Endothehn Receptors in Saphenous Veins of African
Americans: Implications of Racial Differences. J Cardiovosc Pharmaco!. 34: 327-32, 1999.
Schneider, DA, Parks, AH., Eades, S.C. and Tackett, RL.: Palmar Digital Vessel Relaxation in Normal Horses and in Horses Given Carbohydrate. ,Am. J. Vet. Res. 60: 233-39, 1999.
Holloman, KA, Dallas, C.E.. Jagoe, C.H.. Tackett, R.L.. Kind, JA and Rollor, EA Interspecies Differences in Oxidative Stress Response and Radiocesium Levels in Rodents Inhabiting Areas Highly Contaminated by the Chernobyl Nuclear Disasler. Environm. Toxico!. Chern. 19: 2830-34, 2000.
Vishwanathan, K., Tackett, R, Stewart, J.T. and Bartlett, M.G. Determination of Arginine and Methylated Arginines in Human Plasma by LC/MS/MS. J Chromatograph B. 748: 157-166.2000.
Y·Xl, H.S., T,3cket!, P.L., Bunnell, B.N .. Crabbe, J.B. and D;~hman, RK: Antklepressant-like Effects of Physical Activity vs. Imipramine: Neonatal Clomipramine Model. Psychobio/. 28: 540-549, 2000.
Hunt, E.J., Lester. C.E.. Lester, EA and Tackett, R.L. Effect of SI. John's Wort on Free Radical Production. Life Sci. 69: 181-90, 2001.
Cha, H. and Tackett, R L.: Effects of Losartan (DUP 753) on Regional Hemodynamics in Spontaneously Hypertensive Rats. Clin. Exp. Hyperten. - Part A (Accepted w/revisions).
Cha, H., Barber, D. A, and Tackett, R L.: Functional Role of Postsynaptic AT, Receptors in the Angiotensin II-Induced Facilitation of Noradrenergic Vasoconstriction in the Mesenteric Bed of SpragueDawley Rats. (J. Cardiovasc. Pharmaco/., Accepted with revisions).
Cna, H. and Tackett, R. L.: Effect of Angiotensin II on a-Adrenergic and Purinergic Vasoconstriction in the Isotated Rabbit Mesenteric Artery. (Submitted to J. Pharmaco!. Exp. Ther.).
Cha, H. and Tackett, R L.: Effect of Angiotensin II on the Adrenergic and Purinergic Cotransmission in Nicotine-Evoked Vasoconstriction in Rabbit Mesenteric Artery (Submited to Cire. Res.).
Radwan, M. A, Tackett, R. L. and Price J. C.: Pharmacokinetics of tV. Oral and Sustained Release
Administration of Disopyramide. (Submitted to J. Microencapsulation).
SOliman, A. S.. Ali, A-M. and Tackett, R. l.: Aspirin-Induced Changes of Vascular Reactivity of
Nongrafted and Grafted Canine Saphenous Veins. (Submitted to Cire. Res.).
B,lrber, D. ~" Rul;in, J. W., Zumbro, G. L., Perri, M., and T"ckett, R. L.: Et~nic Differences in the Vascular Reactivity of the Saphenous Vein. (submitted to Circ.).
Holloman, K.A.. Dallas. C.E., Jagoe, C.H.. Tackett. RL. and Kind, JA Oxidative Stress in Out-Bred Rodents Exposed to Whole-Body Ionizing Radiation: Effects of Species, Sex, Source, Dose, and Sample Storage. (Submitted to J Appl Toxico!)
Zhao, L. and Tackett, R.L: Lysophosphatidylcholine Impairs Endothelium-Dependent Vasorelaxation By
Increasing Superoxide Production. (Submitted to Circ.)
Schneider, DA. Eades, S.C., Parks, A.H., and Tackett, R.L.. Characterization of the In Vitro Responses of Equine Ileum to Stretch, Electrical Stimulation and 5-Hydroxylryptamine. (Submitted to Am. J. Vet. Res.)
7

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put 111 t.o .ny LVIoI CIt torM at doc~nt ov.r ",hlc" you II.....

S

..eonLt"<Il 01' po...e.slo,,? ".u. I'Iot. ,,'.Uy.

• It. don't hollve conU:o! of

n.. AUoIIIl'It....... C"OI1LlrOl of

And tMy ...... th. on~' ttl.' iPU't

It. iftto t.""'t ". U" Uke • b~nd.r.

'QU'.' g. 0".,.

wh.t I ' . oI,Unq, ':0",1<1. you id.~tlfV

10 the ,,",loeul. bf ...bleb ••,eutionl ar. eA.-rled o..t. Ie

II
"."

..GeOl'q'.?
Q.

,...
0"'",
(Whllreupon, OetHldant', Exhill't.a lIu~rs I oiIIncl 3

"

_ ..I ••rlled fol' ht,ntHie.-lion by the court rlportlr.,

'I N ..It., •• o.tertdAnf,', tahlblt. 1:. It.·' .. uri.' 101 cop I,. of

U dQ<;:u•• ntl t ..... t .re poll t~lh.r by. p.lp"'t c-Up. ".1301 "9

20 to ••k ro", to 10011 It. ,"'It. U .. Unt. portion of ttIL. to 1 -

21
" " "

.. toll"'_ if you ("oil" dlllnli .....h.t. that doc:u..nt. b?

"." J

t.hls our

..Q.

TIS, V", pl••••. It loot.. lUi:e -- _II. Jt ••re on one' 01 the,e,

..

I

Q. E.u:arpt. 0' the --

0\, or tbe pcotocol _nqal ... lqllL •
o.

we'll c~ lHIck to thAt, It' • • •tII;eq, e. D.f.ncWnl'. Eshlblt

•

1,

..COuld YGII Idantlt,. tlWt d41.:"1I-.nU .,.... 'J'hu looks IU:. whaC; _

c;".ll the protOCo),

Q. AlJd ar.t tllo•• tfl.. pI'Qt~ol. by "'Mcl! row and OtM"

~ lncU .. ldliel. lit four dJ.r"ct.10n clrry .."t ~'.C:llt.l"n' bf I.thd

.

'nj.etlGft In LIIe Stac;.. Gt c;.orqla! A. Y•• , IU,

"
II

O. Dd.lId.nt.'. I!:.",blt l. Is th.l.t PlItt of t"OI~

..

E ..... 1 _ • .,cerpt. out ot bl.,. Lt•• «- WGq lei be potrt

U ot ~b' •.

"

U t.llet quid. yo", and 9111de the other e. .lnJlttator'1 .t ~".

l' 11

..Frllon In how .In •••clltlo", 's to btl t:"oIrrled aut.'

"

o·

20 ".",'c; of tl'l<e teCDlrds and «-he bUlln.,' -- sO Lo 111'''_. t~

U bu.il,••• r.cord. o( t.ha CAoor9'a Dlaq"o't!C' .nd

ZZ Cl••• lflc.tlon C.nter'

21

A, 101,11,.,. ..... v. e co", of I~. lIut th.. C'. . .,_in,

Z.f .,t lan'a

lind I ' . _ t svr.. tlwt J c...

U..J.lIJI J t" 5 a

"now Z:i f.ell'U •• dtc.c::tat, I dan't

It U', leq41, tHit th..y

..

... Int.ln th.. al(ielat copy lind 111:" ""VOns.l.bl" (ot", yotl

;I 1I;:n_, U IIny chllftgeS U" -.de to it or IInythlnq ot that nllture. YOU tnow. I can't 90 Jon to it aAd _k. . . t",vl'lon,

[can aUQveat. revl,Ion, bllt Lh.y tlev. the r'·PQn,.lbillty

!o or the euthoelty over that,

•

Q •

h,thll.l inJection. ttl. doc:uJl.nt that foy'v. IdentlUIId a ..

, ,.,. o.t.ndant·, Eahlblt l. tile"'. a ~py .t UI'i'rotoeal -A.

"

o. __ th..t cUuet. hOW' thoilt' ••~tlonl ar. carried

."
"

A. l •••
1II"It, IlCAAli: 'OI,ir HOPo!" III. this ti ... r would tender to "he: court o.t....unt·. Ellh1ttlt 1. It'. tI'"

" "
."".

t.hink \"011 "ge~ to -KfI, poRTt"l ,.... Yout' Monor, Thl. Is th" Gor;.. _nt th.t fie" th. CO"" PAq'. o.or,la Depa,t_IIt of Corcectlon,. ...... I"I.tut1". . .Ad e ••c ..tlon Prcu::.d....ell,

"

Letbel InjeCt!O!\, Ufld.r o..t.II S.nt.nc. M" t, 2000: I.

"

" " "

THE wrnl[5S: " .... Ilr. Nil, I'OAU": Then .... ".V. no ob"ctlon to iI,. rNE C'OUItT\ Qtay. It·, 1Id_J,tted,

"

Q. DUU"y, But ... It. ,al",t'" to I.ch Indl",I.,...1 .>I.o:::utIO" that ..." t .....n pt ..c. "uu",.nt. to tbol. PI'OtGcols, b•• there tMln ... [!)<:Ilvldu.l til. or teea..d Ir.lPpt owtll .. ln.q co-"ll. ...c. wl.th 5 th.. plro.hlGn. a( p('Otocol (or a.ch indlvldu.' po:tsao tll.,'s

• You'r.. a,):lng. Th.re lint INllvld... 1 f.COIrOS perteh.lllQ to

.,

,.eh •••cqUon.

"

12 .. blerv.tianl of UI.. Indllliduais pr'Jor c;o ••ec;utlon. thlnqs

l]

..of t.hott naturot7 YGU ulll firKI sooae of tyt,

11001. theu eq_ln,

IS «-".t.'s._ of t"-' thln9~ t .... t -- there _r_ .000. thing- '"

I' het. t.het 1. not 4Q. . , AI'Id you ~AQoI, SON 01 ttla t.l1ln'i' are

11 out.sld. of elN -- 1IQ:l' !OC'.J r.'ponslbl11tll' There IIr' .oee

II t.hln.,,. thet "'ere ...pposed 1.0 to. done in I\.tl"nc;. that ware

w" n not balnq done. Thoe..... r • •0-' 01 «-IIII' ,u9qasc;jonS

had

20 DR nlV I ,.Ions,

" .tAp'" Q.
2J .ppc..clec;. that. re'pon••• ror ••

the protocol I

t'" 2l requ'~, dlAt, ror ell."p16, orll9s be "'llbd.,...... tirO.

24
"

..f1h.nucy In ttrteln ...coUll.'
.

(

It "1II"lel ,~t 11"_ st..t.. to .t.. t. I.h,cOU'il" OUI'

l_. t"'~'.reh_ IIQ\.. you

lor 1.1•• 80It IYrt the C'II_1c:,ls

.-.IIIce IIsulIlly the . _ .nd the procels ,. p~tly ...u::li lh.

5

o·

protocols. vould you .irpllll.. lIwt tor lM record .... to vbll"

_'I" t .. 1kUI9 Aballt? A l1.t Clf doeuaent.J A s.t ot

dOC1fllrnt.T or."..t III'" t.h.. prot.DC"tIltl1'

•

A. 111,11, t".y'r. lb. prOCedure. u ..,n you ute III

"'''''1'. 11 handle t .... .eelt. tCl, you know, ""0 Pr'OC'VC'''' til' dn,;ogs.

U th'lllY·c. stOrM and kept, how _ch 01 th_ drug i ....MI. Ju.t

.t., I] e"ery

of tIM prOC-I' I. t ... protocol.

IS currently in us...t the Olaqno.tlr .1Id Cla"IfLc.t.lan
., Prl,on, _1" YO\I I.Yolvecl In tbe actual drlllEtlnq of t.h"••

11 Po:oloeal.'

II

" .h_ ~# 9""'1'1 Who

MUd•• YOllr.elf "'" Inyollrl4 In

21 11....10pll111 the prlltocols "hlel!. dlc:t.lt. "cnoo an ••lc,",Uon

12 t.k•• pl.~'

."
24

Mil. POR'I'I:R: Tour HOME". I ' . golnq to object. t.o t.h. ~el.v""cr o( t.~ .. qUtst.Jnll In ~e.;I'~d 1o0 ,;olUtltullorwllty or let.h.II' 1",.c,lOIl' .

"

(

,

TNt C'OIIItT: Okay.

_.t Iflt. "ItARS, 'o"r Itonot. the Qu•• Uon of "hether 0'

"Ot th. ptot.oc:ol........ Hld.flt. lq

t.h. tl.lJht.h

•

~1IdoII.1lt. .nd t.hs Sev.nlMnlll ....lI\daent of ....01'9'•••

Con.tlt ...tJon· ... ban 09.11\.t cruel 'nd un"" .... ' punt.I\aPIu

I;.rt.lnl, qa.s 1..0 t"" he.t't of the u ..... abf)"l .......th.r

or not t.he procedllr••• re co...tltu"lo".I. The "!'due

r1 .... 01 p.eJn, ..m.t.h.r Ot "01.. 1..1'1••••c;uUon by '.t.Ml

•

inJ.C:llo. c.n be c.-trle4 _ t In _ .e41e.Jlr P ....crl~d

"

t·, Nnner, th.. In aec;onl.nce wlt.h t.h. h-..nl\'n••• by

"

",Mch the ••9i:11.t.ur. dtclated t"at letkal InJ.ctlon be

"."

clilni..:f OUl, 1 think hew t .... protocol' c... In to be I "'9 .nc1 ..,hlllr.. t.ho•• prot.ocoh ••., 9011' 1.0 the h.art. ot t.hl. _tt..r.

" "

MR. POkT£ll: 1(1Ut Honor. w·l:. 901n9 t.0 obJeet. to how tile,. c _ In t.o b111"9 •• lrrelev.nt., If t ....V .d,t.

"

.ftd • foulKl.t1on ecn be la14 -- abel _ _ulel .u_lt

"

«.lUll th.y 00 .allt. .114 • 10uftCl.lion c... be '.ale11

"

ttl.At'. th. 1...... But 'thO was on Lh. c _ l t t•• t.het

"

cell.ted th. protoC"Ole Dr h_ t.hey _ ... cr•• t.a could

21

II.... b. .n ""it.ten IlIV "'.rlJen OUU.v In t.h• •Idcli. of. tlllil

"

fll,ht. by ......It. And they're .1t.her •• they.lttlll'r

2J

sland on «.I'"'''' eNn or ttl.y"re Dol. AIMS eny other

"

"

nlf; COUR1': O••y. What ..... tbe que,t.loa &,.In,

"

,
J
• , •
,
• "
II U Il 14
" " " "
,".
.""
"
"

"r ..... ~.,
Nfl, 1lUR.5: W•• h. an to C~'tt •• OC" worklnq '1roup th.t put t ..... toctet...r! I do"'t bell.". th.llt "'.reten Duff.y thouqht tile'. up In t.......deli. of til.. 1119"t, In
.. " due re.~t to ....coM" outt.y, ..-Mtlter DC not I:"'re
"'S olin .tt..nt.lon t.o t.he d.t.11 In t. .... prot.acol. haw t.M

t""". pl.e•• t."'''9. ot that. ...

It It ...." don. II)

• ceord.nce "lth conslIlt.tion, Vlt.h .ed'c.l ~C".!.o.u'1I1.

think tut. would ~ llopOrt.nt fOI: tb. COurt to
Ifnd.rlltolllncf. lI'tM!c"'r , ...y 1".t sl-vlr '9"acHl • .-dlr.1 oW".lee, ..1'11cll 1 don'" t.hlnll. 'oo!r. pl.c., t.h.t .1,0 wo.. ld t.. c•••"."t. I "oliid .w.U., 'rOUr Honoc. 'l'1I.t.'. why I'.

ulr.Jnq.

'THIE COUfIT; But...tlaot "'•• t.M qU.lIIt.lon ''i.ln~

MR. KE.US; Who aU vorklld on puttlnq tM.

I0'1.t"'r1 "'•• n • 9roup, a c_Jt.t..... or did ....ncl.n

DuU.., eo.. up .. Uh II by hl.'elf?

THt COURT: Ok.r. I'll o"errule the obJection,

cur I clo UMer.und ..twJr. lie. POrter"' 9(11n, t.o.

don·t. ....nt. to -- I'll Dverrul. ttlt: obje.:t.1on 1,,'t..o It

c." be in U,. rec;orc:! how tiller _te put to.,.ther. Bot

he· • • Ir.ady .gr.ed t.o le~ yo,., polL th. protocol in. M't. 1ttAJlS: I'. I'Ot 9011\9 t.o 90 In to di.cu•• ion,

th.t 1oI.cdsn 0,,(( • ., . .d With eUISt ~opl'l'. 1 jU.l

"

'hiE COUR"; Ok.y. I" U o"en;ul. the ob1e-ct.l01l,

BY MR, MEARS;
o. ...t<I.n D\.IU8,/. COuld you .n5w.e «.1'8 q,,~.tlo"?

... W.Il, the o"er.ll protocol ..... lre.dy In plillc.

bt.Ic:.Uy bee.u.s. ,au MOW, th., twld .)t••dy e-.eri.cll out 1]

• ..nCI.lt.lOll. by the elecr.ci" Chait. So Ule only thlllCJ t.llat.

9 ctwln9H, besld•• r..we ..Un9 • t .... • t.ps III t.UI.. pl'OC•••• v ••

.'0

t.". aCl ... l C"'nq"hJ over teIM .Iec:lroc:utlon co lethal t"J.ctlon. And t.h.n there allal.. , ". bastc;.,ly took SOlll"

14 couldn't t.11 you "'"0.11 bee...... SCHM' of tM thl1'198 c . . .

15 o"l ot Atl.nt• •fIod "'.... s.nt to us. And t.he" J cert.lnly

16
"

..n dldn·t. ha". Hn.1 .ppe01r.l OVet .nyUlID9. people Ill<. M'lor 11"00.... And, of couts., -

II did ...t "llh _dlce1 st..ff.. "e lI.d the doctor.' ,,,pula"

19 sa-ct 01 th. l. .. in911 bec.use, you know• • don't know ha'" to 20 start.. e.th.t.e't. And so they bad t.o __ even ee.dltl4 ~t

21 South C.rol1n. b<ld "rlt.t." tn.t. ttlla 1. 11.001 they do It. 'fO<I

lZ know, I dld,,'t nlK!...... Uy IoIndeC"'!IItencr ,t.. r.tKt so th.n, yov

t." 23 bOw. to put it. In t.o our WOrds,

know, ... h..d "" ..s.$ .nd

24 doCCocs ulvolv.d III LUt. P~.s•.

"

.

I

a.C.C.A. SecUO" \'7-10-)0, n-IO-ll. 17-IO-l8, AS

.......aed. P.I0-41 and 11-10-n,
Ita,. 1"pH"lfic:al.l.,.. Mt. Me,U:,II, I think It.'. fair to

•

.ay t.hat you' (e a.klng tile' COli,&"I; to liUIIl. ttle cod•

S

••eUoRs wl.:h allow the _o:eeutlon cot till. Dar.rod.-"t. by

l.tha, lft).et.lan •• belnq uqcon.Utut.1olloll.

.... MEARS = T ..... t· • .:oc'nct. 'follr Honor.

THE COURT: And on at. 'a,st two dlUerant

•

9rQ1U'1d,; " ...eon.tH.utlc,... • •s clrdtad: IInc:ol'llltLtutloR,lll

" "
.."
IJ

•• • pphed; ,.Itd th." ...." U I found It .... eon.t.ltuLlona'. y.......nl _ to appoLnt 1001.0"" to .ak. su", 1\'. carried out. I .... o:o..... itlltlo,..1 ....nn.r. if I r .._~r correctly.
1tR, MEAI':> I T".t· .. corrtet.. fou.r "oROt'. Th,U.·..

" "
11

o..r three pray.J'S (or ...11181.

THIE CQtIII'T: ..... rl9'tt. 1'0\1 r.ady to proceed?

".'0 JQI. II&US:

'OIIE' HOItOC'.

"

'I'll!!: COUll'!'. Okay.

,".

KR. MEARS: Itltl'l. U .. COIIE't.'. per.laliloll . . . . ·ct call ""u·d.,, Teny L. DIItfay •• OIIr Ur'l. Wl~I\••a.

" " ," .

TKE; COO": o...y. T~ Mr. DuUey I,. the C'ourtroo.?

101. M£AIlS: ....V I .. Lep Oll~ .nd \J.t hla?

.oil"" •• "lI!; court: 'I••", It YOII'U .tllf' ,out

k III.

to .t.ap 111.

"

MR. MtAItS: YOUf Honof • .oil• • IPr.U.ln.ey _t.t.r,

"

(

I I I

I

... h.... do<::u-nt....hlch .... r •• L H,. IkIU,y .. tll bto .Ole

I

"'1. to ...tt.entlc;.t.,.

p,..o.. lcYd • copy of t ..... to

"" porter In a not_baclk. And • • •oon •• _ l.y ,,1M

rovncl,aUon If th.,·r. ~1"!II1U.t>d, 1 tI....... copy ror the

Court. TIle••• 'I't' •••cD"lon prot.oeol. lind "hlngll fra •

the.. ellt I .... nt.-d til. record to l'eUliet 1 411;1 qlvlI

MI' . •onllr II copy 0' Llt.lS ... ,ll.r t.hir; .ornlnq .

, .

TIlt COl1ftT: 51 ... II". you ".rd." Ou( e.yr
Mil. DUrFE' , Y•••• Ir,

II

Mr. Me.rio .. Ill .......r you 1n.nd _'11 P[oc'ed.

U

DUtCCT tXMlHATIOJI'

Il ar Mill. MEARS:

IT Georqi. lOn).

If

O. .,...(den IN/ley. Itow ....e you eapJoy..::l?

2: po.UI..n?

"

A. Sn ,.... '05.

"

g. ('. livre Jud\Je CI ..rk 1111000$ thi.a, but (or th.

51

A. Well, V,,·f.' ClI.qnoltlC' i.e'llt.y. Th.L'. our pci_rr al.,'loll. aut. _ .1.0 •• .eddU.ion.&1 alsslon Is _ house death. row l!laat••• t ,J.e••on.

•

A. lUI.

Q. lIould yo., "lIpl.i" t.o .:r~ CI.f. 1" ,,0__h..1t

10 ~t'.Ler det.j 1 ..b.t youe duU ••• n· ." d.puty ... cd.n In

11 clWc'le or "cunty e. It "d.t,. to tho., I ........ t .... t .clit
Iii C"U[[,ntly under ,eflt ...e. of d,.th .t J.et.of\1

"

"

15

A. 111811. p.art ot II)' "fl'POlIslb1lIty In th..al r.q.J'd

J' wOlild b. PliLling •••rytlli"~ 1,l;>9a1.l,.r to c.rry alit

11 ell~utlon.. Ion4 It.·a lUSt. b.a$lc.llr •• k. 'ura th.t yov·_

.11
,.

. n qat pe"pl. In pl.c;. tta,.t do

tIM •• [1 ..... dutl •• ttl.oIt fl«

21 t~t you . r . the penon In c;"'rq. of Ule e!llr<:utlon. thlt are

n

af"dec~ ta be c.rCled out by courts In the St.te oC Gear'll.?

"

1 phe. thcouqh th. III. of Itott..1 inJection"

.. ,.•••• 11' •

Q. 1I0uid you pl ......aphl" til .Jlldqe CI.,..k how "h.t

pro;r.een tOOk pl..c •• nd .ppl'oa'.'''III), ..hen .nd undllr ..b.. t

10 clre_at.anc.s yo" "'.,... lnyolvttd In d.... lopln9 thtl _• • 1Id f ..,..

It tact. of. Mtt,r "er••- 'lIlr<:UllOn prot.ocol_?

"
1)

w. think .. "e-OM. V...h. onee tb. law .... poIe.eeI, tMII

14 WII didn't know ..hflll _ a1qM. •v., ".ul' OuL .. lllth.L

t'" I, Inj.cUon, of cour,•••t

tl" bee.",. th.. en.. lf " ...

I, ,Ull eonalll.utlo".. l. &vt _ W9." prapecl"';" '.. I. th..t

n point..

"

"'1,1\. AItd it. .t..r1.ed

lot o( telephone c.ll" to

"

"

20 b •• lc.Uy =1.ln.t.-<l ..ith • .,1_11. to Soutb C.rolln••nd

21 where . . . . .t with .. rucl.1I the,• •Ad tOllrfti tb.ir

22 ' ..cUIt.lea.nd ...nt over .11 of thelr proto<::ol:11_ And

II Nateollltr ollr p,..otocol" airrorllrd .,h.t Sout.h C.l'ullll. Wool:.
..,it" il4 dOI1l9 ..h.. In turn ""'d .I,..,..ored ..h4l V1C91nla ...a doing

2, thdr protocols,

"

(

,

thO.A Cl'f1ot9:1 onee U"r'p C'~t" o.ot frc. t.h. pha~cy. how tI,ey're "'",U~ ..u tM ..., bAck to t.1M point. h

'n tl_ tll.&t ""IT'ca t.llrned Net t.o ..... p .... ~ey 1f

,

U"'Y Are, In fect. turne.. b.c::. In. "nd U. ""'Ip. t.1I.••

.Ii ....,. _ lnv~nt.ory 1<>9

_11.

• Dep'-r...."t of on" [l'Ifo["c_t. to d(~.e .tld .~ po••••• end dl_pe"•• con1.~llft\ lubl".ac:•• : , . t.l'Idt <:'Qcrec'l.:!'

"
11

A. 01'9111".
a. lrt thtl p.",lcdec I,,'''illac:. •• eM T· ... not 90lnq

of J;I 1.090 tll.["o\l41'1 _II

ttl....l!'CUtiClIUI. t ' . trylh9 to .... ,,,.,

II •• All ....~l. eo pI...... \Ind.~.n.ncI t ' . not. ,olROi' e.o cla t.bl.
14 ••ch t 1_. But. lQOklng .1. t.1M dl" ..,1 tNt. _1.a .. nh..f ........ for

15 t.... "'I"ry IIIlftC..y •••cu.1.1all, did rov ..utodr... tM•• 41''''91

U

'1"_ til._ ph.I~r p.,Iuu_t. t.o Ut.....U.oll:lt.y grented to lOl,I

..IT..

by tM Sute ClI co.orqle.,

20 D.t,nd",nt" IElilhlbH ,. doe, th.olt Ih_ 00I'I0 .,.-'" tho.' dnql

21 1.0 yo..?

"

A. 'I •• , It do•••

"

o. son !;II .. ~.~n of c,UtGdy type o( docu..llt.; ~1d

"

"hat H • 'Ur .t.t._lI.t?

"

A.

"
•.

Q.
.. ..lthdr.... Lo ,l'"
M... M'twa'Y?

to tal. people ..ho vet. t.o In1ec1. th•• ,,, to

, pr01.o<:oL. G.

""'I'.t''j.tlon ..ct., ' ..y, by Or. ChrJ. Specty or t .... _..cUt'.1

..... t ... r·. oUlet', ea.-ant' 1111;11 tMt...... t.o what tno- of

dcuq. "ftd wh.t. .-.;,unt......r. t;o w v.ed '" ~.cn .....C\I,L10Cl)

10

A.

11 est.bllstll.nq til. Itrotoeol., • ...s, fO\I k_. _ e.rl.lnly

n

t_. utke<! ... Ith our 4oct.OIr, .t t.M Inltlt"'tIOrl. ArId, YOOI

.l)

of course, I do"' t t..hink t.hec.· .....ry ••..,. docton ou.t. che....

15 ",eces•• rt'y 1:_ ......t _ant • .,.., .U • •u.t .,!\en yoo t.ell
" ""_ "".t ..,ount......r. &'ln9 ".Id b~ QtH~ .t..t.••• you know,

17 t.hey a9rll.-:l tl\.l.t. lhat. ...au14 ~o t.he Job.

" n

Q . .ppe.r. -- 'l'Id 1'. loolllnq .. t t.hl' do<:u_n1. ..m1 cor...ct _ if

10 I' ....ronq •. th.t In the C....,. ot T.crr "ance.y • • n qr._ at

21
"

..'I'nto\II.I, tl\lt W1IulCl b.- sodlull '.nlothal -II:I,ht.

"

Q.

- ... re .. It.helr.",n (or purpose. of inJ.eUnq 111 t",

"

A. ItL"Iftt_

"

a. And aho the pottl",lu. chlocloH 13 160 - • •

,

beJ'~... tilil. 11 -.doleal ~ulv.l.'u; or -A. 'Ul1'I~lvahnL.

91'_.' 1. O. "'lll~""'II"t or l'O

ttwot. corr.et.?

A. Y." "I'.
Q. Aftd thIn tho... _re "ltMra"" t~ u,. pJI.....cy by
, you .114 you d.ll."..t.-d tl\_ t.o the ta_ tflAt ...... tl) .,'" the

10 11

t._ dru'!lS up: Is t ....t corr..:-t' 0" did you do UMtl

A. w.l1, actoaHr. _ tlll'

,0.

"

a. Olr.y. "lid ttl." att.r the dCU9~ _1;. put. Into tIM!

IJ syrlooq"" ."d anythJ"'9 "._ l.tt 0"'1;, c.heft you r.turned to

's 14 til. phar..ac,;

th.t corree'''!

"
"..

A. Wdl, ~'Ically "h.t. _'CI dl: ....1"9 ou't. 11 a ftou 9h for thr_ dOIU" AM ...h.n you pnrperl yo\Ir .Yrl"9II11, you.
thU" ..ntOllched. th••_1 I. tlot bco••• Oft .ny ot I.,",

"

ch•• lcals • •nc1 tl\.lt·1 "h,H q.t. turned baC't III 1.0 tM'

"

"

" "
"

In lhl' Iyrinqa, ..!wI, type ot .p.cidi'~ t.r.lnl"9 .... r. you qJv.n btl ",ndl''' ll<I.d Dr oth.,. ~opl. t.o Pf"I'p.f"1' you to de:.

" tlLet p.,t icul.r job!

"

A •
• e prioc to. o\I\CI. lhen every .....CulIOn 10 t.r I· ... h.d • nuue pr.sen1. .. nd ~n'lorlnq . . "nUe t do t. ....t. ]cob.
Q. H•• I.l be... tn. s.--' .,lIr••••t'h tl•• , tr.nI.A

5 Ou.U'y'

A.

O.

• ,

A.
a·

10

A.

II

o·

Wbat .ur....... th..t? W..nda P••1•. Is Ms. Davl' .... 'l.M. "'.......... M.? I t.hlnk .n ••It. I'. "at po.IUli'e. So sl\.,.·. tl\et. to help .,," •·. . i.t you pu(.\h,., tl\e

.lJ

A. '.s.
O. ,,"o\lld yol,! •• plaln t.o Jud,. C'.rk the "lJn,'lc_cI

IS of ..1I1n9 l:urr.nrnt. .yr(nqeS ••• rClU IIndeut.nd It, .ad t.he U 'l'!Inlflc.nce ot h.vlll' the .s.~i.ft• •olution .v"lIable 1_ •

II dul.. rent IIrrln9.? So 1'118'11 """I'r.t..nd .- I" . . .ure he II unc!otr,t"lId:s Jt. Sc. til. I:ecor<:l vilL tlll~lect how you 'i0 about.

,..

"

"

follOW ••ch dru.'i with a IYI:i.""II. of .eU.... nd tIW.t i.

"

b..sie"Jlv tG flIl5h the n.ainillg dru.9 th..t"" stJI! lit th.

"

I.v. Une.

You're

tdl;Jnq

..bout "

prettr lQft9

I.V,

lInl'.

.1 (

A. r••.
D. 1tIwC'. Ole,". you phy,lc:'.Uy .."en ~"... ""rll.' t>.qall 1.0
l"s.rt t.he cat.lle"&f. 'n loa IICt'. 1'1"", . . . . . . ,
• '. curl.llI. lie h,.I.,. .. C'o:u.• l_ I"l~ t .... c~r.
Q. If_I:& you .ble La ",.u_lIy .... the activit I•• DC
'11 t tt>. I\ue•• sh. an_pt..:l' to ll\.llert th.. call1.tee. III t.o

12 " •• on t.h. ad",r _hie aD ~. 11,' . . . . . . \1 are.. I 0:1.01\'" \ftOV
J) 'f yotI've ._n it. but It' . . . . . . . 1I at. . tha .. ' , ".C't.lt.1Vft"

It oU by ..h.l cunat,..

"

o.

"

A. litht.

"

Q. Ifovld that. to.- .. ralr aut. . ."t?

11

A. '.', .h'.

"20

Q. 1Iow, t1H protocol... C'Clr~t _ U I'. \ltarlq. t>o.t tbe prot.ocol' ••_ 1.0 h"Uce ..e tbat tlMI cat.he..erizaUon til

21 to be dOlle by an ....rq.ncy ...dole.1 tech"lc.!..,,; 1. tlla..

22
"
2_

..C:Drt.ct1
.tart" out. vith.

n w t ' . vlIa .. 5011tll. C.~lIiw .II\I'J virIJlnta

::IS _f"e dolnt. .,. rail 111 to . _ "robl••• wltll tha... ,-.:alla.

"

I

of (Jec)rqi.. •• li.Hr.. l Open It.conl. Ae-t. 01111' -rl}Allty .~'C:AI , ~haic:l."1J didn', ..."t. LO h.v. tM'r na... U ...hea All I" tJ\_ a ....p.perl .-nd q.L 1J1oIbpoHn".ct to COurl ""d t.hat 10rt Of
, th! A9·

....c:t. r.hoil:o: bAc:..... UIOY "0:.1' .. Dap.!ltt..etlt of C",ctecuo""

"o.lfot.. $0 "Mn tlwy weitH out. bc-c'AIII" of tt..t. ltl." th.

.t.

ckc:hlOfl ..... _de to qo "ItII. .......... .
o· w......d .. t.t..t. d ..elalonl' Do YOII t.e-A' l?

11

••

It ....,. -, I' • •ute It . . . . . coabl"atlotl of Wat'd.n

II

Q. Mr. Ooct.ol' bel~ ..

"

A. 'l'tt4' t.clllU•• dir.Ctor.

U

Q.

n..
"

•• ,ea. sir.

..O·

~'. the IlIcUvldll.1 .ireelly ..nd"r
,..,

11

g. I'll .S" YOII e.o loOt. at .JOI. H1;I'I, at. Lh. not.•• ol

" Jo". 1f.l.,I'I. aM 'll.p ooree .It yo.. "Jl.1 t.o t.h.lt. pOl[tlon whar.

lJ .It J"'lIcAta. lut t.h. Aurs. !s attNfJtlAg to pill. in _. arid

:II lootif)q.at. 1",/01 -~ ..I!..~ t.h. nut-llil Is .tt ••pt1r19 t.o p ..t

251ft tb. I.V.

. PtobA.bly the laSt. t ..o PAIJe''!

,

O. C~14 you I'r._r the .cllvltl•• 0' t.he n",I"••

.u....,.. Jnq to pitt u... J.V. ill IIr. lu.,h' • •~?

A. W.U. I cailid h ......}wt .... 901 f\q' 011..

•

o· Old fO\I h.,,,, AnJ •• I'a nut A"kl.... 1'1111 vbat tb_

eo...... r'. . tlon v.,. but could yoI.I. II. . . . .nl' ~Q..v..... t ton tt~

to \I

..h.r to 6tIy dacton en: .al'Otl. orl•• oth.-t til•• ".-. H19h? Itotlllnq th.t I t.c.IL

."1 J

O· ot.,. Look'.., At thl' tl_ Un. U"At wA. kept .nd tbt. 01•• ftot '.pl bl' trw ....c•• ; 1:1 u .. t can·.Ctl
... f'o. ",""IIf!.

" U

o· n _14 ..~r -- .1Id cOl'r~t _ 11 I ' . wrun.,. It
.ppeAr. t.h.t t.1I. pelflod ot tI_ thAt It. took to put t.he

17 C:,Ith.ter 111 lie. tu,h ...s Appro.l. . t.1, n .inllt•• , '1 th.t

18 .. fAit 'tAle_fltl

:u

••"s . u tfI•• 1111 .... qQt

r.v. in lM i.-at •• Del yo...... Lh.t

.2. not..tJon?

"

A.

"

..

100. She did In'.rt 0 ... I.V. in to .Jo... Ih'i!h .

.o..

Okay. Did ,fie In,Aft botf! I.Y •• 111 to h'.? No. The .IKOnd t.v. "'., ",lIat they call .. e-entr.'

, 11M ptoc:elillre .nd t.hAt ....s don. by lhe doct.or.

o. 'tal .... tb. Intr.acla.. 1cl" Iphoft1tll:1c:1 InllorrLICIo

".t • under the eoU.L be"., ..

r c"U til. eoU..tr~; j . Uat

. ..co.-net' 1H9hl •

"
".".
15 protOC'QIl "hleb called [or .the tNt and then the ot""r eba n9ll'
16 wl'lace ttle ".u',.e t. dOlnq it " flOW _ 1'1.... &,dO(:tOr doll19

"

"
It

doctor there (or Lh..n pac-tlc"lac pIII;"PO.'. thAt it .- no~J

10 21

.0.1. I.V. port cannot be 'rsLAbll,hltd. th.n, TOU Il"cw. It.·, ln 1.""1
protocol l!\At • doc:to'C 011.11 .st..bUs'" .1t.Mlt" wh.t.

ZZ ""09'. -- I tlllnil tlte old t4'''', lUI. "lei _dle.1 t.l:. tot it 2) ..... "aUed .. cut. d""," pcocor<jdr•• but tJI. ne~ .edi.c.1 t..... I.

24 'ailed. C"lIl'Ilral Unt' pl'CK"ed.. ce. 50 t.hat ..." .- t.hAt ~.fI

25

. pl"nnt"d tor boIfor. t.h.r. . .de e"er an eJ.ltCUtlon td,lng "i.e/!'

(

down procltdl,l,. t.hat.', l<l.thorlaec1 by lM pro~ocoh bOIl! done by

1/1 InstitutlONl dOCtOr or c;:ontr.-.:t doct.or.,

It. ConU·aCt. dOC"t.or. O. _lid I. It. your ultd... l:et... ndlltq ' .... l l"- cut d~ .and
.., the .Ur.....t. lLae LV. IS I.'" ••• ....:111::-." proc.-1U"! I, t~t

• your un<l~ut.ndlnqr

9

Po. 1"" sll:.

14 the phot0'ltlpl\S or .10'. Mit". the direct. l111e lft.lrt-lon.

15 be'l1n, i t ' , tlehilid tllil GD<I.

"
."
It

A. OQ,y. "R. kEAAS: Tout Honol:'. th. 01'19,,,&1 I. . . color
pl!ol09r ....h • I tl\,"k t.h. 0"1 tllat UtI court .....nd Ule OM t ....t. the PrQ••cutor twl l ' black lind .,hlt, tHH;au ••

" "

.... V1I x,roulei It. I'd IUlll to ,ust .how til. eoll;lr one to the .. Un••' 10 tllat i.t',. " petNp" th_ court "OI.&ld

."".

lit, to ••• Lhls - . THI: CQUAT: $v.re .
II\' MR. MEARS,

"

g.

.

I ,•

Q. !fltll ttoq.!lrd to thet proc:ftlU"., vh.' .....

nec.uiLet~ •• Unt of .U -- I ' . ",ttlnq .h••d af

.,.. ..U. , ' . '''I:('y, The P"olvC'ols c:.U for the

c:.. tlleletlt.uon ta b. dO1M' 011. In the rlqt.t . . . . .rod Onll l ..

Uw I.H.....: l. lb.t co..r ...t '

•

A, 1'e.,

•

Q. And the pra,oc:ol ....e • •0_ .lIQW.nc•• • t it" nolo

10 posslbl., tll.n. to do • C'uL down: IS t.itU c:oC'''"t?

A. 'Ie., aiI',

"".1'. n ...Ii Iftc.rcer.ted .net .ft r ,Y. dru9

A'ICI tro. ",Aat. I've

U been told, e.teh tI_ you .hc:k • v.ln, It ~\I.eli • •e.r

17 tl.'u.. bC! tile,. th.t ere_t••• prlllbl . . ttylnq to I"••rt. •

II c.,,".t.c.t 4ny point down t.be I'o.d. In I.clt, .10'. HI.;h

u. """.n 19 laid

I took til. OUt to N-S t.Nt th~ . . . . . qol'"l to be

lO • U ••• uc. hUllt trylnq to q.L • yeln On I'll••

"
.n 1. In pl.e., '.ho under,t.nd U,.t 't's c_n I" eld.rly

"OW. ZJ ~pl •• yau ..

I'. not. aedlC"1 person lia I don't hey.

.14 .nylhltlq to b••• th.t Oil, a...t In t_'I11"9 vlth th. nuno.'

2S .nd doc:ltors, you "now, 'My ley tII,.t', sOll4l'thl"9 you ._
..

o. In (olct. durl.nq tills at.te.pt .. outlined by t.h.
d,aUI loq, it .....o.....h.t. around J9 .i"aU·' of an••pt.ln;
to find .....!t.<IIb!. vdn. thhl tn· ••""e 11" ..1. tb.t II". HJ.qb

•

A. Right.,

o. •• In 111• •,... '110 hi. II.r.d.; .I.. that cor"ectl

•

A.

.•

KR, MI!:AU: TMte's .18v • bllllcir. ...0:11 wllite ~rt o[ tile p.oct.qe, fou" tfol'lor.

"
1]

.rtQUiI." o· I' ••11_11'19 yOU _ , ... t

p.e~, Does tNt.

IihOW' ..."., you ....deut..nd tQ De plla'-OqI"'pII. of t.ho• • •c ••• of

U Mr. }tlth'li .ras .u.o:II lI.neSS vliet. c.t..... l.r-Ii "e"li! .tt_"ted \.0

U tHI I,,,ertftl?

" "
11 ...Itd.

"

A. V.I'Y briefly, I _.n, I didn't 10Qt .t. t.he body,

U 110 t.o spe....

"

o· I und.nt.nd. Aa.d I'. nQt. .,Ung yo.. to sollY

2. ."yt.hJ."'I t .... t. you, you kn_, didn't Ii. . or yOU MV. petlionotl

n

~nowJedq. vf. It I. coneCl, IS ,t not., thet tile nune ......

"

not Abl. to secilre A ,lIlt.bl" Viti" In Kr. Hlqh', 4nu or h..nd. <I. It I'"l","ed to Ins.f'llnq "h. c.th.tetl Iii '-het

,

o· 0001" the Pf'olocols c.11 for til" cut clown to btl

do..e In _ny p.rtic"Uc P4tt OJ t.M body? A", you , ... II1_r

wltl'!. A.

t thLll1I: tlla". 'trlctly left up to t.he doct.or.

. . .n, they klloIo "'1" .be'lt UWlt t ......... do,

10

g. Do you kncrv vhetMr ar not the protOCol I 0;.11 tOf

II

12 jndlyldu.l pnar Ito • cut dOlWn or • direct l1n. ".Iettton

..1J

be I nq ••dOI? A. I don't ClIlnt til.... '. <lnyth'lKJ In t!'wt proltoco1 ,

IS aut the"" .q.un, 'L' • • • •,;StC'.1 prOC:",Ul'a. AfLd U " . not II .Ut.ken, they do It.... Ia.. t.ype of locd •• I don·t. .yen
11' "no" wh.t it ie. bu.t .oaethl~ they put on the Ik'n t.o

18 deeden th., .re4.

"

o·

20 ."inillered t.o the IndJ.vld".1 prior La the lIurq.ry IDf .. cvt

21 dovn'!

"

A. IIot t..... t I tnov 01,

"~.

o· Ok'y, Y\»V ...r. pr.senL in the C'h• .bee. K,r. Hiqh
_de ."dlble U~Sp("'I'.' t.o the dh'ect 11M insertion ,,,,ta !>i'

2~ nerk: .. ttl.l r.o"rfft?

"

. !

,

A. g. " .... del you u ..;:aU \lMt. he . . . . . "I"IlI?

A. I dOll'1. tllink h, If•• lly •• id <lnylhlnq. Just, 'Y"'u

t ....... LM kind 0' flOl ••• you be'l" .Mn folb get . . . haL 0,"

5 thlRql l11te that: you kltCN, .. ~.n. . . 'Ira." or whatevolf you

6 ...... , to ~.U It. J (l'oll't. .r~r J11_ otet... Uy '.ylR9

• "ythlnlil': Jun. "U", tho,. ty~ no,•••• g.

, lin. In',rtlon Into tile -. I 11:_ l's butcherlnq t.tI,
or 10 pronunciation Ul.ll -. t.tI.. IntractAvlcle IphoneUC:1

..

O. Ttln..... A.

17 did nett..

II

g.

11 ~n lor ... Illet.y. c:al. h l . down, tINt aort. or thla9: Is thal

110 carreCltl

21

.... "ell, It could M (CIt .. nu.ber -. 1 ...... It. WOuhl

.,

(

A. 110. Slt. g.

,

A. lIot to lIy knowl"",

g • 1/ould .111' 01 th_ oth.r I"dlvidll." IIho ..er.

• ••Cllted tell• • • long •• lJ .UNt•• (or tM Insert 101'1 at tI••

,

C.. thehlts? A, 110, .Ir.

10

Q. MOW ... lth re<;ard. La Mr, ClIc••tb • •·red Meeton

12 Il
"

A.

..O.

In Ill. I.te 60'". I' t.'''t eoC'nct? I'. hat Sut.. 01 ... e .1Je·

"

Q. ....S .nyt""~ doM -- he took .. sedatl.,e, 41d ....

" noL, prior to ••

11

A. I Ullft!; ,.. did, p •.

"
It

""I' g. II "h.r.

r.eGrd a. t.o .......t til." ••4IIU.,......,?

A. ttotl'l.l"'l tML 1 ••.,., I ' . auro U•• t., yo". know. the

20 doc::tOt' b... It. It ...y ~ I" 1'111 -.;Ilcd lUtI. J'. "at

Then 1 wOlildn't be Lao r.r alit 01 il". U 1 •• 14

2] n. u.' not III l .... doca~_"t., prov'doc:l 1.0 U' as p&rt or the

24 .x.cllt.lon. It" not ther., yo.. ' n 1.0111.1:' .,lth thos ...

25 doc...."".?

..

A. Well • •",t.1I•• 1." ~. And no. I _ n , I' • ....rt

11

c._ "i' r_lll.", with . _ o( the•• doc:u.ent.. ilGt aoae of tr.e.

out gl cAnt.ral 01(1.1::0. L,.lke

..eIle_, 1110, J hA...e

rHOvar l_k.-l et his _4Ie.-l ru. '0 1 havI no 1de_ "'''at

allilnt boa .Ln thare. And ..lMtMC U ..... tutnttd over or not..

Go"'1t know.
o.

a!W1ys,s oC' Inv.. U,aU_ or a pn·son" .U""91.... to

dUr.r ...nt types of IIlt<dlc.Uonsl

"

A. I don't thll11< the protocol ,trletl, .<SeIre.s••

11 Chat. But. U. 's .o.etnjlllljl tl'l&L Lhot ctoC;LOrl! look at prloc to

Il .n .....cutlon . , wit •• "hat lrP"" Clf ••1.... the peEaon h.a.

U 1 _en, you know. . . . II"""" 10nC) o.lor• .los, IIlgh 'I,I_r lI.nL Oft

14 d ....th ....ltch t.IW.L Lher. . . . . ,ol"9 to " • PEObl_ start.Ing ."

.".

o. And yo,,'v. 901. OLh...1' pol'I'It'.1 slt ..at.IG!\8 llke

A. 1 would ••1' Ln..t t".t !'Qte"t"l .Ju.t., )'GII knov,

"
l t order to c.rry oul en ••.-cutlon.

"

g.

,". ..,. IndlvlC\u.l? A.

"

g.

"

A. Jlo. Ilr.

O·

druq• • r. 11'1 t . . . .yrinq.......ho dllt.~ln.s lh'! 11Id1 .. ld.... l. --

erlld , ' . nat '9"1",) t.a •• It: their AU., - ....1'1.0 d.t.r-l ...a Lh.

In,Uvldu.. , , ...ho ...,. qOj.a., La 4lc::'t".)ly pu~h It~".. plunq.rs Of!

, the ,yrlnq'. t.h.t 1.lIja<:t t.he 1,LU1 .libst.ftc::"., into t.h.

cond••ned PU,GA'. bocIy7

•

•• ",.11, th .. t "01114 be a C'O..tJlnol.Llon af thll' "oI.rd~n

"

11 how they .. te to depr••• th~ p1vngeU? n.e pr•••ur., Lh.

IZ
.IJ

..'PI", th4.t .0rL 01 thll'l9'
g. WhAL t.yPe ot tr.lnlnq '" "h.. t?

"15 ..lUI '" prior to th. £lrst eucuUan. W. u:se<l • type of ..

11 tr.I"lnq ole.. 1 don'L know ......t t ... c::orr~t " - 01 It III,
c." 11 but. It looks like .. n .. ,., It" .. .edlc.1 . , . th.t ro"

n f"Irch.sl!' throll,h ..edlc.1 "uppll' eo.pal'l'.s th..~ lI.ur.e••nd

:1:11 11

.t. __ orr...nd tho•• type pMlplo prolet1c. on ..hen ttw,y''''' qol"9

thca10lqh "chooll. And Uw ... ins

t .....1'_ .1Ipp<>sedl,

22 . '.... I.t. . . . , ... 1 .. I .... 1t.I\ • t ••1 "'.In .(nactIiCs ..1'4 t.Mt 1) SGrL o( lhll'l9. And by 1111"9 tllet, th.n you e"" d.te~Lne.

24 you kno". your -- .. t htN '.ut or 1"0111' plllnq. CIIt. on the

2'!1 .yrinq'•.

"

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(

"

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1
i II i•

I I • i !i

t~ d

r •
v

Ill" i1.

•• •••1 I •• •• I •
1 JJ l if I~J• ~I fJ• 1

i I. 11 J : J!

II I

i I i
!, II J

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il

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II

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Ai

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e e • • • " = ~ !! :5
e ~ e

t e 05

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=,

O""'OtJ..J:D Clll:MU"..I.L IllSl'05ltlo."I UCOU (U'JBA,I. EPUU:TlOffI IOIICU. flUAAnttItr 01' coauCTlOtCS-CDCI'

m;e:aQIJ:.iM~'iTDlm n IIYIcml!R8M

••n """

1IOIU.n, MAHI:nftlJG&a

... :1,,,·1

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 Case 1:07-cv-00896-BBM Document 13-2 Filed 05/21/2007 Page 1 of 13

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

JACK E. ALDERMAN

*

*

Plaintiff,

*

*

v.

*

*

JAMES E. DONALD, in his capacity *

as Commissioner of the Georgia

*

Department of Corrections; HILTON *

HALL, in his capacity as Warden, *

Georgia Diagnostic and Classification *

Prison; DOES 1-50, UNKNOWN *

EXECUTIONERS, in their capacities *

as employees and/or agents of the *

Georgia Department of Corrections *

*

Defendants.

*

_________________________________

CIVIL ACTION FILE NO. 1:07-CV-896-BBM

DEFENDANTS’ BRIEF IN SUPPORT OF THEIR PRE-ANSWER MOTION TO DISMISS

COME NOW James E. Donald, Commissioner, Georgia Department of

Corrections, and Hilton Hall, Warden, Georgia Diagnostic and Classification Prison,1 by counsel, the Attorney General for the State of Georgia, and without

1 Plaintiff has also specified numerous unknown, unnamed party Defendants in this lawsuit. (R1-1, ¶ 4). To the extent that any such individuals have been properly named and served, it is the intent of counsel to represent the individuals. To the extent that there has not been proper service, a “special appearance” is being made for the purpose of advocating this pre-answer motion on their behalf.

Case 1:07-cv-00896-BBM Document 13-2 Filed 05/21/2007 Page 2 of 13
waiving such defenses as the applicability of the statute of limitations, submit the instant Brief in Support of their pre-answer Motion to Dismiss.
I. Statement of the Case Plaintiff, Jack Alderman, GDC 385463, was convicted in Chatham County in 1974 for the murder of his wife and sentenced to death. The murder was effectuated by a combination of bashing her in the head, asphyxiating her, and drowning her in the bathtub. Plaintiff’s conviction and sentence were upheld on direct appeal. Alderman v. State, 241 Ga. 496 (1978); cert.denied, 439 U.S. 991 (1978), r’hrg denied, 439 U.S. 1122 (1979). After the sentence was struck down in a federal habeas corpus action, Plaintiff was again sentenced to death in 1984. Alderman v. State, 254 Ga. 206 (1985); cert.denied, 474 U.S. 911 (1985), r’hrg denied, 474 U.S. 1000 (1985). Since 1985, Plaintiff has been involved in numerous unsuccessful state and federal habeas appeals, including petitions to the United States Supreme Court, challenging his conviction and sentence. Presently, Plaintiff has a petition for certiorari pending in the United States Supreme Court. On April 20, 2007, Plaintiff filed the instant action challenging “the manner in which Defendants will execute him”. (R1-1). Specifically, based on the Department’s protocol and past procedures, Plaintiff contends that he is “likely” to
2

Case 1:07-cv-00896-BBM Document 13-2 Filed 05/21/2007 Page 3 of 13
experience unintentional pain from the effects of the injections to be used in the procedure. Id. Speculating that he might experience unintentional pain, Plaintiff contends that the Department’s procedures violate the Eighth Amendment.
Plaintiff requests injunctive relief in the form of a prohibition against the use of lethal injection to carry out his lawfully imposed sentence. (R1-1, ¶ 5, 43). In fact, Plaintiff objects to lethal injection under the Department’s current protocol, “or any similar procedure”. (R1-1, ¶ 43a).
Defendants now submit the instant motion to dismiss as the Plaintiff has failed to exhaust his administrative remedies prior to filing this action.
II. Statement of Relevant Facts Plaintiff, as an inmate in custody of the Department of Corrections, has been provided a handbook explaining grievance procedures, and has been given an oral explanation of the grievance process. (Exhibit A, Affidavit of John Harper, hereinafter Harper, ¶ 5, 7).2 In summary, the grievance process of the Georgia Department of Corrections involves filing an informal grievance; filing a formal grievance; and filing an appeal of the formal grievance. (Harper, ¶¶ 8-12). The
2 Use of the affidavit does not convert the motion to dismiss to a motion for summary judgment. See Colonial Pipeline Co. v. Collins, 921 F.2d 1237, 1243 (11th Cir. 1991). In addition the court may look beyond the pleadings to decide this issue. See Waters v. Arpaio, 2007 U.S. Dist. LEXIS 10234, p. 4 (2007); Chelette v. Harris, 229 F.3d 684, 688 (8th Cir. 2000).
3

Case 1:07-cv-00896-BBM Document 13-2 Filed 05/21/2007 Page 4 of 13
grievance process is not complete until a response to an appeal is issued by the Commissioner’s Office. (Harper, ¶ 12).
In this case, Plaintiff filed an informal grievance on April 11, 2007. (R1-1, ¶ 11, Attachment A; Harper, ¶ 13, Attachment 2). Plaintiff then filed a formal grievance on April 26, 2007. (See R1-1, ¶ 11; Harper, ¶ 13, Attachment 3). In both the informal and formal grievances, the Plaintiff specifically challenges not only lethal injection as a method of execution but the details of the Department’s protocol for the process which is similar to the claim which the Court in Hill v. McDonough, ___ U.S. ___, 126 S. Ct. 2096 (2006), construed as a proper complaint under 42 U.S.C. § 1983. (Harper, Attachments 2, 3).3
A response to the formal grievance is not due until May 26, 2007. (Harper, ¶ 16). Thereafter, if the grievance is unsuccessful at that stage, in order to exhaust administrative remedies, Plaintiff will have to appeal the results of the formal grievance to the Commissioner’s office. (Harper, ¶¶ 12, 17).
3 Plaintiff also asks for relief in the form of not having to complete his lawfully imposed sentence. This relief requested by Plaintiff would have to be sought in a habeas petition challenging his conviction and sentence, not a 42 U.S.C. § 1983 complaint. See Preiser v. Rodriguez, 411 U.S. 475 (1973); Nelson v. Campbell, 541 U.S. 637 (1997); Hill v. Hopper, 112 F.3d 1088 (11th Cir. 1997).
4

Case 1:07-cv-00896-BBM Document 13-2 Filed 05/21/2007 Page 5 of 13
III. Argument and Citation of Authority On the face of the Complaint in this case, the Plaintiff concedes that he has failed to exhaust administrative remedies. (R1-1, ¶ 11). Plaintiff concedes failure to exhaust in that he admits that prior to filing this action no formal grievance was filed.
1. Section 42 U.S.C. § 1997e(a) of the Prison Litigation Reform Act (PLRA) mandates the following:
No action shall be brought with respect to prison conditions under Section 1979 of the revised statutes of the United States, 42 U.S.C. § 1983, or any other federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted. (emphasis added). The exhaustion requirement has been denoted as a pre-condition to maintaining the lawsuit. Porter v. Nussle, 534 U.S. 516 (2002); Alexander v. Hawk, 159 F.3d 1321 (11th Cir. 1998). The Eleventh Circuit has held that the exhaustion of administrative remedies is mandated and may not be waived by the trial court; this holds true even when the administrative remedies are deemed to be futile or perhaps even inadequate. Id.; Dillard v. Jones, 89 F. Supp. 2d 1362, 1365 (N.D. GA 2000).
5

Case 1:07-cv-00896-BBM Document 13-2 Filed 05/21/2007 Page 6 of 13
The Supreme Court has made clear that “where Congress specifically mandates, exhaustion is required”. [Cit.]. . . Since exhaustion is now a pre-condition to suit, the courts cannot simply waive those requirements where they determine they are futile or inadequate. Such an interpretation would impose an enormous loophole in the PLRA, which Congress clearly did not intend. Mandatory exhaustion is not satisfied by a judicial conclusion that the requirement need not apply. Weinberger v Salfi, 422 U.S. 749, 766, 95 S.Ct. 2457, 2467, 45 L.Ed.2d 522 (1975). Alexander v. Hawk, 159 F.3d at 1321. The requirement for exhaustion advances Congress’ desire “’to wrest control of our prisons from the lawyers and the inmates, and return that control to competent administrators appointed to look out for society’s interests as well as the legitimate needs of prisoners.’” Alexander v. Hawk, 159 F.3d at 1327 n. 11. Furthermore, requiring exhaustion of remedies encourages the development of facts at an early time; it also conserves judicial resources as the complaining party may be successful in vindicating rights in the administrative process before Defendants are haled into court. Jones v. Bock, 127 S. Ct. 910 (2007); Alexander v. Hawk, 159 F.3d at 1327; Moore, 18 F. Supp. 2d at 1364. The complaining party may also discover, through the administrative process, that his position is wrong. Therefore, an inmate incarcerated in a state prison must first comply with the grievance procedures established by the Department of Corrections before filing a
6

Case 1:07-cv-00896-BBM Document 13-2 Filed 05/21/2007 Page 7 of 13
federal lawsuit under 42 U.S.C. § 1983. Jones v. Bock, 127 S. Ct. at 922-923. Furthermore, the inmate must pursue all available levels of administrative remedies, including appeals, in order to satisfy the exhaustion requirement. Irwin v. Hawk, 40 F.3d 347, 349 n.2 (11th Cir. 1994); Moore v. CO2 Smith, 18 F.Supp.2d 1360, 1363 (N.D. Ga. 1998). In those cases where an inmate fails to pursue all administrative remedies, including appeals, the procedural requirements for filing has not been met and thus the Court should dismiss the action. See Alexander v. Hawk ; Moore v. CO2 Smith.
Exhaustion need not be pled or demonstrated in the complaint. Jones v. Bock, at 921. Rather, it is an affirmative defense to be raised by the defendant. Id. However, when, as here, an affirmative defense appears on the face of the complaint, the complaint is subject to dismissal for failure to state a claim. Jones v. Bock, at 921. See Also Bowling v. Haas, 2007 U.S. Dist. LEXIS 7556 (E.D. Ky. Jan. 31, 2007).
In the instant case, Plaintiff concedes failing to exhaust his administrative remedies. (R1-1, ¶ 11). Plaintiff admits that he filed an informal grievance, the first step in the process, on April 16, 2007, only four days before filing the instant action. (R1-1, ¶ 11, Exhibit A). Completing the Department’s grievance process takes more than four days. (Harper, ¶¶ 8-12, Attachment 1). Simply stated, on the
7

Case 1:07-cv-00896-BBM Document 13-2 Filed 05/21/2007 Page 8 of 13
date that the complaint was filed, Plaintiff had not exhausted administrative remedies, he had just began to pursue such remedies. As it is evident from the Complaint, and supported by the affidavit from the Department, that Plaintiff has not exhausted his administrative remedies, the instant action should be dismissed.
2. To avoid congressionally mandated exhaustion, Plaintiff simply contends that exhaustion is not required. (R1-1, ¶ 10). Plaintiff contends that the alleged injury will take place in the future. However, Plaintiff is challenging a condition of his confinement, the manner in which the Department will carry out his lawfully imposed sentence.4 See Nelson v. Campbell, 541 U.S. 637, 643-644, 647 (1997) (§ 1983 challenge to the procedure used in an execution is a conditions of confinement claim). Plaintiff’s challenge and his contention regarding exhaustion are similar to the issues raised in Bowling v. Haas, 2007 U.S. Dist. LEXIS 7556 (E.D. Ky. Jan. 31, 2007). In Bowling v. Haas, the plaintiffs challenged the use of lethal injection to carry out their sentences. Like the instant case, the plaintiffs in Bowling v. Haas failed to timely file a grievance and exhaust administrative remedies. Also, like
4 Plaintiff is simply attempting to avoid well established jurisprudence. He may either challenge his conviction and sentence in a habeas case pursuant to 28 U.S.C § 2254, subject to the rules regarding successive habeas petitions; or Plaintiff may challenge the conditions of his confinement in a civil rights case pursuant to 42 U.S.C § 1983, subject to the rules of exhaustion.
8

Case 1:07-cv-00896-BBM Document 13-2 Filed 05/21/2007 Page 9 of 13
the instant case, the plaintiffs in Bowling v. Haas claimed that they need not exhaust as the injury complained of would only take place in the future. The district court rejected the plaintiffs’ contentions holding that (1) exhaustion applies as the plaintiffs were challenging a condition of confinement; (2) the fact that an injury may occur in the future does not change the fact that a condition of confinement is being challenged or that exhaustion is required; and (3) exhaustion was required even though the plaintiffs may believe that the process will be futile.
In the instant case, just as in Bowling v. Haas, Plaintiff contends that the exhaustion required by statute should be ignored. Defendants submit that as Plaintiff is challenging a condition of confinement, and as he has not exhausted his administrative remedies, this action should be dismissed.
IV. CONCLUSION Based upon the foregoing, Defendants respectfully request that their Motion to Dismiss be granted. Respectfully submitted this 21st day of May, 2007.
THURBERT E. BAKER Georgia Bar No. 033887 Attorney General
(Signatures continue on next page)
9

Case 1:07-cv-00896-BBM Document 13-2 Filed 05/21/2007 Page 10 of 13

MARY BETH WESTMORELAND Georgia Bar No. 750150 Deputy Attorney General
KATHLEEN M. PACIOUS Georgia Bar No. 558555 Deputy Attorney General

/s/ Joseph Drolet ________________ Georgia Bar No. 231000 Senior Assistant Attorney General

Please Serve:

/s/ Eddie Snelling, Jr.___________ Georgia Bar No. 665725 Senior Assistant Attorney General

EDDIE SNELLING, JR. Senior Assistant Attorney General 40 Capitol Square, S.W. Atlanta, Georgia 30334-1300 Telephone: (404) 463-8850 Facsimile: (404) 651-5304 E-mail: esnelling@law.ga.gov

10

Case 1:07-cv-00896-BBM Document 13-2 Filed 05/21/2007 Page 11 of 13
CERTIFICATION AS TO FONT Pursuant to N.D. Ga. Local Rule 7.1 D, I hereby certify that this document is submitted in Times New Roman 14 point type as required by N.D. Ga. Local Rule 5.1(b).
/s/ Eddie Snelling, Jr. Georgia Bar No. 665725 Senior Assistant Attorney General
11

Case 1:07-cv-00896-BBM Document 13-2 Filed 05/21/2007 Page 12 of 13

CERTIFICATE OF SERVICE

I hereby certify that on this day, I electronically filed this DEFENDANTS’

BRIEF IN SUPPORT OF THEIR MOTION TO DISMISS for Defendants with

the Clerk of Court using the CM/ECF system which will automatically send email

notification of such filing to the following attorneys of record:

William E. Hoffman, Jr. Jason R. Edgecombe King & Spalding, LLP 1180 Peachtree Street Atlanta, Georgia 30309

Thomas H. Dunn Georgia Resource Center 303 Elizabeth Street Atlanta, Georgia 30309

And, prior to filing the same, by depositing a copy thereof, postage prepaid, in the

United States Mail, properly addressed upon:

James Ringer Michael A. Siem Elizabeth K. Quinn Clifford Chance US LLP 31 west 52nd Street New York, NY 10019-6131

This 21st day of May, 2007.

/s/ Eddie Snelling, Jr.__________ Georgia Bar No. 665725 Senior Assistant Attorney General

12

Case 1:07-cv-00896-BBM Document 13-2 Filed 05/21/2007 Page 13 of 13
Please Serve: EDDIE SNELLING, JR. Senior Assistant Attorney General 40 Capitol Square, S.W. Atlanta, Georgia 30334-1300 Telephone: (404) 463-8850 Facsimile: (404) 651-5304 E-mail: esnelling@law.ga.gov
13

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 Case 1:07-cv-00896-BBM Document 16 Filed 05/31/2007 Page 1 of 15

IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION

)

JACK E. ALDERMAN,

)

)

Plaintiff,

)

)

v.

)

)

JAMES E. DONALD, in his capacity as )

Commissioner of the Georgia Department )

of Corrections; HILTON HALL,

)

in his capacity as Warden, Georgia

)

Diagnostic and Classification Prison;

)

DOES 1-50, UNKNOWN

)

EXECUTIONERS, in their capacities

)

as employees and/or agents of the

)

Georgia Department of Corrections.

)

)

Defendants.

)

Civil Action No. 1:07-CV-0896

PLAINTIFF’S RESPONSE TO DEFENDANTS’ PRE-ANSWER MOTION TO DISMISS COMES NOW Plaintiff, Jack E. Alderman, by and through counsel, and
submits Plaintiff’s Response to Defendants’ Pre-Answer Motion to Dismiss
seeking an order denying Defendants’ Pre-Answer Motion to Dismiss filed on May

1 NYB 1562466.5

Case 1:07-cv-00896-BBM Document 16 Filed 05/31/2007 Page 2 of 15
21, 2007 and requiring Defendants to provide a substantive Answer to Mr. Alderman’s Complaint filed on April 20, 2007. I. STATEMENT OF THE CASE
On April 20, 2007, Plaintiff Jack E. Alderman, initiated the instant action pursuant to 42 U.S.C. § 1983, challenging, inter alia, the constitutionality of the lethal injection protocol selected and used by Defendants for executions in the State of Georgia. On May 21, 2007, Defendants filed Defendants’ Pre-Answer Motion to Dismiss, wherein they seek dismissal of Mr. Alderman’s Complaint for allegedly failing to exhaust his administrative remedies as required under 42 U.S.C. § 1997e(a) of the Prison Litigation Reform Act (PLRA).1 See D.I. 13-2 at 5.
Defendants’ Pre-Answer Motion to Dismiss is improperly cast as a motion to dismiss as it relied upon information outside of the pleadings. Because failure to exhaust under 42 U.S.C. § 1997e(a) of the PLRA is an affirmative defense, Defendants must first file an Answer and thereafter, raise the allegations of failure
1 Defendants have failed to cite a Rule that they are moving under. However, as they have asked for the Complaint to be dismissed, it appears they are moving pursuant to Fed. R. Civ. P. 12(b)(6) and Plaintiff has responded accordingly.
2 NYB 1562466.5

Case 1:07-cv-00896-BBM Document 16 Filed 05/31/2007 Page 3 of 15
to exhaust in a motion for summary judgment. In an apparent attempt to delay the taking of discovery in this litigation, Plaintiffs have taken the position that discovery is premature until this Court makes a determination on Defendants’ PreAnswer Motion to Dismiss. Further, if the Court finds this motion to be proper, the motion must also fail because Mr. Alderman has sufficiently pled in his Complaint at ¶¶9-10 that this issue is non-grievable. Therefore, no administrative remedy is available to exhaust under 42 U.S.C. § 1997e(a) of the PLRA.
II. STATEMENT OF RELEVANT FACTS The issue in this litigation is whether the method of execution as outlined in Administrative and Execution Procedures, Lethal Injection, Under Death Sentence, effective May 1, 2000, which were superseded on September 9, 2002, (“Procedures”) is constitutional. Rather than address the allegations outlined in Mr. Alderman’s Complaint, Defendants have instead repeated the facts and allegations against Mr. Alderman made throughout his criminal proceedings. See D.I. 13-2 at 2. Regardless of what Mr. Alderman may have done, no action by him allows the state to execute him in an unconstitutional matter.
3 NYB 1562466.5

Case 1:07-cv-00896-BBM Document 16 Filed 05/31/2007 Page 4 of 15
In support of Defendants’ Pre-Answer Motion to Dismiss (D.I. 13-2), Plaintiffs rely upon several documents, including the Affidavit of John T. Harper2 (D.I. 13-3 at 2-21), to assert that Mr. Alderman has failed to exhaust his administrative remedies under 42 U.S.C. § 1997e(a) of the PLRA. Because Defendants have presented information to the Court outside of the pleadings, Defendants’ motion is improperly cast as a motion to dismiss. As such, this Court should treat this motion as a motion for summary judgment and therefore, deny the motion as there are genuine issues of material fact regarding exhaustion.
If the Court considers the merits of Defendants arguments, the Court should deny the motion because the issues raised in Mr. Alderman’s Complaint are nongrievable under the Georgia Department of Corrections procedures. Defendants have failed to address in their motion and the supporting papers.
Prior to filing the Complaint, counsel for Mr. Alderman reviewed the Georgia Department of Corrections (GDC) grievance procedures and determined that Mr. Alderman’s grievance regarding the manner in which the state intended to
2 As Plaintiff has not had an opportunity to test the veracity of the Affidavit, if the Court relies on this Affidavit for its decision, Mr. Alderman would ask for the opportunity to depose Mr. Harper.
4 NYB 1562466.5

Case 1:07-cv-00896-BBM Document 16 Filed 05/31/2007 Page 5 of 15
execute him was non-grievable. This determination was based on at least Grievance Procedure Section VI.A.4.a. Also supporting this determination, is the prospective nature of the grievance (as the act Mr. Alderman is complaining of will occur in the future). These allegations were stated in ¶¶9-10 of the Complaint. Based on the lack of an available administrative remedy, Mr. Alderman had exhausted all “available” administrative remedies as required by 42 U.S.C. § 1997e(a) of the PLRA.
Despite concluding that the method of Mr. Alderman’s execution was nongrievable, as a courtesy to the state, counsel for Mr. Alderman, contacted the GDC on several occasions to provide notice of Mr. Alderman’s objection to the method of execution and to allow the GDC the opportunity to make its own determination as to whether there was an administrative remedy. The state did not respond to these requests. Therefore, in an abundance of caution, Mr. Alderman filed an informal grievance on April 12, 2007 and a formal grievance on April 26, 2007, both of which the GDC determined to be “not subject to the grievance procedure.” In fact, the formal grievance determination was made by Defendant Hilton Hall on May 16, 2007, five days before the filing of the state’s motion to dismiss. Attached as Exhibit A. Therefore, not only has counsel for Mr. Alderman
5 NYB 1562466.5

Case 1:07-cv-00896-BBM Document 16 Filed 05/31/2007 Page 6 of 15

independently determined that this is a non-grievable issue and there is no administrative remedy available, but the state has made the same determination. III. ARGUMENTS AND CITATION OF AUTHORITIES
A. Defendants’ Motion Should be Treated as Motion for Summary Judgment
Under Fed. R. Civ. P. Rule 12(b) if a party moving under Rule 12(b)(6) presents information outside the pleadings, the Court shall treat this as a motion for summary judgment under Fed. R. Civ. P. Rule 56. See Morrison v. Amway Corp., 323 F.3d 920, 924 (11th Cir.2003), citing Trustmark Ins. Co. v. ESLU, Inc., 299 F.3d 1265, 1267 (11th Cir.2002) (“Whenever a judge considers matters outside the pleadings in a 12(b)(6) motion, that motion is thereby converted into a Rule 56 Summary Judgment motion.”). Included in Defendants’ Pre-Answer Motion to Dismiss are four exhibits that Defendants’ rely upon in an attempt to establish that Mr. Alderman has failed to exhaust his administrative remedies under 42 U.S.C. § 1997e(a) of the PLRA.
Because Defendants have presented information to the Court outside of the pleadings, this motion should be treated as a motion for summary judgment.3 As a

3 Defendants’ motion is premature under Local Rule 56.1D. 6

NYB 1562466.5

Case 1:07-cv-00896-BBM Document 16 Filed 05/31/2007 Page 7 of 15
motion for summary judgment, Defendants’ motion should be dismissed because Defendants have failed to carry the burden of proving the absence of a genuine issue as to any material fact. See Clark v. Coats & Clark, Inc., 929 F.2d 604 (11th Cir.2002) citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970), (“the moving party, has the burden of showing the absence of a genuine issue as to any material fact.”).
Therefore, Mr. Alderman requests that this Court deny Defendants’ Motion to Dismiss without prejudice to re-file as a motion for summary judgment 20 days after the close of discovery, pursuant to Local Rule 56.1D. As Defendants have refused to provide even a schedule for discovery until the Court rules on their motion, Mr. Alderman also requests the Court order discovery to begin immediately.
B. Defendants’ Motion to Dismiss Should be Denied If this Court considers the merits of Defendants’ Pre-Answer Motion to Dismiss under Fed. R. Civ. P. Rule 12(b)(6), the Court should strike the exhibits and deny the Motion. Because Mr. Alderman has sufficiently pled exhaustion under 42 U.S.C. § 1997e(a) of the PLRA, Defendants motion must fail. Under Fed. R. Civ. P. Rule 12(b)(6) a motion to dismiss should be granted only when the
7 NYB 1562466.5

Case 1:07-cv-00896-BBM Document 16 Filed 05/31/2007 Page 8 of 15
movant demonstrates beyond doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief. See Spain v. Brown & Williamson Tobacco Corp., 363 F.3d 1183, 1187 (11th Cir.2004)(emphasis added). A complaint is to be construed liberally and in the light most favorable to the plaintiff, therefore “a complaint should not be dismissed for failure to state a claim unless it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” See Marsh v. Butler County, Ala., 268 F.3d 1014 (11th Cir. 2001) quoting Conley v. Gibson, 355 U.S. 41 (1957). Accordingly, a party seeking to dismiss a complaint under Fed. R. Civ. P. 12(b) bears a heavy burden, one that the Defendants here have failed to meet.
1. Plaintiff Has Exhausted All Available Administrative Remedies
In Defendants’ Pre-Answer Motion to Dismiss, Defendants assert that Mr. Alderman’s Complaint should be dismissed because he failed to exhaust his administrative remedies as required by 42 U.S.C. § 1997e(a) of the PLRA. D.I. 13-2 at 7-8. The exhaustion requirement is intended to give jail and prison
8 NYB 1562466.5

Case 1:07-cv-00896-BBM Document 16 Filed 05/31/2007 Page 9 of 15
authorities an opportunity to address grievable issues before they become federal lawsuits. See Porter v. Nussle, 534 U.S. 516, 524-24 (2002).4
The question in this case is whether Defendants have or can show that the grievance procedure was “available” to Mr. Alderman. In this case, under no set of facts can the state show that Mr. Alderman has failed to exhaust all available administrative remedies. As outlined above, both Mr. Alderman and the state determined that this issue is non-grievable and as such, Mr. Alderman has no administrative remedy available to exhaust. Id. at 524 (“No such action shall be brought…until such administrative remedies as are available are exhausted.”) (emphasis added), see also Terrick Terrel Nooner and Don Williams Davis v. Larry Norris, et. Al., No.5:06-cv-00110-SWW, slip op. at p. 7 (E.D. Ark. June 26, 2006) (Judge Wright Order enjoining the State of Arkansas from implementing an order for the execution of Don William Davis) (Attached as Exhibit B).
While the exhaustion requirement serves legitimate purposes, it is not intended to give authorities the opportunity to create insurmountable obstacles to
4 As outlined above, the jail and prison authorities were given several opportunities to address the issues raised in Mr. Alderman’s Complaint prior to it’s filing.
9 NYB 1562466.5

Case 1:07-cv-00896-BBM Document 16 Filed 05/31/2007 Page 10 of 15
lawsuits that may be essential to protect constitutional and other legal rights. See Woodford v. Ngo, 126 S. Ct. 2378, 2385 (2006). Nor is the standard that Defendants assert supported by the law. Defendants, cite Irwin v. Hawk, 40 F.3d 347, 349 n.2 (11th Cir. 1994) and Moore v. CO2 Smith, 18 F. Supp.2d 1360, 1363 (N.D. Ga. 1998) for the proposition that an inmate pursue all administrative remedies, whether the issue is grievable or non-grievable, including appeals prior to filing the Complaint. (D.I. 13-2 at 7). However, neither of these cases support the proposition as asserted by Defendants. In fact, both cases require that an inmate must pursue all available administrative remedies, which Mr. Alderman has done. See Irwin, 40 F.3d at 349 n.2 (11th Cir. 1994) and Moore, 18 F. Supp.2d at 1363 (N.D. Ga. 1998).
Because Mr. Alderman and the state have determined that this issue is “nongrievable,” no administrative remedy is available. 5 Therefore, this Court should deny Defendants’ Pre-Answer Motion to Dismiss.
5 Defendants argue in their motion that in order for Mr. Alderman to exhaust his administrative remedies, he must be forced to appeal a decision with which he and the state agree with (i.e., that the method of execution is a non-grievable issue). This illogical request raises the concern that the filing of the motion was intended to delay the case and force Mr. Alderman to seek a stay of execution.
10 NYB 1562466.5

Case 1:07-cv-00896-BBM Document 16 Filed 05/31/2007 Page 11 of 15
2. Defendants Have Failed To Meet Their Burden To Establish Failure To Exhaust
In addition to the reasons set forth above, Defendants have failed to meet their burden of proving the affirmative defense that Mr. Alderman has failed to exhaust his administrative remedies under 42 U.S.C. § 1997e(a) of the PLRA. See Fed.R.Civ.P. 8(c); Jones v. Bock, 127 S.Ct. 910, 921 (U.S., 2007) (“We conclude that failure to exhaust is an affirmative defense under the PLRA, and that inmates are not required to specially plead or demonstrate exhaustion in their complaints”).6 Because Defendants have failed to discuss, allege or provide any support that Mr. Alderman’s objection to his method of execution is grievable and that an administrative remedy is available, they have failed to carry this burden. See Wheeler v. Prince, 3 18 F.Supp.2d 767, 771 (E.D. Ark. 2004)(stating that bare and conclusory allegations of lack of exhaustion are insufficient to meet this burden), see also Freeman v. Snyder, 2001 WL 515258 (D. Del.) (denying motion
6 Recently Judge Richard L. Young of the United States District Court for the Southern District of Indiana, dealing with a similar motion by the state, denied the states motion for summary judgment stating that it had failed to carry the burden of proving the affirmative defense of exhaustion. Judge Young determined that the state failed to show that there was an available remedy to the Plaintiff. Norman Timberlake, et al. v. Ed Buss,, No.1:06-cv-1859-RLY-WTL, slip op. at p.6 (S.D. Ind.. May 1, 2007) (Attached as Exhibit C).
11 NYB 1562466.5

Case 1:07-cv-00896-BBM Document 16 Filed 05/31/2007 Page 12 of 15
for summary judgment on grounds of alleged non-exhaustion where defendants failed to show that there was an actual administrative remedy available for plaintiff to exhaust) (Attached as Exhibit D).
This omission can only be explained by the fact that there indeed was no administrative procedure available to Mr. Alderman, as shown by the Response to the Formal Grievance. See Exhibit A. Because Defendants have failed to meet their burden of proof regarding this affirmative defense, Defendants’ Pre-Answer Motion to Dismiss should be denied. IV. CONCLUSION
Defendants’ motion presents information outside of the pleadings, and should be treated as a motion for summary judgment. Therefore, this motion is premature under Local Rule 56.1 and should be denied. If the Court substantively addresses Defendants’ motion, it should be denied because there are no available administrative remedy for Mr. Alderman to exhaust, he has met all the requirements of 42 U.S.C. § 1997e(a) of the Prison Litigation Reform Act. And therefore, for the reasons outlined above, Defendants’ Pre-Answer Motion to Dismiss should be denied and the state should be required to answer Mr. Alderman’s Complaint that was filed on April 20, 2007 without delay.
12 NYB 1562466.5

Case 1:07-cv-00896-BBM Document 16 Filed 05/31/2007 Page 13 of 15
Submitted this 31st day of May, 2007.
Jack E. Alderman
By: /s/ Jason R. Edgecombe William E. Hoffmann, Jr. Georgia Bar No: 359825 Phone: (404) 572-3383 Fax: (404) 572-5136 bhoffmann@kslaw.com Jason R. Edgecombe Georgia Bar No. 239606 Phone: (404) 572-2740 Fax: (404) 572-5139 JEdgecombe@KSLAW.com KING & SPALDING LLP 1180 Peachtree Street Atlanta, Georgia 30309
James Ringer Michael A. Siem CLIFFORD CHANCE US LLP 31 West 52nd Street New York, NY 10019-6131 Phone: (212) 878-8000 Fax: (212) 878-8375
Thomas H. Dunn GEORGIA RESOURCE CENTER 303 Elizabeth Street Atlanta, Georgia 30309 Phone: (404) 222-9202 Fax: (404) 222-9212
13 NYB 1562466.5

Case 1:07-cv-00896-BBM Document 16 Filed 05/31/2007 Page 14 of 15
CERTIFICATION AS TO FONT
Pursuant to N.D. Ga. Local Rule 7.1 D, I hereby certify that this document is
submitted in Times New Roman 14 point type as required by N.D. Ga. Local Rule
5.1(b).
By: /s/ Jason R. Edgecombe William E. Hoffmann, Jr. Georgia Bar No: 359825 Phone: (404) 572-3383 Fax: (404) 572-5136 bhoffmann@kslaw.com Jason R. Edgecombe Georgia Bar No. 239606 Phone: (404) 572-2740 Fax: (404) 572-5139 JEdgecombe@KSLAW.com KING & SPALDING LLP 1180 Peachtree Street Atlanta, Georgia 30309
James Ringer Michael A. Siem CLIFFORD CHANCE US LLP 31 West 52nd Street New York, NY 10019-6131 Phone: (212) 878-8000 Fax: (212) 878-8375
14 NYB 1562466.5

Case 1:07-cv-00896-BBM Document 16 Filed 05/31/2007 Page 15 of 15
CERTIFICATE OF SERVICE I hereby certify that on this 31st day of May, 2007, the foregoing was served upon to the following attorney of record via HAND DELIVERY:
EDDIE SNELLING, JR. Senior Assistant Attorney General 40 Capitol Square, S.W. Atlanta, Georgia 30334-1300
/s/ Jason R. Edgecombe Jason R. Edgecombe

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 Case 1:07-cv-00896-BBM Document 18 Filed 06/08/2007 Page 1 of 13

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

JACK E. ALDERMAN

*

*

Plaintiff,

*

*

v.

*

*

JAMES E. DONALD, in his capacity *

as Commissioner of the Georgia

*

Department of Corrections; HILTON *

HALL, in his capacity as Warden, *

Georgia Diagnostic and Classification *

Prison; DOES 1-50, UNKNOWN *

EXECUTIONERS, in their capacities *

as employees and/or agents of the *

Georgia Department of Corrections *

*

Defendants.

*

_________________________________

CIVIL ACTION FILE NO. 1:07-CV-896-BBM

DEFENDANTS’ REPLY TO PLAINTIFF’S RESPONSE TO THE PRE-ANSWER MOTION TO DISMISS

COME NOW James E. Donald, Commissioner, Georgia Department of

Corrections, and Hilton Hall, Warden, Georgia Diagnostic and Classification Prison,1 by counsel, the Attorney General for the State of Georgia, and without

1 Plaintiff has also specified numerous unknown, unnamed party Defendants in this lawsuit. (R1-1, ¶ 4). To the extent that any such individuals have been properly named and served, it is the intent of counsel to represent the individuals. To the extent that there has not been proper service, a “special appearance” is being made for the purpose of advocating the pre-answer motion on their behalf.

Case 1:07-cv-00896-BBM Document 18 Filed 06/08/2007 Page 2 of 13
waiving such defenses as the applicability of the statute of limitations, pursuant to Local Rule 7.1C, reply to Plaintiff’s response to the pre-answer Motion to Dismiss.
Plaintiff filed the instant action challenging “the manner in which Defendants will execute him”. (R1-1). On May 21, Defendants filed a pre-answer motion to dismiss. (R1-13). In the motion, Defendants established that Plaintiff failed to exhaust administrative remedies, indisputably, a requirement for pursuing this action. Essentially, Defendants demonstrated, and Plaintiff concedes in the complaint, that at the time the complaint was filed, April 20, 2007, Plaintiff had just begun the grievance process. (R1-1, ¶ 11). In support of the motion, Defendants attached an affidavit, describing the Georgia grievance process, and containing copies of the actual grievance documents.
In the response to the motion to dismiss, (1) Plaintiff contends that the motion and attachments are improper; (2) Plaintiff contends that the issue presented in the instant lawsuit is not grievable so that exhaustion is not required; and (3) Plaintiff contends that district court decisions from other states control how the motion to dismiss should be resolved.
Defendants hereby incorporate the statement of the case, and statement of facts submitted with the original motion.
2

Case 1:07-cv-00896-BBM Document 18 Filed 06/08/2007 Page 3 of 13
I. As an initial matter, Defendants note that Plaintiff does not dispute that as an inmate in custody of the Department of Corrections he is subject to the Department’s grievance procedures. Nor does Plaintiff allege ignorance, or obstruction with regard to pursuing a grievance. Plaintiff does not dispute that the grievance process starts with an informal grievance, advances to a formal grievance followed by an appeal to the warden, then an appeal to the Commissioner. (R1-13-2, Attachment 1). Finally, Plaintiff does not dispute that the grievance process is not complete until a response to an appeal is issued by the Commissioner’s Office. (See R1-13-2, ¶ 12). In light of the above, and the concession in the complaint that Plaintiff had just started the grievance procedure at the time this action was filed, it is obvious that Plaintiff failed to exhaust. (R1-1, ¶ 11).
II. To avoid the ramifications of an unexhausted claim, Plaintiff contends that exhaustion is an affirmative defense that can only be raised in a motion for summary judgment after the completion of discovery, and that Defendants’ motion is improper because it contains information outside of the record. (R1-16). As previously argued, the federal statute applicable in this case is clear, “no action shall be brought . . . until such administrative remedies as are available are
3

Case 1:07-cv-00896-BBM Document 18 Filed 06/08/2007 Page 4 of 13
exhausted”. 42 U.S.C. § 1997e(a). Exhaustion is a pre-condition to bringing a lawsuit challenging conditions of confinement, and can not be waived. Porter v. Nussle, 534 U.S. 516 (2002); Dillard v. Jones, 89 F. Supp. 2d 1362, 1365 (N.D. GA 2000).
Plaintiff contends, without support, that exhaustion can only be advanced in a motion for summary judgment, and that in accordance with Local Rule 56.1D, such a motion can only be filed after discovery is completed. (R1-16, p. 3). In Jones v. Bock, 127 S.Ct. 910 (2007), the Supreme Court clarified procedural issues regarding exhaustion. The Court held that the PLRA does not authorize heightened pleading requirements regarding exhaustion; therefore, exhaustion is an affirmative defense. The Court noted that a complaint is subject to dismissal when an affirmative defense appears on the face of the complaint. Jones v. Bock, 127 S.Ct. at 921; Anderson v. XYZ Correctional Health Services, Inc., et al, 407 F.3d 674, 682 (4th Cir. 2005).
In the instant case, it is clear from the face of the complaint that Plaintiff has not exhausted administrative remedies. Plaintiff specifically pleads that at the time of the filing of the complaint he had just begun the grievance process, and that he had not yet received a response, much less completed the process. (R1-1, ¶ 11).
As Plaintiff concedes failing to exhaust in the complaint, there is no need to wait for the issue to be raised in an answer to the complaint or until discovery is
4

Case 1:07-cv-00896-BBM Document 18 Filed 06/08/2007 Page 5 of 13
completed. In accordance, with Jones v. Bock, the case is subject to dismissal based upon what appears on the face of the complaint.
In addition, regarding Defendants’ use of a motion to dismiss to challenge exhaustion, Defendants submit that in Sterling v. Warden Hugh Smith, 2007 U.S. Dist. LEXIS 38077, p. 5-7 (S.D. Ga. May 23, 2007), the district court considered the propriety of utilizing summary judgment to resolve exhaustion issues. The court decided that Rule 56 was not the proper vehicle for challenging exhaustion, especially as the movant in such a challenge is not seeking a judgment on the merits, but instead resolution of a condition precedent to suit. Id. See Wyatt v. Terhune, 315 F.3d 1108 (9th Cir. 2003).
In addition, part of the basis behind requiring exhaustion is the resolution of disputes without judicial intervention. Alexander v. Hawk, 159 F.3d 1321, 1327 (11th Cir. 1998). Plaintiff’s suggestion that exhaustion can only be raised after the completion of discovery would countermine this key reason behind the federal statute requiring exhaustion, and needlessly waste time and resources.
Plaintiff also contends that because information outside the pleading was presented, the motion to dismiss should be converted to a motion for summary judgment.
First, as stated above, a Rule 56 motion for summary judgment is not the proper way to challenge exhaustion. Sterling v. Warden Hugh Smith.
5

Case 1:07-cv-00896-BBM Document 18 Filed 06/08/2007 Page 6 of 13
Second, considering information outside of the pleading does not necessarily require converting a motion to dismiss to a motion for summary judgment. See Colonial Pipeline Co. v. Collins, 921 F.2d 1237, 1243 (11th Cir. 1991). In addition the court may look beyond the pleadings to decide this issue. See Sterling v. Warden Hugh Smith, p. 7; Waters v. Arpaio, 2007 U.S. Dist. LEXIS 10234, p. 4 (D. Ariz. Feb. 12, 2007); Chelette v. Harris, 229 F.3d 684, 688 (8th Cir. 2000). In Sterling v. Warden Hugh Smith, the court noted that “because a motion contesting a prisoner’s exhaustion of administrative remedies does not reach the merits of his underlying claim, the court may look beyond the pleadings and decide disputed issues of fact. Id. p. 7. In Waters v. Arpaio, in resolving the issue of exhaustion at the motion to dismiss stage, the court considered an affidavit, and a copy of the grievance procedure at issue. Waters v. Arpaio, p. 2.
Third, Defendants note that in his response to the motion to dismiss, Plaintiff included a copy of the formal grievance document. (R1-16-2, Exhibit A).2 By including the grievance document in his pleading Plaintiff has voluntarily placed into the record a document upon which the court can make a decision regarding exhaustion. The document presented by Plaintiff clearly shows that at the time the complaint in the case was filed, the grievance process was not complete. In fact,
2 Plaintiff failed to authenticate the document; however, Defendants do not contest authenticity.
6

Case 1:07-cv-00896-BBM Document 18 Filed 06/08/2007 Page 7 of 13
Plaintiff filed the formal grievance on April 26, 2007, six days after filing the complaint in this case. (R1-1; R1-16-2, Exhibit A).
In conclusion, on the face of the complaint it is apparent that Plaintiff failed to exhaust. Further, Defendants affirmatively raised the issue of exhaustion at the earliest opportunity in a pre-answer motion to dismiss. (R1-13). Plaintiff has had an opportunity to respond to the motion. (R1-16). Therefore, the issue of exhaustion is ripe for consideration by the court.
III. In an attempt to circumvent the exhaustion requirement, Plaintiff contends that the issue presented in the instant lawsuit is not grievable. (R1-16, p. 10).3 Plaintiff contends that as the issue is not grievable, there is no need to pursue administrative remedies. Defendants note that although Plaintiff is asserting that the issue is not grievable, Plaintiff has filed an informal grievance, and a formal grievance. (R1-1, ¶ 11, Appendix A; R1-16-2, Exhibit A). Defendants submit that a review of the actual grievance procedure which sets forth what is and is not grievable is helpful. (R1-13-2, Attachment 1, p. 3)(Department Grievance Procedure). While matters outside the control of the Department, such as an inmate’s conviction or sentence are clearly listed as non
3 Contrary to the plain language on the face of the grievance document submitted by Plaintiff, Plaintiff erroneously contends that the Defendants have determined the issues in this case to be non grievable. (R1-1, p. 10; R1-16-2, Exhibit A).
7

Case 1:07-cv-00896-BBM Document 18 Filed 06/08/2007 Page 8 of 13
grievable, conditions of confinement within the control of the Department are grievable. Id. No where in the grievance procedure or in any response by the Department has it been stated that the protocol governing the method of execution is not grievable.
A protocol setting forth the method of execution may be challenged by an inmate in a 42 U.S.C. § 1983 complaint about conditions of confinement Hill v. McDonough, ___ U.S. ___, 126 S. Ct. 2096 (2006). In Hill v. McDonough, the Court clearly set forth that challenges to the fact of confinement are the province of habeas corpus; however, challenges to conditions of confinement, such as a challenge to the method of execution, may be pursued in a civil rights action. Hill v. McDonough, 126 S. Ct at 2101. Simply stated, if a Plaintiff is challenging the fact that he will be executed, it is a habeas case; if he is challenging the procedure, it is a civil rights case.
In the instant case, Plaintiff states that he is “challenging not his sentence of death, but rather the manner in which Defendants will execute him”. (R1-1, p. 1). Accordingly, Plaintiff is challenging a condition of confinement which can be grieved, and can be the subject of a civil rights lawsuit.
Defendants recognize that there may be some confusion regarding what issues can and can not be grieved based upon how Plaintiff worded his grievance. In Plaintiff’s grievance, he asks for two forms of relief: (1) not to be executed; or
8

Case 1:07-cv-00896-BBM Document 18 Filed 06/08/2007 Page 9 of 13
(2) that the method of execution be constitutional. (R1-16-2, Exhibit A). 4 With regard to the method of execution, Plaintiff contends that it will cause undue pain. Because two types of relief were requested by the Plaintiff, the Warden’s response to the grievance addressed both requests. With regard to the request not to be executed, Plaintiff was informed that “Your sentence of execution is not subject to the grievance procedure.” This response is in accord with the Department grievance procedure which states that sentences are not grievable. (R1-13-2, Attachment 1, p. 3).
Defendants note that to the extent that Plaintiff may be challenging his sentence, such a challenge should be brought in a habeas case, and not in a civil rights action. See Preiser v. Rodriguez, 411 U.S. 475 (1973); Nelson v. Campbell, 541 U.S. 637 (2004); Hill v. Hopper, 112 F.3d 1088 (11th Cir. 1997).
With regard to Plaintiff’s second form of relief, that the method of execution be constitutional, Plaintiff was told that “There is a protocol established for carrying out court ordered executions that has been deemed constitutional that will be followed in the event of your execution”. (R1-16-2, Exhibit A). As it was deemed that the method of execution was appropriate, the grievance was denied. Accordingly, Plaintiff’s contention that his request not to be executed is non
4 Plaintiff filed the grievance on April 26, 2007, six days after filing the complaint in this case. (R1-1; R1-16-2, Exhibit A).
9

Case 1:07-cv-00896-BBM Document 18 Filed 06/08/2007 Page 10 of 13
grievable is accurate; his contention that the challenge to the method of execution was deemed not to be grievable, is inaccurate.
IV. Finally, in support of his position that the case should not be dismissed for failure to exhaust, Plaintiff relies on Nooner v. Davis, and Timberlake v. Buss. (R1-16-3; R1-16-4). Nooner v. Davis involves resolution of a request for preliminary injunction on the merits, which is not the issue before the court on Defendants motion to dismiss. In Timberlake v. Buss, the court was considering the issue of exhaustion. However, the court based its decision on the fact that the plaintiff was not, and could not have been aware of the protocols at issue in that case. Unlike Timberlake, the Plaintiff in this case obviously had access to the protocol, as it was attached to the complaint in the case. (R1-1, p. 8, Appendix C). While Plaintiff’s cases do not support his position regarding exhaustion in this case, Defendants submit that Bowling v. Haas, 2007 U.S. Dist. LEXIS 7556 (E.D. Ky. Jan. 31, 2007), supports Defendants’ position. In the instant case, just as in Bowling v. Haas, Plaintiff contends that the exhaustion required by federal law should be ignored. The court refused to ignore exhaustion in that case. Similarly, Defendants submit that as Plaintiff is challenging a condition of confinement, and as he has not exhausted his administrative remedies, this action should be dismissed.
10

Case 1:07-cv-00896-BBM Document 18 Filed 06/08/2007 Page 11 of 13

IV. CONCLUSION

Based upon the foregoing, Defendants respectfully request that their Motion

to Dismiss be granted.

Respectfully submitted this 8th day of June, 2007.

THURBERT E. BAKER Georgia Bar No. 033887 Attorney General

MARY BETH WESTMORELAND Georgia Bar No. 750150 Deputy Attorney General

KATHLEEN M. PACIOUS Georgia Bar No. 558555 Deputy Attorney General

/s/ Joseph Drolet ________________ Georgia Bar No. 231000 Senior Assistant Attorney General

Please Serve:

/s/ Eddie Snelling, Jr.___________ Georgia Bar No. 665725 Senior Assistant Attorney General

EDDIE SNELLING, JR. Senior Assistant Attorney General 40 Capitol Square, S.W. Atlanta, Georgia 30334-1300 Telephone: (404) 463-8850 Facsimile: (404) 651-5304 E-mail: esnelling@law.ga.gov

11

Case 1:07-cv-00896-BBM Document 18 Filed 06/08/2007 Page 12 of 13
CERTIFICATION AS TO FONT Pursuant to N.D. Ga. Local Rule 7.1 D, I hereby certify that this document is submitted in Times New Roman 14 point type as required by N.D. Ga. Local Rule 5.1(b).
/s/ Eddie Snelling, Jr. Georgia Bar No. 665725 Senior Assistant Attorney General
12

Case 1:07-cv-00896-BBM Document 18 Filed 06/08/2007 Page 13 of 13

CERTIFICATE OF SERVICE

I hereby certify that on this day, I electronically filed this DEFENDANTS’

BRIEF IN SUPPORT OF THEIR MOTION TO DISMISS for Defendants with

the Clerk of Court using the CM/ECF system which will automatically send email

notification of such filing to the following attorneys of record:

William E. Hoffman, Jr. Jason R. Edgecombe King & Spalding, LLP 1180 Peachtree Street Atlanta, Georgia 30309

Thomas H. Dunn Georgia Resource Center 303 Elizabeth Street Atlanta, Georgia 30309

And, prior to filing the same, by depositing a copy thereof, postage prepaid, in the

United States Mail, properly addressed upon:

James Ringer Michael A. Siem Elizabeth K. Quinn Clifford Chance US LLP 31 west 52nd Street New York, NY 10019-6131

Please Serve:

/s/ Eddie Snelling, Jr.__________ Georgia Bar No. 665725 Senior Assistant Attorney General

EDDIE SNELLING, JR. Senior Assistant Attorney General 40 Capitol Square, S.W. Atlanta, Georgia 30334-1300 Telephone: (404) 463-8850 Facsimile: (404) 651-5304 E-mail: esnelling@law.ga.gov

13

 
 IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION

)

JACK E. ALDERMAN,

)

)

Plaintiff,

)

)

v.

)

)

JAMES E. DONALD, in his capacity as )

Commissioner of the Georgia Department )

of Corrections; HILTON HALL, in his )

capacity as Warden, Georgia Diagnostic and )

Classification Prison; DOES 1-50, in their )

capacity as employees and/or agents of the )

Georgia Department of Corrections,

)

)

Defendants.

)

Civil Action No. 1:07-CV-0896

PLAINTIFF’S REQUEST FOR ORAL ARGUMENT ON DEFENDANTS’ PRE-ANSWER MOTION TO DISMISS AND
PLAINTIFF’S OPPOSITION TO SAME

Plaintiff Jack E. Alderman requests that the Court entertain oral argument on Defendants’ Pre-Answer Motion to Dism iss and Plaintiff’s opposit ion to same, currently pending before the Court. Plai ntiff respectfully requests that the Court enter an order permitting oral argument pursuant to LR 7.1(E), NDGa.

Respectfully submitted this 8th day of June, 2007.

KING

& SPALDING LLP

/s/ Jason R. Edgecombe William E. Hoffmann, Jr. Georgia Bar No. 359825 bhoffmann@kslaw.com Jason R. Edgecombe Georgia Bar No. 239606 jedgecombe@kslaw.com KING & SPALDING LLP 1180 Peachtree Street Atlanta, Georgia 30327 Phone: (404) 572-4600 Fax: (404) 572-5139

James Ringer james.ringer@cliffordchance.com Michael A. Siem michael.siem@cliffordchance.com Elizabeth K. Quinn elizabeth.quinn@cliffordchance.com CLIFFORD CHANCE US LLP 31 West 52nd Street New York, NY 10019-6131 Phone: (212) 878-8000 Fax: (212) 878-8375

Thomas H. Dunn Therese Piazza GEORGIA RESOURCE CENTER 303 Elizabeth Street Atlanta, Georgia 30309 Phone: (404) 222-9202 Fax: (404) 404 506-2680

Attorneys for Plaintiff

2

LOCAL RULE 7.1 D CERTIFICATION Counsel hereby certifies that the foregoing was prepared in Times New Roman, 14-point font, in accordance with LR 5.1 B, NDGa.
/s/ Jason R. Edgecombe Jason R. Edgecombe

CERTIFICATE OF SERVICE I hereby certify that on this 8th day of June, 2007, I electroni cally filed the foregoing with the Clerk of Court using the CM/ECF, which will automatically generate a notice of filing to the following attorney of record:
EDDIE SNELLING, JR. Senior Assistant Attorney General 40 Capitol Square, S.W. Atlanta, Georgia 30334-1300
/s/ Jason R. Edgecombe Jason R. Edgecombe
4

 
 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

JACK E. ALDERMAN

*

*

Plaintiff,

*

*

v.

*

*

JAMES E. DONALD, in his capacity *

as Commissioner of the Georgia

*

Department of Corrections; HILTON *

HALL, in his capacity as Warden, *

Georgia Diagnostic and Classification *

Prison; DOES 1-50, UNKNOWN *

EXECUTIONERS, in their capacities *

as employees and/or agents of the *

Georgia Department of Corrections *

*

Defendants.

*

_________________________________

CIVIL ACTION FILE NO. 1:07-CV-896-BBM

DEFENDANTS’ RESPONSE TO PLAINTIFF’S REQUEST FOR ORAL ARGUMENT ON DEFENDANTS’ MOTION TO DISMISS

COME NOW James E. Donald, Commissioner, Georgia Department of

Corrections, and Hilton Hall, Warden, Georgia Diagnostic and Classification Prison,1 by counsel, the Attorney General for the State of Georgia, respond to

Plaintiff’s request for oral argument on Defendants’ pre-answer Motion to Dismiss.

1 Plaintiff has also specified numerous unknown, unnamed party Defendants in this lawsuit. (R1-1, ¶ 4). To the extent that any such individuals have been properly named and served, it is the intent of counsel to represent the individuals. To the extent that there has not been proper service, a “special appearance” is being made for the purpose of presenting this response on their behalf.

1. Plaintiff filed the instant action challenging “the manner in which Defendants will execute him”. (R1-1). On May 21, Defendants filed a pre-answer motion to dismiss establishing that Plaintiff failed to exhaust administrative remedies. (R1-13). Plaintiff responded to the motion alleging that the motion and attachments were improper and that the issue presented in the instant lawsuit is not grievable so that exhaustion is not required. (R1-16). Defendants submitted a reply. (R1-18). Thereafter, Plaintiff requested that the Court schedule oral argument on the motion to dismiss. (R1-19).
2. Plaintiff recognizes that Local Rule 7.1E., governs oral arguments on motions as he cites the Rule in his request. The Rule states that motions are usually decided without oral argument. However, the court has the discretion to order argument. In this case, Plaintiff simply asks for argument without setting forth any basis such as novel or complicated issues. Indeed, as set forth in Defendants’ pleadings, the issue before the court is very basic and routine: did the Plaintiff file the instant action before exhausting administrative remedies? Accordingly, Defendants submit that there is no need for oral argument in this case.
2

3.

Although Defendants submit that oral argument is not necessary, should the

court believe that argument would be beneficial, Defendants stand ready to argue

the issues in this case at the court’s convenience.

Respectfully submitted this 13th day of June, 2007.

Georgia

THURBERT E. BAKER Bar No. 033887
Attorney General

Georgia Deputy

MARY BETH WESTMORELAND Bar No. 750150 Attorney General

Georgia Deputy

KATHLEEN M. PACIOUS Bar No. 558555 Attorney General

/s/ Joseph Drolet ________________ Georgia Bar No. 231000 Senior Assistant Attorney General

/s/ Georgia Senior Please Serve:

Eddie Snelling, Jr.___________ Bar No. 665725
Assistant Attorney General

EDDIE SNELLING, JR. Senior Assistant Attorney General 40 Capitol Square, S.W. Atlanta, Georgia 30334-1300 Telephone: (404) 463-8850 Facsimile: (404) 651-5304 E-mail: esnelling@law.ga.gov

3

CERTIFICATION AS TO FONT

Pursuant to N.D. Ga. Local Rule 7.1 D, I hereby certify that this document is

submitted in Times New Roman 14 point type as required by N.D. Ga. Local Rule

5.1(b).

Georgia

/s/ Eddie Snelling, Jr. Bar No. 665725
Senior Assistant Attorney General

4

CERTIFICATE OF SERVICE

I hereby certify that on June 13, 2007 I electronically filed DEFENDANTS’

RESPONSE TO PLAINTIFF’S REQUEST FOR ORAL ARGUMENT with

the Clerk of Court using the CM/ECF system which will automatically send email

notification of such filing to the following attorneys of record:

William E. Hoffman, Jr. Jason R. Edgecombe King & Spalding, LLP 1180 Peachtree Street Atlanta, Georgia 30309

Thomas H. Dunn Georgia Resource Center 303 Elizabeth Street Atlanta, Georgia 30309

And, prior to filing t he same, by depositing a copy thereof, postage prepaid, in the

United States Mail, properly addressed upon:

James Ringer Michael A. Siem Elizabeth K. Quinn Clifford Chance US LLP 31 west 52nd Street New York, NY 10019-6131

Georgia Please Serve:

/s/ Eddie Snelling, Jr.__________ Bar No. 665725
Senior Assistant Attorney General

EDDIE SNELLING, JR. Senior Assistant Attorney General 40 Capitol Square, S.W. Atlanta, Georgia 30334-1300 Telephone: (404) 463-8850 Facsimile: (404) 651-5304 E-mail: esnelling@law.ga.gov

5

 
 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

JACK E. ALDERMAN

*

*

Plaintiff,

*

*

v.

*

*

JAMES E. DONALD, in his capacity *

as Commissioner of the Georgia

*

Department of Corrections; HILTON *

HALL, in his capacity as Warden, *

Georgia Diagnostic and Classification *

Prison; DOES 1-50, UNKNOWN *

EXECUTIONERS, in their capacities *

as employees and/or agents of the *

Georgia Department of Corrections *

*

Defendants.

*

_________________________________

CIVIL ACTION FILE NO. 1:07-CV-896-BBM

DEFENDANTS’ RESPONSE TO PLAINTIFF’S NOTICE OF FILING

COME NOW James E. Donald, Commissioner, Georgia Department of

Corrections, and Hilton Hall, Warden, Georgia Diagnostic and Classification Prison,1 by counsel, the Attorney General for the State of Georgia, respond to

Plaintiff’s Notice of filing.

1 Plaintiff has also specified numerous unknown, unnamed party Defendants in this lawsuit. (R1-1, ¶ 4). To the extent that any such individuals have been properly named and served, it is the intent of counsel to represent the individuals. To the extent that there has not been proper service, a “special appearance” is being made for the purpose of presenting this response on their behalf.

1. On June 13, Plaintiff filed copies of correspondence written to the court, and to counsel for the Defendant. (R1-21). The gravamen of the correspondence is Plaintiff’s complaint and acrimony over not being advised of internal Department functions, or not being preemptively provided discovery prior to the commencement of the discovery period. Id. Consequently, Plaintiff makes speculative accusations, and casts aspersions on counsel for the Defendants. Id. Finally, Plaintiff takes the opportunity to reargue his position in the case. Id.
2. Pretermitting the propriety of the Plaintiff’s filing, See Local Rule 7.4, Defendants simply note that Plaintiff cited no authority for the novel proposition that he is entitled to be informed of the internal activity of the Department of Corrections. Further, with regard to the Protocol, Plaintiff could have obtained a copy in the same manner that the local media obtained a copy.2 However, as it is a public document and Defendants have nothing to hide, for what it is worth in consideration of a motion to dismiss for failure to exhaust, it is attached to the instant pleading.
2 Plaintiff’s New York counsel may not have been aware of this fact; however, Plaintiff is also represented locally by King & Spalding LLP, and the Georgia Resource Center.
2

3. Plaintiff further accuses Defendants of obstruction or delaying this case in failing to respond to Plaintiff’s grievance and by modifying the protocol despite the existence of the instant litigation. The purpose behind the grievance system is to provide prison officials an opportunity to review matters internally prior to them being addressed by the courts. Alexander v. Hawk, 159 F.3d 1321 (11th Cir. 1998). Defendants should not be criticized for utilizing the grievance procedure for the purpose for which it was designed. Respectfully submitted this 15th day of June, 2007.
THURBERT E. BAKER Georgia Bar No. 033887 Attorney General MARY BETH WESTMORELAND Georgia Bar No. 750150 Deputy Attorney General KATHLEEN M. PACIOUS Georgia Bar No. 558555 Deputy Attorney General /s/ Joseph Drolet ________________ Georgia Bar No. 231000 Senior Assistant Attorney General (Signatures continue on next page)
3

/s/ Eddie Snelling, Jr.___________ Georgia Bar No. 665725 Senior Assistant Attorney General Please Serve: EDDIE SNELLING, JR. Senior Assistant Attorney General 40 Capitol Square, S.W. Atlanta, Georgia 30334-1300 Telephone: (404) 463-8850 Facsimile: (404) 651-5304 E-mail: esnelling@law.ga.gov
4

CERTIFICATION AS TO FONT Pursuant to N.D. Ga. Local Rule 7.1 D, I hereby certify that this document is submitted in Times New Roman 14 point type as required by N.D. Ga. Local Rule 5.1(b).
/s/ Eddie Snelling, Jr. Georgia Bar No. 665725 Senior Assistant Attorney General
5

CERTIFICATE OF SERVICE

I hereby certify that on June 15, 2007 I electronically filed DEFENDANTS’

RESPONSE TO PLAINTIFF’S NOTICE OF FILING with the Clerk of Court

using the CM/ECF system which will automatically send email notification of such

filing to the following attorneys of record:

William E. Hoffman, Jr. Jason R. Edgecombe King & Spalding, LLP 1180 Peachtree Street Atlanta, Georgia 30309

Thomas H. Dunn Georgia Resource Center 303 Elizabeth Street Atlanta, Georgia 30309

And, prior to filing the same, by depositing a copy thereof, postage prepaid, in the

United States Mail, properly addressed upon:

James Ringer Michael A. Siem Elizabeth K. Quinn Clifford Chance US LLP 31 west 52nd Street New York, NY 10019-6131

Please Serve:

/s/ Eddie Snelling, Jr.__________ Georgia Bar No. 665725 Senior Assistant Attorney General

EDDIE SNELLING, JR. Senior Assistant Attorney General 40 Capitol Square, S.W. Atlanta, Georgia 30334-1300 Telephone: (404) 463-8850 Facsimile: (404) 651-5304 E-mail: esnelling@law.ga.gov

6

GEORGIA DEPARTMENT OF
CORRECTIONS LETHAL INJECTION PROCEDURE
JUNE 7,2007

Copy#l Copy#2 Copy#3 Copy#4 Copy#5 Copy#6 Copy#7 Copy#8 Copy#9

GEORGIA DEPARTMENT OF CORRECTIONS
EXE~ONPROCEDURES REQ~DDm~UTION
Governor State of Georgia
Attorney General State ofGeorgia
Commissioner
Corrections Division Director
Facilities Director
Northern Facilities Operations Manager
Warden Georgia Diagnostic and Classification Prison
Warden Metro State Prison
General Counsel Legal Services

TABLE OF CONTENTS

L RECEPTION OF UDS CASES Section

1.0

The Sentence

1.1

Sentence ofDeath

- Certified Copy of Sentence

-Ten (10) Days Prior to Execution

1.2

Change ofDate

-Reasons for Change

-Reset Order for Execution

-Delivery ofReset Order

1.3

Acknowledgmerit ofNotification

1.4

Notification ofOthers

2.0

Delivery ofthe Condemned Person

2.1

Delivered to the Commissioner

2.2

Delivery by Sheriff

2.3

Orders to Sheriff

2.4

Transfer to Execution Site

3.0

Admission Processing

4.0

Confinement

n. HOLDING AND PREPARATION FOR EXECUTION

5.0 6.0 7.0 7.1 7.1.1 7.1.2 7.1.3 7.1.4 7.1.5 7.1.5.1 7.1.5.2

Preparation for Execution Notification DeathWatch Observation Security ofExecution Chamber Log ofActivities ofCondemned Meals for Condemned Telephone Communication Check Medical Sick Call Requests for Medical Attention

8.0

Personal Property ofthe Condemned

8.1

Inventory and Sealing ofPersonal Property

8.2

Supervised Process

8.3

Sign Inventory Sheet

8.4

Recipient ofPersonal Property

ii

Page
1 1
1
1 1 1 1 1 2 2 2 2
2
2 3 3 3 3 3 3 4
4
4 4
4 4 .4 4 4

Section
9.0 9.1 9.2 9.3 9.4
10.0
11.0 11.1 11.2
12.0 12.1 12.2 12.2.1 12.3
13.0 13.1 13.2 13.3 13.4
14.0 14.0.1 14.0.2 14.0.3
15.0
16.0

State Issued Items List ofItems Items Allowed Upon Request Approval ofExceptions Disallowed Items
Funeral Arrangements
Designation of Staff Notification of Staff Restrictions
Wrtnesses Who May be Present Space Limitations Witnesses Requested by the Condemned Contact ofWitnesses Other Wrtnesses
Media and Public Infonnation Office Interviews with the Condemned News Media Representation Media Briefings Live BroadcaSts by Media
Visitation VISitation Room- Limitations Meal for Condemned Attorney Visits
Victim Family Remaining During Execution
Telephone Access ofCondemned

Page
5 5 5 5 5
6
6 6 7
7 7 9 9 9
10 10 10 10 10
10 10 10 10
10
10

111

Section

Ill. DAYOFEXECUTION

17.0

Day ofExecution

11

17.1

Within Three (3) Hours ofthe Execution

11

17.2

Within Two (2) Hours ofthe Execution

11

17.3

Within One (1) Hour ofthe Execution

12

17.3.1

Administrative Steps Preceding Execution

13

17.3.8

Preparation ofthe Condemned

13

17.3.18

Execution Carried Out

14

17.3.19

Post Execution

15

17.3.25

Interment ofCondemned

16

17.3.25.2 Critical Incident Debriefing

16

iv

UNDER DEATH SENTENCE
TABLE OF ANNEXES

ANNEX# Annex I Annexll
Annex ill Annex IV

TITLE IV Team -Instructions Crowd Control on Day ofExecution Activity Log -Death Watch Controlled Chemical Handling Procedures for Execution By Lethal Injection With Attachments

PAGE 17 18 19 20-25

v

I. RECEPTION OF UNDER DEATH SENTENCE (UDS) CASES

1.0 THE SENTENCE

1.1 Upon a verdict or judgement ofdeath made by a jury or a judge, it is the responsibility ofthe Clerk ofCourt, in which said sentence is pronounced, to forward a certified copy of said sentence to the Warden ofthe Georgia Diagnostic and Classification Prison not less than ten (10) days prior to the first day ofthe seven (7) day execution period as fixed by the court (OCGA 17-10-33).

1.2 Where the date for execution has passed for any reason, i.e., appeal, habeas corpus, State Board ofPardons and Paroles, etc., the judge ofthe Superior Court ofthe county where the case was tried shall have the power and authority to fix a seven (7) day period for the execution ofthe original sentence. Such order shall fix the seven (7) day period not less that ten (10) nor more than twenty (20) days from the date of such order. Such order shall be sent immediately to the Warden ofthe Georgia Diagnostic and Classification Prison (OCGA 17-1 0-40).

1.3 Upon notification, the Warden ofthe Georgia Diagnostic and Classification Prison

will immediately notifY the Commissioner and forward a copy ofthe sentence

(Execution Order) or other orders.

·

1.4 Upon notification as descnDed in 1.3, the Commissioner will forward a copy ofthe execution order to the Governor (Attention: Legal Counsel, Governor's Office) and the Chairman ofthe State Board ofPardons and Paroles.

2.0 DELIVERY OF THE CONDEMNED PERSON

2.1 In all cases in which the defendant is sentenced to be executed, it shall be the duty ofthe trial judge in passing sentence, to direct that the defendant be delivered to the Commissioner ofthe Georgia Department ofCorrections for execution at such state prison as may be designated by said Commissioner, (OCGA 17-1 0-38).

2.2 It shall be .the duty ofthe sheriffofthe county in which such convicted person is so sentenced to convey such convicted person to said state prison not more than twenty (20) nor less than two (2) days prior to the time fixed in the sentence for execution ofthe condemned person unless otherwise directed by the S~e Board ofPardons and Paroles, or unless a stay of

I

execution has been caused by appeal, granting ofa new trial, or other order ofa court of competent jurisdiction, and the expense for transporting ofsaid person to the state prison for the purpose ofexecution shall be paid by the Ordinary ofthe County wherein the conviction was had, or the Board of County Commissioners, the County Commissioner, or other person or persons having charge ofthe county funds, out of any funds on hand in the treasury of such County, (OCGA 17-10-33).
2.3 The Commissioner will issue assignment orders to the Sheriffofthe County of conviction and forward copies ofthe Order and sentencing documents to the state prison. Delivery ofthe condemned person by the Sheriffwill be arranged and coordinated by the Commissioner between the Sheriff ofthe County concerned and the Warden ofthe prison.
2.4 Persons under death ·sentence incarcerated at institutions other than the institution designated by the Commissioner as the execution site will be transferred to the execution site approximately two (2) days prior to the scheduled execution date. Details ofsuch transfer Will be coordinated by the Commissioner.
3.0 ADMISSION PROCESSING
Upon arrival ofthe condemned person at the Georgia Diagnostic and Classification Prison or Metro State Prison, he/she will be processed through regular inmate admission procedures, to include security search, medical examination, fingerprint, photograph, personal history information,. etc., to include a complete diagnostic
evaluation, a oopy ofwhich will be provided to the Commissioner ofthe
Department ofCorrections, and the State Board ofPardons and Paroles.
4.0 CONFINEMENT
The condemned person will be confined in a cell designated by the Warden. Appropriate safeguards and security measures will be maintained as directed by the Warden. Pending the invoking ofthe Death Watch, the condemned person will be maintained in accordance with Departmental Rules and Regulations, special regulations for persons under death sentence, and specific court order. Persons delivered to the execution site less than thirtysix (36) hours prior to the time ofexecution, (refer to Paragraph 2.2), will be processed immediately and assigned to the Death Watch Cell.
ll. HOLDING AND PREPARATION FOR EXECUTION
5.0 PREPARATION FOR EXECUTION AND TIME OF EXECUTION
The order ofthe court will specify a time span for the execution. A specific date and time within the designated time span will be established and announced by the Commissioner to the appropriate personnel on a need to know basis. The date and time for execution should be finalized seven (7) days in advance.
2

6.0 NOTIFICATION

Upon receipt, the Warden or his designee shall read to the condemned inmate the Order of Execution issued by the court of conviction. The condemned will sign the Order acknowledging notification ofthe Order and the signature ofthe condemned will be witnessed by the..staffmember and same will provide the condemned with a copy ofthe Order. Ifthe condemned refuses to acknowledge receipt ofthe Order ofExecution, the Warden or designee shall read the Order ofthe Court and acknowledge receipt for the condemned, in writing, which shall be witnessed by a staffmember other than the Warden and attached to the Order.

7.0 DEATHWATCH
The condemned shall be moved to a designated cell, and observatio~ shall begin thirty-six
(36) to twelve (12) hours but an optimal eighteen (18) hours prior to the scheduled execution. A minimum oftwo (2) officers shall be assigned to observe the condemned at all.times during Death Watch. Ifthe condemned is a female, security will be maintained by female security personnel Duties shall be established by the Deputy Warden of Security
and the Warden. No other correctional staft: or civilian personnel, except medical
personnel, shall be allowed in the Death Watch area without approval ofthe Warden or designee. No inmates are allowed in the Death Watch area.

7.1 Observation

7.1.1

Security ofthe Execution Chamber and the Execution Witness

Room is the responsibility ofthe Warden. Security briefings shall

be held as appropriate.

·

7.1.2

The officer in charge on each shift shall supervise the use ofall

items retained by the condemned and shall maintain a log of

all activities ofthe condemned to include, but not limited to,

the times offeeding, showering and all other occurrences.

7.1.3

All meals for the condemned during the Death Watch shall be

prepared/procured and delivered by the Food Service Director,

or designee. The activity log sheet shall reflect all names of

persons delivering meals, menu items served the condemned

and whether they were consumed or returned, to include date

and time.

3

7 .1.4

A communication check, by telephone/radio, shall be made

every thirty (30) minutes, on a continuous basis, during this

period by the Death Watch Officer to the institution's control

center. This communication check shall be logged.

7.1.5

Medical

7.1.5.1

Sick call will be in accordance with institution Rules and Regulations prior to the Death Watch period. During the Death Watch, sick call will be in the Death Watch area.

7.1.5.2

Request for medical attention by the condemned, in addition to sick call~ will be provided in the Death Watch area unless determined inappropriate by the Medical Authority. A medical determination to examine or treat the condemned in other than the Death Watch area should be coordinated with the Warden as soon as possible.

8.0 PERSONAL PROPERTY OF THE CONDEMNED

8.1 The condemned shall personally take inventory, pack and seal his personal property at the beginning ofthe Death Watch.

8.2 The inventory process and seaJing ofpersonal property shall be performed under the supervision ofan institutional officer and another staffperson designated by the Warden.

8.3 The condemned shall sign a completed inventory sheet which shall be witnessed by the officer and the other staffmember.
8.4 The condemned shall indicate, in writing, on the completed inventory sheet the recipient ofall personal property.

4

9.0 STATE ISSUED ITEMS
9.1 The condemned shall be furnished with the following state-issued items while under Death Watch:
- 1 Mattress - 1 Pillow - 1 Pillowcase - 2 Blankets (as necessary) -2 Sheets -2 Towels · - 1 Comb (provided as needed) - 1 Bar of Soap - 1 Shirt - 1 Jacket (provided as needed) - 1 Pair·ofPants ~ 1 Pair ofBoxer Shorts - 1 Pair of Socks - 1 Pair of Shower Shoes - 1 Religious Material - 1 Toothbrush and Tube ofToothpaste (provided as needed) - 1 Use ofElectric Razor (Cordless)
9.2 The condemned may be provided the following upon request:
- 1 Television Set to be Located Outside the Cell - 1 Radio to be Located Outside the Cell - Playing Cards - Stationecy -Newspapers and Magazines (as approved by the Warden) -Items available in the Inmate Store at condemned's expense, excluding those
items in metal, glass containers, or hard plastic. - Personal Items Approved by the Warden or Designee (limited to
essen.tial needs)
9.3 Any variation from the above list shall be approved by the Warden or designee, in writing, and attached to the activity log.
9.4 The condemned will not be provided with the following: -
- Razors or Blades (other than cordless electric). -Belts - T-Shirts
5

10.0 FUNERAL ARRANGEMENTS

At the beginning ofthe Death Watch, ifnot previously done, the condemned may specify, in writing, his or her request for funeral arrangements. This information shall be conveyed ifnecessary to the inmate's family, or others as appropriate, by the Warden or his designee at least twelve (12) hours prior to the scheduled execution.

11.0 DESIGNATION OF STAFF

11.1 The following shall be present at each execution and shall be notified by the Warden and acknowledged a minimum oftwelve (12) hours in advance ofthe time and date ofthe execution. Notification shall include date and time of execution, and place to report for assignment. The Warden has the authority to waive th~ twelve (12) hour requirement on an· emergency basis.

11.1.1

Warden or Deputy Warden who shall ensure that the court ordered execution is carried out.

11.1.2

Two (2) assistants or more as directed by the Warden.

11.1.3

Two (2) physicians - to determine when death supervenes.

11.1.4

One (1) physician - to provide medical assistance during the execution process (may be one ofthe physicians in 11.1.3).

11.1.5

Intravenous (IV) Team, to consist oftwo (2) or more trained personneL including at least one nurse, to provide intravenous access.

11.1.6

Six (6) Correctional Officers to serve as a special escort team who will apply restraints to the condemned duriJig the execution process.

11.1. 7

Injection Team to consist ofthree (3) trained staffmembers to inject solutions into the intravenous port(s) during the execution process.

11.1.8

One (I) Chaplain to administer to the spiritual needs ofthe condemned and to provide a prayer on the condemned's behalf upon request.

11.1. 9

Security personnel as appropriate.

6

11.2 Restrictions:

No photographic, audio, recording, or computerized equipment will be permitted in the execution chamber or witness room except as specifically authorized by the Warden. All pencils, note pads, etc. will be issued and controlled by designated GDC staff.

12.0 WITNESSES WHO MAY BE PRESENT

Witnesses to the execution beyond those specifically prescnbed by law or elsewhere in this procedure must be approved by the Commissioner prior to the day ofthe scheduled execution.

-12.1 Space limitations may limit the number ofwitnesses to be present in the execution witness room. Witnesses will be selected as outlined below:

12.1.1

Five (5) witnesses selected by the condemned. These witnesses may not consist ofinmate or victim family members unless approved by the Commissioner ofthe Georgia Department ofCorrections.

12.1.2

Five (5) witnesses representing the news media organizations. Media representatives shall be determined as follows:

12.1.2.1

The Georgia Bureau Chiefofthe Associated Press WJTe Services may designate one news reporter to be its media rel>resentative.

12.1.2.2

The Georgia Press Association, through its Executive Director, may designate two pool newspaper reporters to be its media representatives, including one pool reporter from a newspaper published within the county in which the condemned was convicted.

12.1.2.3

The Georgia Association ofBroadcasters, through its President, may designate two pool news reporters to be its representatives for the electrQnic media, including one television or radio reporter from the county in which the condemned was convicted.

7

12.1.3 .

12.1.2.4

The names ofthe news reporters representing the above mentioned classes or news media and designated alternates, shall be communicated telephonically to the Commissioner ofthe Department of Corrections at least twenty-four (24) hours prior to an execution.

12.1.2.5

All approved media witnesses will be certified in writing by the Commissioner to the Warden· of the Georgia Diagnostic and Classification Prison.

12.1.2.6

In the event that more than one execution is carried oot in a single day, the same media representatives shall be the witnesses for those executions. The newspaper and broadcast representatives from the county ofconviction will change ifthe offenders to be executed are from different counties.

12.1.2.7

Upon entering the Georgia Diagnostic and Classification Prison, each media representative must present sufficient evidence to establish his/her identity to the Warden or designee that he/she is entitled access to the press conference interview. This shall include a current photo I.D. Pencils, pens, notebooks, etc., will not be allowed; these items will be provided by Department ofCorrections staff. Facility policy prolnbits witnesses wearing or bringing jewehy or other personal items into the facility.

Not less than five (5) witnesses approved in writing by the Commissioner ofthe Department ofCorrections.

12.1.3.1

The Commissioner ofthe :Oepartment of Corrections may approve five (5) or more witnesses to be present in the witness room. These witnesses may include officials with the Executive, Judicial or Legislative Branch of Government, or private citizens. The Commissioner's Office shall maintain a t~ntative list ofwitnesses and keep the list updated.

8

12.1.3.2

The Commissioner may approve one or more witnesses representing the victim(s). Requests ofthis nature will be received by the Commissioner no later than twelve (12) business hours prior to the day ofthe scheduled execution.

12.1.3.3

All approved witnesses will be certified in writing by the Commissioner to the Warden of the Georgia Jlia8nostic and Classification Prison prior to the time ofthe scheduled execution, if possible. Prior to the time ofthe execution, the Warden shall confirm participation.

12.2 Witnesses: Request of the Condemned

Ifthe condemned person so desires, the following may be present at such execution: his/her counsel, relatives, clergymen and friends, (OCGA 17-10-41), pursuant to approval as outlined in 12.1.1. The condemned may update the names ofthose he/she desires to be present at the execution with the Commissioner's approval. These names shall be recorded in writing, witnessed and maintained by the Warden or designee.

12.2.1

Not later than twelve (12) hours prior to time ofexecution those witnesses requested by the condemned shall be contacted by the Warden or designee in the most expeditious and appropriate method ofcommunication to confirm the request and advise them ofthe time and date of the execution, assembly, orientation and escort procedures to the execution witness room.

12.3

Witnesses - Other

12.3.1

Those witnesses to the execution required by law shall be under the supervision ofthe Warden ofthe institution or designee and shall appear at the institution at a time and place as directed by the Warden.

12.3.2

Those witnesses requested by the condemned shall appear at the institution no later than two (2) hours prior to the execution for orientation and escort to the execution witness room (refer to Paragraph 12.2).

12.3.3

Those witnesses to the execution who are approved by the Commissioner ofthe Georgia Department ofCorrections shall appear at the institution no later than two (2) hours prior to the execution for orientation and escortto the execution witness room.
9

13.0 MEDIA INFORMATION AND PUBLIC INFORMATION OFFICE

13.1 News media representatives shall not be allowed to visit any inmate at the institution during the DeathWatch.

13.2 Briefings for news media representatives shall be conducted as appropriate during the Death Watch and immediately after the execution by the Public Information Officer or designee at a time and place designated by the Warden of the institution.

13.3 Broadcast reporters will be allowed to broadcast live from a pre-designated area on the grounds ofthe institution during the hours designated by the Warden on the day ofthe execution. A delay in the execution may require that these hours be adjusted accordingly.

14.0 VISITATION

The condemned shall be allowed contact visits the day prior to and the day ofthe execution with family, friends, private clergy and his legal representatives as approved by the Warden. Except as otherwise noted below, normal visitation policies will apply.

14. 0.1

Iflwssible, all visitors should be processed into the institution at one time and placed in the room provided. A maximum of five (5) visitors at a time shall be allowed in the institution at one time.

14.0.2

The condemned may eat an institutional meal while in the visiting room with his visitors. VISitors may purchase an institutional meal which may be consumed in the visitation area in the presence ofthe condemned.

14.0.3

Attomey(s) shall be allowed to visit the condemned upon approval of the Warden or designee.

15.0 VICfiM'S FAMILY/RELATIVES

A staff member will be designated to care for any ofthe victim's family who remain within the institution during the execution. A room shall be designated for this purpose.

16.0 TELEPHONE

Telephone _access shall be provided t<> the condemned, with the following limitations:

16.1 Telephone calls shall be in accordance to institutional rules and regulations prior to Death Watch.

10

16.2 At least one (1) fifteen (15) minute call per day dUring Death Watch, unless otherwise approved by the Warden; a phone will be provided to the condemned, unless otherwise restricted by the Warden.

16.3 All telephone calls shall be made collect, unless the Warden makes exceptions.

16.4 All telephone calls are to be made between the hours of8:00 a.m. and 6:00 p.m. unless otherwise approved by the Warden.

16.5 Incoming calls for the condemned will be referred to the Warden or designee for screening and approval. Such calls will be denied unless the purpose involves family and/or legal matters requiring the condemned's involvement
m. DAYOFEXECUTION

. 17.0 DAY OF EXECUTION

17.1 Within Three (3) Houn of Execution

17.1.1

A communications check will be performed.

17.1.1.1

Telephone- Telephone circuits and private lines between the Command Center (CP1), Execution Chamber (CP2), and the Front Gate (CP3) will be checked.

17.1.1.2

The Execution Chamber and Witness Room will be inspected as designated by the Warden.

17. 1.1.3

Radio - A radio check between the Command Center, Execution Chamber and Front Gate will be initiated.

17.2 Within Two (2) Houn ofExecution

17.2.1

Chemicals will be delivered to the H-5 Prep Room by the Deputy Warden of Security or Correctional Major.

17 .2.2

The N Team will perform a check ofall necessary equipment and instruments.

11

17 .2.3

Communications Check - The same procedure will be followed as at three (3) hours prior to the execution as specified in Paragraph 17.1.1.

17 .2.4

Execution Chamber and Witness Room - These areas will be inspected as directed by Warden.

17.2.5

The condemned will be prepared in accordance with prior responsibilities previously designated by Warden:

17.2.5.1

The condemned may visit with clergyman.

17.2.5.2

An opportunity for the condemned to make last statement will be provided. (Statement shall be recorded by designated staff.

17.2.5.3

A shower and clean clothing will be provided to the condemned.

17.2.6 17.2.7

A designated staffmember shall confirm the presence ofwitnesses required by law to attend the execution. Any final inStructions shall be issued by the Warden.
A designated staffmember shall confirm the presence ofthe witnesses designated and approved by the Commissioner. Instructions will be issued to the witnesses to assure an understanding oftheir conduct in the Wrtness Room and . while being escorted to and from the Witness Room. All witnesses are to have previously acknowledged, in writing, their understanding and agreement to abide by the rules, regulations and procedures ofthe Agency.

17.3 Within One (1) Hour of Execution

Within one hour ofthe time ofexecution, designated members (2) ofthe special escort team will commence the following:

17.3 .1

The IV Team will perform a check ofall necessary equipment and instruments.

17.3 .2

The designated staff member& will prepare lethal injection syringes.

17.3.3

Medical staff will perform a self-test on the heart monitor.

17.3. 4

The condemned is offered a mild sedative by a physician.

12

17.3.5 17.3.6
17.3.7 17.3.8
17.3.9 17.3.10 17.3.11 17.3.12
17.3.13 17.3.14 17.3.15

Special Escort Team members will ensure all straps are in place and functional on the execution gurney.

Communications Check.: The same procedures will be performed as at three (3) hours prior to the execution as specified in Paragraph 17.1.1. The telephone lines between the Command Center (CP1), the Execution Chamber (CP2) and the Front Gate (CP3) are to remain open thirty (30) minutes prior to execution
time.

Execution Chamber and Witness Room will be inspected as direCted by Warden.

Attendees and those required by law to attend executions·are to · be issued additional instructions and escorted to the EXecution Chamber and Execution Witness Room as appropriate. The
condemned's witnesses, media representatives and the State's witnesses shall be processed, instructed and transported
separately as referenced in this section.

The presence ofwitnesses requested by the condemned, those approved by the Commissioner, and approved media representatives will be coDfirmed.

The condemned is escorted to the lethal injection gurney by member(s) ofthe Special Escort Team, twenty (20) minutes prior to the time ofthe execution.

The Special Escort Team will attach restraints to arms, legs and body ofthe condemned.

The N team will provide two (2) intravenous accesses into the condemned. Ifthe veins are such that intravenous access cannot be provided, a physician will provide access by central venous cannulation or other medically approved alternative.

The heart monitor leads will be applied to the condemned by a

nurse from theN Team.

·

The witnesses will be escorted to the Execution Witness Room.

The Warden will introduce himself to witnesses and issue final instructions regarding the execution.

l3

17.3.16
17.3.17 17.3.18 17.3.19 17.3.20

The Warden will ask the condemned ifhe has anything to add to the final statement. Such additional statement will be limited to two (2) minutes. Statement shall be recorded by designated staff. A prayer is offered ifcondemned requests, which is limited to two (2) minutes.

The condemned is read the Execution Order ofthe Court.

Execution officials take their places.

The Attorney General advises the Commissioner as to whether or not to proceed. The Commissioner instructs the Warden as to whether or not to proceed.

The Warden orders that the execution begin.

17.3.20.1

The Injection Team will begin the injection process.

17.3.20.2

The first team member will inject two (2) syringes containing 1 gram each ofsodium pentothal (labeled #1 and #1a respectively), followed by one (1) syringe ofsaline (labeled #2), ensuring a steady, even flow ofthe chemical.

17.3.20.3

The second team member will inject one (1) syringe containing 50 milligrams of pancuronium bromide (labeled #3) followed by one (1) syringe of saline (labeled #4), ensuring a steady even flow ofthe chemical.

17.3.20.4

The third team member will inject one (1) syringe containing 120 milliequivalents of potassium chloride (labeled #5) followed by one (1) syringe ofsaline (labeled #6), ensuring a steady even flow ofthe chemical.

17.3.20.5

An IV nurse will monitor the progress ofthe injection in the Execution Chamber during the execution process to ensure proper delivery of <;hemicals and to monitor for any signs of consciousness.

14

17.3.21 17.3.22 17.3.23.
17.3.24 17.3.25
17.3.26

Ifthe IV nurse in the execution chamber observes a problem with intravenous flow, he/she will inform the attending physician, who will
inform the Warden as to whether or not
using alternative intravenous access is appropriate. The Warden will give the appropriate instructions to the Injection Team.

17.3.20.6

The designated physician will advise the Warden when the heart monitor shows no further heart activity. The Warden, and two physicians who will check the condemned to determine ifdeath has occurr~ will enter the Execution Chamber.

17.3.20.7

Ifcondemned shows residual life signs within a reasonable period after all injections have been completed, steps 17.3.20.1 through 17.3.20.4 wiJl be repeated upon order ofthe Warden.

The tact ofdeath is then announced to the witnesses by the Warden~ The curtains to the Execution Chamber are then closed.

The witnesses and media representatives are escorted from the Execution Witness Room. Media representatives will be immediately escorted from the prison to the press area.

The IV lines are detached by the IV Team, the straps are removed by the Special Escort Team, and the body is removed from the gurney. The body is placed in a body bag and placed on a stretcher provided by the State Crime Lab. The body is taken by van to the State Crime Lab for a postmortem examination.

Press release: The Public Information Officer for the Department ofCorrections will advise news media that Order ofthe Court has been carried out.

The Warden or designee and attending physicians prepare certificate ofexecution and certify .the tact of execution. The certificate is to be forwarded to the Clerk of Superior Court ofthe county in which sentence was pronounced. A copy is forwarded to the Commissioner.

The last statement ofthe condemned is forwarded to the Central Office, as appropriate.

15

17.3.27

Interment: The body may be released to the relatives at their
expense or should the nearest relative ofthe condemned so desire, the body will be carried to the fonner home ofthe person so executed, ifin the State ofGeorgia. The expense of such transportation to the former home shall be paid by the Ordinary, County Commissioners, or person(s) having the charge ofcounty funds in which the ~n was convicted. (OCGA 17-10-43).

17.3.27.1

Ifthe relatives do not claim the body ofthe
executed person, interment will be in
accordance with GDC Rule 125-2-4.20.

17.3.27.2

Staff participants will be seen by the Critical Incident Debriefing Team within seventy-two (72) hours ofeach execution or as soon as possible. ·

16

ANNEX I IV TEAM -INSTRUCTIONS SET UP PROCEDURE: 1. The Warden or designee will have two (2) intravenous infusion devices placed in veins of the condemned and a saline solution available for an infusion medium. Those persons , engaged in this activity will be referred to as the IV Team. 2. An IV administration set shall be inserted into the outlet ofthe bag ofNormal Saline IV solution. Two (2) IV bags will be set up in this manner. 3. The IV tubing shall be cleared of air and made ready for use. 4. The standard procedure for inserting IV Access will be used. 5. The IV tubing for both set-ups will be connected to the receiving port ofthe IV access. One for the primary vein, the other for the secondary vein.
a 6. At this point, the administration sets shall be running at slow rate offlow (KVO), and ready for the insertion ofsyringes containing the lethal agents. The Warden or his designee, shall maintain observation ofboth set-ups to ensure that the rate offlow is uninterrupted. NO FJJRTRER ACITON shall be taken until the prearranged signal to start the injection oflethal agents is given by the Warden or designee.
17

ANNEXU CROWD CONTROL ON,EXECUTION DAY 1. All visitors to the Georgia Diagnostic and Classification Prison on Execution Day shall be requested to state the.purpose oftheir visit upon entering the guardlines and to furnish appropriate identification prior to being allowed to enter. 2. Visitors to the prison grounds shall be directed to one ofthe following areas and given the appropriate colored arm bands: 2.1 Those Opposing The Death Penalty (Green Arm Band) 2.2 Those Supporting Death Penalty (Blue Arm Band) 3. Media representatives shall be directed to a specified area and given a yellow arm band. 4. Regular inmate visitation will be canceled. . 5. Departmental visitors shall be limited to staffthat have an official execution · function that specifically requires them to be present at the institution.
18

ANNEX ill
ACTIVITY WG- DEATH WATCH INMATE NAME:_-----------..:....- I.D. NUMBER...,..:------NOTE: ALL ENTRIES MUST INCLUDE THE DATE, TIME AND THE OFFICER'S SIGNATURE. ALL ENTRIES MUST BE LEGffiLE.
19

ANNEX IV
CONTROLLED CHEMICAL HANDLING PROCEDURES FOR EXECUTION BY LETHAL INJECTION
The following procedures will be utilized to obtain controlled chemicals, transport the chemicals to the Execution Chamber at the Georgia Diagnostic and Classification Prison (GDCP), dispose of and/or return unused chemicals to the GDCP Pharmacy.
1. The certificate issued by the Drug Enforcement Agency (DEA), United States Department ofJustice will be posted in the medical room ofthe GDCP Execution Chamber. A copy ofthe certificate will be kept on file at the GDCP Pharmacy.
2. All controlled materials, blank "Controlled Chemical Disposition Record" forms and a lockable transport case will be kept in the GDCP Pharmacy.
3. The designated key ring, located in the Tunnel Entrance Restricted Key Box, will be utilized to gain access to the chemical storage containers, transport case and the temporary chemical storage containers located in the Execution Chamber. Access to this key ring and the receipt and/or transportation ofchemicals is restricted to: Deputy Warden for Security; Correctional Major, and designated Pharmacist. In an emergency, the Warden ofGDCP may designate another official this duty.
4. On the day ofa scheduled execution, one ofthe authorized staff members will draw the proper keys, proceed to the pharmacy and procure the appropriate amount ofchemicals.
5. The appropriate amount ofchemicals to be issued is as follows: Sodium Pentothal- 6 packages each containing Igram ofchemical. Pancuronium Bromide- 15 vials each containing 10 milligrams. Potassium Chloride - 9 vials each containing 40 milliequivalents. Note: The Pancuronium Bromide is normally refrigerated. It may be left un-refrigerated for no more than 24 hours.
6. During the procedures outlined in step #4, the "Controlled Chemical Disposition Record" will be initiated at this time. The Pharmacy will keep a temporary copy upon issuance. The original will be kept with the chemicals in the transport case. The appropriate sections will be completed as needed.
7. Chemicals will be delivered to the Execution Chamber and locked in the chemical storage container. Pancuronium Bromide will be stored in the locked refrigerator.
8. Within one hour of the scheduled execution, the chemicals will be drawn into the 60cc
~yringes to be used by the injection team by a trained staff member supervised by a nurse.
20

9. Chemicals will be drawn up as follows:

Sodium Pentothal- 1g each- Syringe #1 and #1a. Pancuronium Bromide- 50mg - Syringe #3 Potassium Chloride- 120meq - Syringe #5 Saline Solution- 60cc each- Syringe #'s 2, 4 and 6.

10. A secondary set of seven syringes will be prepared in the manner as outlined above.

11. The remaining chemicals, along with seven empty 60cc syringes will be locked in the transport case and placed in the mechanical room in the event they are needed.

12, At the conclusion ofthe execution, the amount ofeach chemical injected into the condemned inmate is to be recorded on the Controlled Chemical Disposition Record form, along with the date, time, inmate name and number.

13. Any chemical loaded into a syringe that is not used will destroyed by flushing chemicals down the sink located in the medical room ofthe execution chamber. This must be -witnessed and the section completed and signed on the Controlled Chemical Disposition form.

14. Any unused chemicals will be retwned to the pharmacy via the transport case and the
remainder ofthe Controlled Chemical Disposition Record form will be completed.

15. The original Controlled Chemical Disposition Record form will be retained by the Pharmacy. A copy will be sent to the Warden's office for inclusion into the Execution file.

16. An inventory will be kept by the Ph8nnacy ofeach chemical used and returned. The Controlled Chemical Disposition form and the inventory logs will be kept in a red binder attached to the chemical storage container.

17. The attachments 1 through 4 will be completed and submitted as required.

Attachments:

(1) Controlled Chemical Disposition Form (2) Inventory Log for Sodium Pentothal (3) Inventory Log for Pancuronium Bromide (4) Inventory Log for Potassium Chloride

21

. '

CONTROLLED CHEMICAL DISPOSmON RECORD

(LETHAL INJECI'ION)

GEORGIA DEPARTMENT OF CORRECTIONS- GDCP

ANNEX IV- ATTACHMENT 1

CJIEMICALS DISPENSED BY GDCP PHARMACY

Name of Chemical- Amount

PENTOTIIAL

6GRAMS

PANCURONIUMBROMIDE

150MGM

POTASSWM CHLORIDE 360MEQ

Datel&wed

Lot#

Expiration

I# of Vials

ISSUED BY: (SIGN ANDPRINTNAME)

RECEIVED BY: (SIGN AND PRINT NAME)

DEPTILOCA110N

CHEMICALS ADMINISTERED BY INJECI'ION TEAM

DATE 'l'IME

INMATE NAMEIN1JMBER

CHEMICALS
P:ENTO'IHAL PAVVLON
POTASSIUM CBLORIDJ.

QTY

CHEMICALS DF.STROYED
CHEMICALS DESTROYED QTY
PENTOTIIAL PANCUR.ONIUM BROMIDE POTASSIUM CHLORIDE

I# OF SYRINGES DATE DESTROYED

DEPT/LOCATION

DESTROYED BY: (SIGN AND PRINT NAME)

WITNESSED BY: (SIGN AND PRINT NAME)

DEPT/LOCATION

CHEMICALS RETURNED TO GDCP PHARMACY

DATE RETURNED

CHEMICAL RETURNED

PENTOTIIAL
PANCURONIUMBROMIDE POTASSRJM CHLORIDE

QTY RETURNED

#OFVIALS

RETURNED BY: (SIGN AND PRINT NAME)

RECEIVED BY: (SIGN AND PRINT NAME)

DEPT/LOCATION

22

CONTROLLED CHEMICAL INVENTORY LOG

GEORGIA DEPARTMENT OF CORRECTIONS- GDCP

DATE

PACKAGE BEGINNING AMOUNT

DATE

SUBTOTAL

SIZE

INVENTORY DISPENSED DISPENSED

ANNEX IV- ATTACHMENT 2 CHEMICAL- SODIUM PENTOTHAL

AMOUNT

DATE

TOTAL INITIALS

RETURNED RETURNED INVENTORY

23

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 CM/ECF LIVE v3 - U.S. District Court - Docket Report

Page 1 of 4

0months, RGV, SLC7, SUBMDJ
U.S. District Court Northern District of Georgia (Atlanta) CIVIL DOCKET FOR CASE #: 1:07-cv-00896-BBM

Alderman v. Donald et al Assigned to: Judge Beverly B. Martin Cause: 42:1983 Prisoner Civil Rights
Plaintiff Jack E. Alderman

Date Filed: 04/20/2007 Jury Demand: None Nature of Suit: 550 Prisoner: Civil Rights Jurisdiction: Federal Question
represented by Elizabeth K. Quinn Clifford Chance LLP-NY 31 W. 52nd Street New York, NY 10019 212-878-3489 Email: elizabeth.quinn@cliffordchance.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
James M. Ringer Clifford Chance LLP-NY 31 W. 52nd Street New York, NY 10019 212-878-8340 Email: james.ringer@cliffordchance.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jason Richard Edgecombe King & Spalding 191 Peachtree Street, N.E. Atlanta, GA 30303-1763 404-572-4600 Email: jedgecombe@kslaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael A. Siem Clifford Chance LLP-NY 31 W. 52nd Street New York, NY 10019 404-572-3383 Email: michael.siem@cliffordchance.com

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Page 2 of 4

V. Defendant Jame E. Donald in his capacity as Commissioner of the Georgia Department of Corrections
Defendant Hilton Hall in his capacity as Warden, Georgia Diagnostic and Classification Prison
Defendant Does 1-50
Defendant Unknown Executioners in their capacities as employees and/or agents of the Georgia Department of Corrections

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas H. Dunn Georgia Resource Center 303 Elizabeth Street Atlanta, GA 30307 404-222-9202 LEAD ATTORNEY ATTORNEY TO BE NOTICED
William E. Hoffmann, Jr. King & Spalding, LLP-ATL 1180 Peachtree Street, NE Atlanta, GA 30309-3521 404-572-4600 Email: bhoffmann@kslaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Eddie Snelling, Jr. Office of State Attorney General 40 Capitol Square, S.W. Atlanta, GA 30334-1300 404-463-8850 Fax: 404-651-5304 Email: esnelling@law.ga.gov
represented by Eddie Snelling, Jr. (See above for address) ATTORNEY TO BE NOTICED

Date Filed 04/20/2007

#

Docket Text

1 COMPLAINT for Injunctive Relief and Declaratory Judgment filed by Jack E. Alderman. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit

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CM/ECF LIVE v3 - U.S. District Court - Docket Report

Page 3 of 4

04/20/2007 04/20/2007
04/20/2007
04/20/2007
04/24/2007 04/27/2007 04/27/2007 04/27/2007 04/27/2007 04/27/2007 05/09/2007 05/09/2007 05/10/2007 05/21/2007

C# 4 Exhibit D# 5 Exhibit E# 6 Exhibit F# 7 Exhibit G# 8 Exhibit H# 9 Civil Cover Sheet)(epm) Please visit our website at http://www.gand.uscourts.gov to obtain Pretrial Instructions. (Entered: 04/24/2007)
2 MOTION for Leave to Proceed In Forma Pauperis by Jack E. Alderman. (Attachments: # 1 Exhibit A)(epm) (Entered: 04/24/2007)
3 APPLICATION for the Admission of James M. Ringer Pro Hac Vice for Jack E. Alderman. Filing Fee received $150.00, Receipt #564071. (Attachments: # 1 Text of Proposed Order) (TO BBM)(aaq) (Entered: 04/25/2007)
4 APPLICATION for the Admission of Elizabeth K. Quinn Pro Hac Vice for Jack E. Alderman. Filing Fee received $150.00, Receipt #564071. (Attachments: # 1 Text of Proposed Order) (TO BBM)(aaq) (Entered: 04/25/2007)
5 APPLICATION for the Admission of Michael A. Siem Pro Hac Vice for Jack E. Alderman. Filing Fee received $150.00, Receipt #564071. (Attachments: # 1 Text of Proposed Order) (TO BBM)(aaq) Modified on 4/25/2007 to edit file date. (aaq). (Entered: 04/25/2007)
Submission of 2 MOTION for Leave to Proceed In Forma Pauperis, submitted to Magistrate Judge Russell G. Vineyard. (epm) (Entered: 04/24/2007)
6 ORDER approving the 4 Application for Admission Pro Hac Vice signed by Judge Beverly B. Martin on 04/27/07. (aaq) (Entered: 04/27/2007)
7 ORDER approving the 5 Application for Admission Pro Hac Vice signed by Judge Beverly B. Martin on 04/27/07. (aaq) (Entered: 04/27/2007)
8 ORDER approving the 3 Application for Admission Pro Hac Vice signed by Judge Beverly B. Martin on 04/27/07. (aaq) (Entered: 04/27/2007)
Filing fee received from plaintiff, $ 350.00, receipt number 564305. (aaq) (Entered: 04/30/2007)
9 Summons Issued as to Jame E. Donald and Hilton Hall. (aaq) (Entered: 04/30/2007)
10 Return of Service Executed by Jack E. Alderman. Jame E. Donald served on 4/30/2007, answer due 5/21/2007. (Edgecombe, Jason) (Entered: 05/09/2007)
11 Return of Service Executed by Jack E. Alderman. Hilton Hall served on 4/30/2007, answer due 5/21/2007. (Edgecombe, Jason) (Entered: 05/09/2007)
12 ORDER DENYING as Moot 2 Motion for Leave to Proceed in forma pauperis. Signed by Judge Russell G. Vineyard on 5/10/2007. (cdg) (Entered: 05/15/2007)
13 MOTION to Dismiss with Brief In Support by Jame E. Donald, Hilton

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05/22/2007 05/30/2007 05/31/2007 06/04/2007 06/07/2007 06/08/2007 06/08/2007 06/13/2007
06/13/2007 06/15/2007

Hall. (Attachments: # 1 Brief in Support of Their Pre-Answer Motion to Dismiss# 2 Exhibit A-Affidavit of John T Harper)(Snelling, Eddie) (Entered: 05/21/2007)
14 NOTICE OF FILING Service of Discovery by Jack E. Alderman. (Edgecombe, Jason) Modified on 5/23/2007 to edit event. (aaq). (Entered: 05/22/2007)
15 PRELIMINARY REPORT AND DISCOVERY PLAN filed by Jack E. Alderman. (Edgecombe, Jason) (Entered: 05/30/2007)
16 RESPONSE in Opposition re 13 MOTION to Dismiss filed by Jack E. Alderman. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D)(Edgecombe, Jason) (Entered: 05/31/2007)
17 Initial Disclosures by Jack E. Alderman.(Siem, Michael) (Entered: 06/04/2007)
Submission of the 13 MOTION to Dismiss to District Judge Beverly B. Martin. (aaq) (Entered: 06/07/2007)
18 REPLY to Response to Motion re 13 MOTION to Dismiss filed by Jame E. Donald, Hilton Hall, Does 1-50, Unknown Executioners. (Snelling, Eddie) (Entered: 06/08/2007)
19 MOTION for Oral Argument re 16 Response in Opposition to Motion, 13 MOTION to Dismiss, 18 Reply to Response to Motion by Jack E. Alderman. (Edgecombe, Jason) (Entered: 06/08/2007)
20 RESPONSE re 19 MOTION for Oral Argument re 16 Response in Opposition to Motion, 13 MOTION to Dismiss, 18 Reply to Response to Motion filed by Jame E. Donald, Hilton Hall, Does 1-50, Unknown Executioners. (Snelling, Eddie) (Entered: 06/13/2007)
21 NOTICE Of Filing Correspondence to Court by Jack E. Alderman (Attachments: # 1 Letter to Court# 2 Exhibit Ex. A# 3 Exhibit Ex. B) (Edgecombe, Jason) (Entered: 06/13/2007)
22 RESPONSE re 21 Notice of Filing filed by Jame E. Donald, Hilton Hall, Does 1-50, Unknown Executioners. (Attachments: # 1 Lethal Injection Procedure)(Snelling, Eddie) (Entered: 06/15/2007)

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 I F H

CLIFFORD CHANCE US LLP
31 WEST 52ND STREET NEW YORK NY 10019 6131
TEL +1 2128788000 FAX +1 2128788375 www.cliffordchance.com

Michael Siem Associate
DIRECT TEL +12128788044 michael. siem@cliffordchance.com

June 13,2007
The Honorable Beverly B. Martin United States District Court for the Northern District of Georgia U.S. Courthouse 75 Spring Street SW 23rd Floor Atlanta, GA 30303-3309
Re: Alderman v. Donald, et al., 1:07 CV 0896
Dear Honorable Judge Martin:
The instant action was filed on April 25, 2007. D.l. 1. In lieu of an answer, Defendants filed Defendant's Pre-Answer Motion to Dismiss on May 21, 2007, alleging, inter alia, that Mr. Aldennan had failed to exhaust his administrative remedies under 42 U.S.C. § 1997e(a) of the Prison Litigation Refonn Act (PLRA). D.I. 13. Plaintiff responded on May 31,2007. D.I. 16. Defendants filed their Reply on June 8, 2007. D.I. 18. Based on Defendants' pending motion, they have refused to provide any discovery to Mr. Aldennan until the Court makes a detennination on their Motion, thus further delaying this litigation. I
As outlined previously, the exhaustion requirement is intended to give jail and prison authorities an opportunity to address grievable issues, which they have clearly had, before they become federal lawsuits. See Porter v. Nussle, 534 U.S. 516, 524-25 (2002). However, while the exhaustion requirement serves legitimate purposes, it is not intended to give authorities the

While Defendants have continually delayed this litigation, they have worked diligently in regard to Mr. Alderman's petition for certiorari, filing their opposition one week prior to it's due date. These actions show that the Defendants have no intention of aUowing Mr. Alderman's claim to proceed prior to his execution by unconstitutional means.
NYA 845107.1

elF F 0

D

C HAN C E

The;! ~Iommlhla B\!v(;!rly B. Mqrtin June 13,2007

CLiffORD CHANCE ua LL~

opportunity to create insurmountable obstacles to lawsuits that may be essential to protect constitutional and other legal rights. See Woodford v. Ngo, 126 S. Ct. 2378, 2385 (2006).
It was learned by Plaintiff today, through an article in the Atlanta Journal Constitution (Exh. A), that Defendants had recently "finished reworking [their] execution procedures last week" without alerting Mr. Alderman or the Court. See June 13, 2007 from M. Siem to E. Snelling (Exh. B). Based on these changes, it suggests that Defendants have made a final determination on Mr. Alderman's appeal from his formal grievance, yet are withholding a response for the full 90 days they are allegedly entitled to, merely to further delay this litigation. While it continues to be Mr. Alderman's position that this issue is non-grievable, even if grievable, these actions by the Defendants show that Mr. Alderman's grievance has run its course, thereby fully exhausting any available administrative remedy under 42 U.S.C. § 1997e(a) of the PLRA. Therefore, the Defendants' final determination on his appeal from the formal grievance render Defendant's Pre-Answer Motion to Dismiss moot. See Irwin v. Hawk, 40 F.3d 347, 349 n.2 (lIth Cir. 1994); Moore v. C02 Smith, 18 F. Supp. 2d 1360, 1363 (N.D. Ga. 1998). Additionally, as the Defendants' actions further support a showing that they are using the exhaustion requirement to delay this litigation, this Court should deny Defendant's PreAnswer Motion to Dismiss. Woodford, 126 S. Ct. at 2385 (2006).
Based on the foregoing, Mr. Alderman asks this Court to order discovery to begin immediately so that Mr. Alderman may obtain a determination on his Complaint prior to the Defendants execute him by unconstitutional means.
Sincerely,
/I~) L----
Michael A. Siem

NYA845!07.!

eLI F

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